DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for the Correction of 
the Coast Guard Record of: 

 
                                                                        BCMR Docket No. 2007-122 
 

xxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxx   

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 April 13, 2007, 
upon receipt of the completed application, and assigned it to staff member J. Andrews to pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 

 
This final decision, dated December 19, 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 May 12, 2005, under other than honorable (OTH) 

conditions, after more than six years of service, asked the Board to  

 
vacate his OTH discharge with an RE-4 reenlistment code (ineligible to reenlist), 
• 
reinstate him on active duty as a first class petty officer (BM1/E-6), and award him back 
pay and allowances; or 
 
upgrade his discharge to honorable, upgrade his reenlistment code to RE-1 (eligi-
• 
ble to reenlist), and award him “any pay, allowances, and benefits which were denied him 
as a result of the administrative separation on 12 May 2005.”   
 
The applicant alleged that he is entitled to the requested relief because of an egregious 
error by the Coast Guard’s trial counsel, which denied him due process.  He explained that on 
January 13, 2005, as a result of an investigation into allegations that he had physically abused his 
current girlfriend, Ms. G, and a prior girlfriend, SK1 O, he was charged with violating Articles 
128 and 134 of the Uniform Code of Military Justice (UCMJ), including three specifications of 
assault, one of indecent language, and two of kidnapping.  The applicant stated that he quickly 
retained civilian counsel who, on January 27, 2005, submitted a request for discovery pursuant to 
the rule under Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Webster, 1 M.J. 216 
(C.M.A. 1975), which requires the Government to disclose to the defense any evidence that is 
favorable to the defense.  His counsel specifically requested copies of all written statements by 

witnesses.  On February 23, 2005, the charges against him were referred to a Special Court Mar-
tial.  On March 22, 2005, the judge issued a court order stating that “trial counsel shall comply 
with  the  disclosure  or  notification  requirements”  and  that  “[b]oth  counsel  shall  immediately 
notify opposing counsel of any additional disclosures.” 

 
On March 21, 2005, his current girlfriend, Ms. G, signed two affidavits “attest[ing] to the 
mutuality of the abuse during their heated arguments” and “to the fact that [Ms. G] did not desire 
to participate in the case against the [applicant] in any way, to include testifying for the govern-
ment.”  However, on March 21, 2005, based on the potential testimony of his prior girlfriend, 
SK1 O, the applicant submitted a request for separation in lieu of trial by court martial without 
admitting to any wrongdoing.  His request was endorsed by his CO on March 30, 2005, and by 
the officer exercising general court-martial jurisdiction (OEGCMJ), a rear admiral, on March 31, 
2005. 

 
The  applicant  alleged  that  the  Coast  Guard  committed  a  serious  error  by  withholding 
exculpatory evidence during court martial proceedings.  He alleged that SK1 O’s April 14th state-
ment that she did not intend to testify should have been provided to his counsel immediately.  He 
alleged that if he had known about SK1 O’s statement, he “would have elected to proceed in a 
different manner.”  He argued that “knowledge that neither alleged victim would testify against 
[him] would have very likely ended the court martial proceedings and forced the government to 
take other actions.”  However, the Coast Guard withheld the exculpatory evidence “to provide 
for [his] request to be discharged in lieu of trial by court martial to be fully processed.  They 
never  intended  to  disclose  the  existence  of  the  second  statement.  …  The  [Coast  Guard’s] 
repeated refusal to provide the requested statement [in 2006] speaks volumes about how critical 
its existence is to the [applicant’s] case.” 

 
On April 14, 2005, the applicant alleged, SK1 O told the trial counsel for the government, 
LT S, that “she did not desire to pursue or be involved in the prosecution of the matter.”  LT S 
typed up her statement, which she signed, but he never provided a copy of it to the applicant’s 
counsel, in violation of the court’s discovery order.  Also on April 14, 2005, the Coast Guard 
Personnel Command (CGPC) approved the applicant’s request for separation, and the applicant 
received an OTH discharge on May 12, 2005.   

 
On  May  23,  2006,  SK1  O  personally  told  the  applicant  about  the  statement  she  had 
signed on April 14, 2005, and his counsel requested a copy of it under the Freedom of Informa-
tion Act.  On June 7, 2006, a staff attorney for the Coast Guard admitted to the applicant’s coun-
sel that he had located the statement but refused to provide a copy, alleging that the release of the 
information “would result in a clearly unwarranted invasion of personal privacy while shedding 
little or no light on how the Coast Guard carries out its statutory duties.”  The applicant alleged 
that the Coast Guard’s response was unfounded and irrelevant given that the statement was evi-
dence in his court martial proceedings and subject to his discovery request and the court’s order.  
After the applicant’s counsel submitted two more requests for SK1 O’s statement on August 4, 
2006, and September 26, 2006, the Coast Guard’s attorney again denied his request, saying that 
the discovery obligation terminated upon May 13, 2005, when the matter was finalized, and yet 
sent him a copy of SK1 O’s statement because it was taken on April 14, 2005, before the matter 
was finalized. 

 
The applicant stated that the Coast Guard may argue that even if SK1 O’s statement had 
been sent to his counsel, the Coast Guard would still have taken action against him, but the out-
come of such proceedings cannot now be known because LT S, the trial counsel, failed to dis-
close the exculpatory evidence to the defense counsel.   

 
The applicant noted that before the charges were made against him, he had a promising 
career and made consistently above average and excellent marks on his performance evaluations.  
He  had  been  advanced  to  BM1  within  just  six  years  of  his  enlistment.    However,  he  lost  his 
career and was “denied the right to properly defend himself.  If the government had followed the 
rules of evidence, then the outcome for [him] would have been very different.” 

