DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2007-076
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FINAL DECISION
This proceeding was conducted according to the provisions of section 1552 of title 10 and
section 425 of title 14 of the United States Code. The Chair docketed the case on January 29,
2007, upon receipt of the completed application, and assigned it to staff member J. Andrews to
prepare the decision for the Board as required by 33 C.F.R. § 52.61(c).
This final decision, dated September 20, 2007, is approved and signed by the three duly
appointed members who were designated to serve as the Board in this case.
APPLICANT’S REQUEST AND ALLEGATIONS
The applicant, who was discharged on September 8, 2004, after more than ten years of
service, under other than honorable (OTH) conditions, asked the Board to
remove from his record any documentation of “alleged illegal discrimination” by
correct his DD 214 to show that his rate on separation was BM1/E-6, rather than
upgrade the character of his discharge from OTH to honorable;
correct the narrative reason for separation on his DD 214 from “triable by court-
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him and of his non-judicial punishment (NJP or mast) dated January 14, 2004;
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BM2/E-5;
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martial” to “hardship”;
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waiver); and
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Award and a Global War on Terrorism Medal.
The applicant alleged that in November 2003, while he was serving on a cutter, a female
subordinate in his department, SN C, falsely accused him of sexually harassing her. Regarding
his conduct, the applicant stated that he was sorry and that his “biggest mistake here was letting a
relationship with a member of [his] department go too far.” He stated that he “thought [he] had
addressed the issue appropriately” after “realizing the relationship had turned inappropriate,” but
that he would not apologize for telling SN C that he loved his wife and family. He stated that he
upgrade his reenlistment code from RE-4 (ineligible) to RE-3 (eligible with a
correct his DD 214 to reflect entitlement to a Meritorious Unit Commendation
“had no control over what her reaction was to that decision by her making up a sexual harass-
ment claim” and that his “relationship with SN [C] had gotten out of hand until it was too late.”
Within hours of her accusations, however, he was placed on report for two violations of
the Uniform Code of Military Justice (UCMJ) and ordered to stay away from the cutter. Since he
was preparing to transfer and the cutter “was wrapping up a three-month yard period,” he went
on leave until he was taken to mast. A week later, a preliminary investigating officer (PIO) asked
him to provide a written statement about the charges. The applicant told the PIO that he had no
idea what the complaint was about, so he did not initially submit a statement.
In January 2004, the applicant alleged, he reviewed the evidence gathered by the PIO
before his mast and “was appalled to discover that most of [SN C’s] accusations involved con-
versations that were purposely taken out of context or complete fabrications.” Moreover, of the
five statements provided by other shipmates, two were based on hearsay, a third was completely
irrelevant to the charges, the fourth described how SN C had accused two other senior crewmem-
bers of harassment during her four months on board, and the fifth “provided no additional infor-
mation.” The applicant also argued that the mast should be removed from his record because
some of SN C’s evidence came from a Ouija board, which is a child’s game.
The applicant stated that before his mast, he complained to the XO that the PIO had not
followed the instructions for investigating sexual harassment complaints provided in the Equal
Opportunity Program Manual, COMDTINST M5350.4 (series). The XO told him that those
regulations were optional even though they are not. The applicant argued that the mast should be
removed from his record because the command failed to follow the regulations in this manual.
The applicant stated that at the start of his mast, he was prepared to ask more than one
hundred questions of SN C and the crewmates who had provided statements to the PIO. How-
ever, the Group commanding officer (CO) unjustly prevented him from asking many of the ques-
tions he had prepared because they were said to be irrelevant. He immediately appealed the mast
to the District Commander, but his appeal was denied.
In February 2004, the applicant alleged, Coast Guard Investigative Services (CGIS)
began investigating SN C’s false accusations against him based on new information they
received. He told the CGIS agents that SN C had told him that she loved him, that he had replied
that he loved his wife and kids, and that within a week she accused him of sexual harassment. A
few days after he spoke to the investigators, the Group XO told him that new charges might be
filed against him and referred to a court-martial.
In late February 2004, the applicant alleged, his father had a heart attack, underwent
quadruple bypass heart surgery, and was diagnosed with lung disease. Therefore, he took emer-
gency leave, and when he returned he asked the officer in charge (OIC) of his cutter about get-
ting a humanitarian transfer (HUMS). The OIC agreed to help him get the transfer, and the per-
son who handled HUMS requests at Office of Enlisted Personnel Management (EPM) later told
him that such requests are usually approved.
The applicant alleged that when he submitted his HUMS request in April 2004, the Group
XO told him that SN C had done something that had caused the command to question her claims
but that there was no additional evidence to support either her story or the applicant’s. The appli-
cant later learned from someone else that SN C had sent the Group CO an email alleging that
poor leadership was leading to sexual harassment within the command.
In May 2004, the applicant alleged, his sister advised him that his mother’s health was
starting to fail. When he called EPM to discover the status of his HUMS request, he learned that
it had never been forwarded by the Group. The applicant alleged that he was being punished for
telling the truth to the CGIS agents even though their investigation had ended long before and he
had not been charged with anything new. Therefore, on June 4, 2004, he filed a complaint
against his command under Article 138 of the UCMJ. On June 15, 2004, he was informed that
new charges had been preferred against him as a result of his behavior toward SN C and would
be referred to a court-martial. The applicant argued that the new charges must be considered
retaliation for his Article 138 complaint because of the timing and because the investigation into
his alleged misconduct could not have taken so long to complete.
On June 18, 2004, the Group CO denied his request for redress and so on June 23, 2004,
he submitted his formal complaint under Article 138. He alleged that his request for redress was
denied not because the Group CO believed the charges against the applicant but because more
than 90 days had passed since the applicant’s mast. He alleged that his mast should have been
thrown out because the report of the CGIS agents had recommended that SN C be charged with
making false official statements.
In early July 2004, the applicant was informed that his HUMS request had been denied.
In addition, the OIC told him that because his crewmates were talking about his Article 138 com-
plaint, the applicant would be transferred from the cutter to the Group. At the Group, he was
given menial tasks, such as weeding the flower bed.
In mid July 2004, the applicant alleged, he requested reinstatement of his E-6 pay grade
upon the expiration of the six-month suspension of his mast sentence. Although the OIC sup-
ported his request, the Group CO denied it because of false allegations of continuing misconduct.
Therefore, the applicant argued, his record should be corrected to show that he was re-advanced
to and discharged as an E-6.
On August 8, 2004, the applicant alleged, his appointed counsel notified him that the
Coast Guard was offering to let him separate in lieu of being tried by court-martial. The appli-
cant initially refused but then agreed to take a few days to consider and research the option. On
August 9, 2004, the Group command asked him if he was going to request separation. He told
his attorney that he felt like he was being rushed to make a decision and that the command knew
he would agree to separation because in his HUMS request, he had stated that if he did not get a
humanitarian transfer he would likely seek a humanitarian discharge.
The applicant stated that he asked the executive officer of the cutter whether he should
stand trial and was told that there was no way that he would get a fair trial because “too many
senior members had been involved” and because everyone knew about his Article 138 complaint.
Therefore, and in light of his parents’ poor health, he decided to request separation under honor-
able conditions and told his attorney that he would not accept anything lower than a general dis-
charge under honorable conditions. He also told his attorney that one of the main reasons he was
requesting separation was his parents’ poor health. The applicant alleged that he never voluntar-
ily requested an OTH discharge and that he refused to accept an OTH discharge.
The applicant also alleged that he never admitted to any misconduct, which is a prerequi-
site to a request for an OTH discharge. He argued that because he never admitted to any miscon-
duct and was never found guilty of any misconduct, the District Commander must have based his
recommendation on “less than factual information.” He also alleged that because the District
Commander recommended his separation based on “sustained” misconduct, he should have been
processed for separation under Article 12.B.18. of the Personnel Manual and should have been
entitled to an Administrative Separation Board.
The applicant also questioned how an OTH discharge could be appropriate, given his
more than ten years of good service, when he was never found guilty of any crime or miscon-
duct. He stated that he is only human and he makes mistakes, but he worked hard to get where
he was in the Coast Guard, and it was not right for the CO to “nit-pick [him] to death with
charges.” He offered to take a polygraph test if the Board doubts a single word of his statement.
The applicant stated that on his last day in the Coast Guard, September 8, 2004, he asked
his attorney if the attorney thought that he deserved an OTH discharge. His attorney told him
that the only reason that the new charges had been filed and referred to a court-martial was that
the applicant had filed an Article 138 complaint against the Group CO. The Group XO told him
that his DD 214 was not yet ready and asked him to stay at the office until it was ready. The
applicant, however, did not want to wait for the DD 214 to be prepared because he needed to get
to his mother’s house. The XO told him that the DD 214 would be mailed to him but then did
not mail the DD 214 to him for three months.
On September 17, 2004, the applicant stated, his mother died. He complained that the
Coast Guard’s unjust denial of his HUMS request prevented him from being near her during her
last months. Soon after her funeral, he was notified that on September 8, 2004, the District Com-
mander had denied his formal request for redress under Article 138.
Regarding his requests for awards, the applicant submitted a copy of a citation dated
March 21, 2005, which shows that the District Commander awarded a meritorious unit commen-
dation to the crew of the applicant’s cutter for their service from September 2002 through May
2004. He also submitted a copy of ALCOAST 274/05, which states that the Commandant
awarded the Global War on Terrorism Service Medal to Coast Guard members who served at
least 30 consecutive days on active duty between September 11, 2001, and January 30, 2005.
The applicant stated that after he and his father-in-law filed suit against the Coast Guard
for harassment, civil rights violations, and unlawful appropriation of property, the Coast Guard
settled the case by paying all damages. The applicant argued that the Coast Guard’s settlement
of his suit, failure to move to strike anything in the complaint, and failure to move to dismiss the
case proves that the Coast Guard “agreed to accept the complaint on the grounds in which it was
filed with the understanding that I requested separation due to my mother’s illness.” The appli-
cant argued that his excellent job performance aboard the cutter and his continuing public service
as the “Deputy Manager/Program Manager for the Office of Emergency Management in Mont-
gomery County, MD” should be considered evidence that refutes the allegations against him.
SUMMARY OF THE RECORD
The applicant enlisted in the Coast Guard on December 7, 1993, as an E-1. He advanced
to E-2 in 1994 and to E-3 in 1995. In 1996, he advanced to E-4 and became a BM3. In 1999, he
advanced to BM2/E-5 and in 2001, he advanced to BM1/E-6. The applicant received several
medals and commendations over the course of his military career, including three Good Conduct
Medals. He also earned many qualifications and certifications for a variety of skills.
In the summer of 2002, the applicant began serving as the Deck Department Head and
Master at Arms of a cutter. On April 10, 2003, he received the Group CO’s recommendation for
assignment as the OIC of an afloat or ashore multi-mission unit. From September through
November 2003, the cutter underwent refurbishing at a yard in Virginia that was several hundred
miles from its home port. The crew was housed in a local hotel.
On November 23, 2003, the Command Enlisted Advisor (CEA) placed the applicant on
report after SN C, a female subordinate of the applicant in the Deck Department, told him that
the applicant was harassing her. SN C had been assigned to the cutter for less than six months
and it was her first unit following boot camp. On the Report of Offense, the CEA charged the
applicant with violating Article 92 of the UCMJ “by making unwelcome sexual advances
negatively affecting subordinate job performance and creating an intimidating, hostile working
environment” and Article 134 by making “unwelcome sexual advances towards a subordinate
contrary to the maintenance of good order and discipline aboard [the cutter].” He listed SN C
and EM1 H as witnesses. The Group CO initiated an investigation into the allegations.
On November 25, 2003, the applicant was issued a military protective order that barred
him from contacting SN C and from boarding the cutter without the prior permission of the cap-
tain or his delegee. The order was to remain in effect until February 1, 2004, unless sooner can-
celed. The applicant thereafter went on annual leave until the date of his mast.
On December 15, 2003, the XO of the cutter sent the applicant an email notifying him
that by boarding the cutter that morning without providing prior notice to anyone, the applicant
had violated the November 25, 2003, protective order, which required him to receive the permis-
sion of the OIC or his delegee before boarding the cutter.
Report of Investigation into Allegations of Sexual Harassment
On December 24, 2003, the PIO issued a report on his preliminary investigation into the
allegations against the applicant. The report indicates that the CEA had seen on SN C’s cell
phone log that the applicant had made ten calls to her personal cell phone in one day without
leaving a message, and after another first class petty officer, EM1 H, stated that he had twice told
the applicant to leave SN C alone. The PIO also noted that two other petty officers had
approached the CEA about incidents between the applicant and SN C. He opined that SN C had
been the subject of the applicant’s “’unwanted sexual attention’ to the point where it not only
affected [her] but also the morale of the entire cutter,” in violation of Articles 92 and 134 of the
UCMJ. The PIO based this opinion upon the applicant’s numerous telephone calls to SN C; his
denying her—and her alone—permission to leave the hotel one night; SN C’s request to EM1 H
that he get the applicant to leave her alone; the applicant’s inappropriate touching of SN C’s hair;
SN C’s distraught appearance after a car ride alone with the applicant that took much longer than
it should have; and crewmembers’ reports of the applicant’s excessive attention to SN C. The
PIO recommended that the charges be disposed of at NJP.
The PIO stated that he had interviewed the applicant, SN C, eight other members, and SN
C’s boyfriend, who was a second class petty officer in the Navy. The report indicates that the
PIO told the applicant whom he had interviewed and asked the applicant if there was anyone else
who should be interviewed, and that the applicant had denied that anyone else should be inter-
viewed for the investigation.
