DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2012-003 
 
Xxxxxxxxxxxxxxx 
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FINAL DECISION 

This proceeding was conducted under the provisions of section 1552 of title 10 and sec-
tion 425 of title 14 of the United States Code.  The Chair docketed the case upon receiving the 
completed application on October 13, 2011, 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). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  July  12,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The  applicant  asked  the  Board  to  overturn  the  results  of  an  Administrative  Separation 
Board (ASB) convened on October 18, 2007, and to reinstate him on active duty or, as alterna-
tive relief, to upgrade his discharge from general to honorable.  The applicant alleged that he is 
entitled to reinstatement because his discharge was erroneous because he was denied due process 
because (1) before the ASB convened, he was not provided sufficient notice of the basis for his 
proposed separation to prepare a defense and (2) the ASB reconvened improperly without him or 
his counsel being present.  The applicant summarized the Coast Guard’s actions against him as 
follows: 
 

In  short,  the  Command  ran  afoul  of  the  proper  and  legally  required  notification  requirements  to 
separate a member from the Coast Guard.  First, they initiate [an ASB] for “misconduct”.  Then, 
they place [the applicant] on probation.  Next, they draft a negative page 7 stating an allegation of 
drug incidents.  Then, they proceed to hold [an ASB] on allegations of adultery.  Finally, they hold 
a supplemental [ASB] without [the applicant] or his attorney present.  The entire course of events 
completely  disregards  the  established  regulatory  procedure  set  forth  by  various  Commandant 
Instructions. 

 
 
The applicant alleged that the only basis for discharge he was provided notice of in writ-
ing was drug abuse.  When the ASB decided that he could not be discharged based on allegations 
of drug abuse, the inquiry should have stopped, and if the ASB was to be reconvened to consider 
his  discharge  on  other  grounds,  he  should  have  received  official,  written  notice  of  the  other 
grounds.  However, after deciding that he could not be discharged based on drug abuse, the ASB 

 

 

simply  continued  its  inquiry  and  recommended  his  discharge  first  for  adultery  and  then  for 
assault and battery even though he was never notified of these other grounds for discharge.   
 

The  applicant  alleged  that  the  Coast  Guard’s  failure  to  give  him  adequate  notice  of  the 
basis for his discharge violated his rights under the Personnel Manual  and the Constitution and 
deprived him of the chance to investigate the charges, gather evidence, and prepare his defense.  
His attorney attempted to address the assault and battery allegations when they arose during the 
hearing, but the lack of notification prevented him from investigating and presenting evidence in 
his defense. 
 

The  applicant  argued  that  he  was  entitled  to  specific,  written  notice  of  the  basis  for  his 
discharge, not just constructive notice, citing Crane v. Secretary of the Army, 92 F. Supp. 2d 155, 
165  (W.D.N.Y.  2000).    He  argued  that  by  awarding  him  a  stigmatizing  general  discharge  for 
spousal abuse without written notice and an opportunity to respond, the Coast Guard denied him 
not only his rights under the Personnel Manual and ASB Manual but his rights under the Consti-
tution, citing Casey v. United States, 8 Cl. Ct. 234, 239 (1985). 
 
 
The applicant  alleged that  the drug  and spousal abuse charges were laid  against him by 
his then wife in an email to his command in the midst of a bitter divorce and child-custody fight.  
However, once joint custody was awarded, he alleged, his ex-wife withdrew her allegations.  He 
alleged that she fabricated her allegations to gain custody of their children.  He alleged that the 
evidence shows that she was the aggressor in their confrontations and that she admitted that he 
never hit her.  He alleged that even though his wife got an Emergency Protective Order against 
him, she continued to text him repeatedly, which shows that she was not afraid of him.  He also 
alleged  that  there  is  no  evidence  supporting  the  ASB’s  finding  that  he  used  excessive  corporal 
punishment on his children or that he made a false official statement, which was another surprise 
basis for discharge the ASB relied on.   In addition, contrary to the ASB’s findings, he was not 
involved  in  a  “prohibited  relationship”  as  defined  in  Article  8.H.2.g.  of  the  Personnel  Manual.  
However,  he  was  unable  to  adequately  defend  himself  against  these  charges  before  the  ASB 
because he was never advised of any potential grounds for his discharge except drug abuse so he 
did not know that he was going to have to defend himself against such allegations. 
 
 
The applicant alleged that when the ASB  originally relied on an old version of the Per-
sonnel Manual, and when it reconvened to consider the case under the current version, he had a 
right  to  be  present.    He  argued  that  the  change  in  the  regulations  applied  constituted  new  evi-
dence and that the regulations allow him to be present during the proceedings, except when the 
ASB meets in closed session, and to make a closing statement after the presentation of the evi-
dence.  The applicant argued that when the ASB reconvened to redeliberate his case under new 
regulations, he “should have had an opportunity to present any evidence or argument concerning 
the effect of considering his discharge under Change 41 of the PERSMAN.”  Because he was not 
afforded  this  right,  the  findings,  opinions,  and  recommendations  of  the  ASB  should  be  invali-
dated. 
 
 

 
 

 

 

SUMMARY OF THE EVIDENCE 

 

 
 
The  applicant  enlisted  in  1997.    His  personnel  data  record  (PDR)  contains  many  acco-
lades and awards, including a Distinguished Flying Cross and a Coast Guard Air Medal.  How-
ever,  it  also  includes  several  Page  7s  showing  that  the  applicant  was  also  counseled  about  his 
poor conduct on various occasions: 
 

  On June 10, 2005, the applicant was placed on six months’ probation for repeatedly fail-
ing to follow his supervisors’ orders, inappropriate behavior, setting a poor example, lack 
of responsibility, not working well with others, lack of professionalism, and disrespectful 
communications with superiors. 

  On January 4, 2006, the applicant was counseled about his inability to balance his work 
and his personal life, which “placed a great burden on your peers as they have to assume 
your duties.” 

  On July 17, 2006, the applicant, who was married, was counseled about having a “prohi-
bited  romantic  relationship”  with  a  married,  female  petty  officer  and  committing  “lewd 
and lascivious acts” as a male stripper.  The applicant was also counseled about attending 
Coast Guard events with women other than his wife and engaging in inappropriate public 
displays  of  affection.    He  was  placed  “on  probation  for  misconduct  and  sexual  perver-
sion”  for  one  year  and  warned  that  further  misconduct  could  result  in  a  General  Dis-
charge. 

 

  On  September  18,  2006,  the  applicant  was  counseled  about  driving  with  his  daughter 
standing  on  the  passenger  seat  with  her  head  sticking  up  out  of  the  sunroof.    His  base 
driving privileges were suspended for 60 days. 
 
In  2006,  CGIS  conducted  an  investigation  into  allegations  that  the  applicant  used  and 
possessed  illegal  drugs  and  had  assaulted  his  wife  and  children.    The  investigator 
gathered  police  reports  and  statements  from  family  members,  family  friends,  and  Coast 
Guard members.  Although the applicant denied the allegations, the investigation identi-
fied “several witnesses that stated he has used illegal drugs and also physically abused his 
wife and/or children.”   The investigator also  received allegations of adultery,  and noted 
that  the  applicant  admitted  that  he  had  sneaked  his  wife  into  Coast  Guard  housing  and 
lied  to  law  enforcement  about  her  presence  when  they  arrived  to  investigate  a  distur-
bance. No disciplinary action was taken against the applicant, but his security clearance 
was suspended and he was reassigned to duties not involving classified information. 

  On January 17, 2007, the applicant was counseled about “talking back and arguing” with 
his supervisor in front of subordinates, displaying an apathetic attitude, wearing inappro-
priate  clothing  in  training,  drinking  alcohol  to  excess,  and  claiming  he  would  lie  about 
whether  he  had  drunk  alcohol  if  he  was  asked  to  take  the  watch  within  12  hours  of 
drinking alcohol.  