 
In support of his allegations, the applicant submitted many documents pertaining to the 
investigation,  the  charges  against  him,  his  request  for  separation,  etc.,  which  are  summarized 
below, and a character reference from LT G, for whom the applicant worked as a team leader for 
about sixteen months.  LT G stated that he was “impressed with [the applicant’s] high level of 
drive, professionalism and responsibility.  He was one of my highest performing team leaders … 
[He] always struck me as a person who was interested in improving himself and those around 
him  and  was  a  definite  asset  to  my  detachment.”    The  applicant  also  submitted  a  statement 
signed  by  the  parents  of  Ms.  G,  in  which  they  wrote  that  he  is  a  “polite,  responsible,  always 
respectful and helpful” individual who provided care for Ms. G when she was ill and “has often 
demonstrated  patience  and  respect  for  her  needs.”    They  further  wrote  that  the  applicant  had 
“matured significantly in the last seven months.  His attitude about life and responsibility has 
improved considerably. … He sought help when he needed it and we believe he has learned from 
his mistakes.” 

 
The applicant enlisted in the Coast Guard on September 29, 1998, as a seaman recruit 

(SR/E-1) and thereafter advanced to boatswain’s mate, first class (BM1/E-6). 

 
On February 7, 2002, while still a BM3, the applicant was cited for public intoxication 
and criminal mischief.  The command prepared a “page 7” (CG-3307) entry for his record noting 
that  it  was  “not  the  first  time  in  recent  months  that  [his]  abuse  of  alcohol  [had]  negatively 
impacted [his] ability to carry out [his] responsibilities.”  The command documented the incident 
as his first alcohol incident and warned him that any further such incidents would result in his 
separation  from  the  service.   The  alcohol  incident  resulted  in  the  only  unsatisfactory  conduct 
mark on a performance evaluation in his record. 

 
On  October  20,  2004,  the  applicant’s  CO  asked  Coast  Guard  Investigative  Services 
(CGIS) to investigate allegations of assault against the applicant.  The request was made when 
PS3 P reported that a civilian, Ms. S, had told her that the applicant had struck Ms. G and had 
asked her if there was anything she could do about it.  PS3 P reported the civilian’s inquiry to her 
superior, who reported it to the CO. 

 

SUMMARY OF THE RECORD 

assault against the applicant.  The report included the following statements by witnesses. 

 
SK1 O, who dated the applicant from December 2001 to August 2002, signed two state-
ments describing the applicant’s violent behavior towards her on various occasions, especially 
when he had been drinking alcohol.  She estimated that he spit in her face 20 times; held her 
down against her will on a bed or the ground 20 to 30 times; used wrestling moves against her 10 
to 15 times; put his fingers down her throat to gag her 8 to 10 times; threw her against a wall or 
fence 2 to 3 times; and put his hands around her shoulders or neck 2 to 3 times.  After describing 
a few of the violent incidents in detail, SK1 O concluded that 
 

[the applicant] was very jealous and manipulative person when we were dating.  I often felt that I 
walked on eggshells around him.  He often drank and would start fights with me for no reason.  He 
was the kind of person that you didn’t want to get mad.  So I would try to do anything to keep him 
happy.  I was pleasing.  He would often turn the tables around and blame me for what he did or 
everything was my fault.  I’m not scared of [him] physically anymore because my boyfriend now 
would never let anyone hurt me.  But I am scared of [the applicant because] he can ruin me in 
other  ways.    I  try  to  stay  friends  with  him  now  so  that  he  doesn’t  talk  bad  about  me  to  other 
people.  I just hope this doesn’t affect my career in the Coast Guard.  I know if [the applicant] 
finds out that I helped in this investigation he would try to get back at me somehow.  I think he 
would get revenge on me somehow. 
 
BM2  M  stated  that  the  applicant  was  “hot  tempered”  and  that  one  night  he  heard  the 
applicant and SK1 O screaming at each other and saw that the applicant had her pinned on the 
floor.  BM2 M further stated that the applicant got “into verbal arguments with men and women.  
The men to men arguments were over stupid things, i.e., someone looked at him wrong, but the 
arguments with women were normally over control issues, i.e., don’t talk to other guys unless I 
know them. … [The applicant and SK1 O] seemed good together, but [he] is controlling.  He 
knows it and tries to make up for it by giving her flowers and gifts.  I don’t think it works.” 

 
Ms. G, who dated the applicant from November 1, 2003, beyond the date of his discharge, 
provided a statement on October 28, 2004, in which she wrote that she met the applicant in a bar 
where she worked as a waitress: 
 

Report of Investigation 

 
On  November  18,  2004,  CGIS  issued  a  Report  of  Investigation  into  the  allegations  of 

From the beginning, he’s been concerned about my past and even though I didn’t think it was any 
of his business, I told him about it and answered his questions.  I figured he would let things go 
but he didn’t.  Somehow he knew that I had lied about my past to “make myself look better” and 
indeed I had.  I didn’t think he would care about exact numbers or specifics but he sure did.  When 
we  fought,  my  past  was  mainly  the  focus  of  the  argument  or  it  would  somehow  come  up.   On 
many occasions, I would say at least 15 or so, he used his strength to hold me down against my 
will, which intimidated me on about 7 occasions or so, he covered my mouth and nose to stop me 
from screaming.  I couldn’t breathe.  He told me he  would let go if I calmed down.  On  many 
occasions he called me names and insulted me and on one specific occasion, I felt like I couldn’t 
take it anymore.  I felt degraded and humiliated and cornered, so I slapped him and he slapped me 
back, so I slapped him again and he slapped me back.  I think at that point he felt really guilty and 
we were both in shock.  On a couple of occasions, his friends had to get involved by separating us 
and talking to him so he would calm down … very embarrassing!  He went to a counselor from 
the Coast Guard who according to [the applicant] blamed his behavior on me.  He told me that this 
woman made him realize that as he kept drawing the line, I kept crossing it by lying.  To this day 

 
 