Written Statement by SN C to the PIO
On September 13, 2003, after EM1 H asked the applicant to escort her back to her hotel
room because she had drunk a lot of alcohol that night, the applicant put his arm around her, told
her he had been wanting to kiss her for a long time, and then tried to kiss her when they reached
her hotel room door.
On September 15, 2003, the applicant took her with him on a trip to the ISC and told her
that he “had wanted to get together with [her] for a long time” and that no one would ever know
if they began a relationship. After a short silence, she reminded him of his wife and children. He
continued to make advances throughout the day. He would brush by her and grab her shoulders
and once, when she was lying on a couch in the office, told her that he wished he was lying with
her. SN C also stated that she began complaining about the applicant’s behavior to her mother
and sister, who was also a member of the Coast Guard, at about this time. In addition, the appli-
cant began calling her on her personal cell phone to ask her when she was going to dinner, to the
gym, or out to drink. He got her number by handing her a “recall” list, explaining that he might
need to reach everyone in an emergency, but she later learned that he had not asked the other
members of the Deck Department for their personal cell phone numbers.
On September 16, 2003, while sitting behind her in the van, the applicant complimented
the softness of her hair and “continued to run his fingers through my hair.”
On Friday night, October 3, 2003, while at a bar with other members, the applicant asked
her why she would not dance with him. When she danced with an old friend from her hometown
[who became her boyfriend], he stared at them and looked mad. When the applicant approached
her while they were dancing and told her he was leaving the bar, he got mad when she refused to
leave with him. After he left, she asked EM1 H to ask the applicant to leave her alone.
On Saturday, October 4, 2003, the applicant called her on her cell phone “about 15 times,
sometimes within less than 10 minutes of each other. His calls all showed up as missed calls”
rather than voicemail messages.
On Sunday morning, October 5, 2003, the applicant knocked on her hotel room door at
about 8:30 a.m., when she was still in bed. When another member opened the door next to hers,
the applicant yelled, “I’m sick of her not answering her door.” Then he telephoned her room and
told her to answer her door when he knocked. When she asked what he wanted, he asked her
what she was planning to do that day. Later, a crewmate told her that the applicant had knocked
on her door again when she was away doing laundry and got mad when she did not answer the
door. After she returned to the room, he called her, asked her why she refused to answer her door
or phone, and told her “there would be problems if it happened again. When I asked what he
needed, he said he just wanted to know if [another crewmember] was back from leave.”
The next day, the applicant asked her “what was going on” with the friend she had met
Friday night and asked her “where [she] was all weekend.” The applicant got mad and told her
that her friend was not allowed to stay in her hotel room “and kept going on and on about it.” He
asked her how her relationship with her friend could work since she was not staying in Virginia
for long. She told the applicant that she was “starting to feel uncomfortable with him calling
[her] all the time [and] getting mad at [her].”
Later that week, the applicant called her, told her he had seen her with her boyfriend near
the ferry that day, and told her never to walk by him again without saying hello. EM1 H and
another crewmate later told her that they had been with the applicant near the ferry and that he
was very angry about it. Afterward, the applicant told her that he had sat on a bench by the ferry
and waited until the last one left because he wanted to talk to her about the incident and that he
did not confront her when she got off the ferry with her friend.
On October 8, 2003, her roommate, another seaman, woke her and told her that the appli-
cant wanted her “to get off [her] ass and come drink with him” and another crewmember. She
went to see her boyfriend instead, however, and another crewmember later told her that “the
whole night [the applicant] kept asking where I was, … kept asking [her roommate] why she was
with [her boyfriend], [and] seemed almost angry.” The applicant called her at 10:00 p.m. that
evening and left a message to return his call, which she did not do. Early the next morning,
before he went home on leave, he knocked on her door and got mad when her roommate told
him that she was not there. Her roommate told her that if she did not report the applicant’s
behavior, her roommate would, so SN C told EM1 H that the applicant was “starting to scare”
her and asked him to talk to the applicant again.
On October 9, 2003, SN C spoke to the CEA about some of the applicant’s behavior, but
told him that EM1 H would talk to the applicant and that she did not want to cause any problems
for her shipmates or the applicant’s family.
On October 13, 2003, when the applicant got back from leave, he pulled her aside and
asked her why she had spoken to the CEA. He told her “that if [she] started anything, it would
only be bad for [her].” A few days later, when completing a self-evaluation, the applicant told
her he would not give her a very high score because she had spoken to the CEA about him. He
also asked her why she was with her boyfriend and what she saw in him. When she refused to
talk about her personal life, he “stormed out of the office.”
On October 17, 2003, the applicant got mad at her when she refused to go to a theme park
with him and some other crewmembers. When she still refused to go, he told her that he would
wait to go when she was going. Later, he told her that her orders to attend Navigational School
would probably be canceled and remarked to her several times that it “was funny that [she]
wanted to go [to the school at] the same time [her boyfriend] was going underway.” Later, SN C
told the applicant that she did not want her personal life “brought to work everyday” and that she
wanted to go to Navigational School to get qualified as a quartermaster of the watch. In
response, the applicant “asked when [she] was going to tell him that [her boyfriend] was going
underway at the same time [and] how convenient it was. He also said someone told him about
[her boyfriend] being gone at the same time [and] that he didn’t like being lied to.”
On November 20, 2003, after completing four weeks of Navigational School, SN C
called the office to report that she would be returning the next day and that her boyfriend would
pick her up from the airport since the Government van was in use. The applicant replied, “Never
mind that, I’ll find a way to pick you up myself.” The next day, she called the applicant to tell
him that she did not need a ride from the airport since her boyfriend was picking her up. He told
her that since her hotel room was no longer available, she would have to stay on the cutter. She
told him she would stay with her boyfriend instead, and the applicant told her that she was not
allowed to stay there.
On November 23, 2003, SN C stated, the applicant took her with him in a small boat to
pick up some supplies and
when we took off he straddled himself behind me and sat really close. He then put his arm
between my legs while brushing them [and] started wiping the gauges which could be seen clearly
before. We discussed my financial situation [and] then he told me to drive slower. He said, “You
know I didn’t bring you out here just to talk about your financial situation.” I asked him what he
wanted [and] he said he’d tell me but I probably wouldn’t care anyway.” After sitting in silence, I
became uncomfortable so I told him he should drive. When I sat on the side, he said, “You can sit
behind me.” He told me [her prior roommate] came to him and asked why he treated me differ-
ently than everyone else. And he said, “I just told [her] that it was because I was in love with
you.” He then said, “Just kidding. I didn’t tell her that.” During the ride back, he asked why I
was with [my boyfriend and] said he knew I was trying to get transferred to Virginia, but not to
even think about seeing him until September because I would be on the [cutter] that long. He also
asked how things were going to work out.
SN C stated that the next day she arranged to switch duty with someone else because she
did not want to be alone again with the applicant, but the applicant found out and refused to let
the other person switch duty with her.
SN C stated that the applicant “always commented on how good I looked in skirts” and
once told her roommate that he had a “thing for petite blonds” (like her). She also stated that two
crewmates once told her that, while playing with a Ouija board with them, the applicant had
“asked the Ouija board if anything happened between him [and] I [and] it said yes.”
Written Statement of the Applicant for the PIO
The applicant provided the PIO with a statement denying that he had “offered unwelcome
sexual advances” or sexually harassed anyone. He stated that he was not aware of the details of
SN C’s complaint but that on October 17, 2003, while he was home on leave, EM1 H had called
him and told him that SN C had not appreciated his repeated phone calls the prior weekend,
which he had made because “the crew was expecting the three of us to set up a trip to Busch Gar-
dens that weekend.” When he got back from leave, two of his subordinates mentioned to him
that SN C was complaining about how he treated her and how he had called her repeatedly. They
also told him that she had complained about him to the CEA and they were “extremely upset and
stated they knew the things she was saying were ‘not true.’” They also told him that she had
made similar claims about another petty officer and that “they could not understand why she
would make up lies about us.” When he asked SN C about her complaints, she told him that she
was “‘really unhappy with the CG and the ship right now’ and broke down into tears.” She
denied that her unhappiness was related to anything he or someone else had done. She stated
that she did not like another petty officer “constantly trying out Law Enforcement techniques on
her” and that she had not like it when he called her repeatedly when she was with her boyfriend.
He told her that he had not known that she was with her boyfriend, that he was calling her about
the trip to Busch Gardens, and that she should have told him she did not want to participate if she
had other plans. He “ended the discussion with telling her that [he would] not call her anymore
unless it was absolutely necessary for work related issues, and that [he] apologized for the
misunderstanding.”
The applicant further stated that he thought SN C “needed a change of pace,” so when he
saw a solicitation for Navigational School and realized she “would benefit most” among the non-
rates, he asked her if she wanted to attend and arranged the orders when she agreed to go. The
applicant stated that while at Navigational School, SN C called him five times about work-
related matters and switching her return flight, and that she would not have done so if she felt
sexually harassed by him. The applicant attributed SN C’s complaints to misunderstandings and
to her being “under a lot of stress during an extremely hectic yard period and the added stress of
leaving someone she met and formed a strong relationship with in [Virginia].”
Other Witnesses’ Statements in the PIO’s Report
• The Command Enlisted Advisor stated that on October 18, 2003, SN C sought his advice
but asked him to promise only to advise her and not to take action. She told him that she was not
comfortable working for the applicant. SN C told him that the applicant arranged the Deck
Department’s schedule so that he and she worked alone together frequently and, when they were
alone, would make inappropriate comments to her, such as telling her that she could not see her
boyfriend because he was not allowed at the hotel and she could not stay anywhere but the hotel.
In addition, SN C showed the CEA her cell phone, and he saw that the applicant had called her at
least ten times “on a Sunday during the day and late into the night,” though there was no reason
the applicant could not have waited until Monday morning. SN C told him that the applicant
wanted a personal relationship with her even though she had told him she was not interested and
that he had continued his behavior even after she asked EM1 H to tell him to leave her alone. On
November 23, 2003, the CEA stated, he noticed that SN C “looked very upset and agitated”
when she returned from a trip in the small boat with the applicant. Later, EM1 H told him that
SN C was afraid of the applicant, so he arranged for her to switch duty with another seaman.
The applicant became “very agitated” when he learned of the switch. SN C later told him that
she was scared because her sister had been hospitalized after being physically beaten by a mem-
ber she had accused of harassment.
• EM1 H stated that on October 3, 2003, SN C asked him to talk to the applicant “about
some of his actions toward her” but she did not provide much detail. EM1 H spoke to the appli-
cant in a “peer-to-peer manner” and “asked him what he was doing [with SN C] and he said it
was nothing.” On October 18, 2003, SN C called him and told him that “she had received multi-
ple unwanted phone calls” from the applicant, who made her feel “very uncomfortable” and
asked him to speak to the applicant again. So, EM1 H asked the applicant “what good could
come from anything with [SN C] that was inappropriate” and told him to stop calling her. How-
ever, the applicant stated that he was her supervisor so she would have to accept his phone calls.
The applicant then said he did not want SN C to think that he was stalking her. EM1 H stated
that on another occasion the applicant became extremely agitated when SN C was dancing with a
man in a bar and, when questioned, said he was worried that the man would take advantage of
SN C. When they ran into SN C and her friend near the ferry the next day, the applicant
“became very agitated again and instantly started making phone calls.”
• GM1 S stated that one evening SN C asked him and a BM2 if she was allowed to spend
the night at her boyfriend’s house and they told her she could stay where she pleased during her
time off as long as she came to work on time the next morning. However, SN C said that the
applicant had told her she could not stay with her boyfriend. After SN C left, BM2 K asked him
if he thought “anything was going on.” GM1 S thought it was odd that the applicant did not stop
another crewmember from staying over at women’s houses and even joked about how that sea-
man “gets the girls.” GM1 S also stated that he thought it was odd that when SN C landed at the
airport after traveling all day back from Navigational School, the applicant picked her up and
brought her to the office to work for a couple of hours. On November 23, 2003, GM1 S heard
SN P complaining that she never got a break because the applicant always took SN C with him
on trips in the small boat. When GM1 S suggested to the applicant that he take SN P instead of
SN C, the applicant stated that he had to take SN C because “the Captain wants me to talk to her
about something.” Since GM1 S needed to go to the same place, he said he would go with them,
but the applicant told him to take another vehicle. After the applicant and SN C returned, BM2
K told him that SN C was upset, so they approached her, but she refused to talk about it. When
they told her she should talk to the CEA, SN C began to cry and said she did not feel comfortable
with the applicant but would not discuss the problem further and did not want to report the prob-
lem. Therefore, GM1 S and BM2 K decided to have EM1 H switch SN C’s duty that night since
he was the watch coordinator, and EM1 H reported the problem to the chief. In addition, the XO
later told GM1 S that the captain had not told the applicant to bring SN C with him. GM1 S
stated that he did not know if the applicant was harassing SN C but that there were a lot of
rumors about his behavior toward her. He also noted that the applicant had lied to him about the
captain wanting SN C to take the small boat ride but that he had never known SN C to be
untruthful.