 

 

 

 

 

 

 

In March 2007, the applicant’s divorce became final.  On April 23, 2007, the applicant’s 
commanding officer (CO) notified him that he was initiating action to separate the applicant for 
misconduct  under  Article  12.B.18.  of  the  Personnel  Manual  and  that  he  could  receive  an  other 
than honorable (OTH), general, or honorable discharge at the discretion of Commander, CGPC.  
The CO advised him of his right to submit a statement on his own behalf and to be represented 
by counsel and appear before an ASB.  On the same day, the CO designated the senior member 
of  the  ASB  and  instructed  him  to  convene  the  ASB  by  May  8,  2007.    On  April  24,  2007,  the 
senior member advised the applicant that the ASB would  
 

gather evidence, both in your favor and adverse to you, as necessary for the separation authority to 
make sound decisions regarding whether to separate you from the Coast Guard, and if so, how to 
characterize  your  service.  I  understand  that  you  have  chosen  to  be  represented  at  the  board  by 
[counsel’s name].  Note that you, or your representative, must assert your rights in a timely man-
ner.  If you believe that the Board or any person involved is not properly observing your rights or 
is otherwise not acting in accordance with Coast Guard policy, you should notify me, or [the CO] 
immediately so that the situation can be corrected.   
 
The senior member directed the Recorder to provide the applicant with a “list of any rea-
sons  for  discharge  from  [the  Personnel  Manual]  that  the  Recorder  believes  are  merited  by  the 
evidence”; a “summary of the following information derived from the member’s official person-
nel  and  health  records,”  including  military  offenses,  disciplinary  action,  personality  disorders, 
civil convictions, Page 7s, and performance marks; documents to be presented in evidence at the 
hearing; extracts of pertinent Coast Guard regulations; and a list of witnesses with a brief sum-
mary of the expected testimony. 

 
The Recorder provided the applicant with the exhibits he intended to submit and a list of 
22  witnesses  who  were  to  testify  regarding  “drug  abuse,  discreditable  involvement  with  civil 
authorities, sexual perversion, and abuse of family member.”  The exhibits included extracts of 
the  Personnel  Manual,  photographs  of  bruises  on  the  applicant’s  wife  and  daughter  and  of  the 
applicant performing at a bachelorette party, the applicant’s PDR, a CGIS report of an investiga-
tion into the applicant’s alleged drug abuse, and Family Advocacy Program records. The list of 
witnesses  included  the  name  of  a  married,  female  petty  officer  with  whom  the  applicant  was 
allegedly having an affair.   

 
The  ASB  was  not  immediately  initiated.    Instead,  on  May  16,  2007,  the  CO  placed  the 
applicant  on  a  9-month  probationary  period.    The  Page  7  documenting  the  start  of  the  period 
states that the reasons for the probation were (1) multiple occasions of illegal drug use; (2) multi-
ple occasions of discreditable involvement with civil authorities; (3) multiple occasions of sexual 
perversion;  and  (4)  multiple  occasions  of  abuse  of  a  family  member.    The  Page  7  advised  the 
applicant that if he failed to make a conscientious effort to overcome his deficiencies in conduct 
during the probationary period or if he violated the conditions of probation at any time, the CO 
could initiate his separation prior to the end of the period. 

 
On May 8, 2007, the Command Security Officer recommended permanent termination of 
the applicant’s security clearance.  He noted that the CGIS investigation had revealed evidence 
of drug use; domestic abuse; lying to local police; sexual perversion, including performance as a 
male exotic dancer and “several extra-marital affairs, including two with other active duty mem-

 

 

bers  and  another  with  the  wife  of  another  member”;  and  discreditable  involvement  with  civil 
authorities, including violations of restraining orders and lying to police during an investigation. 

 
On July 9, 2007, the applicant’s CO prepared another Page 7 stating that a CGIS report 
had revealed that the  applicant  had illegally used  marijuana, ecstasy,  and  cocaine on numerous 
occasions  while  on  active  duty  and  had  even  invited  his  cocaine  supplier  to  attend  a  party  in 
Coast Guard housing in 2005.  Based on the CGIS report, the CO determined that the applicant 
was involved in a “drug incident” and would be processed for separation.  The CGIS report con-
tains  statements  from  a  few  people  claiming  that  the  applicant  had  used  marijuana,  cocaine, 
and/or ecstasy. 

 
On August 23, 2007, the CO reissued the memorandum to the senior member of the ASB 
and instructed him to convene the ASB on 18 and 19 October, 2007.  On August 24, 2007, the 
senior member reissued his April 23, 2007, letter to the applicant about the ASB. 

 
Before the ASB first convened in October 2007, however, the applicant’s ex-wife and her 
family and friends wrote statements refusing to testify against the applicant and withdrawing all 
prior  statements.    In  early  October,  the  Recorder  provided  the  applicant’s  counsel  with  an 
amended list of 30 witnesses and various exhibits.  In addition to those provided previously, the 
exhibits  included  more  recent  Page  7s,  documentation  of  the  loss  of  the  applicant’s  security 
clearance,  and  local  law  enforcement  records  of  various  interactions  with  the  applicant  and  his 
ex-wife.  The witness list included the ex-wife’s attorney.   

 
After convening on October 18 and 19, 2007, the ASB issued a report on November 21, 
2007, with thirty findings of fact about incidents of misconduct and ten opinions alleging that the 
applicant had exposed himself and engaged in indecent  acts at  a bachelorette party, engaged in 
extramarital public displays of affection at official Coast Guard events, engaged in an adulterous 
relationship  with  another  married  petty  officer,  emotionally  and  physically  abused  his  spouse, 
“exhibited behaviors consistent with that of an abuser” in a “cycle of violence,” and been discre-
ditably  involved  with  local  civil  authorities  six  times.    However,  the  ASB  found  insufficient 
evidence of illegal drug use or child abuse.  The record also showed that the applicant’s ex-wife 
suffers from bipolar disorder and had admitted to using illegal drugs and cutting herself to feel 
better.  The ASB recommended that the applicant be discharged for misconduct due to his dis-
creditable  involvement  with  civil  authorities,  sexual  perversion,  involvement  in  a  prohibited 
relationship, and abuse of a family member.  The ASB recommended that the applicant receive a 
General  Discharge,  instead  of  an  OTH  Discharge,  based  on  his  receipt  of  a  Coast  Guard  Air 
Medal and Distinguished Flying Cross.   

 
The applicant’s counsel submitted a response to the ASB report in which he complained 

that he had not received notice of all the potential bases for discharge. 

 
On February 15, 2008, Commander, CGPC issued a memorandum noting that when the 
applicant’s CO originally initiated the ASB in April 2007, Change 39 of Article 12.B. of the Per-
sonnel Manual was still in effect but that by the time the ASB convened in October 2007, Article 
12.B. had been revised pursuant to Change 41.  He ordered the ASB to “reconvene to reconsider 

 

 

their  findings  of  facts,  opinions  and  recommendations  in  accordance  with  current  Coast  Guard 
policy.” 
 