Ms.  S,  who  had  been  a  friend  of  Ms.  G  for  seven  years,  provided  a  statement  for  the 
investigation in which she described the applicant yelling at Ms. G, calling her fat in front of his 
friends, accusing her of cheating on him, and “making her cry.”  Ms. S stated that the applicant 
told Ms. G not to be friends with Ms. S and thereafter Ms. G did not meet her or return her calls.  
When Ms. G finally called Ms. S from her mother’s house, they met for lunch, and Ms. G told 
Ms. S that she and the applicant had “extremely intense arguments” during which the applicant 
“would call her horrible names like bitch, slut, and whore.”  Ms. G told Ms. S that she avoided 
being in public with the applicant because, if they ran into a male friend, the applicant would 
later interrogate her about her relationship with the man.  Ms. G told Ms. S that the applicant had 
slapped or hit her in the face on three occasions and that he threw her down on the bed to keep 
her from leaving.  Ms. G told her that “he usually only gets violent when he’s been drinking alco-
hol, but he is always trying to control.”  Ms. S concluded that Ms. G was afraid of the applicant 
hurting her but “is the kind of girl that will give everything to her boyfriend, do anything to keep 
him happy.  That’s how she has always been, and I think that’s why she is still with [him] even 
though he is hurting her.” 
 

On November 2, 2004, the applicant was informed that he was suspected of kidnapping, 
assault, and indecent language.  He was advised of his rights and indicated that he  wished to 
answer questions without consulting a lawyer.  The applicant signed the following statement: 
 

he says he doesn’t trust me.  I have tried to walk away from this relationship a couple of times but 
I always managed to find my way back.  He has done some wonderful things for me this year that 
we have been together.  He’s been very supportive and caring through some difficult times that I 
have gone through this year.  Unfortunately our lives and our fights everybody knows about.  He 
has yelled at me over the phone so loud my friends could hear him across the table.  I have spent 
most of our relationship crying and blaming myself.  My family and friends and even one of his 
sisters have at one time or another told me to leave him but I haven’t been able to.  I truly love him 
and even though I don’t know how much more I can take, I hope the relationship and [the appli-
cant] can change.  He has been going to new counselor and focusing on changing his behavior …  
To me, things have changed dramatically in the past month or so.  For the most part, we fight like 
normal people do.  We no longer yell or call each other names; we take “time outs” if things get 
too frustrating and he has not put his hands on me for months … at least 4 months … not like he 
used  to.  …  I  don’t  know  if  I’m  being  unrealistic  here  and  a  dreamer,  but  things  have  changed 
some and I hope they continue to do so. 

My girlfriend [Ms. G] and I had gotten into an argument and … I had insulted her and she slapped 
me.  I told her that if she hit me again, I would hit her back.  She slapped me again so I slapped 
her.  She hit me once again and I hit her again.  We stopped the argument and discussed what had 
happened.  I have also told [her] that I do not like her friends and that I did not want her to go 
drink[ing] with her friend [Ms. S] because I do not trust [Ms. S] and do not like her because she is 
dirty.  I have on numerous occasions been in arguments with [Ms. G] where it has become physi-
cal and I would hold her on the bed and cover her mouth after she had pushed or hit me.  During a 
deployment to Galveston, Texas, I was charged with [being] drunk in public.  I was at a strip club 
and used the women’s bathroom three times.  On the third time, the owner came in and then called 
the cops. …  My relationship with [SK1 O] was also physical.  In the summer of 2002 my team 
had a softball game and I called [her] to ask if she cared if I went to Hooters with the guys.  She 
said that she didn’t.  When I came home, I asked [her] what was wrong and she threw my boot and 
hit me in the testicles.  We were screaming at one another and I held her on the floor and put my 
fingers in her mouth.  [Another resident] walked in and went straight to his room.  There were also 
several  other  times  when  we  had  got  into  physical  altercations.    There  were  also  two  other 
relationships I had been in where there was physical altercations.  I explained to [the CGIS agent] 
that I had been attending both individual and couples counseling for about six weeks and that I am 

learning  about  this  behavior  and  how  to  stop  it.    I  learned  that  this  behavior  was  due  to  my 
upbringing and to prior relationships.  I told [him] that drinking has played a role in these actions. 
… I explained I try to treat women with the same respect as men, if not more. 

 
Judicial and Administrative Proceedings 
 

On  January  13,  2005,  the  applicant  was  charged  with  three  specifications  of  violating 
Article 128 of the UCMJ for (a) physically assaulting SK1 O on divers occasions in 2001 and 
2002 by pushing her, slapping her, grabbing her by the hair, using joint manipulations, spitting in 
her face,  and shoving his fingers down her throat causing her to choke  or gag; (b) physically 
assaulting SK1 O in April 2002 in New Orleans by pushing her, grabbing her by the hair, and 
throwing her to the ground; and (c) physically assaulting Ms. G on divers occasions in 2003 and 
2004 by pushing, hitting, and grabbing her.  He was also charged with three specifications of 
violating Article 134 of the UCMJ for (d) using indecent language to Ms. G on divers occasions 
in 2004, including the words bitch, slut, whore, spic, and cunt; (e) confining and holding SK1 O 
on divers occasions in 2001 and 2002 against her will; and (f) confining and holding Ms. G on 
divers occasions in 2004 against her will. 
 
 
On  January  21,  2005,  the  applicant’s  civilian  attorney  sent  the  Coast  Guard  a  letter 
explaining  that  he  would  be  representing  the  applicant  in  the  proceedings  and  asking  that  the 
legal  office  send  him  “any  and  all  related  documentation  which  in  any  manner  supports  the 
allegation against my client.”  On January 26, 2005, the attorney submitted a detailed request for 
discovery,  including  a  request  for  “copies  of  all  written  statements  in  the  possession  of  the 
government made by any witness to any law enforcement agency, command investigator, trial 
counsel, or social worker”; “any evidence favorable to the defense”; and “[a]ny and all exculpa-
tory evidence, information or statements of whatever form, source, or nature, whether written, 
recorded or otherwise … that may tend to favor the accused … or that may favor in any way the 
accused at trial or mitigate his sentence.” 
 
 
martial. 
 