• BM2 K, who was SN C’s direct supervisor, stated that he saw the applicant become irrita-
ble and angry when SN C began “hanging out” with a man at a bar one night. The applicant
“expressed displeasure” when SN C refused to leave with the applicant and told BM2 during
their cab ride back to the hotel that he was “pretty pissed off actually.” BM2 K stated that on the
day SN C returned from Navigational School, he asked the applicant who should pick her up at
the airport, and the applicant said he would do it himself, which was strange since the applicant
was a BM1 and SN C was a non-rate. That night, SN C knocked on his hotel room door and
asked him and GM1 S “if she had to stay in her room or would it be a problem if she stayed at
her boyfriend’s house.” They told her that what she did in her off time was none of their busi-
ness as long as she showed up to work on time. SN C told them that the applicant did not want
her to stay with her boyfriend. BM2 K stated that on November 23, 2003, when he was prepar-
ing to retrieve the small boat, the applicant told him that he would get the boat and that he would
be taking SN C with him because “the CO wanted him to speak with [her] about some financial
situation she was having.” BM2 K thought this was strange because the boat would not be a
good place for financial counseling and because all of the non-rates were supposed to be working
on deck maintenance projects. When BM2 K told SN C she would be going on the boat with the
applicant, she asked why someone else could not go with the applicant and that she “felt as
though someone was always keeping tabs on her.” Later, another seaman complained to him that
she had been aboard the cutter for more than a year but never got to go in the small boat, whereas
the applicant and SN C “were always taking off talking together.” BM2 K stated that the appli-
cant and SN C returned in the small boat about two hours later, although their trip should have
taken about a half hour, and he noticed a “drastic change in [SN C’s] outward demeanor.”
Because he thought that something might have happened on the boat trip, he and GM1 S
approached SN C and asked her what was going on, but she did not want to talk about it. Final-
ly, she started crying and said she did not feel comfortable with the applicant, so they asked EM1
H to switch her duty that night so she would not be alone with the applicant. The applicant
stated that he had “heard various rumors” and did not want to speculate about what had happened
but that SN C had “been an outstanding member of the deck department whose integrity and
loyalty [he had] never questioned.”
• BM3 G stated that she “witnessed [the applicant] harassing [SN C] through repeated
phone calls on her cell phone.” SN C told her that the applicant made her feel uncomfortable so
she was avoiding him whenever possible. Once the applicant asked BM3 G if she had seen SN
C because “she’s not answering her fucken door and I know she is in there.” BM3 G also stated
that she had seen the applicant “playing with [SN C’s] hair and by the expression on her face I
could assume she felt uncomfortable.” When BM3 G later told the applicant that he was making
SN C feel uncomfortable, the applicant denied treating SN C differently from any other female
on the boat and denied “doing anything wrong.”
• MK3 W stated that one Sunday night at about 11:00 p.m., the applicant knocked on the
door of the hotel room she shared with BM3 G. He appeared agitated and asked where SN C was
since he expected her back at 10:00 p.m. While he was still there, SN C returned his phone call,
and he yelled at her, “Where the hell have you been?” After the applicant left, BM3 G told her
that she thought the applicant was showing “jealous behavior” because of SN C’s new relation-
ship. The next morning, MK3 W heard the applicant comment that SN C had “picked up a
stranger” and that he did not want her career ruined. However, BM2 K defended SN C and told
the applicant that “it was not his business to be involved in [SN C’s] private life [or to] make bad
assumptions based on stereotypes.” A few days later, SN C told MK3 W that she was afraid that
the applicant was stalking her because he had called her six times one Sunday on her personal
phone. SN C acknowledged that she was getting “special treatment” from the deck force but felt
that the applicant was showing “excessive ‘jealous’ behavior” because of her new relationship
with a boyfriend. When MK3 W told her that the applicant’s behavior was inappropriate and
advised her to report it to the XO or the CEA, SN C stated that she did not want to be considered
a “tattletale.” MK3 W stated that she thought that SN C received special treatment from supervi-
sors because of her accomplishments, whereas SN C’s roommate, SN P, was an “inconsistent
performer.”
• SN P, who shared a hotel room with SN C, stated that on September 15, 2003, during a
long ride in the van, she saw the applicant pull SN C’s hair up over the back of her seat and begin
playing with it. “He ran his hands through it for what seemed like hours.” However, SN C did
not seem to mind and even seemed “to enjoy it very much.” The applicant told SN P “how much
he loved long blonde hair.” During drydock, SN C was frequently invited to go out to bars,
clubs, and dinner with the applicant and EM1 H. Also, SN C and the applicant “went out alone
on several occasions.” SN C once told her that she felt that GM1 S “was making passes at her
and made her feel uncomfortable.” After SN C found a boyfriend, she “seemed very happy”
except that she hated being in the Coast Guard and could not wait to get out. Less than a week
later, SN C told SN P that the applicant was harassing her by calling her repeatedly and acting
jealous. SN C was telling inconsistent stories about the applicant and SN P found her to be “less
than truthful” on several occasions. When SN P told the applicant what SN C had said, the appli-
cant denied that SN C had ever complained to him about his behavior. Later, SN C again got
special treatment by getting to go to Navigational School. The applicant also told SN P “to be
easy on SN C [because] she was just very sensitive. Throughout drydock, [SN C] was constantly
accusing people of being mean to her or treating her unfair[ly].” After SN C returned from
school, SN P saw her with the applicant “off to the side alone together having private conversa-
tions” and the applicant always got SN C to assist him with “just about everything [he] did,”
including the boat ride on the last day of drydock when the applicant and SN C “did not return
for about 2 ½ or 3 hours from a 5-minute ride around the harbor.”
• SA S stated that SN C had received special treatment by being sent to Navigational
School during drydock when she did not have seniority. Upon SN C’s return from school, SN C
complained to SN S that the applicant had told her she could not stay with her boyfriend and had
to sleep on the ship. SA S stated that he felt very lucky to have had the applicant as his depart-
ment head since the applicant was extremely knowledgeable and fair. SA S stated that the appli-
cant treated all non-rates with “respect and dignity” and “epitomize[d] the core values” of the
Coast Guard. SA S stated that he also has “the utmost respect for [SN C],” who “demands that
all crew members be treated equally, … constantly advocates equal rights for females, … [and]
has very thick skin and can handle anything that one of the males can. I feel that she would not
be making allegations unless she felt that was the only way to resolve the issue … [and] that she
had exhausted all other methods.”
• A first class petty officer at another unit stated that SN C’s sister had asked him for
advice on several occasions because her sister “was being harassed if not stalked by a male mem-
ber.” He advised her to tell SN C to report the harassment but was later told that the harassment
had continued even after SN C reported it, so he advised her to tell her sister to get a protective
order.
• SN C’s boyfriend, a second class petty officer in the Navy, stated that SN C had com-
plained to him that the applicant had rubbed her shoulders, suggested that they have a secret rela-
tionship, called her repeatedly without leaving a message, asked very personal questions, and
showed jealousy about their relationship. He stated that SN C had once called him in tears
because she did not feel safe having to share a duty shift with the applicant after he had sat too
close to her and put his hands between her legs when she was driving a small boat.
The PIO included in his report a copy of the bill for the Government cell phone used by
the applicant during drydock. The bill shows charges for calls by the applicant to SN C’s per-
sonal cell phone twice on September 24, once on September 26, three times on September 27,
once on September 29, once on October 6, and once on October 8, 2003
Non-Judicial Punishment at Mast
On January 5, 2004, the applicant was formally notified that he would be taken to mast
for alleged violations of Article 92 of the UCMJ (failure to obey an order or regulation) and Arti-
cle 132 (conduct prejudicial to good order and discipline) as a result of SN C’s allegations. He
signed an “Acknowledgement of Rights—Acceptance of NJP” form designed for a member
attached to or embarked on a vessel, which does not include the right to reject NJP and demand
trial by court-martial.
On January 10, 2004, the Group XO informed the applicant by email that his mast was
being postponed from January 12 to January 14 because of operational needs. The applicant
responded, asking whether the mast was to be open to the crew. The XO responded that he
believed that the CO had decided to leave the mast open. The applicant responded that he did
not want the mast to be open because he would be defending his career. The applicant noted that
Chapter 5.A.2.e. of the Equal Opportunity Program Management Manual states that “[d]ue to the
volatile and potentially damaging nature of the allegations, confidentiality will be maintained to
the greatest extent possible without thwarting resolution.” The XO replied that the “lawyers dis-
agree with your interpretation of COMDTINST and the MJM” but that the Group CO might still
close the mast. The XO also reminded the applicant to “[p]lease remember that we haven’t gone
the route of the Equal Opportunity Prgm. This is a UCMJ proceeding, and those are the rules we
must abide by. … This will be a sober, professional proceeding.”
On January 14, 2004, the applicant was taken to mast on a charge of failing to obey the
Coast Guard’s sexual harassment policy by making unwelcome sexual advances toward a subor-
dinate, which negatively affected her job performance and created an intimidating, hostile work
environment. The Group CO awarded him as punishment reduction to pay grade E-5 and extra
duties for 45 days and forfeiture of pay for two months, which was suspended for six months.
On January 15, 2004, the applicant complained to the Command Master Chief in an email
that at mast the day before he had learned that he could not ask half of his eighty questions about
SN C’s accusations against other members. He alleged that although the OIC had testified that
he did not believe the applicant intentionally committed the offenses and had asked the Group
CO to be lenient, the Group CO had given him the maximum punishment.
On January 16, 2004, the Command Master Chief sent an email to the applicant and
recommended that he “think hard” about his appeal. He wrote that he was “a little surprised
[about] the ‘max’ punishment you received, but based on evidence and your not accepting
responsibility for ‘something’ that happened either actual or perceived. I did run this by D1
Legal before responding to you and the awarded punishment is appropriate. … [The Group XO]
did tell me that all of the crew basically said the same thing: they felt there was something going
on with you and [SN C] that did affect the crew.”
On January 17, 2004, the applicant complained to the Command Master Chief in an email
that at mast several witnesses had made statements in support of SN C’s claims and had not spo-
ken about telephone calls and events that would have helped his defense and he had not been
allowed to ask questions about SN C’s prior complaints of harassment even though there was
proof for one of them or about SN C’s sister, who was also a member of the Coast Guard and
who had been involved in a similar incident that had resulted in her being transferred. The appli-
cant claimed that his aggravation during telephone conversations with SN C was taken to be har-
assment when it was only a symptom of his having been away from his family and having five
huge projects underway.
On January 21, 2004, the applicant sent an email to the OIC and XO of his cutter stating
that the OIC had failed to support or help him or his family. He further stated, “I can only
assume that you feel it’s ok that my family suffers as well, and Gentlemen, my family is my
world. When the CG punishes my family, I get very pissed off.”
The Applicant’s Anonymous Emails
On January 26, 2004, SN C received an anonymous email from coastiefriend@yahoo.
com, which she later forwarded to the OIC. The email, which was cc’ed to the applicant, states
the following:
You two like to play games. Well here is a game you might not like. I know that you two are
hiding a little information that you haven’t told anyone in that investigation.
[SN C], no matter how anyone looks at Harassment, it doesn’t involve you sticking your tongue
down anyone’s throat. I wonder how it felt to sit there and watch him get busted down, and the
only thing he did was fall for you.
[Applicant], you are an idiot. Why are you still protecting her? Is it because you still have feel-
ings for her? How pathetic.
You two are making a joke out of the system and I won’t have it.
Here, this is how this is going to work. You two will tell your CO the truth by noon Friday. If
not, my next e-mail will be more detailed and will address folks I know you don’t want to know
about your little fling.
On January 30, 2004, the OIC received an anonymous email from “coastiefriend,” stating
the following:
… I am told by a reliable source that the two of them [the applicant and SN C] were involved in an
inappropriate relationship at some point in your yard period. I know that on several different
nights when the two of them were drinking that she was in his room until 4 or 5 in the morning. I
know that other than the two of them there is another member of [the cutter] who is aware of their
relationship as well. He saw the two of them kissing. The way I understand what happened is one
night they found out they had feelings for each other and decided not to act on them. A few days
later after a nite of heavy drinking the alcohol got the best of them and they did act on their feel-
ings. And they kept seeing each other for a while. Both of them decided to end the relationship
because it was wrong and that was close to when [SN C] met her boyfriend. [She] felt [the appli-
cant] was treating her different because of that. I know she told him on more than 1 occasion that
she loved him. She was never harassed. [The applicant] is telling the truth. She claimed she was
so she could leave the ship but she didn’t expect him to go to mast for it. She knew he wouldn’t
say anything because of his family.
If [SN C’s] idea of harassment is her sticking her tongue down his throat I am not clear on what
harassment is. I think the fact that she abused a policy made to protect her just to make him look
bad when she is just as guilty as he is stupid. And she should be held just as accountable for lying
about it, if not more.
If there is any doubt about the truth in what I am saying, I ask this question. If you knew one of
your buddies was going to captain’s mast and you knew for a fact that he did not do what they said
he did, would you stay in the mast and watch it?
I sent both of them a warning to tell the truth, and they did not.
I am sending this anonymously. I fear what might happen if one of them found out that I knew.
The OIC replied, stating that if the sender was “not willing to verify the validity of [his]
On February 7, 2004, the applicant replied to both “coastiefriend” and the OIC. The
applicant stated that he was curious how the anonymous writer got his information since he
could only have gotten it from the applicant or SN C. The applicant warned the anonymous
writer that no one would likely listen to him since no one had listened to the applicant prior to his
mast. He further stated, “I appreciate your concern, but I will take it from here.” To the OIC,
the applicant wrote the following:
It would appear that [SN C’s] little chess game has been exposed. I will assume the psychology
classes she took in college proved useful for her during this ordeal. You asked for verification and
you have it. … There is a lot more to it than what is stated below. There were a lot of things that I
didn’t tell the PIO, or the Deputy, or XO. I only felt comfortable telling you because I trust you.
Or trying to tell you. You guys were scaring me. … Now, I guess it might make sense why I kept
statements by revealing [him]self, [the OIC could] take no further action.”
On February 3, 2004, the Group XO received an email from coastiefriend@yahoo.com,
saying that a close friend had informed him that the applicant and SN C had been involved in an
“inappropriate relationship and that issue had nothing to do with sexual harassment. … [S]he
was never harassed and she is just as guilty as he is.”