On May 15 and 16, 2008, the ASB reconvened in closed session and reconsidered their 
findings of facts, opinions, and recommendations under Change 41 of the Personnel Manual.  In 
a report dated May 17, 2008, the ASB noted the evidence of poor conduct and performance pro-
bationary periods documented on Page 7s in the applicant’s record and also found that the exhi-
bits and testimony supported the following findings of fact:   
 

 

 

  The applicant had previously admitted to slapping his wife sometime prior to 2005.  
  During a loud confrontation with his wife in August 2005, the applicant forced her to the 
ground and restrained her legs and her arms behind her back with plastic zip ties, causing 
the  neighbors  to  call  the  sheriff  when  they  heard  the  confrontation  and  the  applicant’s 
children  told  them  what  had  happened.    (The  applicant  told  police  he  restrained  her 
because she was hitting her head against the wall and threatening to kill herself.  She told 
them he forced her to the ground during an argument and  repeatedly threatened to have 
her committed.) 
In  October  2005,  the  applicant’s  wife  went  to  the  sheriff  with  a  report  of  domestic 
violence, drug abuse, and child abuse and showed them bruises on her arm and lower left 
back from a physical confrontation with the applicant. 
In  October  2005,  the  applicant’s  therapist  terminated  her  service  with  the  applicant 
because  of  his  “explosive  anger,  deceptions,  and  attempts  to  discredit  his  wife”  and 
reported that the family was at risk for domestic violence. 
In  October  2005,  the  applicant’s  wife  was  banned  from  Coast  Guard  housing  due  to 
admitted drug use on the premises. 
In January 2006, the applicant performed as a male stripper at  a bachelorette party, and 
photographs showing his indecent exposure and implying “physical contact of a sugges-
tive nature with the party attendees” were posted on the internet. 
In June 2006, while exchanging their three children in a public parking lot, the applicant 
slammed his wife’s car door on her hand.  He was arrested and spent four days in jail. 
In June 2006, a restraining order was issued against the applicant to stay away from his 
wife and children. 
In  July  2006,  the  applicant  sneaked  his  wife  into  Coast  Guard  housing  and  became 
involved in  a physical  confrontation  with  her that  resulted in  her receiving  a black  eye.  
When  the  neighbors  heard  the  confrontation  and  called  the  police,  the  applicant  hid  his 
wife and told the police his wife was not present. 
In  2006,  the  applicant  threatened  his  wife’s  counsel  saying,  “You’d  better  watch  your 
back.” 

 

 

 

 

 

 

  The married, female petty officer with whom the applicant was having an affair called his 

 

wife and left her a voicemail message in which she “taunted” her about their affair.   
In  August  2006, the police investigated the  applicant  in  response to  allegations of child 
abuse after he used “corporal punishment on one of the children that left visible welts and 
caused the child to limp for more than 24 hours.”  The police photographed the bruising 
and  an  Emergency  Protective  Order  was  issued.    (The  applicant  told  police  that  he  had 
“swatted” their five year old because she had refused to say “please” when reminding her 

 

 

 

 

 

 

 

mother to put on her seatbelt (which was her “job”) even though he had asked her to do 
so three times.) 
In September 2006, when the applicant was seen driving with his daughter standing unre-
strained on the passenger seat, he was driving his vehicle in excess of 30 miles per hour; 
her  head,  chest,  and  arms  were  outside  the  sunroof;  and  he  drove  the  vehicle  onto  the 
base in this way.   
In  a  confrontation  with  his  wife  in  October  2006,  the  applicant  wrestled  her  cell  phone 
from her and threw it against a wall, breaking it.  His wife locked herself in the bathroom, 
and  the  applicant  called  a  crisis  hotline  saying  she  was  going  to  hurt  herself.    His  wife 
received  a  black  eye,  which  the  applicant  claimed  she  gave  to  herself  with  a  hairbrush.  
His  wife  claimed  he  gave  her  the  black  eye  by  hitting  her  and  then  told  her  the  police 
would never believe he hit her once they saw all of the scars on her arms. 
In  October  2006,  the  sheriff’s  department  referred  the  applicant’s  case  to  the  State’s 
Child  Welfare  Services  after  finding  that  the  applicant  had  inflicted  “inappropriate  cor-
poral punishment” on his child.  Although an arrest warrant was issued for the applicant, 
he was not arrested because the arresting officer was severely injured by a drunk driver 
that evening and the statute of limitations expired on the warrant. 
In November 2006, a representative of the Family Advocacy Program terminated services 
for the applicant and declared him a “treatment failure for not demonstrating a significant 
change in behavior.” 
In December 2006, his security clearance was suspended, and he was reassigned. 

 
  The applicant’s ex-wife’s counsel testified that she was aware of more than 30 separate 
incidents  of  spousal  abuse.    However,  the  ex-wife  and  her  family  had  refused  to  testify 
because the applicant had told her that she could visit him and their children on the base 
and take the children to her family in Iowa only if she did not testify against him. 

  The  applicant’s  documented  interactions  with  civil  law  enforcement  numbered  six  and 
resulted  in  one  arrest,  two  restraining  orders,  a  CGIS  investigation,  and  “one  arrest 
avoided by a tragic accident.” 

Based on the applicant’s PDR, the other exhibits, and the testimony, the ASB stated as its 
“opinions” that the applicant had committed assault consummated by battery, indecent exposure, 
adultery, insubordinate conduct, disobedience to orders, false official statements, reckless endan-
germent  of  a  child,  obstruction  of  justice,  and  communication  of  a  threat.    However,  the  ASB 
stated that there was “insufficient evidence … to substantiate charges of illegal use of controlled 
substances or child abuse.” 

 
Based  on  these  findings  of  fact  and  opinions,  the  ASB  stated  that  the  applicant  should 
receive an OTH discharge for misconduct due to commission of a serious offense.  However, the 
ASB recommended that he receive a General Discharge because he had received a Coast Guard 
Air  Medal  and  Distinguished  Flying  Cross  for  heroism  in  search  and  rescue  operation  and  so 
special consideration was due in accordance with Article 12.B.2.f.1.f.1. of the Personnel Manual. 

 
On May 27, 2008, the applicant’s counsel submitted a response to the ASB’s report.  He 
alleged that the Coast Guard had failed to properly inform him of the basis or bases for separa-
tion prior to the ASB in October 2007 and that the only basis for discharge he had been properly 
informed  of  was  drug  abuse,  of  which  the  ASB  had  found  insufficient  evidence.    He  did  not 

 

 

argue  that  the  reconvening  of  the  ASB  in  closed  session  in  May  2008  violated  the  applicant’s 
right to be present during the proceedings. 

 
The ASB’s report was endorsed by the CO on June 12, 2008.  He noted that he could not 
trust  the  applicant  to  maintain  the  aircraft,  survival  equipment,  or  security  secrets  and  that  the 
frequency of problems reported from the AST shop had dropped from weekly to none at all since 
the applicant had been reassigned. 

 
On  April  8,  2009,  Commander,  Personnel  Service  Center  (PSC)1  took  final  action  and 
“substantially  approved”  the  ASB’s  findings,  opinions,  and  recommendation  that  the  applicant 
be discharged for “commission of a serious offense.”  He noted that he had reviewed the report 
and the applicant’s counsel’s response to it and found the evidence of spousal abuse “particularly 
compelling.”  He alleged that the applicant had not disputed the most egregious of the incidents 
of spousal abuse.  Aside from this “serious offense,” Commander, PSC noted that the applicant 
had  been  on  probation  for  various  performance  and  conduct  issues  for  most  of  a  three-year 
period beginning in June 2005 and that there was documentation of adultery, lying to police, “the 
endangerment  and  excessive  corporal  punishment  of  a  child,”  and  credible  accusations  of  drug 
abuse.  However, on April 9, 2009, PSC issued orders for the applicant to receive a General Dis-
charge for a “Pattern of Misconduct” with a GKA separation code.2   

 
On April 28, 2009, the applicant submitted a response to Commander, PSC’s final action, 
disputed  his  comments,  and  requested  suspension  of  his  discharge.    On  May  6,  2009,  a  new 
Commander, PSC (the previous one had just retired) denied the applicant’s request, stating that 
while he “appreciate[d] the efforts of so many people in providing  you strong letters of recom-
mendation, … I do not find their collective merit to be persuasive or convincing to the extent of 
justifying reconsideration of the final action decision.”  The applicant was discharged in accor-
dance with PSC’s separation orders on May 7, 2009.  He had completed 12 years, 3 months, and 
24 days of active duty. 
 

VIEWS OF THE COAST GUARD 

On April 4, 2012,  the Judge Advocate General  (JAG) submitted an  advisory  opinion in 

 
 
which he recommended that the Board deny relief in this case.   
 