 
On March 21, 2005, Ms. G signed an affidavit in which she stated that she did not desire 
to testify at the applicant’s court martial or to participate in the case against him in any way.  She 
also signed another affidavit stating the following: 
 

On February 23, 2005, the charges against the applicant were referred to a special court 

I understand that [the applicant] is charged with assaulting me by slapping me, pushing me, and 
grabbing me with his hands.  I further understand that [he] is also charged with wrongfully holding 
me down against my will. 
 
[The applicant] and I began dating on or about November 1, 2003.  We have been involved in a 
dating relationship from that date until the present.  In the course of our relationship there have 
been several occasions when [he] and I argued.  I sometimes have a difficult time controlling my 
emotions and my anger.  As a result, when [the applicant] and I would argue, there were numerous 
occasions  when I  would swing at [him]  with  my open hand and numerous times  when  I  would 
push him out of anger and frustration.  During these arguments, [he] only laid his hands on me 
after I first struck him or pushed him or after I tried to strike him. 
 

 

On March 22, 2005, a military judge issued Court Order No. 1 in the proceedings against 
the  applicant.   The  judge  scheduled  the  trial  for April  26,  2005;  ordered  that  all  responses  to 
discovery requests be made on or before April 6, 2005, if practicable; encouraged counsel to dis-
close matters under Rule 9141 of the Rules for Courts Martial (R.C.M.) and under the Military 
Rules of Evidence (M.R.E.); and ordered the trial counsel, LT S, to “comply with the disclosure 
and notification requirements” of various rules, including R.C.M. 701(a)(6),2 and to “immediate-
ly notify opposing counsel of any additional disclosures or notifications that are required as a 
result of further case preparation.”  

 
On  March  25,  2005,  the  applicant  submitted  through  his  chain  of  command  a  formal 

“Request for Separation in Lieu of Trial by Court Martial.”  He stated the following: 
 

[The applicant] only pushed me to get me to back away from him when I lost control and pushed 
him  first  or  tried  to  hit  him.    He  only  did  so  to  create  some  space  between  us  and  out  of  self-
defense  so  that  I  would  not  be  able  to  hit  him.    I  want  to  emphasize  that  [the  applicant]  never 
pushed me hard enough for me to fall or lose my balance.  I was never injured as a result of him 
pushing me. 
 
[The applicant] slapped me on only one occasion.  I slapped him first, and he slapped me back.  
He did not hit me hard, and this slap did not leave a mark.  I was not injured as a result of this slap. 
 
Sometimes when I was angry with [the applicant], and I tried to hit him or started pushing him, 
[he] would hold me down on the bed until I calmed down.  He would usually grab my arms with 
each of his hands and use his body weight to hold me down on the bed.  [He] did this out of self-
defense to keep me from hitting him or hurting him when I lost control.  He would immediately 
release me once I settled down.  I was not injured at any time as a result of [his] holding me down 
on the bed. 
 
Sometimes [the applicant] would not hold me down on the bed but would instead simply grab both 
of my arms to prevent me from striking him.  Again, any time [he] grabbed my arms he was doing 
so out of self defense.  I  was not injured as a result of [him] grabbing  my arms, and he  would 
immediately release me once I calmed down. 

2. 

1.  Per  [the  Personnel  Manual],  I  fully  understand  the  elements  of  the  offenses  charged  …  and  I 
hereby voluntarily submit this request, free from any duress or promises of any kind, for separa-
tion in lieu of trial by court martial. 
I have been afforded an opportunity to consult with counsel and I did consult with counsel, to wit: 
…, a civilian attorney of my own selection. 
I voluntarily admit that there is sufficient evidence to convict me of violation of the UCMJ, Article 
128 (assault), to wit: assault [SK1 O] by pushing, slapping, grabbing her by the hair, throwing her 
to the ground, spitting in her face and shoving fingers down her throat causing her to choke or gag.  
A summary of the evidence provided to me pertaining to the offense to which I acknowledge suffi-
cient evidence to convict of the said offense as noted above, is included … 

3. 

                                                 
1    R.C.M.  Rule  914  states  that  “[a]fter  a  witness  other  than  the  accused  has  testified  on  direct  examination,  the 
military judge, on motion of a party who did not call the witness, shall order the party who called the witness to 
produce, for examination and use by the moving party, any statement of the witness that relates to the subject matter 
concerning which the witness has testified, and that is: (1) In the case of a witness called by the trial counsel, in the 
possession of the United States …” 
2  R.C.M. Rule 701(a)(6) states the following: “Evidence favorable to the defense. The trial counsel shall, as soon as 
practicable, disclose to the defense the existence of evidence known to the trial counsel which reasonably tends to: 
(A)  Negate  the  guilt  of  the  accused  of  an  offense  charged;  (B)  Reduce  the  degree  of  guilt  of  the  accused  of  an 
offense charged; or (C) Reduce the punishment.” 

 

On March 30, 2005, the applicant’s CO forwarded the applicant’s request for discharge to 
the OEGCMJ (the Commanding General of Maintenance and Logistics Command Atlantic) and 
recommended approval.  He stated that “[t]here is evidence to support the charges and the case is 
proceeding toward a court martial, pending final action on this request.  The particular circum-
stances of this case are amenable to resolution through a discharge under Other Than Honorable 
conditions,  vice  a  General  Discharge,  which  the  member  requested.  …  [The  applicant]  was 
involved in numerous confrontations with several different individuals that became physical over 
the course of a period beginning on or about November 2001 until on or about June 2004.”  The 
CO enclosed a copy of the CGIS Report of Investigation. 