On February 6, 2004, the OIC received another email from “coastiefriend,” which was
cc’ed to the applicant. The anonymous writer urged the OIC to talk to the applicant to discover
the truth and stated the he would “remove [him]self from any further dealings with this issue.”
asking if I could sit down and talk to you. Or why I am so convinced that she was never harassed.
He or she is correct in their statement that I never lied. I am not a liar.
If you have an opportunity, I would still like to sit down and talk to you. I would appreciate it if
you didn’t forward or copy this to anyone. It would cost me a hell of a lot more than it already has
if certain people found out.
On February 11, 2004, the applicant sent an email message to the District Legal Office
asking about his avenues of recourse if the Group refused to investigate new information—the
email messages from coastiefriend@yahoo.com—that be believed would prove that SN C had
falsely accused him of harassment.
CGIS Investigation
On February 12, 2004, the Group CO initiated an investigation to ascertain the identity of
the anonymous “coastiefriend” sending emails from coastiefriend@yahoo.com. On February 13,
2004, after being advised of and acknowledging his rights in writing, the applicant was inter-
viewed by CGIS agents. He gave them a written statement in which he admitted that he himself
had sent the anonymous emails from coastiefriend@yahoo.com. The applicant also stated that
he had had an inappropriate relationship with SN C. He stated that she had initiated kisses with
him on three occasions when they had been drinking and had told him that she loved him. Two
days after the third kiss, she told him that they had slept together, but he had no memory of it. A
few days later, the applicant stated, SN C told him that she had “found someone” else, and he
told her that he was happy for her and that he would not treat her differently because of what had
happened between them. He told her that he was “still her BM1 [and] still wanted to see her do
well.”
On February 13, 2004, the Group Operations Officer informed the Group command by
email that at an interview with a CGIS agent, the applicant had admitted that he was the author
of the emails received from coastiefriend@yahoo.com and stated that he sent them “to call atten-
tion to the injustice of his situation in hopes of having the matter reopened with a view toward
ultimately clearing [himself] of the sexual harassment incident.” The applicant had also stated
that he “would rather accept punishment for an 8.H. violation [inappropriate relationship] than
accept the sexual harassment allegations.” The Operations Officer stated that CGIS would also
interview SN C and would issue a report in three or four weeks.
The Group CO responded to the Operations Officer’s email the same day, saying that the
existence of an inappropriate relationship would not necessarily refute the harassment charges if
the applicant harassed SN C after their relationship ended. The Group CO noted that there had
been witnesses to the sexual harassment. She also noted that in addition to admitting to adultery
and the inappropriate relationship, which are both violations of the UCMJ, the applicant had sent
deceptive anonymous emails to the command and one threatening email to SN C. The District
Legal Officer responded to the Group CO, saying that the applicant’s confession did not exoner-
ate him and that the harassment could have occurred notwithstanding the prior prohibited rela-
tionship. He noted that the potential charges against the applicant might include extortion, false
statements, obstruction, violation of a general punitive order, and conduct to the prejudice of
good order and discipline. He stated that it might lead to a court-martial for the applicant but
that the Group CO, as a target of the applicant’s anonymous emails, was a potential witness and
so could not be the convening authority for the court-martial.
On February 17, 2004, the Group Operations Officer sent an email to the District Legal
Officer, saying that the OIC of the cutter had told him that he had concerns about SN C’s safety
given the applicant’s “aggressive personality, his recent behavior and his perception that a grave
injustice has been done to him.” The Operations Officer noted that the applicant’s anonymous
emails had violated the protective order not to contact SN C. The OIC had asked that another
protective order be issued and that the applicant undergo a psychiatric examination “in view of
his recent behavior and some disturbing comments [the applicant] has made.” The Operations
Officer noted that in emails to the OIC in late January, the applicant had written the following:
• “I can only assume that you feel it’s ok that my family suffers as well, and Gentle-
men, my family is my world. When the CG punishes my family, I get very pissed off.”
• “… it infuriates me that I keep getting the impression that everyone feels I am not
being honest here.”
• “See, I don’t have a problem accepting punishment for something I did. I don’t have
a problem accepting punishment for perhaps a mistake. But I cannot and will not sit back
and watch a SN with 5 months in the CG make up a bunch of lies that cost me every-
thing.”
• “Shortly before my departure for my new unit, I will send an e-mail to those onboard
who I still care about. And those who felt it was appropriate to back stab should consider
themselves fortunate. Being a 100% Sicilian family, my relatives do not understand the
Military way. They only understand the family way. And since we are into perception
here, anyone can perceive that any way they want.”
The Group Operations Officer further stated that SN C would be transferred to another
unit “to ensure her safety,” another protective order would be issued, and the applicant would
undergo a psychiatric evaluation on February 23, 2004.
On February 19, 2004, the XO of the cutter served the applicant with another protective
order. In addition, his security clearance and authorization to carry firearms were revoked. The
applicant surrendered four firearms from his house.
On March 4, 2004, the District Commander denied the applicant’s appeal of his NJP. He
stated that his review of the record showed that the Group CO had conducted “full, fair NJP pro-
ceedings on the offenses” and that the evidence supported the CO’s finding that the offenses
were proved. He also found that the applicant’s punishment was not disproportionate.
Report of the CGIS Investigation
On March 15, 2004, CGIS issued a report on the investigation into the anonymous emails
from coastiefriend@yahoo.com. The report summarized the applicant’s admissions during his
interview on February 13, 2004, and noted that on February 20, 2004, the applicant had sent an
email to a CGIS agent in which he offered to provide “more details” that “are somewhat more
intimate” in another interview. However, after being informed on February 24, 2004, that he
might be facing a court-martial, the applicant decided not to make any further statements to
CGIS without an attorney.
The report notes that electronic investigation revealed that SN C had received an anony-
mous threatening email from coastiefriend@yahoo.com (the applicant). In her interview with
the CGIS agents, SN C denied having had sex with the applicant but stated that he had kissed her
once and later suggested that they could have a relationship without anyone else knowing before
she reminded him that he was married. She also complained that he had repeatedly called her on
her personal cell phone for no real reason. Her telephone log documented his calls.
The report also revealed that the applicant had not registered any weapons with Coast
Guard Housing Office, OTIS ANGB, MA, although a fellow petty officer stated that the appli-
cant did have weapons at his house.
Applicant’s Request for Humanitarian Transfer
On March 22, 2004, the Group XO sent the applicant an email in which he expressed
sympathy about his father’s illness. The XO also stated that the applicant’s request for a
humanitarian transfer would be discussed with EPM following the resolution of the “unfortunate
business of this latest CGIS investigation,” which the applicant had requested, including “new
charges being considered against you as a result of the additional information you provided to
the CGIS agents.”
On March 24, 2004, the applicant sent the Group XO an email asking to review the report
of the investigation. He asked how his NJP appeal could have been denied if the new investiga-
tion showed that SN C had lied. He also asked if SN C was being charged with any crimes. The
Group XO responded on March 29, 2004, stating that there was no evidence that SN C had lied
except the applicant’s own statement. The XO assured the applicant that some “corrective action
[had been taken] regarding SN C,” but that it was private information.
On April 5, 2004, the OIC of the cutter entered a Page 7 in the applicant’s record, which
the applicant refused to sign in acknowledgement. It states that the applicant was counseled on
“substandard performance over the past 2 weeks” in that he “failed to complete his extra duty as
directed by NJP proceedings” by not reporting for duty on March 26, 27, 28, 29, and 31, 2004.
The Page 7 also states that the applicant had failed to perform assigned tasks within a reasonable
time frame and was spending too much time on the computer during the workday.
On April 19, 2004, the applicant submitted a request for a humanitarian transfer (HUMS)
to a unit near his parents’ home based on his father’s heart surgery and lung disease and the
inability of his sister and mother to care for him. He pointed out that his tour on the cutter was
ending, that he did not yet have orders for another billet, and that he understood that he would
need to resolve his need to be stationed near his parents’ home within two years or be considered
not available for worldwide assignment, which might result in a hardship discharge. He also
stated that he might seek a hardship discharge if his request for a humanitarian transfer was not
granted.
On April 28, 2004, the OIC of the applicant’s cutter entered a Page 7 in his record to
commend him for his performance in preparing for the cutter’s Ready for Operations visit and
change of command ceremony. He entered another Page 7 to document counseling about the
Coast Guard’s policies regarding interpersonal relationships, alcohol use, and drugs abuse.
On May 17, 2004, the OIC of the applicant’s cutter entered a Page 7 in his record to
commend him for his work in preparing, priming, and painting the hull from May 3 to May 13,
2004, in anticipation of a June visit by a standardization team.
On May 21, 2004, the applicant emailed the Group XO asking for a copy of the com-
mand’s endorsement. The XO responded in an email as follows:
I forwarded your HUMS pkg yesterday. Under the circumstances I was forced to recommend
approval with the caveat that all pending UCMJ is dispensed with first (this was insisted upon by
the GP CO). My earnest hope is that the pending UCMJ issues can and will be dispensed with
swiftly and with much less collateral damage than last time … as you and I discussed.
New Criminal Charges Against the Applicant
On June 14, 2004, the District Legal Officer told the Group command in an email that
after reviewing all of the available information, including the two investigation reports, he rec-
ommended that the command “consider preferring charges against [the applicant] for, among
others, various orders violations, false official statements, maltreatment, provoking speech,
extortion, interference with an adverse administrative proceeding, and various Massachusetts gun
laws, contrary to UCMJ Articles 92, 93, 107, 117, 127, and 134, respectively.” He noted that he
could only make the recommendation and could not order them to prefer charges, as it was up to
the Group CO “to exercise your independent, professional judgment on the matter.”
On June 14, 2004, the applicant was charged with four counts of violating Article 92 of
the UCMJ by
• “wrongfully engaging in an unacceptable personal romantic relationship with [SN C],
USCG, a subordinate in his chain of command” on “diverse occasions from September to
November 2003”;
• “wrongfully possessing four dangerous weapons” in his “government quarters with-
out registering said weapons with the housing office”;
• boarding the cutter on December 15, 2003, without the permission of his CO or a
delegee in violation of the protective order issued on November 25, 2003, which barred
him from boarding the cutter; and
• sending an email to SN C on January 26, 2004, in violation of the protective order
issued on November 25, 2003, which barred him from contacting her.
The applicant was also charged with violating UCMJ
UCMJ by
• Article 93 by “maltreat[ing] [SN C], a person subject to his orders, by wrongfully
kissing her, stroking her hair, physically contacting her leg while operating a small boat,
and by making repeated and unnecessary calls to her personal cellular telephone”;
• Article 107 by falsely telling the Group CO at mast on January 14, 2004, with intent
to deceive, “that he was never involved in any personal, romantic relationship with [SN
C], which statement was false in that he had, among other things, kissed [her]”;
• Article 117 by wrongfully using provoking words to Coast Guard officers on January
24, 2004, by saying that “those who felt it was appropriate to back stab should consider
themselves fortunate. Being a 100% Sicilian family, my relatives do not understand the
Military way. They only understand ‘the family way.’ And since we are into perception
here, anyone can perceive that any way that they want,” or words to that effect; and
• Article 127 by communicating a threat to SN C on January 24, 2004, to try to gain
favorable action on his NJP appeal by stating that if she did not tell her “CO the truth by
noon Friday,” he would expose alleged secrets and misconduct concerning her “little
fling” that would discredit her.
In addition, the applicant was charged with eight counts of violating Article 134 of the
• wrongfully engaging in an “inappropriate personal relationship” with a subordinate,
SN C, from September to November 2003, “contrary to the good order and discipline of
the armed forces”;
• wrongfully possessing a “large capacity firearm, to wit: one Sigsaur, Model P226 …
contrary to Massachusetts General Laws”;
• wrongfully possessing “four dangerous weapons,” including the Sigsaur, contrary to
Massachusetts General Laws;
• wrongfully endeavoring on February 3, 2004, to influence the actions of the Group
XO, “an officer responsible for making a recommendation on the disposition of the
accused’s appeal of nonjudicial punishment by misrepresenting the existence of an uni-
dentified witness through the anonymous transmission of an electronic mail message
using the e-mail address of coastiefriend@yahoo.com”;
• wrongfully endeavoring on February 11, 2004, to influence the actions of the Group
XO with respect to the applicant’s appeal of his NJP “by misrepresenting the existence of
an unidentified witness by forwarding an electronic mail message purporting to be from
an anonymous person with an e-mail address of coastiefriend@yahoo.com”;
• wrongfully endeavoring on January 30, 2004, to influence the actions of the officer in
charge of the cutter with respect to the applicant’s appeal of his NJP “by misrepresenting
the existence of an unidentified witness through the anonymous transmission of an elec-
tronic mail message using the e-mail address of coastiefriend@yahoo.com”;
• wrongfully endeavoring on February 6, 2004, to influence the actions of the officer in
charge of the cutter with respect to the applicant’s appeal of his NJP “by misrepresenting
the existence of an unidentified witness through the anonymous transmission of an elec-
tronic mail message using the e-mail address of coastiefriend@yahoo.com”; and
• wrongfully endeavoring on February 7, 2004, to influence the actions of the officer in
charge of the cutter with respect to the appeal of the NJP “by misrepresenting the exis-
Group CO’s Denial of the Applicant’s Request for Redress
On June 18, 2004, the Group CO informed the applicant by memorandum that his request
for redress dated June 4, 2004, which is not in the record, was denied. She wrote that his request
that she set aside his NJP dated January 15, 2004, was denied because he had not submitted his
request within 90 days of the NJP and Article 7.A.4.a. of the Military Justice Manual (MJM)
states that an Article 138 complaint “must be submitted to a superior commissioned officer
within 90 days of the date of discovery of the alleged wrong.” Moreover, she pointed out that
Article 7.A.4.d.(2) of the MJM states that NJP under Article 15 of the UCMJ “is a complaint ‘not
cognizable under Article 138, UCMJ’” because there is another avenue for appeal, which the
applicant made use of by appealing his NJP on January 19, 2004.