 
The JAG denied that the applicant  was not  provided adequate notice of the basis of the 
discharge proceedings.  He argued that the record shows that the applicant received a “litany of 
documented instances of misconduct” including two probationary periods in which he was coun-
seled in writing about his conduct.  The JAG stated that the applicant was advised by his CO on 
23  April  2007  that  he  was  initiating  his  discharge  for  misconduct  and,  after  his  CO  decided  to 
give him a second chance, specifically counseled about the misconduct at issue on May 16, 2007, 
including multiple instances of illegal drug use, discreditable involvement with civil authorities, 
sexual  perversion,  and  abuse  of  a  family  member.    Moreover,  he  was  warned  that  any  further 
misconduct would result in separation proceedings.  The JAG stated that after the CO determined 

                                                 
1 In January 2009, CGPC became the PSC. 
2  Under  the  Separation  Program  Designator  Handbook,  the  separation  code  for  a  discharge  for  “commission  of  a 
serious offense” via an ASB is GKQ. 

 

 

that a drug incident had occurred, he also determined that the applicant had violated his proba-
tion and reinitiated the ASB process for a misconduct separation.  Therefore, the JAG argued, the 
applicant “knew or should have known the basis for his separation which was various instances 
of  misconduct.    Therefore,  any  and  all  allegations  of  misconduct  would  be  evaluated”  by  the 
ASB.    The  JAG  argued  that  the  applicant  “should  have  been  prepared  to  contest  any  and  all 
instances of misconduct that [were] documented in his record.” 
 
The JAG argued that assuming arguendo that the applicant was unaware of the specific 
 
instances of misconduct the ASB would consider, his counsel was provided with a detailed list of 
the Coast Guard’s witnesses and the misconduct they would testify about.  The JAG argued that 
the  applicant’s  reliance  on  a  sample  of  a  notification  provided  in  Enclosure  (1)  to  the  ASB 
Manual is misplaced and that the sample provided does not extend the notification requirement 
beyond what is stated in the regulation.  The JAG argued that the sample provides a format for 
providing additional information, if needed, and that in the applicant’s case, there were so many 
instances of misconduct that “it would [have been] impractical to attempt to list all the informa-
tion as provided by the sample with respect to the Applicant’s litany of misconduct offenses.” 
 
 
The JAG stated that an ASB is a fact-finding board and is not limited to reviewing spe-
cific  evidence  but  reviews  all  pertinent  information,  including  anything  in  a  member’s  service 
record and reports of investigations.  “Thus, great detail regarding the basis for separation is not 
a  factor  because  the  [ASB’s]  duty  is  to  review  all  information  properly  presented”  and  make 
findings of fact.  The ASB “is charged with reviewing all records and information pertaining to 
the  basis  for  discharge,  which  in  this  case  is  misconduct.”    The  JAG  argued  that  the  applicant 
therefore  knew  or  should  have  known  that  any  instances  of  misconduct  were  fair  game  for 
review and he should have been prepared to refute them.  The JAG further argued that the appli-
cant’s reliance on the decision in Casey is misleading because the plaintiff in that case was dis-
charged from the Army  without  any  ASB, whereas the  applicant  received an ASB with  proper 
notification and all due process. 
 
The  JAG  further  argued  that  an  ASB  is  not  a  court-martial  but  “a  fact-finding  body 
 
appointed to investigate a member’s suitability for retention in the service, render findings based 
on the evidence obtained, and make specific recommendations for use by Coast Guard separation 
authorities.”  An ASB is “concerned with a member’s performance, traits of character, personal-
ity  disorders,  ethical  behavior,  honor,  and  other  behavior”  in  evaluating  a  member’s  suitability 
for retention.  An ASB is not punitive but renders a recommendation about an employment deci-
sion based on the preponderance of the evidence presented. 
 
 
The JAG stated that because the original ASB relied on an old version of the Personnel 
Manual when it convened in October 2007, Commander, CGPC ordered the ASB to “reconvene 
to reconsider their findings of facts, opinions and recommendations in accordance with Change 
41 of the PERSMAN.”  The JAG stated that the ASB was not reconvened to consider additional 
evidence, and it reconvened in a closed session for deliberations, which is allowed by the ASB 
Manual. 
 
 
The JAG stated that the  applicant’s ASB was conducted in  substantial  compliance with 
the Personnel Manual and the ASB Manual, and the applicant received all rights and privileges 

 

 

to  which  he  was  entitled.    He  noted  that  the  applicant  had  received  ample  warnings  and  three 
probationary periods.  The JAG opined that the applicant “is extremely fortunate that his Com-
manding Officer decided to handle Applicant’s numerous violations of the [UCMJ] administra-
tively,  rather  than  punitively,  “which  could  and  most  likely  would  have  resulted  in  multi-year 
incarceration, fines, and a punitive (BCD/DD) discharge.”  The JAG noted that the CO’s finding 
that the applicant was involved in a drug incident, by itself, could have resulted in a general dis-
charge. 
 

The  JAG  also  adopted  the  facts  and  analysis  provided  by  the  Personnel  Service  Center 
(PSC) in an attached memorandum.  The PSC stated that the list of witnesses and evidence pro-
vided to the applicant five months before the ASB convened “clearly notified the applicant that 
the Recorder would be putting on witnesses and introducing evidence about a broad range of the 
applicant’s  misconduct  and  substandard  performance  when  the  Board  convened.”    PSC  noted 
that the evidence included photographs of the applicant at a bachelorette party and of his wife’s 
and daughter’s bruises, as well as a report of an investigation by the Coast Guard Investigative 
Service  (CGIS),  Family  Advocacy Program Records, and the  applicant’s entire Personnel  Data 
Record  (PDR).    PSC  stated  that  the  applicant  was  also  advised  that  under  the  regulations,  the 
ASB “would be looking into ‘facts related to [the applicant’s] conduct, competency, background, 
character and attitudes,’ as well as ‘any reasons’ for the applicant’s separation.” 
 
 
PSC stated that although the ASB had already recommended the applicant’s general dis-
charge for  misconduct,  the board was reconvened to  review the  evidence under the new provi-
sions  of  the  Personnel  Manual  “as  an  act  of  fairness,  meant  to  determine  whether  the  recent 
change in Coast Guard policy could support a more favorable outcome for the applicant.”  PSC 
stated  that  no  new  evidence  was  introduced  during  the  closed  session  and  only  the  only  new 
information provided was the new policy.  PSC noted that the rules allowed Commander, CGPC 
to return a report to the ASB for reconsideration in closed session.  The revised ASB report was 
sent  to  the  applicant’s  counsel,  who  submitted  a  rebuttal.    Commander,  CGPC  approved  the 
ASB’s  recommendation  that  the  applicant  receive  a  general  discharge  for  commission  of  a 
serious  offense  and  later  reviewed  and  denied  the  applicant’s  request  for  a  third  probationary 
period. 
 
 
PSC  argued  that  the  applicant  was  recommended  for  separation  under  both  the  old  and 
new policies and noted that the applicant did not dispute the fact that he had committed a serious 
offense.  PSC also argued that the applicant’s counsel waived the right to appeal the outcome of 
the  ASB  on  these  issues  because  he  did  not  raise  them  at  the  time,  when  any  perceived  short-
comings could have been addressed.  PSC argued that this Board should also consider the appli-
cant’s unsuitability for continued military service, given his  
 

numerous  counts  of  spousal  abuse,  engaging  in  numerous  adulterous  affairs  including  one  with 
another married Coast Guard enlisted member, alleged drug use while on duty as a rescue swim-
mer (which was uncovered during a CGIS investigation), sexual perversion (male exotic dancing; 
indecent exposure), lying, etc.  This behavior is unbecoming of a Coast Guard Petty Officer and 
disruptive of good order and discipline at a unit if tolerated. 

 

 

 

PSC further noted that the ASB’s report is a recommendation only, and the authority for 
 
deciding  whether  a  member  will  be  retained  rests  with  Commander,  CGPC,  who  considers  the 
member’s entire record of performance, character, honor, suitability, etc. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On April 26, 2012, the Chair sent the applicant  a copy of the views of the Coast Guard 

 
 
and invited him to submit a response within thirty days.  No response was received.  
 