 
On  March  31,  2005,  the  OEGCMJ  forwarded  the  applicant’s  request  for  discharge  to 
CGPC and recommended approval.  He stated that the discharge was in the Service’s best inter-
est and that the court-martial proceedings would be delayed pending final action on the appli-
cant’s request. 
 
 
On April 14, 2005, SK1 O signed an affidavit, which was witnessed by the trial counsel, 
in which she acknowledged that she had reported being physically assaulted by the applicant on 
various occasions in 2001 and 2002 but stated that “[a]t this point in time, I do not wish to pursue 
or be involved in the prosecution of this matter.  I have been informed that if I change my mind 
at a later date, I may ask that the case be reopened and an investigation reinitiated.”  She also 
acknowledged  having  been  advised  of  her  rights  as  a  crime  victim,  including  her  right  to 
counseling and to consultation with a victim advocate. 

  
Also on April 14, 2005, CGPC took final action on the applicant’s request for separation 
by issuing an order requiring that he be discharged no later than May 12, 2005, under other than 
honorable (OTH) conditions pursuant to Article 12.B.21. of the Personnel Manual.  The record 
does not show whether the order was issued before or after SK1 O signed her third statement. 
 

On May 12, 2005, the applicant received an OTH discharge under Article 12.B.21. of the 
Personnel Manual, with an RE-4 reenlistment code and “Triable by Court Martial” as his narra-
tive reason for separation. 

4. 

5. 

I respectfully request to be discharged with a general discharge (under honorable conditions), but I 
understand that if my discharge is Under Other Than Honorable Conditions, it may deprive me of 
virtually  all  veteran’s  benefits  based  upon  my  current  period  of  active  service,  and  that  I  may 
expect to encounter substantial prejudice in civilian life in situations wherein the type of service 
rendered in any branch of the Armed Forces or the character of discharge received therefrom may 
have a bearing. 
I understand that I may submit a sworn or unsworn statement in my behalf. … I do not desire to 
submit a sworn/unsworn statement. … 

 

Post-Discharge Requests for SK1 O’s April 14th Statement 

 
On May 23, 2006, the applicant submitted a request under FOIA for SK1 O’s statement 
dated April 14, 2005.  On June 7, 2006, the Coast Guard notified the applicant that the statement 
was being withheld in its entirety under 5 U.S.C. §§ 552(b)(6) and 7(C) “because release of the 
information would result in a clearly unwarranted invasion of personal privacy while shedding 
little  or  no  light  on  how  the  Coast  Guard  carries  out  its  statutory  duties,”  as  well  as  under  

§ 552(b)(7)(F) “because this information was compiled for law enforcement purposes, and the 
release of which could reasonably be expected to endanger the life or personal safety of an indi-
vidual.”   

 
On  August  4,  2006,  the  applicant  asked  for  a  copy  of  SK1  O’s  statement  pursuant  to 
Court Order No. 1 and the discovery request, alleging that that approval of his request for sepa-
ration in lieu of trial by court martial “did not alleviate Trial Counsel from disclosing any subse-
quent  evidence  under  his  custody  and  control.”    On  November  29,  2006,  the  Coast  Guard 
responded, stating that the proceedings against the applicant were finalized on May 13, 2005, 
and that the “discovery obligation did not continue once the matter had been finalized.  There-
fore, your request for the document is denied.  However, in re-reviewing this matter, I am dis-
closing the requested document under your previous request dated May 23, 2006, and pursuant to 
5 U.S.C. § 552.” 

 

 

VIEWS OF THE COAST GUARD 

On October 4, 2007, the Judge Advocate General (JAG) of the Coast Guard submitted an 

advisory opinion in which he recommended that the Board deny relief in this case.   

 
The  JAG  stated  that  Court  Order  1  required  the  trial  counsel  to  comply  with  Rule 
701(a)(6) of the Rules for Courts Martial, which requires disclosure of any evidence that would 
tend to negate the guilt of the accused, reduce the degree of guilt, or reduce punishment.  The 
JAG  also  noted  that  the  order  asked  the  parties  to  “be  liberal  in  compliance  with  discovery 
requests.”  The JAG stated that it is not clear whether SK1 O signed the April 14, 2005, affidavit 
before or after CGPC issued the orders—also dated April 14, 2005—to separate the applicant, 
but both things happened before the charges against the applicant were dismissed.   

 
Citing United States v. Hart, 27 M.J. 839, 842 (A.C.M.R. 1989),3 the JAG argued that the 
trial counsel’s apparent failure to disclose SK1 O’s April 14th statement can be considered mate-
rial to the proceedings against the applicant “only if there is a reasonable probability that, had the 
evidence been disclosed, the result would have been different.”  The JAG argued that the failure 
to disclose her April 14th statement was harmless error and nothing therein contradicted the evi-
dence that SK1 O had previously provided.  He explained that the  

 
general purpose of memorializing an alleged victim’s desire not to participate in the prosecution of 
the accused is a tool to protect the interests of the government.  In the event that the government 
chooses not to prosecute, it serves to prevent a later claim by a victim that the case was not pur-
sued.  A memorialized statement is not exculpatory evidence in favor of the accused and does not 
prevent the victim from later requesting to participate, nor does it prevent the government from 
utilizing subpoena powers to require the victim/witness to participate in the judicial process.   
 

                                                 
3  United  States  v.  Hart,  27  M.J.  839,  842  (A.C.M.R.  1989)  (holding  that  in  deciding  whether  a  court-martial 
conviction  should  be  set  aside,  “failure  to  disclose  information  specifically  requested  by  the  defense  is  material 
unless  failure to disclose it  would be harmless beyond a reasonable doubt” and that  “failure to disclose all other 
information,  whether pursuant to a possible regulatory disclosure requirement, a ‘standing request,’ or a ‘general 
request,’ is material only if there is a reasonable probability that, had the evidence been disclosed, the result would 
have been different”). 