The Group CO also denied the applicant’s request for the return of four weapons because
more than 90 days had elapsed since the applicant had surrendered the weapons on February 19,
2004. She also stated that his request was denied because the weapons were evidence and would
“only be returned after all investigation and any further action is completed.” In addition, she
noted that it was illegal to possess the weapons without proper licenses and documentation and
that he had not declared his possession of the weapons before bringing them into station housing,
as required by Coast Guard housing regulations.
tence of an unidentified witness by forwarding an electronic mail message purporting to
be from an anonymous person with an e-mail address of coastiefriend@yahoo.com.”
On June 15, 2004, the Group XO advised the applicant of the charges against him.
The Group CO stated that she could not approve his request for an immediate humanitar-
ian transfer because she had no authority to do so as that authority rested solely with EPM.
Regarding his request that she expunge all documentation “relating to illegal discrimination”
from his record, she stated that she had no authority to do so. Regarding his request that she stop
harassing him and his family, the Group CO stated that what he “perceive[d] to be harassment is,
in reality, the normal and appropriate Coast Guard investigative and disciplinary procedures
applied to [his] misconduct.”
Applicant’s Complaint Under Article 138 of the UCMJ
On June 23, 2004, the applicant submitted an Article 138 complaint to the District Com-
mander. He alleged that the new charges had been filed against him in reprisal for his request for
redress. He argued that it was inconsistent for the Group CO to award him NJP for making
“unwelcome sexual advances” toward SN C and then file charges against him for allegedly hav-
ing a romantic relationship with SN C during the exact same period. He alleged that his
advances could not have been unwelcome if he and SN C actually engaged in a romantic rela-
tionship. He argued that since the falseness of SN C’s harassment allegations was only proved
after his appeal of the NJP was denied, his only remaining avenue for correction of his record
was an Article 138 complaint and that it should not be denied on the basis of untimeliness. He
further argued that his complaint was not untimely because it requires a complaint to be filed
within 90 days of the member’s discovery of the alleged wrongs against him, not within 90 days
of the wrongs themselves.
Regarding the seizure of his firearms, the applicant complained that the Group CO
ordered the seizure based on false pretenses and without authority, probable cause, or jurisdic-
tion. He pointed out that his Government housing was on an Air National Guard Base, not a
Coast Guard base. He alleged that she based her order on the report of a psychiatric examination
but that the report of his examination had not yet been released when his firearms were seized on
February 12, 2004. The applicant stated that by seizing his firearms, the Group CO had violated
his constitutional rights under the Second Amendment. Regarding his lack of State licensing for
the firearms, he alleged that he had not had an opportunity to register them because he brought
them into the state in August 2003, left two days later for a three-month yard period in Virginia,
and had been under a protective restraining order since his return to the State, and persons under
such orders cannot register firearms. Moreover, his wife refuses to touch the firearms. Further-
more, the applicant stated that Coast Guard regulations state only that members “should” report
any firearms they bring into base housing, not that they must report them. The applicant also
stated that the Group CO’s claim that his firearms were being held pursuant to an investigation
into alleged offenses is ridiculous since he had not committed any crimes with them and they had
nothing to do with the allegations against him.
The applicant also alleged that the Group CO violated Article 92 of the UCMJ by disre-
garding the Commandant’s instruction for investigating harassment complaints. He stated that
he did not discover the illegality of the type of investigation conducted until May 18, 2004, and
so his complaint was not untimely. He argued that the regulations regarding investigations into
harassment complaints are intended to protect not only the rights of the accusers but the rights of
the falsely accused. The applicant stated that because the Group CO failed to follow the regula-
tions, SN C never submitted any informal or formal claim, and no one tried to resolve her com-
plaints with alternative dispute resolution. He alleged that if the proper regulations had been fol-
lowed, he “would have clearly had the opportunity to explain the circumstances surrounding the
complaint, since I have never illegally discriminated against anyone in my life, and the complaint
would have been addressed and resolved without punitive action and at the lowest level. He also
alleged that it was improper for the Group’s civil rights officer to be appointed as the PIO
because she could not give guidance on the proper handling of civil rights complaints to herself.
The applicant stated that on February 22, 2004, he asked to meet with the Group CO to
discuss his complaints but she refused based on the ongoing investigation. He complained that
although the investigation had ended, the Group CO had not offered to meet with him. He
alleged that she had therefore violated Chapter 9.2.3 of Coast Guard Regulations, which states
that “the right of any person in the Coast Guard to communicate with the Commanding Officer at
a proper time and place is not to be denied or restricted.”
The applicant also alleged that prior to his psychiatric evaluation on February 19, 2004,
the Group CO made inappropriate and discriminatory comments about himself, his family, and
his Sicilian heritage in an email to the doctor.
The applicant complained that the District had failed to forward his request for a humani-
tarian transfer to EPM for two months. He also argued that it was wrong for his request to be
forwarded with allusions to pending frivolous charges against him. He argued that his request
for a humanitarian transfer should have been promptly forwarded and approved since the Coast
Guard’s investigation into SN C’s false accusations against him was irrelevant to his family’s
needs. He stated that he “requested the transfer solely on the basis [of his family’s needs] and
not the comparatively trivial issues that are going on here” and feels as if he is being punished
twice for trying to clear his name after having been punished once based on false accusations.
The applicant concluded his complaint by asking that his NJP be set aside, his rank be
restored, his firearms be returned, his HUMS request be approved and executed, that all docu-
mentation of the accusations and charges against him be removed from his record, and that all
charges and threatened charges against him be dropped.
Request for Discharge in Lieu of Trial by Court-Martial
On July 21, 2004, the Group CO forwarded the charges against the applicant to the Dis-
trict Commander for disposition.
On August 10, 2004, the applicant submitted a request for a “discharge for the good of
the Service in lieu of possible trial by court-martial under circumstances which could lead to a
bad conduct or dishonorable discharge” pursuant to Article 12.B.21. of the Personnel Manual.
The applicant noted that he had consulted counsel and been advised about the implications of his
request. He wrote that the “basis for my request for a discharge under possibly other than honor-
able conditions for the good of the Service stems from my alleged misconduct contained in the
court-martial charges preferred against me in enclosure (1). I elect to be administratively dis-
charged rather than possibly tried by court-martial. I am completely satisfied with the counsel I
have received.” He acknowledged that he might receive an OTH discharge which would deprive
him of “virtually all veterans’ benefits.” He also acknowledged that he was “mak[ing] this
request voluntarily, free from any duress or promises of any kind.”
The applicant also submitted a separate statement asking that his “administrative dis-
charge request in lieu of possible trial by court-martial, under possibly other than honorable
(OTH) conditions, … be upgraded to a General Discharge under honorable conditions.” The
applicant wrote about his pride and dedication in his military service, as well as his job perform-
ance, medals, and commendations. The applicant stated that “it is punishment enough to have
worn E-5 collar devices for 7 months, to have completed 45 days of extra duty,” and to have lost
the chance to serve as the XPO of a cutter. The applicant stated that he was requesting discharge
not only to avoid trial but to lessen the emotional distress of his family and shipmates. He stated
that to avoid more distress to his family or to his shipmates who would have to be called as wit-
nesses at a court-martial, he felt like he had “little choice but to submit this request for separation
for the Good of the service.” The applicant further stated that it was never his “intent to alleg-
edly violate any Article of the UCMJ. Only to provide evidence into the false accusations of
Sexual Harassment for which [he] was awarded punishment in January 2004.” He stated that he
never illegally discriminated against anyone and that his “attempts to clear [his] good name from
those false accusations have cost [him] his career.” He asked for a general discharge for his
family’s sake as an OTH discharge would harm his future employment opportunities.
On August 12, 2004, the District Commander forwarded to the Coast Guard Personnel
Command the Group CO’s recommendation that the applicant receive an OTH discharge in lieu
of trial by court-martial and the applicant’s statement on his own behalf. The District Com-
mander strongly recommended that the Group CO’s recommendation be approved and stated that
an OTH discharge “is warranted under these circumstances because of the degree of his sus-
tained misconduct and its adverse impact to his former unit and Group.” He stated that he could
not recommend an honorable or general discharge given the facts of the case and that he had
“already given generous weight to the favorable considerations he raises in my decision to sup-
port an administrative, rather than judicial, disposition of his case.”
On August 17, 2004, CGPC ordered that the applicant receive an OTH discharge pursu-
ant to Article 12.B.21. of the Personnel Manual “in lieu of trial by court-martial.”
On September 3, 2004, the applicant signed a statement indicating that he had “lawfully
sold four firearms” to his father in law.
On September 8, 2004, the applicant received an OTH discharge under Article 12.B.21.
of the Personnel Manual pursuant to his request. He also received an RE-4 reenlistment code, a
KFS separation code, and “triable by court-martial” as the narrative reason for his separation.
Discharge Review Board
On May 24, 2005, the Discharge Review Board (DRB) recommended denial of the appli-
cant’s request for an upgraded discharge. The DRB found that his discharge had been “carried
out in accordance with Coast Guard policy and there were no irregularities or improper actions
on the part of the Government.” The DRB stated that in light of his years of good service, the
applicant was “offered the option of voluntary separation in lieu of court-martial” and chose to
accept the voluntary separation. The DRB stated that the illness of the applicant’s parents at the
time of his discharge “does not change the nature of the accepted voluntary separation in lieu of
court-martial, which has precedence.” The DRB stated that the applicant “accepted [a] less than
honorable discharge” and failed to submit compelling evidence that it should be upgraded. The
Commandant approved the DRB’s recommendation on August 9, 2005.
Settlement of the Applicant’s Lawsuit
In 2006, the applicant and his father-in-law filed suit against the Coast Guard seeking the
return of his father-in-law’s four firearms or their appraised value of $3,250.00. The plaintiffs
claimed that after the applicant had received the firearms from the Coast Guard on August 28,
2004, he paid $110.00 to Federal Express Inc., to ship them to his father-in-law, pursuant to an
agreement with the Coast Guard, and four hours later was informed that CGIS had removed the
package from the custody of Federal Express. The Coast Guard never returned the firearms to
the applicant or his father-in-law, who owned them. On June 1, 2006, the Coast Guard reached a
settlement agreement with the applicant and his father-in-law in which the Coast Guard, without
admitting any wrongdoing, paid the applicant’s father-in-law $3,375.00.
VIEWS OF THE COAST GUARD
On June 25, 2007, the Judge Advocate General (JAG) of the Coast Guard submitted an
advisory opinion in which he recommended that the Board grant partial by correcting the appli-
cant’s DD 214 with a DD 215 showing that he earned the Global War on Terrorism Medal and a
Meritorious Unit Commendation Award but deny all other requested relief.
Regarding the applicant’s NJP, the JAG argued that the evidence of record shows that the
Group CO’s decision “was reasonable and based on ample evidence” and that the applicant has
not proved that he was denied the opportunity to respond to the evidence presented at the hear-
ing, such as the statements about the Ouija board game. The JAG stated that there is no evidence
that the mast was not conducted in accordance with applicable procedures. The JAG also stated
that the command’s denial of the applicant’s request under Article 138 that the NJP be removed
was proper because “pursuant to MJM [Military Justice Manual] Chapter 7.A.4.d.(2), an Art. 138
complaint for redress of punishment awarded at NJP is not permitted.”
Regarding the applicant’s complaint that his command failed to file charges of perjury
and false official statements against SN C, the JAG pointed out that CGIS made no such recom-
mendation and that SN C’s statements during the February 2004 investigation were consistent
with those she made during the December 2003 investigation.
Regarding the applicant’s allegation that his command erroneously failed to follow proce-
dures under the Equal Opportunity Program Manual (EOPM) that might have resolved SN C’s
complaint in a private manner without resorting to NJP, the JAG stated that in light of the evi-
dence, the command found that the applicant’s actions violated the UCMJ and took punitive
action against him, and that NJP proceedings are open to the public under the MJM. The JAG
noted that Chapter 5.A.2.e. of the EOPM states that “[a]ppropriate corrective action … may
range from verbal counseling and mediation when the behavior was of an unintentional nature, to
punitive actions for intentional or egregious behavior.”
Regarding the applicant’s rank at the time of his discharge, the JAG stated that the appli-
cant was reduced to E-5 at mast and had not re-advanced to E-6 prior to his discharge. The JAG
stated that the applicant’s sentence made “no provision for advancement to E-6 after six
months.” He noted that the applicant’s reduction in rate and extra duties were effected after the
mast and that only the forfeitures were suspended for six months.
Regarding the applicant’s allegation that his OTH discharge was improper because he
requested an honorable discharge, the JAG stated that the applicant did request an honorable dis-
charge, but he also requested a discharge in lieu of court-martial and his request shows that he
understood he could receive an OTH discharge as a result of the request. The JAG stated that no
upgrade of the discharge is warranted in this case because of the applicant’s actions with respect
to SN C and their effect on the command; because he was found to have four unauthorized weap-
ons in his housing unit; because he twice violated a protective order; because he made threaten-
ing statements and extorted another member; and because he sent anonymous emails to his com-
mand. The JAG further stated that even if his parents’ health factored into the applicant’s deci-
sion to accept a separation in lieu of possible trial by court-martial, the OTH discharge is sup-
ported by the record.
Regarding the applicant’s request for the Global War on Terrorism Medal and a Meritori-
ous Unit Commendation Award, the JAG stated that his entitlement to these awards is supported
by the record and a DD 215 should be issued to reflect his entitlement to them.