APPLICABLE REGULATIONS 

 
Personnel Manual 
 
 
Under Article 12.B. of the Personnel Manual  (COMDTINST M1000.6A, Change 41) in 
effect from June 2007 through 2009, enlisted members could be administratively discharged for 
many reasons, including misconduct, incompetence, a diagnosed personality disorder, homosex-
uality,  financial  irresponsibility,  phobias,  alcohol  abuse,  and  unsanitary  habits.    Members  with 
more  than  eight  years  of  active  duty  are  normally  entitled  to  an  ASB  before  being  administra-
tively  separated.    Under  Article  12.B.18.b.,  Commander,  CGPC  was  authorized  to  separate  a 
member for misconduct for the following reasons:   
 

(1) 
(2) 
(3) 
(4) 
(5) 

civilian or foreign conviction,  
pattern of misconduct,  
commission of a serious offense,  
drug abuse, and  
fraudulent enlistment. 

 
Article 12.B.18.b.2. states that members may be separated for a “pattern of misconduct” 

when they have 

 
a. two or more non-judicial punishments, courts-martial, or civilian convictions or a combination 
thereof within a 2-year period; 
b. three or more unauthorized absences, each is at least three or more days, within a 2-year period; 
c.  six  or  more  unauthorized  absences  and  the  total  amount  is  at  least  six  days,  within  a  2-year 
period; 
d. a pattern of failure to contribute adequate support to dependents (see Art. 8.M); 
e. a pattern of failure to pay just debts; [or] 
f. a pattern of shirking. 
 
Article 12.B.18.b.3. states, regarding the commission of a serious offense, that it 
 
does  not  require  adjudication  by  non-judicial  or  judicial  proceedings.  An  acquittal  or  finding  of 
not  guilty  at  a  judicial  proceeding  or  not  holding  non-judicial  punishment  proceeding  does  not 
prohibit proceedings under this provision.  However, the offense must be established by a prepon-
derance of the evidence.  Police reports, CGIS reports of investigation, etc. may be used to make 
the determination that a member committed a serious offense.  

 

a. Members may be separated based on commission of a serious military or civilian offense when:  

(1) The specific circumstances of the offense warrant separation; and 

 

 

(2) The maximum penalty for the offense or closely related offense under the UCMJ and 

Manual for Courts-Martial includes a punitive discharge. 
 
Under Change 39 of the Personnel Manual, however, Article 12.B.18.b. authorized Com-

mander, CGPC to separate a member for misconduct for the following reasons:   
 

(1) 
(2) 
(3) 
(4) 
(5) 
(6) 

civilian or foreign conviction,  
fraudulent enlistment, 
absenteeism, 
drug abuse or involvement in a drug incident, 
discreditable involvement with civil or military authorities, 
sexual perversion, including lewd and lascivious acts, sodomy, indecent exposure, 
child molestation, “other indecent acts or offenses,” and involvement in  a prohi-
bited romantic relationship pursuant to Article 8.H.,  
abuse of a family member, 
an established pattern of shirking, 
an established pattern showing dishonorable failure to pay debts, 
an established pattern showing dishonorable failure to support dependents, 
sexual harassment by assault or coercion or a pattern of sexual harassment, 
unreasonable refusal to submit to medical or dental care, and 
refusal to submit to a vaccination ordered by competent authority. 

(7) 
(8) 
(9) 
(10) 
(11) 
(12) 
(13) 
 
Article 12.B.18.c. of Change 39 states that a CO should provide a provide a probationary 
period of at least six months “to overcome deficiencies before initiating administrative discharge 
action in cases of frequent discreditable involvement with civil or military authorities; abuse of a 
family member; shirking; failure to pay just debts, contribute adequate support to dependents, or 
comply  with  valid  orders  of  civil  courts  to  support  dependents;  or  involvement  in  a  prohibited 
romantic  relationship  …  Commanding  officers  are  authorized  to  recommend  discharge  at  any 
time  during  the  probation  if  the  member  is  not  making  an  effort  to  overcome  the  deficiency.” 
Change 41 limited the requirement for a probationary period to members accused of “a pattern of 
failure  to  contribute  adequate  support  to  dependents  (see  8.M.),  a  pattern  of  failure  to  pay  just 
debts, or shirking.” 

 
Article  12.B.18.b.4.a.  of  the  Personnel  Manual  (both  Change  39  and  Change  41)  states 
that “[a]ny member involved in a drug incident or the illegal, wrongful, or improper sale, trans-
fer,  manufacture,  or  introduction  onto  a  military  installation  of  any  drug,  as  defined  in  Article 
20.A.2.k., will be processed for separation from the Coast Guard with no higher than a general 
discharge.” 

 
Article 12.B.31.a. (both Change 39 and Change 41) states that an ASB is “a fact-finding 
body appointed to render findings based on the facts obtained and recommend either retention in 
the Service or discharge. If recommending a discharge, the board also recommends a reason for 
discharge and the type of discharge certificate to be issued.” 

 
Article 12.B.31.d. (both Change 39 and Change 41) states that Commander, CGPC  
 

 

 

is the discharge authority in all cases of administrative separations. Send the original and one copy 
of the administrative discharge board report to Commander, (CGPC-adm-2) through the chain of 
command  for  endorsement.  When  Commander,  (CGPC-c)  receives  the  record  of  administrative 
discharge  proceedings,  he  or  she  will  review  the  board  record  and  approve  or  disapprove  the 
board’s findings of fact, opinions, and recommendations in whole or in part. Commander, (CGPC-
c)  may  disapprove  findings  and  opinions  if  they  were  made  based  on  incomplete  evidence,  con-
trary to the evidence the board considered or to law or regulation, a misunderstanding or misappli-
cation of  written policy, or otherwise clearly in error. If Commander, (CGPC-c) disapproves the 
findings of fact, opinions, or recommendations; he or she may: 
 

1. Amend, expand, or modify findings of fact and opinions or take final action other than 
that recommended without returning the record, if evidence of record supports that action and the 
final action states the specific reasons; or 

 
2. Return the record to the board for further consideration with a statement of the specific 

reasons to disapprove the findings of fact, opinions, or recommendations. 
 
Article 12.B.31.e. (both Change 39 and Change 41) states that Commander, CGPC may 

take any one of these final actions: 

 
1.  Approve the board’s findings of fact, opinions, and recommendations and direct their execu-

tion. 

2.  Approve  the  board’s  recommendation  for  discharge,  but  change  its  type  either  to  one  more 
favorable than recommended if the circumstances warrant it or to one less favorable than rec-
ommended based on a determination the type of discharge recommended does not fall within 
Article 12.B.2. guidelines. 

3.  Approve the board’s recommendation for discharge but change the basis for discharge when 
the record indicates such action would be appropriate, except Commander (CGPC-c) will not 
designate misconduct if the board has recommended discharge for unsuitability. 

4.  Approve  a  discharge,  but  suspend  its  execution  for  a  specified  probationary  period.  See 

Article 12.B.34. 

5.  Disapprove the recommendation for discharge and retain the member in the Service. 
6.  Disapprove the recommendation for retention and direct discharge under honorable conditions 

with an honorable or general discharge certificate as warranted. 

7.  Disapprove  the  findings,  opinions,  and  recommendations  and  refer  the  case  to  a  new  board 

based on a finding of legal prejudice to the substantial rights of the respondent. 

 
ASB Manual 
 

The  ASB  Manual,  COMDTINST  M1910.2,  provides  the  procedures  for  holding  ASBs.  
Chapter  1.A.1.  states  that  an  ASB  “is  a  fact-finding  body  appointed  to  investigate  a  member’s 
suitability for retention in the service, render findings based on the evidence obtained, and make 
specific recommendations for use by Coast Guard separation authorities. The determinations of 
an ASB are advisory only, not binding upon the Coast Guard.”  Chapter 1.B.1. states the follow-
ing: 

 
Coast Guard discharge and retention decisions are driven by the needs of the Coast Guard overall, 
not by the needs of individual members or individual commands. Members do not have a right to 
remain on active duty in the Coast Guard, regardless of the length of their service or the hardship 
their separation might cause. Nevertheless, a member’s military career often represents a consider-
able  investment,  both  by  the  member  and  by  the  service.  In  addition,  when  a  member  is  dis-
charged, the Coast Guard’s characterization of that service  – as honorable, general under honora-
ble conditions, or other than  honorable  – and occasionally other determinations surrounding that 

 

 

 

decision, can  have a profound impact on the  member’s  future. Sound personnel  management, as 
well as fairness, dictate that the decision to separate such a member be carefully considered, and 
that the member be provided an opportunity to be heard and to present and challenge evidence to 
be considered by the separation authority. 
 