The  JAG  concluded  that  SK1  O’s April  14th  statement  was  not  material  to  the  court-
martial proceedings because there is “no reasonable probability that, had the evidence been dis-
closed, the result would have been different.”  The JAG also noted that in his request for separa-
tion in lieu of trial by court martial, the applicant admitted that the record contained sufficient 
evidence to convict him of violating Article 128 of the UCMJ by assaulting SK1 O.  The JAG 
argued that the applicant had confessed to assaulting and using indecent language toward both 
SK1 O and Ms. G and that “[t]o garner a conviction, the prosecution would merely have to cor-
roborate that confession.” 

 
The JAG alleged that the OTH and RE-4 reenlistment code were properly assigned to the 
applicant  and  that  he  has  failed  to  demonstrate  the  existence  of  any  “injustice”  in  his  record 
under Reale v. United States, 208 Ct. Cl. 1010, 1011, cert. denied, 429 U.S. 854 (1976).4  The 
JAG stated that the applicant “was well on his way to a federal court to be possibly convicted, 
but instead requested to be separated with an OTH in lieu of court martial.  From an equitable 
standpoint, the true injustice in this case would be to allow [him] to escape with no punishment 
to behavior he has admitted to on various occasions.  The punishment he did receive is the very 
OTH he now garners and now wishes to vacate.  To take away his punishment for what he has 
admitted to would be a certain injustice to the alleged victims.” 

 
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  November  13,  2007,  the  applicant  responded  to  the  JAG’s  advisory  opinion.    He 
stated that the trial counsel clearly violated Court Order 1 by failing to notify defense counsel of 
SK1  O’s April  14th  statement,  which  had  been  specifically  requested  in  the  discovery  request 
dated January 26, 2005.  The applicant alleged that the JAG’s claim that the April 14th statement 
was  not  significant  evidence  is  contradicted  by  the  Coast  Guard’s  repeated  failure  to  provide 
applicant with a document prior to his discharge and in its initial response to his FOIA request.  
He alleged that the Coast Guard’s failure to quickly produce the April 14th statement pursuant to 
his requests in 2006 proves that the trial counsel’s failure to disclose it was intentional. 

 
The applicant argued that “if either ‘alleged victim’ failed to testify again [him], then the 
government would have been left with only [the applicant’s] own statement and no way to corro-
borate the purported admissions in that statement.”  He argued that the judge “would have been 
obligated to enter a finding of Not Guilty upon motion of the defense in accordance with R.C.M. 
917, or if said motion was not made, to enter a finding of Not Guilty to those charges.”5 
                                                 
4 Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976) (finding that for purposes of the BCMRs under 10 U.S.C. 
§ 1552, “injustice” is treatment by military authorities that “shocks the sense of justice”); see also Sawyer v. United 
States, 18 Cl. Ct. 860, 868 (1989), rev’d on other grounds, 930 F.2d 1577. 
5 R.C.M. Rule 917(a) states that the judge, “on motion by the accused or sua sponte, shall enter a finding of not 
guilty of one or more offenses charged after the evidence on either side is closed and before findings on the general 
issue of guilt are announced if the evidence is insufficient to sustain a conviction of the offense affected.”  Paragraph 
(d)  states  that  the  judge  shall  make  such  a  finding  of  not  guilty  “only  in  the  absence  of  some  evidence  which, 
together  with  all  reasonable  inferences  and  applicable  presumptions,  could  reasonably  tend  to  establish  every 

 
The applicant stated that “the judicial system in the military is not one based upon trick-
ery  and  deception,  but  instead  is  one  based  upon  fairness  and  due  process  guarantees.”    He 
argued that the trial counsel’s failure to provide the applicant with SK1 O’s April 14th statement 
that  she  would  not  testify  against  him  was  “relevant  and  material  to  the  proceedings  –  in  all 
respects it is an exculpatory document that may have had an overwhelming effect if presented in 
Court to the trier of fact.” 

 
The applicant argued that if his case had proceeded to trial and if he had been convicted, 
“the  post-trial  disclosure  of  this  statement  would  have  clearly  served  as  a  proper  basis  for  a 
motion to set aside the findings and sentence of the trial on the after-discovered evidence that 
was intentionally  withheld from the defense by the Government.”  He argued that the signifi-
cance of the trial counsel’s conduct “is not in any manner lessened by virtue of the fact that [the 
applicant] elected to submit a request for discharge in lieu of  court martial.”  He alleged that 
“had he been aware of the existence of [SK1 O’s April 14th] statement prior to being discharge, 
[he]  could  have  certainly  withdrawn  his  request  to  be  discharged  in  lieu  of  court  martial  and 
elected to proceed to trial where he would have the opportunity for his counsel to confront his 
accuser in court and argue the significance of that statement before the court members or military 
judge.” 
 
The  applicant  argued  that  the  SK1  O’s  decision  to  sign  the April  14th  statement  might 
have triggered CGPC’s decision to approve his request for discharge instead of denying it and 
proceeding  to  trial.    The  applicant  concluded  that  the  Coast  Guard’s  conduct  was  “extremely 
egregious and warrants the granting of affirmative relief.” 

APPLICABLE REGULATIONS 

 
Article 12.B.21. of the Personnel Manual authorizes “separations for the good of the Ser-

vice.”  Article 12.B.21.a. states that an 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. This request does not preclude or suspend disciplinary proceedings in a case.  The officer who 
exercises general court-martial jurisdiction over the member concerned determines whether such 
proceedings will be delayed pending final action on a request for discharge.  Send requests for dis-
charge under other than honorable conditions for the good of the Service through the officer exer-
cising 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.c. provides a sample format for requests for separation in lieu of trial by 

court martial:    
                                                                                                                                                             
essential element of an offense charged.  The evidence shall be viewed in the light most favorable to the prosecution, 
without an evaluation of the credibility of the witnesses.” 