The JAG concluded that pursuant to 33 C.F.R. § 52.64, “this case presents issues of
significant policy regarding character of service and narrative reasons for discharge for a member
requesting discharge in lieu of court-martial.”
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On July 2, 2007, the Chair sent the applicant a copy of views of the Coast Guard and
invited him to respond. On August 15, 2007, the applicant responded.
The applicant stated that the fact that the JAG insists that “the information coming from a
Ouija board” was relevant evidence “is quite disturbing and inappropriate” and that considering
answers from a Ouija board to be reliable evidence is ridiculous.
The applicant stated that the primary purpose of his Article 138 complaint was not the
removal of his NJP but “to stop the continuing harassment” of his family by the Group CO.
The applicant alleged that the JAG’s advisory opinion accused him of perjury and false
statements but that he “never made a false statement of any kind” and that there is no evidence
that he did so. He stated that most of the evidence against him at mast was statements by crew-
members who heard and believed SN C’s comments and concerns and were “possibly reacting to
the stresses from a hard and long yard period.” He alleged that some of these crewmembers have
told him that they regretted their statements or questioned the logic of his NJP. He further argued
that it is inconsistent for the JAG to argue that the EOPM does not apply but then cite provisions
of the EOPM to justify the command’s course of action.
The applicant alleged that at mast, the Group CO orally promised to reinstate him to E-6
after six months but then refused to do so, even though the OIC recommended it, after he filed
his Article 138 complaint.
Regarding his request for separation in lieu of discharge, the applicant noted that the
Coast Guard did not cite any authority for awarding him the OTH discharge and acknowledged
that he had requested an honorable discharge. He stated that if he had known that an OTH dis-
charge was the probable outcome of his request, he would have used those words. The applicant
also alleged that he “never one time met with counsel [even] after [he made] repeated requests
for a meeting” prior to his separation.
Regarding the anonymous emails, the applicant wrote that “some of those emails may
have been written during a period I probably could have qualified as clinically depressed.” He
noted that he was prescribed the medication Clonazepam1 from March 2004 through August
2004, and submitted emails concerning that prescription. In addition, he stated that he never
denied having an inappropriate relationship with SN C because he was never asked about it—not
even at mast.
Regarding his firearms, the applicant alleged that he did not have a chance to register
them because he was deployed to another state, Virginia, for drydock duty the day after he
brought them into the State, and that when he tried to comply with the law he could not because
the command had issued a protective order against him.
The applicant also alleged that he did not violate the protective order when he went to the
cutter on December 15, 2003. He alleged that the captain of the cutter had authorized his pres-
ence but forgot to inform the XO. He alleged that after the XO was informed of the misunder-
standing, he received emailed apologies from both the CO and the XO of the cutter. He did not
submit copies of these emails.
The applicant denied that his email to the OIC regarding his family being Sicilian and
only knowing the “family way” was threatening. He stated that he was simply trying to explain
to them that his family did not understand what was happening. He stated that he is still good
friends with both the CO and the XO of the cutter. Regarding his email to the SN C, the appli-
cant stated that it was not his intent to extort SN C although he sees how the email could be inter-
preted as extortion. He stated that he was simply “giving her an opportunity to tell the truth.”
The applicant alleged that he never accepted the OTH discharge and “was given some
incorrect information by my assigned counsel indicating that my request for separation under
honorable conditions had been endorsed by [the District Commander].” He alleged that he did
not know that he had received an OTH discharge until three months after his discharge.
The applicant argued that his OTH discharge is absurd in light of the three Good Conduct
Medals and many qualifications and certifications he accrued during his enlistment. He also
argued that the OTH and narrative reason for discharge should be upgraded because the JAG
acknowledged in the advisory opinion that his parents’ illness might have contributed to his
request for discharge in lieu of court-martial.
In support of his allegations, the applicant submitted an email from SA P (previously SN
P) dated February 18, 2004, in which she highly praised the applicant’s leadership and stated that
he had been unjustly convicted although his “only mistake … was to trust someone.” The appli-
cant also submitted an email dated Thursday, August 12, 2004, in which he asked his assigned
counsel if he had “some time Monday or Tuesday.” The counsel replied that he would not be in
the office the following week and advised him not to “make waves” until his separation in lieu of
trial was approved. The applicant then asked to see him the next day, Friday, and the counsel
replied, “Yes, please call me. Moments ago, I got word that the admiral has endorsed your
1 Clonazepam is commonly prescribed for seizure disorders, panic disorders, and anxiety. In addition, it is
sometimes prescribed for depression.
request and now we just have to wait for final approval from the USCG paper pushers. Con-
gratulations. Talk to you in the morning. 0815 is best.” In addition, the applicant submitted
evidence of his accomplishments at his current civilian job.
APPLICABLE REGULATIONS
COMDTINST 5350.21D, the Commandant’s Sexual Harassment Policy Statement, states
that sexual harassment “includes unwelcome sexual advances; requests for sexual favors; and
other verbal or physical conduct of a sexual nature that is made a condition of employment,
affects employment decisions, unreasonably interferes with work performance and creates an
intimidating or hostile work environment. It will not be tolerated.”
Discrimination and Relationship Regulations in the Personnel Manual
Article 8.H.3.b.2. of the Personnel Manual in effect in 2003 states that a romantic rela-
tionship between a supervisor and a subordinate is an “unacceptable relationship.” Article
8.H.5.a. states that while all members must avoid inappropriate relationships with other mem-
bers, “[p]rimary responsibility rests with the senior member.”
Article 8.I.1.a.1. states that sexual harassment is a form of illegal discrimination. Article
8.I.1.b.2. states that administrative and/or disciplinary action will be taken only when the dis-
criminatory conduct is intentional. Article 8.I.1.e. states the following:
When area commanders, district commanders, commanding officers, … become aware of allega-
tions of illegal discriminatory conduct of personnel under their command, they shall investigate
the basis for those allegations. Upon determining that illegal discrimination probably occurred;
i.e., more probable than not, they shall initiate administrative or disciplinary action or formal dis-
ciplinary action as appropriate. In determining whether informal action or formal disciplinary
action is appropriate, they must evaluate the severity of the alleged conduct with the reliability and
veracity of the evidence presented.
Article 8.I.2.b. states the following:
Commanding officers and officers in charge have a responsibility to look into all allegations of
sexual harassment and to take prompt and effective action. They must be aware of all courses of
action available to them to deal with sexual harassment allegations. They generally fall into three
categories - discrimination complaint processes, administrative processes and UCMJ provisions.
These actions are not mutually exclusive and two or all three of them may be pursued simultane-
ously. The actions taken by a command in a particular case will depend upon the severity of the
conduct, the state of the evidence, the limits of the commander's authority, and other such factors.
Specific questions regarding prosecuting offenders should be addressed to the command's servic-
ing legal office.
● ● ●
2. Sexual Discrimination. Military Civil Rights Manual, COMDTINST M5350.11 (series) pro-
vides detailed information on processing complaints of discrimination based upon gender. The
primary purpose of the process is to ensure the complainant obtains an appropriate remedy or
redress for any wrong he or she may have suffered.
3. Prompt appropriate administrative action should be taken simultaneously with discrimination
complaint processes, with respect to sexual harassment offenders, when a command has sufficient
information to reasonably believe an incident has occurred. It is not necessary to await the com-
pletion of the procedures set forth in the above paragraph. Commands have a wide variety of
actions available which include but are not limited to informal or formal counseling, evaluation in
performance reports, and formal performance reviews, which could lead to separation.
4. Specific acts of sexual harassment may amount to criminal offenses punishable under various
provisions of the UCMJ. A review of the UCMJ and the Manual for Courts-Martial reveals
numerous provisions well suited for prosecution of sexual harassment amounting to criminal con-
duct. ….
Equal Opportunity Manual (COMDTINST M5350.4)
The EOPM provides policy and guidance for establishing a diverse workforce and envi-
ronment “free of discrimination and harassment.” EOPM, Chap. 1.C. Chapter 5.E.4.a.1. of the
EOPM in effect in 2003 defines “sexual harassment” as follows:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a
sexual nature constitute sexual harassment when submission to or rejection of this conduct explic-
itly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s
work performance or creates an intimidating, hostile or offensive work environment. Sexual har-
assment can occur in a variety of circumstances … e. The harasser’s conduct must be unwelcome.
Examples of sexual harassment provided in Enclosure 18 to Chapter 5 include treating
someone differently because of his or her gender; making unwanted attempts to establish a
romantic relationship despite efforts to discourage it; making repeated requests for dates, drinks,
dinners, etc., despite the respondent’s refusals; touching in a way that makes a person feel
uncomfortable; making unwanted attempts to stroke, fondle, or kiss another person; and imply-
ing potential retaliation—by means of, for example, a performance evaluation—for not respond-
ing positively to sexual advances.
Chapter 5.A. provides “Guidance for Handling Allegations of Discrimination.” Under
Chapter 5.A.2.a., “Commanders and supervisors are responsible for and must be committed to
preventing discrimination and sexual harassment in their commands … Appropriate corrective
action … may range from verbal counseling and mediation when the behavior was of an uninten-
tional nature, to punitive actions for intentional or egregious behavior.”
Chapter 5.A.3.b. states that “systems are in place to resolve complaints of discrimination
at the lowest possible level.” Chapter 5.B.7.a. states that “COs/OINCs, CROs, and MCR/Fs
shall seek to achieve informal resolution of discrimination complaints at the earliest possible
stage.”
Chapter 5.A.3.c. states that “[c]ommanders and supervisors must investigate and, to the
extent that authority to do so is vested in them by law or regulation, take such action as they con-
sider appropriate on all alleged violations of this instruction. The nature of the investigation will
depend upon the particular facts and circumstances and may consist of an informal inquiry where
that action is sufficient to resolve factual issues. … Confidentiality will be maintained to the
greatest extent possible.” Chapter 5.A.2.e. states that because of “the volatile and potentially
damaging nature of the allegations, confidentiality will be maintained to the greatest extent
possible without thwarting resolution.”
Chapter 5.A.4.b. states that the prohibitions against discrimination and sexual harassment
“are punitive, general and regulatory orders and apply to all military … personnel individually
without further implementation. A violation of these provisions by military personnel is punish-
able in accordance with the UCMJ.”
Chapter 5.B.15. outlines the Coast Guard’s “Informal Complaint Program” for members
who bring issues of discrimination to the attention of the command, also known as “aggrieved
persons.” It states that an aggrieved person should notify her CO or OIC of her grievance
through the chain of command within 45 days of the alleged incident of discrimination or harass-
ment. If the complaint is not resolved to her satisfaction, the CO or OIC shall arrange for the
aggrieved person to meet with a civil rights counselor, who shall make an informal inquiry—not
amounting to an investigation—and attempt to resolve the matter informally before advising the
aggrieved person of her right to file a formal discrimination complaint. The aggrieved person
may elect to use alternative dispute resolution and be referred to a mediator.
Non-Judicial Punishment under Article 15 of the UCMJ
Article 1.B.1.a. of the Military Justice Manual (MJM) states that a “command may
receive an allegation of misconduct from any source. Another member of the command may
inform a superior that he or she witnessed an act of misconduct … Any report of misconduct
may serve as the basis for initiating a preliminary inquiry.”
Article 1.B.1.c. states that “[a]ny member of the armed forces who is aware of an offense
may submit a CG-4910. The person submitting the CG-4910 [Report of Offense and Disposi-
tion] may rely upon information received from other sources and does not have to have person-
ally witnessed the alleged act of misconduct.” Article 1.B.1.b. states that “[o]nce the member has
been placed on report, the procedure to be followed may vary with the size and type of unit and
the desires of the commanding officer.”
Article 1.B.3. states that before a mast, a command may appoint a preliminary inquiry
officer (PIO) to investigate the alleged offense and a mast representative to assist and represent
the accused member. Article 1.B.5.i. states that the accused member “must be allowed to exam-
ine documents and other evidence that the NJP authority will examine and consider in determin-
ing whether to impose NJP.”
Article 1.C.1. states that a “mast is not an adversarial proceeding. It is different from
courts-martial; a member has no right to be represented by an attorney at mast. … It is possible,
however, that the member may obtain the services of an attorney or any other person, at no
expense to the government, to appear as his or her spokesperson.” Article 1.C.4.e. states that a
spokesperson “is not permitted to examine or cross-examine witnesses (see paragraph 4.c.(1)(B),
Part V, MCM). The commanding officer may, as a matter of discretion, permit a spokesperson
to examine or cross-examine witnesses. A spokesperson is always permitted to speak for a mem-
ber when the member is otherwise entitled to speak. The purpose of precluding a spokesperson
from examining witnesses is to avoid having the mast hearing become an adversarial proceed-
ing.”
Article 1.C.3.c. states that a mast representative “serves primarily to assist the member in
preparing for and presenting his or her side of the matter and to speak for the member, if the
member desires. It is Coast Guard policy that the mast representative may question witnesses,
submit questions to be asked of witnesses, present evidence, and make statements inviting the
commanding officer's attention to those matters he or she feels are important or essential to an
appropriate disposition of the matter. In addition, the mast representative may make a plea for
leniency, and to that end, may solicit and submit statements regarding the reputation of the
member at the unit as well as other matters in extenuation or mitigation.”
Article 1.D.1.e. states that a mast “is normally open to the public unless the commanding
officer determines that it should be closed due to operational necessity, to prevent disclosure of
classified information, or other good cause.”
Article 1.D.1.f. states that the “burden of proof required in order to award NJP is a pre-
ponderance of the evidence. This standard means that before NJP may be awarded, the com-
manding officer must determine it is ‘more likely than not’ that the member committed an
offense(s) defined by the UCMJ.”