Chapter 1.C. states the following regarding an ASB’s scope of inquiry: 

1.  An  ASB  documents  the  facts  relating  to  the  Respondent’s  conduct,  competency,  background, 
character and attitudes, so that the separation authority may properly determine whether the mem-
ber should be retained or separated, the reason  for separation, and  the proper characterization of 
the  member’s  service  that  should  be  reflected  in  any  separation  documents.    In  its  deliberations 
regarding  separation,  the  Board’s  foremost  consideration  is  whether  separation  or  retention  is  in 
the best interest of the Coast Guard.  Available statements from superiors and peers, and available 
records bearing upon Respondent’s suitability for retention, are among the types of evidence to be 
considered by the Board. 
 

2.  The Board shall inquire into, assemble  evidence, and provide findings of fact, opinions, and rec-
ommendations  regarding  all  matters  relevant  to  the  decisions  before  the  separation  authority; 
including: 
 
a. Whether the Respondent should be retained or separated from the Coast Guard; 
b.  The  extent  to  which  the  evidence  supports  separation  for  specific  reasons  listed  in  Personnel 
Manual, COMDTINST M1000.6A, Chapter 12; 
c. The proper characterization of the Respondent’s service (i.e., Honorable, General under Honor-
able  Conditions,  or  Other  than  Honorable)  using  the  standards  provided  in  Personnel  Manual, 
COMDTINST M1000.6A, Article 12. 
d. Any other issues specified in the convening order. 
 
 Under Chapter 1.E. and 5.O., the member has many rights, including the right 
  
to  be  informed  of  “the  factual  basis  for  separation  processing,”  or,  if  more  than  one, 
“each basis for the recommended discharge. … See enclosure (1) for a sample notifica-
tion letter.” 
to be represented by counsel, 
to “be present during the proceedings (except for members confined by civil authorities), 
but not when the ASB is in closed session,” 
to “examine and to object to the consideration of physical and documentary evidence and 
written statements,”  
to “object to the testimony of witnesses and to cross-examine witnesses,” and 
to  make  or  have  counsel  make  opening  and  closing  statements  about  the  evidence  and 
issues before the ASB. 

 
 

 

 
 

 

 
 
Chapter 1.E.5. states that “[a]ny of these rights may be voluntarily waived, and any error 
will generally be forfeited by failure to make timely  objection or otherwise assert the right in a 
timely  manner  to  the  Senior  Member  prior  to  or  during  the  hearing,  and  to  the  Convening 
Authority at other times.” 
 
Chapter 1.F.1. states that “[t]he proceedings of the Board should be  conducted substan-
 
tially  in  accordance  with  the  rules  and  principles  prescribed  in  this  Manual.  Deviations  from 
these  requirements  do  not  create  any  right  to  relief  on  the  part  of  the  Respondent,  unless  they 

 

 

substantially prejudice the rights listed above so as to adversely affect the decisions of the sepa-
ration authority.  Failure to follow the requirements of this Manual may, however, result in return 
of  the  case  to  the  Board  for  further  proceedings  and  result  in  additional  costs  to  the  Coast 
Guard.” 
 
 
Chapter 4.A. states that “[t]he Senior Member shall also coordinate mutual disclosure by 
the Respondent and Recorder of information to be presented at the hearing, so as to avoid unne-
cessary surprise and delay once the hearing has commenced.” 
 

Chapter 5.C. states that the ASB “may be closed at any time for deliberation or consulta-

tion, whereupon all persons but the voting Board members will withdraw.” 

 
Chapter 5.F.2., titled “Resolution and Preservation of Disputed Procedural Issues,” states 
that “[f]ailure to make a timely objection or to preserve a record of an alleged error in this man-
ner generally constitutes forfeiture of the error in subsequent review.” 
 

Enclosure (1) to the ASB Manual provides a “Sample Separation Notice” in which para-
graph 2 reads as follows:  “The reasons for my action are: (State specific facts and incidents that 
are  the  basis  for  the  recommendation.  Include  the  dates  and  circumstances  of  contributory 
events, including, if applicable, nonjudicial punishment and courts-martial, together with evalua-
tion of the member’s potential for advancement and satisfactory completion of enlistment.)” 
 
Interpersonal Relationships 
 
Adultery  is  an  offense  punishable  under  Article  134  of  the  UCMJ.    The  Coast  Guard’s 
 
regulations regarding interpersonal relationships appear in Article 8.H. of the Personnel Manual.  
Article  8.H.1.d.  states  that  “[t]he  Coast  Guard  has  relied  on  custom  and  tradition  to  establish 
boundaries of appropriate behavior in interpersonal relationships.”   
 

Article  8.H.2.  states  that  personal  relationships  between  members  may  be  acceptable, 
unacceptable,  or  prohibited.    Article  8.H.2.c.  describes  an  “acceptable”  relationship  and  notes 
that  it  cannot  violate  a  punitive  article  of  the  UCMJ.    Article  8.H.2.d.3.d.  states  that  a  “prohi-
bited” relationship violates the UCMJ.  Article 8.H.2.g.2. states that “regardless of rank, grade, 
or  position  of  the  persons  involved  …  [r]omantic  relationships  outside  of  marriage  between 
commissioned  officers  and  enlisted  personnel”  are  prohibited.    Article  8.H.2.f.  provides  that, 
even if not prohibited by the UCMJ, some romantic relationships between members are “unac-
ceptable” by policy, such as  when one is  a subordinate of the other or  both  are  assigned to  the 
same cutter or the same small shore unit.   
 
 
 

Exhibit 8.H.1. includes a matrix and summarizes Coast Guard policy as follows: 

Character of Relationship 
Personal:  Non-intimate,  non-romantic  associations  between  two  or  more  people  (of  the  same 

gender or not) … (Does not include conduct which constitutes fraternization.) 

 
Romantic: Cross-gender sexual or amorous relationship. (Does not include conduct which violates 

the UCMJ.) 

 

 

 

 

Married/Family:  Service  members  married  to  service  member,  or  otherwise  closely  related;  e.g., 

parent and child, or siblings, etc. 

 
Service Policy: 
A = Acceptable: Permissible provided conduct meets Service standards. ([see] Article 8.H.2.c.) 
 
U = Unacceptable:  Inappropriate; not allowed under Service policy. Relationship  must be termi-

nated or otherwise resolved once recognized. Resolution is normally administrative. 

 
P = Prohibited: The relationship violates the UCMJ. 

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. 

The Board has jurisdiction concerning this matter pursuant  to  10 U.S.C.  § 1552.  
The application was timely filed within three years of the applicant’s discharge on May 7, 2009.3  
 

2. 

The applicant alleged that his discharge was erroneous because he was denied due 
process in his ASB proceedings.  The Board begins its analysis in every case by presuming that 
the disputed information in the applicant’s military record is correct as it appears in his record, 
and the applicant  bears the burden of proving by a preponderance of the  evidence that  the dis-
puted information is erroneous or unjust.4  Absent evidence to the contrary, the Board presumes 
that Coast  Guard officials  and other Government employees have  carried out  their duties  “cor-
rectly, lawfully, and in good faith.”5  

 
3. 