 

 

 

1. Under the provisions of [the Personnel Manual], I hereby request a discharge under other than 
honorable conditions  for the  good of the  Service in lieu of trial by court-martial  under circum-
stances which could lead to a bad conduct or dishonorable discharge. 
 
2. I have consulted with [counsel's grade, name, or if civilian, name and title], a member of the Bar 
in the State of [fill in] who has fully advised me of the implications of such a request.  The basis 
for my request for a discharge under other than honorable conditions for the good of the Service 
stems from my misconduct contained in the court-martial charges preferred against me in enclo-
sure (1).  I elect to be administratively discharged rather than tried by court-martial.  I am com-
pletely satisfied with the counsel I have received. 
 
3. I understand if this request is approved I will receive a discharge under other than honorable 
conditions, which may deprive me of virtually all veterans' benefits based on my current period of 
active service, and I may expect to encounter substantial prejudice in civilian life in situations in 
which  the  type  of  service  rendered  in  any  Armed  Forces  branch  or  the  character  of  discharge 
received therefrom may have a bearing. 
 
4. I understand once I submit this request, I may withdraw it only with the consent of Commander, 
(CGPC-epm-1). 

Article 12.B.21.d. states that the member should “send[] the request for discharge through 
the chain of command to Commander, (CGPC-epm-1).  The member's commanding officer shall 
recommend approval or disapproval of the member’s request with appropriate justification for 
his or her recommendation, certify accuracy of the court-martial charges … ” 
 

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.” 
 
 
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: 

 
1. 

 
2. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  

The application was timely. 

Court Order No. 1, issued on March 22, 2005,  required the Coast Guard’s trial 
counsel to comply with the disclosure requirement under R.C.M. Rule 701(a)(6), which requires 
trial  counsel  to  “disclose  to  the  defense  the  existence  of  evidence  known  to  the  trial  counsel 
which reasonably tends to: (A) Negate the guilt of the accused of an offense charged; (B) Reduce 
the degree of guilt of the accused of an offense charged; or (C) Reduce the punishment.”  The 

JAG has admitted that the trial counsel failed to send the applicant’s counsel a copy of SK1 O’s 
April 14, 2005, statement even though the criminal charges were not dismissed until May 13, 
2005, the day after the applicant’s discharge.  SK1 O’s April 14th statement did not contradict or 
undermine any of her prior allegations about the applicant’s violent assaults and so cannot be 
considered exculpatory evidence.  She indicated that she would not pursue and did not want to be 
involved in the prosecution against the applicant at that time and noted that she could change her 
mind at a later date.  Although the April 14th statement does not contradict the charges against 
the applicant, a victim’s zeal or lack of zeal for prosecution could theoretically affect either a 
verdict or a sentence, regardless of the strength of the evidence against the accused.  Therefore, 
the Board  finds that the Coast Guard’s trial counsel erred in failing to provide the applicant’s 
counsel with a copy of  SK1 O’s April 14th statement  prior to his OTH discharge  and the dis-
missal of the charges against him. 

The applicant alleged that the trial counsel’s error was intentional and pointed to 
the Coast Guard initial refusal to produce SK1 O’s April 14th statement in response to his May 
23, 2006, FOIA request as evidence of the trial counsel’s alleged intention.  The record shows 
that the Coast Guard initially withheld the statement under FOIA but released it on November 
29, 2006, following a second review.  The Board finds that the Coast Guard’s  decision-making 
about the applicant’s requests for the April 14th statement more than a year after his discharge are 
not probative of whether the trial counsel in April and May 2005 intentionally failed to disclose 
the April 14th statement or simply forgot to do so after CGPC approved the applicant’s request 
for separation.  The applicant has not proved that the trial counsel intentionally failed to disclose 
SK1 O’s April 14th statement. 

When an applicant proves that an error has been made, he must also demonstrate 
how he has been prejudiced by the error.6  Therefore, the Board must determine what would have 
happened had the trial counsel promptly sent the applicant’s counsel a copy of SK1 O’s April 
14th  statement.    Since  CGPC  issued  orders  to  discharge  the  applicant  on  April  14,  2005,  the 
Board  finds  that  when  SK1  O  signed  her  April  14th  statement,  the  applicant’s  request  to  be 
discharged  in  lieu  of  standing  trial  was  either  pending  imminent  approval  by  CGPC  or  had 
already been approved by CGPC.   

The  applicant  alleged  that  SK1  O’s  April  14th  statement  weakened  the  case 
against him so much that CGPC might have approved his request for separation only because of 
its existence.  However, the April 14th statement does not contradict SK1 O’s prior statements 
and would not have prevented the Coast Guard from eliciting her testimony at trial.  Therefore, 
the Board is not persuaded that, if CGPC was aware of the April 14th statement prior to issuing 
the orders to discharge the applicant, the existence of the statement per se would have affected in 
any way CGPC’s decision on the applicant’s request for separation. 

 
3. 

 
6. 

 
4. 

 
5. 

The applicant alleged that if the trial counsel had promptly forwarded him a copy 
of SK1 O’s April 14th statement, he would have withdrawn his request for separation, and the 
charges against him would have been dismissed or he would have been acquitted at trial.  The 
                                                 
6 Denton v. United States, 204 Ct. Cl. 188, 199-200 (1975) (holding that a BCMR applicant who proves that the 
Coast Guard committed an error is entitled “to nothing more than placement in the same position he would have 
been had no error been made”); see also Kimmel v. United States, 196 Ct. Cl. 579 (1971). 