Article 138 of the UCMJ
Article 138 of the UCMJ (10 U.S.C. § 938) states the following:
Article 1.D.1.g. provides the following rules of evidence applicable at mast:
A member retains the right against self-incrimination at a mast, and may not be forced to make a
statement or answer questions. … Privileges arising from communications with a spouse, an attor-
ney, a member of the clergy, or a psychotherapist apply at mast, with certain exceptions …. Other
rules of evidence applicable to courts-martial do not apply at mast. The commanding officer may
consider hearsay, or a statement made outside the mast proceeding, such as police reports and oral
or written statements made to an investigator, whether or not the person who made the statement
appears in person at the mast. When deciding whether a hearsay statement is credible and the
weight it should be given, the commanding officer should carefully evaluate the circumstances
under which the statement was made. Judicial exclusionary rules involving rights warnings and
search and seizure do not apply at a mast, and the commanding officer may consider evidence that
would be inadmissible at court-martial. The commanding officer should apply a rule of funda-
mental fairness: under all of the circumstances, is it fair to the member to consider this evidence?
The commanding officer should consult his or her servicing legal office with any questions about
whether or not to consider specific evidence.
Article 1.D.8.d. states that
[a]fter the commanding officer finishes questioning a witness, the member or his or her mast rep-
resentative should be allowed to question the witness. The commanding officer may control the
proceedings as necessary to ensure that any questioning helps to discover the truth of the allega-
tions against the member, avoids wasting time, and protects a witness from harassment or unnec-
essary embarrassment. The commanding officer may also require the member or his or her mast
representatives to submit questions in writing prior to the mast or orally at the mast for the com-
manding officer to ask a witness. The Commanding Officer may prohibit a spokesperson from
questioning witnesses if in the Commanding Officer's opinion such questioning would turn the
proceedings adversarial.
Any member of the armed forces who believes himself wronged by his commanding officer, and
who, upon due application to that commanding officer is refused redress, may complain to any
superior commissioned officer, who shall forward the complaint to the officer exercising general
court-martial jurisdiction over the officer against whom it is made.
Article 14.B.5. of the Personnel Manual states the following:
Congress established UCMJ Article 138 as a means for a military member to seek redress of
alleged "wrongs" committed by the member's commanding officer. A "wrong" can include an
allegedly improper personnel record entry. … The MJM [Military Justice Manual] describes the
procedures for seeking redress from one's commanding officer under Article 138, UCMJ, and if
redress is denied, for filing a "complaint" with the officer exercising general court-martial jurisdic-
tion over the member's commanding officer.
Article 7.A.4. of the MJM states that “[u]pon due application, a complaint alleging a
wrong for which redress has been sought in writing, but refused by the commanding officer, is
cognizable under Article 138, UCMJ.” Article 7.A.4.d(2) states that NJP is not a cognizable
complaint under Article 138. Article 7.A.4.a. states that an Article 138 complaint
must be submitted to a superior officer within 90 days of the date of discovery of the alleged
wrong, and the complainant must have requested in writing redress from his or her commanding
officer and have been refused. … The OEGCMJ [officer exercising general court-martial jurisdic-
tion] may waive the 90-day time limit and the requirement for written request for redress and
denial thereof for good cause and action on the complaint by the OEGCMJ constitutes such
waiver. The period during which the commanding officer considers the request for redress will not
be included in computing the 90-day period.
Article 7.A.4.b. states that the complainant’s CO “shall reply to the request for redress
without undue delay and, if redress is denied, shall inform the member that a complaint may be
forwarded to the OEGCMJ.”
Separation for the Good of the Service under Article 12.B.21.
Article 12.B.21.a. of the Personnel Manual states that
[a]n enlisted member may request a discharge under other than honorable [OTH] conditions for
the good of the Service in two circumstances: in lieu of UCMJ action if punishment for alleged
misconduct could result in a punitive discharge or at any time after court-martial charges have
been preferred against him or her. … Send requests for discharge under other than honorable con-
ditions for the good of the Service through the officer exercising general court-martial jurisdiction
for his or her personal review and comment.
Article 12.B.21.b. states that a “member who indicates a desire to submit a request for a
discharge under other than honorable conditions for the good of the Service will be assigned a
lawyer counsel.”
Article 12.B.21.e. states that the “reason for discharge shall be for the good of the Ser-
vice, and commanding officers shall not recommend the member for reenlistment. If Com-
mander, (CGPC-epm-1) believes the member warrants a more favorable discharge type than
under other than honorable conditions based on the facts of the case, Commander, (CGPC-epm-
1) may direct issuing an honorable or general discharge.”
Article 12.B.32.a.1. states the following:
The Service will not discharge any member under other than honorable conditions without first
affording him or her the right to present the case to an administrative discharge board with the
advice and assistance of counsel and unless approved board findings and an approved recommen-
dation for discharge under other than honorable conditions support such discharge. However, if
appropriate, the Service may issue such discharge without board action if the member is beyond
military control for prolonged unauthorized absence, requests discharge for the good of the Ser-
vice, or waives the right to board action in writing.
The Separation Program Designator (SPD) Handbook states that when a member is vol-
untarily discharged “for conduct triable by court martial for which the member may voluntarily
separate in lieu of going to trial,” the member receives an RE-4 reenlistment code (ineligible); a
KFS separation code; and “triable by court martial” as the narrative reason for separation.”
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the applicant’s
military record and submissions, the Coast Guard’s submissions, and applicable law:
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.
The application was timely.
1.
2.
3.
4.
The applicant requested an oral hearing before the Board. The Chair, acting pur-
suant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case without
a hearing. The Board concurs in that recommendation.
Absent specific evidence to the contrary, the Board presumes that Coast Guard
officers, including the applicant’s chain of command, have acted “correctly, lawfully, and in
good faith” in performing their duties.2 The applicant bears the burden of overcoming this pre-
sumption and proving by a preponderance of the evidence that the Coast Guard committed error
or injustice3 by awarding him NJP for sexual harassment, by reducing his rate to E-5, and then
by separating him in lieu of trial by court-martial with an OTH discharge, an RE-4 reenlistment
code, and “triable by court-martial” as his narrative reason for separation.
The applicant alleged that on January 14, 2004, he was wrongfully awarded NJP
for sexual harassment even though he never sexually harassed SN C. Apart from the applicant’s
own claim that he never sexually harassed SN C, the only evidence in the record that somewhat
supports his denial is SN P’s stated perception that SN C enjoyed some of the inappropriate
2 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl.
1979); 33 C.F.R. § 52.24(b).
3 For purposes of the BCMRs under 10 U.S.C. § 1552, “injustice” is “treatment by military authorities that shocks
the sense of justice.” 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)).
attention she received from the applicant and then told inconsistent stories, which SN P did not
relate. On the other hand, several witnesses provided evidence that strongly supported SN C’s
claim of being harassed by the applicant. Most of the witnesses described instances in which the
applicant paid inappropriate attention to SN C by, for example, stroking her hair; frequently
inviting her, a non-rate, to socialize with him and EM1 H; frequently and agitatedly inquiring
into her whereabouts during off-duty time; repeatedly telephoning her for non-business reasons
during off-duty time; arranging the work schedule so that he and SN C would work alone
together frequently; and objecting to her spending time with her boyfriend. EM1 H reported that
SN C asked him twice in October 2003 to get the applicant to stop his inappropriate behavior and
that the applicant became agitated on a few occasions when he saw SN C with her boyfriend.
The CEA reported that he saw SN C’s cell phone log, which showed that the applicant had called
her many times one weekend in October 2003 without leaving any message. The lack of mes-
sages indicates that his calls lacked a legitimate business purpose. GM1 S and BM2 K reported
that the applicant fabricated a false reason for requiring SN C to go alone on the small boat with
him on November 23, 2003. Moreover, much of this behavior occurred after EM1 H first con-
fronted the applicant on October 3, 2003, about his unwelcome, inappropriate behavior toward
SN C. Therefore, and in light of the definition and examples of sexual harassment provided in
Chapter 5.E.4.a.1. and Enclosure 18 of the EOPM, as well as the burden of proof applicable at
mast under Article 1.D.1.f. of the MJM, the Board finds that the applicant has not proved that the
Group CO erred in finding that he had sexually harassed SN C, a subordinate in his own depart-
ment.4 Sexual harassment is a violation of a general order and contrary to good order and disci-
pline and hence a violation of Articles 92 and 132 of the Uniform Code of Military Justice.5
The applicant alleged that his behavior toward SN C was not sexual harassment
because she welcomed his attention, kissed him, and was involved in an inappropriate relation-
ship with him. Welcome sexual advances are not sexual harassment,6 though they often violate
other regulations about inappropriate and unacceptable relationships. The record indicates that
in September and early October 2003, SN C did accept invitations to socialize with the applicant,
EM1 H, and sometimes other petty officers. However, as of October 3, 2003, when EM1 H first
confronted the applicant about his inappropriate behavior toward SN C, the applicant was on
notice that it was unwelcome. The only evidence in the record indicating that SN C might have
welcomed the applicant’s inappropriate behavior was provided by SN P (later SA P), whose
statement is strongly refuted by the statements of other crewmembers, who noted SN C’s dis-
comfort with and complaints about the applicant’s excessive and inappropriate attention during
off-duty hours. The Board finds that the applicant has failed to prove by a preponderance of the
evidence that SN C welcomed his inappropriate attention. However, even if SN C did at one
point engage in an inappropriate relationship with the applicant, such circumstance would not
rebut the evidence that the applicant later sexually harassed her in October and November 2003.
5.
4 The Board notes that the applicant complained that evidence about a child’s game played on a Ouija board was
presented at mast. However, evidence that the applicant asked a question about unacceptable behavior between
SN C and himself in the presence of other crewmembers was certainly relevant to the nature of his behavior toward
her and to her and the crew’s perception of his behavior even if the question was asked pursuant to a child’s game.
5 Chapter 5.A.4.b., Equal Opportunity Program Manual (EOPM) (COMDTINST M5350.4).
6 EOPM, Chapter 5.E.4.a.1.e.
6.
7.
The applicant stated that he never intended to harass SN C and so should not have
been awarded NJP. Article 8.I.1.b.2. of the Personnel Manual states that administrative and/or
disciplinary action will be taken only when the discriminatory conduct is intentional. Although
the applicant may not have realized that his conduct constituted sexual harassment, the record
indicates that his conduct was intentional. Telephoning SN C repeatedly during off-duty hours
and arranging the departmental work schedule to ensure that she would frequently work alone
with him cannot be considered unintentional conduct even if the applicant did not realize, despite
EM1 H’s warning, that his behavior was inappropriate.
The applicant alleged that after SN C accused him of sexual harassment, his com-
mand acted erroneously and unjustly by failing to follow the procedures for handling discrimina-
tion complaints under the EOPM. When SN C complained about the applicant’s harassment to
EM1 H, a senior member of her unit, in October 2003, under the EOPM, she became a potential
“aggrieved person.” The record shows that EM1 H twice attempted to resolve the issue at the
lowest possible level by discussing the applicant’s behavior with him. On November 23, 2003,
upon learning that his discussions with the applicant had not resolved the problem, EM1 H
reported the matter to the Command Enlisted Advisor. The CEA discussed the allegations with
SN C, who told him that she would not file a complaint because her sister—also a member of the
Coast Guard—had been severely assaulted after filing one. Given SN C’s refusal to file a sexual
harassment complaint under the Equal Opportunity Program, the command cannot be faulted for
not following the procedures for handling such complaints under the EOPM. If SN C had
wanted to file a complaint, under Chapter 5.B.15. of the EOPM, the command would have been
required to continue following the procedures for handling such complaints in that manual.
With no EO complainant but significant evidence of misconduct—sexual harass-
ment of a subordinate—the CEA placed the applicant on report based on his own observations,
SN C’s accusations, and an oral statement by EM1 H. The Report of Offense shows that the
CEA himself filed the charges against the applicant on November 23, 2003, and listed SN C and
EM1 H as witnesses. Given the applicant’s position as SN C’s department head and a first class
petty officer, the Board does not believe that the CEA’s decision to place the applicant on report
in accordance with Article 1.B.1. of the MJM was an error or unjust7 overreaction. Under Arti-
cles 8.I.1.e. and 8.I.2.b. of the Personnel Manual, COs have significant discretion in deciding
how to handle a member accused of sexual harassment. The applicant has not proved that the
Group CO abused her discretion in taking him to mast even though masts are open to the public.
The applicant alleged that he was unable to defend himself at mast because he
was not allowed to ask certain questions that the District Legal Office found to be irrelevant to
the charges against him. He alleged that he was not allowed to ask questions about SN C’s two
prior complaints about harassment, even though there was evidence of one of them, or about her
sister’s sexual harassment complaint and subsequent transfer to another unit. Articles 1.D.1.g.
and 1.D.8.d. of the MJM permit a CO to require a member to submit a list of proposed questions
in advance, to seek the advice of a legal office about whether such questions should be allowed
at mast, and to control the questioning of witnesses to “ensure that any questioning helps to dis-
cover the truth of the allegations against the member, avoids wasting time, and protects a witness
8.
9.
7 See footnote 3, above.
from harassment or unnecessary embarrassment.” Under Articles 1.C.1. and 1.D.8.d. of the
MJM, a mast is supposed to be a non-adversarial proceeding, and the CO is allowed to control
the cross-examination of witnesses to prevent a mast from becoming an adversarial proceeding.