The applicant alleged that he was not provided adequate notice of the basis of his 
discharge  and  so  was  deprived  of  the  chance  to  investigate  the  allegations  against  him,  gather 
evidence, and prepare his defense.  He alleged that the only basis for discharge of which he was 
notified in writing was drug abuse.  Under Chapter 1.E. of the ASB Manual, a member is entitled 
to  notification  of  the  “the  factual  basis  for  separation  processing”  (or  bases,  if  more  than  one).  
Chapter 12.B. of the Personnel Manual authorizes administrative discharges of enlisted members 
for  many  reasons,  such  as  misconduct,  incompetence,  a  diagnosed  personality  disorder,  homo-
sexuality,  financial  irresponsibility,  phobias,  alcohol  abuse,  and  unsanitary  habits,  all  of  which 
could  be the basis of  an  ASB.   In the official separation notification letters dated April 23  and 
August  23, 2007, the  applicant  was notified that the basis for his  proposed  discharge was mis-
conduct. 
 
4. 

The applicant alleged that he was entitled to more specific notification under the 
Constitution  to  protect  his  liberty  interest  and  because  the  sample  separation  notification  letter 
provided in Enclosure (1) to the ASB Manual suggests inclusion of the following:  “The reasons 
for my action are: (State specific facts and incidents that are the basis for the recommendation. 
Include the dates and circumstances of contributory events, including, if applicable, nonjudicial 

                                                 
3 10 U.S.C. § 1552(b). 
4 33 C.F.R. § 52.24(b). 
5 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

 

 

punishment and courts-martial, together with evaluation of the member’s potential for advance-
ment and satisfactory completion of enlistment.)”  The Board agrees with the JAG that the ASB 
Manual  only  suggests  and  does  not  require  the  specificity  indicated  in  Enclosure  (1),  but  this 
finding does not end the Board’s consideration of this issue because the applicant’s General Dis-
charge for misconduct is stigmatizing.6  

 
5. 

As  the  applicant  argued,  “[w]here  a  person’s  good  name,  reputation,  honor,  or 
integrity is at stake because of what the government is doing to him, notice and an opportunity to 
be  heard  are  essential”  pursuant  to  the  individual’s  liberty  interest  under  the  Constitution.7  
Therefore, the Board must decide whether the applicant received adequate notice of the basis or 
bases for his discharge processing to enable him to respond.  Notice of a proposed adverse action 
is  adequate  when  it  “apprises  the  employee  of  the  nature  of  the  charges  ‘in  sufficient  detail  to 
allow  the  employee  to  make  an  informed  reply.’”8    In  King  v.  Alston,  75  F.3d  657  (Fed.  Cir. 
1996), the court found that under 5 U.S.C. § 7513(b)(1), the plaintiff had a right to notice of the 
“specific reasons” for the suspension of his security clearance and that the agency’s notification 
that  the  suspension  was  due  to  a  “potential  medical  condition”  was  “sufficient  information  to 
permit him to make an informed reply.”9  Of course, a person presumably knows his own medi-
cal diagnoses, but he does not necessarily know all the accusations of misconduct other people 
have made against him.  In Cheney v. Department of Justice, 479 F.3d 1343 (Fed. Cir. 2007), the 
court found that notification of the suspension of a security clearance due to “potentially deroga-
tory personal conduct and possible violations of law and DEA Standards of Conduct … [failure] 
to  comply  with  security  regulations  and  …  a  pattern  of  dishonesty  and/or  rule  violations”  was 
insufficient and deprived the plaintiff of due process.10  The court stated, “We fail to see how Mr. 
Cheney could have made a meaningful response to such broad and unspecific allegations when 
there was no indication of when his alleged conduct took place or what it involved.”11  

 
6. 

In  the  case  at  hand,  before  the  ASB  convened,  the  Coast  Guard  informed  the 
applicant he was being discharged for misconduct; provided him with a list of witnesses showing 
that the misconduct to be considered by the ASB included allegations of “drug abuse, discredita-
ble involvement with civil authorities, sexual perversion, and abuse of family member”; and pro-
vided  him  with  numerous  exhibits  documenting  the  specific  incidents  of  alleged  misconduct, 
including  Page  7s  in  his  PDR,  the  CGIS  report,  security  clearance-related  documents,  photo-

                                                 
6 Casey v. United States, 8 Cl. Ct. 234, 241 (1985); Birt v. United States, 180 Ct. Cl. 910, 914 (1967). 
7  Wisconsin  v.  Constantineau,  400  U.S.  433,  437  (1971).   The  Due  Process  Clause  of  the  Fourteenth Amendment 
states  the  following:  “No State shall  make or enforce any law  which  shall abridge the privileges or immunities of 
citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process 
of law.” U.S.  Const. Amend. XIV, § 1. Procedural due process claims require a two-part analysis: (1)  whether the 
plaintiff  has  a  life,  liberty,  or  property  interest  that  is  entitled  to  procedural  due  process  protection;  and  (2)  if  so, 
what process is due. See Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). “The essential requirements of due 
process  ...  are  notice  and  an  opportunity  to  respond.  The  opportunity  to  present  reasons,  either  in  person  or  in 
writing,  why  proposed  action  should  not  be  taken  is  a  fundamental  due  process  requirement.”  Cleveland  Bd.  of 
Educ. v. Loudermill, 470 U.S. 532 (1985). 
8 King v. Alston, 75 F.3d 657, 661 (Fed. Cir. 1996) (quoting Brook v. Corrado, 999 F.2d 523, 526 (Fed. Cir. 1993), 
and Brewer v. United States Postal Serv., 227 Ct. Cl. 276, 647 F.2d 1093, 1097 (1981), cert. denied, 454 U.S. 1144 
(1982)). 
9 King, at 662. 
10 Cheney v. Department of Justice, 479 F.3d 1343, 1345 (Fed. Cir. 2007). 
11 Cheney, at 1352. 

 

 

graphs of the bachelorette party and his wife’s and daughter’s bruises, and local law enforcement 
reports of their interactions with the applicant.  This material provided the applicant with detailed 
notification of numerous specific incidents and allegations of misconduct that were to be consi-
dered  by  the  ASB,  including  drug  abuse,  lewd  and  lascivious  conduct,  adultery,  lying  to  law 
enforcement, abuse of family member, insubordinate conduct, child endangerment, discreditable 
involvement with civil authorities, and probationary periods covering most of three  years.  The 
Board  finds  that  the  applicant  was  clearly  provided  with  “the  factual  basis  for  separation 
processing”—i.e., the information and evidence that caused his CO to initiate his discharge—and 
with the notice he was entitled to under the Constitution. 

 
7. 

Although the applicant alleged that he had no notice of the allegation of making a 
false  official  statement,  and  he  disagrees  with  the  ASB  about  whether  the  underlying  incident 
meets  the  definition  for  that  offense  under  the  UCMJ,  the  accusation  that  he  lied  to  local  law 
enforcement appears clearly in the CGIS investigation and the documentation of the termination 
of  the  applicant’s  security  clearance,  which  were  provided  to  him  in  advance  of  the  ASB.  
Therefore, the Board finds that he did have notice of this potential basis for discharge. 

 
8. 

Likewise,  although  the  applicant  alleged  that  he  was  not  given  notice  that  he 
needed  to  prepare  a  defense  to  an  allegation  of  adultery,  the  Board  finds  that  he  was  provided 
notice that the ASB would consider this allegation against him.  Allegations of adultery appear in 
the report of the CGIS investigation, which he was given in advance of the ASB.  In addition, the 
applicant  was  provided  notice  that  the  ASB  would  consider  allegations  of  “sexual  perversion” 
and a “prohibited relationship,” and both of those terms include adultery.12  

 
9. 

The  Board  also  disagrees  with  the  applicant’s  contention  that  he  received  no 
notice that “commission of a serious offense”—which was the basis for discharge recommended 
by the ASB and approved by Commander, PSC—would be a possible basis for discharge.  The 
record shows that prior to the ASB, the applicant’s counsel was provided with Article 12.B. from 
Change 39, instead of Change 41,  of the Personnel  Manual,  and Change 39 does not explicitly 
state that any “serious offense” may be a basis for a misconduct discharge.  However, Change 39 
does  state  that  “abuse  of  a  family  member”  is  grounds  for  separation,  the  applicant  was  given 
notice  that  the  ASB  would  consider  such  evidence  and  allegations,  and  spousal  abuse  is  the 
“serious offense” that Commander, PSC identified in approving the ASB’s recommendation that 
the  applicant  be  discharged  for  “commission  of  a  serious  offense.”   Therefore,  the  Board  finds 
that  the  applicant  clearly  was  provided  notice  of  the  “serious  offense”  for  which  he  was  dis-
charged before the ASB convened. 