Board is not convinced that the applicant would have sought to withdraw his request for separa-
tion had he timely known of SK1 O’s statement on April 14, 2005.  The April 14th statement 
does not contradict any part of SK1 O’s prior statements about the applicant’s alleged assaults 
against her; it notes her entitlement to change her mind about pursuing the applicant’s prosecu-
tion at a later date; and it would not have prohibited the Coast Guard from having SK1 O testify 
at trial about the alleged assaults.  Moreover, on November 2, 2004, the applicant confessed to 
much  of  the  behavior  attributed  to  him  in  the  specifications  and  witnesses’  statements.  
Therefore, as the JAG argued, to gain a conviction against the applicant, the trial counsel needed 
only to produce corroborative evidence, of which there was plenty in the record.  In light of the 
strong evidence against him, including his own confession, the Board is not persuaded that the 
applicant would have sought to withdraw his request for separation in lieu of trial had the trial 
counsel timely disclosed SK1 O’s April 14th statement. 

 
7. 

 

  Assuming arguendo that the applicant would have tried to withdraw his request 
for separation had trial counsel disclosed the April 14th statement, the Board is not persuaded that 
the  applicant  would  have  been  allowed  to  do  so.    Article  12.B.21.  of  the  Personnel  Manual, 
which  governs such  requests, does not  allow a  member to unilaterally  withdraw a request for 
separation.    As  indicated  in  Article  12.B.21.c.,  after  a  member  has  submitted  a  request  for 
separation in lieu of trial by court martial, the request can only be withdrawn with the consent of 
Commander, CGPC.7  Given the following facts, the Board finds that the applicant has failed to 
prove  by  a  preponderance  of  the  evidence  that  Commander,  CGPC  would  have  permitted  the 
applicant to withdraw his request for separation: 
 
 
performance marks had been good. 
 
 
The Report of Investigation—including the applicant’s November 2, 2004, 
confession—revealed that the applicant had a long history of physically assaulting women and 
detaining them against their will.  The applicant confessed to having had “physical altercations” 
in two other relationships, as well as in his relationships with Ms. G and SK1 O. 
 

The  applicant  was  a  trained  and  well  qualified  BM1,  most  of  whose 

b. 

a. 

 

 

c. 

Both the applicant’s CO and the OEGCMJ recommended approval of the 
applicant’s  request  for  separation  as  being  in  the  best  interest  of  the  Coast  Guard.    The  CO 
expressly recommended that the applicant receive an OTH discharge rather than a general dis-
charge. 
 
 

The applicant had already incurred one “alcohol incident” on February 7, 
2002, when he was cited for public intoxication and criminal mischief.  Under Article 20.B.2.h.2. 
of the Personnel Manual, “[e]nlisted members involved in a second alcohol incident will normal-
ly be processed for separation.”  Under Article 20.B.2.i., “[e]nlisted members involved in a third 
alcohol incident shall be processed for separation from the Service.”  The Report of Investiga-

d. 

                                                 
7  The  Board  notes  that  in  drafting  the  applicant’s  request  for  separation,  his  counsel  failed  to  follow  the  format 
provided in the Personnel Manual and so did not include the acknowledgement that, once submitted, a request for 
separation in lieu of trial cannot be withdrawn without Commander, CGPC’s consent.  However, as the applicant 
was represented by counsel, he presumably was aware of the rule about withdrawal when he submitted his request. 

tion, including the applicant’s confession, revealed a history of numerous alcohol-fueled violent 
incidents, each of which met the definition of an “alcohol incident.”8 
 

The Board finds that the applicant has not proved by a preponderance of the evi-
dence that, if he had asked to withdraw his request for separation in lieu of trial by court martial, 
CGPC would have permitted him to do so.  The preponderance of the evidence shows that it was 
clearly in the Coast Guard’s best interest to separate the applicant, and the applicant has submit-
ted no evidence or reason why CGPC would not have approved his March 25, 2005, request for 
separation if he had asked to retract it. 

Although the applicant proved that the trial counsel committed a procedural error 
by failing to provide the applicant’s counsel with a copy of the April 14th statement, he has failed 
to prove that he would likely have ended up in a different position if the trial counsel had not 
committed the error.9  He has failed to prove that CGPC’s approval on April 14, 2005, of his vol-
untary  request  for  separation  was  erroneous  or  unjust  or  that  his  OTH  discharge  on  May  12, 
2005, was erroneous or unjust.  10  The applicant’s March 25, 2005, request for separation was 
voluntarily made and he could not unilaterally retract it.  The evidence of record, including his 
own confession, amply supports CGPC’s decision to separate him with an OTH discharge and an 
RE-4 reenlistment code. 

 
8. 

 
9. 

 
10. 

11. 
 
 
 
 

The  applicant  made  numerous  allegations  with  respect  to  the  Coast  Guard’s 
handling of his post-discharge requests for the April 14th statement and the possible outcome of a 
trial  had  CGPC  not  approved  his  request  for  discharge.    Those  allegations  not  specifically 
addressed above are considered to be not dispositive of the case. 
 

Accordingly, the applicant’s request should be denied.  

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

                                                 
8 Article 20.A.2.d.1. of the Personnel Manual defines an “alcohol incident” as “[a]ny behavior, in which alcohol is 
determined, by the commanding officer, to be a significant or causative factor, that results in the member's loss of 
ability to perform assigned duties, brings discredit upon the Uniformed Services, or is a violation of the Uniform 
Code of Military Justice, Federal, State, or local laws. The member need not be found guilty at court-martial, in a 
civilian court, or be awarded non-judicial punishment for the behavior to be considered an alcohol incident.” 
9 Denton, 204 Ct. Cl. at 199-200 (holding that a BCMR applicant who proves that the Coast Guard committed an 
error is entitled “to nothing more than placement in the same position he would have been had no error been made”). 
10  Reale,  208  Ct.  Cl.  at  1011  (finding  that  for  purposes  of  the  BCMRs  under  10  U.S.C.  § 1552,  “injustice”  is 
“treatment by military authorities that shocks the sense of justice”). 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for 

ORDER 

 

        

 
 
 Steven J. Pecinovsky  

 

 

 
 J. Carter Robertson 

 

 

 
 
 Richard Walter 

  

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

correction of his military record is denied.