Assuming that the applicant’s allegation about the types of questions that the Group CO disal-
lowed is true, the Board finds that the Group CO did not offend the regulation or prevent the
applicant from defending himself by disallowing the questions. Evidence about whether SN C
had previously complained of sexual harassment by other members would not be probative of
whether the applicant sexually harassed SN C since it is perfectly possible that SN C could have
been sexually harassed by more than one member. Nor would evidence that SN C’s sister had
been transferred after filing a sexual harassment complaint make SN C a less credible witness.
The applicant argued that his mast should be removed because evidence gathered
by the CGIS investigators after the mast showed that SN C had made false statements during the
mast. However, the only “new evidence” that CGIS agents gathered that contradicted SN C’s
claims was the applicant’s own statement and fraudulent emails alleging that SN C had lied. As
the applicant destroyed his own credibility by sending the fraudulent emails, the Board finds that
his claim about his inappropriate relationship with SN C is insufficient to prove that the District
Commander erred in denying his appeal of his NJP or that the documentation of the NJP should
be removed from his record.
The Board concludes that the applicant has failed to prove by a preponderance of
the evidence that documentation of the mast and NJP should be removed from his record. He
has not proved that he was denied due process or that the Group CO did not reasonably conclude,
based upon the preponderance of the evidence, that he had violated Articles 92 and 132 of the
UCMJ by sexually harassing a female subordinate.
The applicant asked the Board to correct his record to show that he was separated
as a BM1/E-6. He alleged that at mast, the Group CO promised to restore his pay grade to E-6
after six months. The applicant submitted no evidence to support this allegation, and the mast
record does not support it. Moreover, even assuming the Group CO made such a promise, it
would have been conditional upon six months of good behavior, which the applicant did not pro-
vide. The applicant has not proved by a preponderance of the evidence that his record should be
corrected to show that he was re-advanced to E-6 after his reduction in rate.
10.
13.
11.
12.
The applicant asked the Board to upgrade his discharge from OTH to honorable.
He alleged that the additional criminal charges that led to his OTH discharge were filed in
retaliation because he was planning to file a formal complaint against the Group CO under Arti-
cle 138 of the UCMJ and had already sought redress from her. The applicant alleged that the
timing of the charges proves that they were retaliatory. The applicant submitted his request for
redress from the Group CO on June 4, 2004. On June 14, 2004, when the District Legal Officer
recommended that the command consider preferring many new charges against the applicant, the
command quickly prepared a charge sheet with the recommended specifications and informed
the applicant of the charges. However, the record also shows that the command never intended
to let the applicant’s recent misconduct go unpunished: The Group XO referred to unresolved
UCMJ charges against the applicant in an email to him dated March 22, 2004, and noted that the
matter was in the hands of the District Legal Office, where “the lawyers … [were] decid[ing]
how to handle the new info” from the CGIS report that was issued on March 15, 2004. And in an
email dated May 21, 2004, the Group XO reminded the applicant that new UCMJ charges were
“pending.” Therefore, the applicant has not proved that the charges brought against him by his
command on June 14, 2004, were filed in retaliation for his June 4, 2004, request for redress
under Article 138 of the UCMJ.
The applicant argued that his OTH discharge should be upgraded because the new
charges against him were unfair since his emails were not intended to extort, threaten, or mislead
anyone. He alleged that he never admitted to having committed the alleged misconduct. How-
ever, on February 13, 2004, the applicant told the CGIS that he had sent the emails in question
and had engaged in an unacceptable relationship. He has also admitted that he brought firearms
into his military housing without registering them with the housing officer or with the State, and
he must have known at the time that he would not be present in the State for many weeks.
Therefore, there is substantial evidence that he admitted to all of the misconduct underlying the
charges that were filed against him on June 14, 2004. The Board finds that those charges are
amply supported in the record. In an anonymous email dated January 26, 2004, the applicant
told SN C that he would tell her command that she had been involved in an inappropriate
relationship with him unless she told them so that week. In an email dated February 7, 2004, the
applicant told the OIC that the anonymous email was “verification” of the applicant’s own claim
that SN C had lied about their relationship. Thus, he fraudulently pretended that the anonymous
emails from coastiefriend@yahoo.com were not his own, while also claiming, “I am not a liar.”
In addition, the applicant sent an email to the OIC with a veiled threat about his family being
“100% Sicilian” and understanding only the “family way. And … anyone can perceive that any
way they want.”
14.
15.
16.
17.
The applicant argued that his discharge should be upgraded because the new
charges against him were unfair since, when he sent the anonymous emails, he “probably could
have qualified as clinically depressed” and was later prescribed Clonazepam. The Board finds
the applicant’s evidence to be grossly inadequate to show that he should not have been held
responsible for the content of his emails. There is no evidence in the record that in January and
February 2004 he suffered from a “severe mental disease or defect” that rendered him “unable to
appreciate the nature and quality or the wrongfulness of the acts,” which is required for a mem-
ber to be deemed not mentally responsible for his crimes under Article 50a of the UCMJ and
Rule 916(k) of the Rules for Courts-Martial.
The applicant argued that his discharge should be upgraded because his parents
were very ill in 2004 and he would not have requested the discharge if they had not been ill. His
father had a heart attack, underwent surgery, and was diagnosed with a lung disease in the winter
of 2004 and his mother was ill and died in September 2004. The applicant may well have
allowed his parents’ poor health to weigh into his decision to avoid trial by requesting separation.
His personal reasons for requesting separation in lieu of going to trial, however, do not make the
Coast Guard’s approval of his request for an OTH discharge erroneous or unjust.
The applicant argued that his OTH discharge should be upgraded because he
requested an honorable discharge and did not know he had received an OTH discharge until three
months after his separation. Under Article 12.B.21. of the Personnel Manual, a member facing
trial by court-martial may request an OTH discharge in lieu of trial. Article 12.B.21.e. states that
Commander, CGPC may direct an honorable or general discharge, instead of an OTH discharge,
if he believes that the “member warrants a more favorable discharge.” The record shows that on
August 10, 2004, the applicant submitted a “request for a discharge under possibly other than
honorable conditions” in lieu of trial by court-martial. He sought separation in lieu of trial in
accordance with Article 12.B.21. and clearly knew that an OTH discharge was a likely outcome
of his request. The record also shows that the applicant submitted an additional statement asking
that his discharge “under possibly other than honorable (OTH) conditions … be upgraded to a
General Discharge under honorable conditions,” pursuant to Commander, CGPC’s authority
under Article 12.B.21.e. The applicant’s request that his discharge be upgraded to a general dis-
charge does not negate the fact that he knowingly submitted a request for an OTH discharge in
lieu of trial, which was granted. His request dated August 10, 2004, shows that his attorney had
advised him about the implications of such a request. Moreover, the applicant admitted in his
application that on his last day on active duty, he asked his attorney if the attorney thought that
he deserved an OTH discharge, which shows that the applicant knew that his request for an OTH
discharge had been granted and that his request that it be upgraded to a general discharge had
been denied.
18.
19.
20.
The applicant argued that his OTH discharge should be upgraded because he
never met with an attorney regarding his discharge despite repeated requests. Article 12.B.21.b.
of the Personnel Manual states that a “member who indicates a desire to submit a request for a
discharge under other than honorable conditions for the good of the Service will be assigned a
lawyer counsel.” The applicant’s request for discharge dated August 10, 2004, includes an
acknowledgement of his consultation with an attorney. Moreover, the applicant admitted to
having communicated with an attorney several times regarding his request for separation in lieu
of trial, and the record includes emails sent between the applicant and his attorney. While it is
possible that the applicant never met with the attorney in person, the preponderance of the evi-
dence shows that he was assigned an attorney in accordance with Article 12.B.21.b. and was
provided counsel by the attorney. The applicant has not proved that he was denied counsel or
due process with respect to his OTH discharge.
The applicant argued that because he was discharged for misconduct, he should
have been processed for an administrative discharge under Article 12.B.18. of the Personnel
Manual and he should have received a hearing before an Administrative Discharge Board. Arti-
cle 12.B.18. provides procedures for involuntary discharges for misconduct. The applicant, how-
ever, expressly and voluntarily requested a discharge for the good of the Service under Article
12.B.21. Under Article 12.B.32.a.1., members who request a discharge for the good of the Ser-
vice are not entitled to a hearing before an Administrative Discharge Board.
The applicant argued that his OTH discharge should be upgraded because he
served with honor for more than ten years, during which he earned three Good Conduct Medals,
each recognizing three consecutive years of good behavior, and because of his post-discharge
public service. In light of the substantial evidence in the record of numerous violations of the
UCMJ and Coast Guard regulations by the applicant, the Board finds that the OTH discharge
was neither erroneous nor unjust despite the applicant’s otherwise honorable service. Moreover,
the delegate of the Secretary has held that “the Board should not upgrade discharges solely on
the basis of post-service conduct.”8 The Board concludes that the applicant has failed to prove
by a preponderance of the evidence that his OTH discharge should be upgraded.
The applicant asked the Board to upgrade his narrative reason for separation from
“triable by court-martial” to “hardship” and his reenlistment code from RE-4 to RE-3. Because
the applicant has not proved that his OTH discharge in lieu of trial by court-martial was errone-
ous or unjust, there is no basis in the record for changing his narrative reason for separation or
reenlistment code as they accurately reflect the true reason for his discharge in accordance with
Article 12.B.21. of the Personnel Manual and the SPD Handbook.
21.
22.
23.
24.
The applicant asked the Board to correct his record to reflect entitlement to a
Meritorious Unit Commendation Award and a Global War on Terrorism Medal. The citation for
the commendation shows that the District Commander awarded the unit commendation to the
crew of the applicant’s cutter for their service from September 2002 through May 2004. The
applicant was assigned to the cutter throughout this period. In addition, ALCOAST 274/05
shows that the Commandant awarded the Global War on Terrorism Service Medal to Coast
Guard members who served at least 30 consecutive days on active duty between September 11,
2001, and January 30, 2005, which the applicant did. Therefore, the Board agrees with the JAG
that the applicant’s DD 214 should be corrected to reflect his entitlement to these awards.
The applicant made numerous allegations with respect to the actions and attitudes
of various members of his unit and chain of command. Those allegations not specifically
addressed above are considered to be without merit and/or not dispositive of the case.
Accordingly, the applicant’s DD 214 should be corrected to reflect entitlement to
the Meritorious Unit Commendation Award and the Global War on Terrorism Medal, but all
other requested relief should be denied.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
8 Memorandum of the General Counsel of the Department of Transportation to the Board for Correction of Military
Records, July 8, 1976.
The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for
ORDER
correction of his military record is granted in part as follows:
The Coast Guard shall correct his DD 214 to show that he received a Meritorious Unit
Commendation Award (for his service aboard the CGC xxxxxxx from September 2002 to May
2004) and a Global War on Terrorism Medal.
All other requests for relief are denied.
____________________________________
Randall J. Kaplan
____________________________________
Steven J. Pecinovsky
____________________________________
George A. Weller
CG | BCMR | Discharge and Reenlistment Codes | 2009-236
He noted that the applicant had not yet submitted a rebuttal statement although he “has been given ample time to work on it (no other work except to work on his statement).” Also on April 20, 2007, the Coast Guard Personnel Command issued separation orders authorizing the applicant’s General discharge “by reason [of] misconduct due to [involvement] of a discreditable nature with civil or military authorities.” The orders required use of the separa- tion code JKA, which denotes an involuntary...
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After MKC W refused to discuss the matter with him, the applicant initiated his EEO complaint about MKC W. The ROI states that the applicant alleged that he was punished at mast for violating the no-contact order, but he had only done so after both MKC W and the XO told him that the order would be dropped and there would be no problem communicating with his wife. [He] was recommended for discharge by his Commanding Officer in April 2007. The applicant alleged that the negative Page 7s...
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The JAG stated that the applicant’s command “properly followed [Coast Guard] regulations” in awarding the applicant NJP and that the collateral consequences of the NJP—including the disputed OER and the revocation of his temporary commission— “were carried out properly after affording Applicant all the due process rights to which he was entitled.” The JAG stated that under Article 15 of the UCMJ, NJP is a means for COs to deal with minor violations promptly and administratively and thus...
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The applicant denied that she had consensual sexual relations on board a Coast Guard unit with an enlisted member. Commanding Officer’s (CO) Comments on the NJP Appeal On May 12, 2004, the applicant’s commanding officer (CO) recommended that the Commander, Eighth Coast Guard District (Commander) deny the applicant’s appeal. That based on the statements given by [the applicant] and statements contained in the CGIS report which were not challenged during the mast proceeding, I find that the...
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PO F was upset and “told her about the van ride and the Peking.” PO F told her that she had been drinking and that the applicant “was touching her breasts and making threats.” PO F also talked about the “[genital] touching” but did not go into detail. Testimony of the Executive Officer (XO) in the Article 32 Investigation The XO of the cutter stated that the applicant was the unit CDAR as “designated in writ- ing by the unit instruction.” Both the applicant and another petty officer “were...
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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 | 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...
CG | BCMR | OER and or Failure of Selection | 2008-174
I am relieving this officer of responsibilities of the Operations Officer, Navigator and Tactical Action Officer. Since she was standing watch in the CIC during the transit, she could not see which chart the bridge team was using. states that on the comparison scale in an OER, a Reporting Officer “shall fill in the circle that most closely reflects the Reporting Officer’s ranking of the Reported- on Officer relative to all other officers of the same grade the Reporting Officer has...
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 | OER and or Failure of Selection | 2012-109
The applicant alleged that he should have received a mark of 6 for “Directing Others.” He alleged that the supporting comments entered by the XO meet the written standard for a mark of 6. Regarding the disputed OER, the XO said that the CO did influence him to lower the applicant’s marks “to some degree.” She did not specify exactly what marks the XO should assign but told him that the AOps was responsible for [the] perceived performance shortfalls of those in his department. The XO stated...