 

                                                 
12  Personnel  Manual  (Change  39),  Article  12.B.18.b.(6) (defining  “sexual  perversion,”  as  a  basis  for  discharge,  to 
include any prohibited relationship pursuant to Article 8.H.); Id. at Article 8.H.2.d.3.d. and Exhibit 8.H.1. (providing 
that any relationship that violates the UCMJ is a “prohibited relationship”); MANUAL FOR COURTS-MARTIAL UNITED 
STATES (1995), IV-95 (including adultery as a violation of Article 134 of the UCMJ).  The Board notes that Article 
8.H.2.g.  of  the  Personnel  Manual  confusingly  prohibits  “[r]omantic  relationships  outside  of  marriage  between 
commissioned  officers  and  enlisted  personnel,”  which  could  lead  one  to  think  that  only  adultery  that  is  also 
fraternization is prohibited, except that it also says “regardless of rank, grade, or position of the persons involved.”  
However,  Article  8.H.2.d.3.d.  and  Exhibit  8.H.1.  clearly  state  that  any  relationship  that  violates  the  UCMJ  is  a 
“prohibited relationship.” 

 

 

10.  Moreover,  under  Article  12.B.18.b.3.a.  of  Change  41  of  the  Personnel  Manual, 
whether  an  act  of  misconduct  constitutes  a  “serious  offense”  depends  only  upon  whether  “the 
circumstances of the offense warrant separation” and whether the maximum punishment for the 
offense under the UCMJ includes a punitive discharge.  The fundamental purpose of an ASB is 
to find facts about offenses and make a recommendation about whether separation is warranted,13 
and most if not  all of the allegations of misconduct  considered by the ASB, including  physical 
abuse of a family member (assault  consummated by battery), are offenses under the UCMJ for 
which  the  maximum  punishment  includes  a  punitive  discharge.14    Therefore,  the  Board  is  not 
persuaded that the applicant was deprived of notice that any evidence of commission of a serious 
offense under the UCMJ was a potential basis for discharge. 

 
11. 

The  only  types  of  misconduct  that  the  ASB  or  Commander,  CGPC  found  to  be 
substantiated but that cannot easily be discerned from the documents provided to the applicant in 
advance of the ASB are the accusations that he once threatened his then wife’s lawyer by warn-
ing  her  to  “watch  her  back”  and  that  he  obstructed  justice  by  using  threats  and  intimidation  to 
prevent  his  ex-wife  and  others  from  testifying  against  him.    The  Board  does  not  believe  that  a 
member’s entitlement to “the factual basis for separation processing” under Chapter 1.E. of the 
ASB  Manual  or  constitutional  right  to  notice  means  that  he  is  entitled  to  notification  of  every 
possible fact the ASB might find, which is unknowable in advance of the testimony.  Instead, the 
Board finds that a member is entitled to notice of the allegations and evidence on which his CO 
is  relying  in  deciding  to  initiate  the  applicant’s  discharge  processing  so  that  the  member  may 
make an informed reply  or meaningful response  during the ASB.15  Therefore, the  Board must 
decide whether the apparent lack of notice about two of the numerous allegations of misconduct 
considered by the ASB so hindered his ability to make an informed reply to the allegations and 
evidence against him that his discharge should be voided or upgraded.   

 
12. 

In  Boyle v.  United States, 101 Fed.  Cl.  592 (2011), the plaintiff  claimed that  the 
Army BCMR’s decision upholding his separation and General Discharge for a “Pattern of Mis-
conduct” following an ASB was arbitrary and capricious because he had not been advised of one 
of  the  several  bases  for  discharge  that  the ASB  relied  on  when  recommending  his  separation.  
The  plaintiff  was  notified  that  the ASB  would  consider  evidence  that  he  had  been  arrested  for 
disorderly conduct, been absent without leave, assaulted two women, and failed to report to his 
assigned place of duty, but he was not notified that the ASB might also find that he had “violated 
his profile by consuming alcohol.”16  Although the Army BCMR had failed to address this issue, 
the court  stated that its “decision upholding plaintiff’s separation  was not rendered arbitrary or 
capricious  by  the  Army’s  failure  to  notify  plaintiff  that  violation  of  his  profile  by  consuming 
alcohol was a basis for his separation.”17  The court noted that the ASB’s finding about the pro-
file  violation  was  one  of  many  findings  of  misconduct  and  that  there  were  enough  findings  of 

                                                 
13 ASB Manual, Article 1.A.1. 
14 MANUAL  FOR COURTS-MARTIAL UNITED STATES (1995), IV-83 (maximum punishment for assault consummated 
by battery, a violation of Article 128 of the UCMJ); IV-95 (maximum punishment for adultery, a violation of Article 
134);  IV-110  (maximum  punishment  for  indecent  exposure,  a  violation  of  Article  134);  IV-122  (maximum 
punishment for communicating a threat, a violation of Article 134); IV-56 (maximum punishment for wrongful use 
of a controlled substance, a violation of Article 112a). 
15 King, at 661; Cheney, at 1352. 
16 Boyle v. United States, 101 Fed. Cl. 592, 598 (2011). 
17 Id. at 600. 

 

 

other misconduct to support the ASB’s recommendation for discharge.18  In this regard, the court 
noted that under 10 U.S.C. § 1552, a BCMR’s “correction is intended to put the servicemember 
in the same position [he would have been in] had the injustice or error not occurred.  Correspon-
dingly, no changes will be made when the error or injustice is deemed harmless because harmless 
errors are not sufficiently significant to change the outcome of a case.”19   

 
13. 

As in Boyle, the Board finds that in the applicant’s case, the apparent failure of the 
Recorder to notify the applicant in writing that the Board would make findings about an alleged 
threat  and  obstruction  of  justice  constitutes  harmless  error20  given  the  numerous  other  findings 
supporting  the  conclusion  that  the  applicant  had  committed  a  “serious  offense,”  of  which  the 
applicant  received  notice.   The  record  before  the ASB  included  ample  grounds  for  discharging 
the  applicant  for  commission  of  a  “serious  offense.”21    In  this  regard,  the  Board  notes  that  the 
serious  offense  that  the  final  decision-maker—Commander,  PSC—relied  on  and  found  “parti-
cularly compelling” was spousal abuse and that he also  noted the applicant’s long probationary 
periods  for  misconduct  and  documentation  of  adultery,  lying  to  police,  “the  endangerment  and 
excessive corporal punishment of a child,” and credible accusations of drug abuse.  Commander, 
PSC  did  not  mention  the  alleged  threat  to  the  attorney  or  obstruction  of  justice.    As  the  court 
decided  in  Boyle,  this  Board  finds  that  the  lack  of  notification  on  these  two  issues  is  harmless 
because  it  does  not  affect  the  outcome  of  the  case.22    Neither  issue  was  the  “serious  offense” 
identified by Commander, PSC. 

 
14. 

 
Finally, the applicant alleged that by meeting in closed session to review the evi-
dence  of  record  in  light  of  Change  41  of  the  Personnel  Manual,  the  ASB  deprived  him  of  the 
right  to  be  present  during  the  presentation  of  the  evidence  and  to  make  opening  and  closing 
arguments about the evidence and issues.  The Board rejects the allegation that the revised rules 
in  Article  12.B.18.  constituted  new  evidence.    Evidence  is  something  a  board,  judge,  or  jury 
weighs to establish the facts of a case based on its credibility, probative value, and quantity;23 a 
revision of the applicable rules is not.   
 

                                                 
18 Id. 
19 Id. (citing Wagner v. United States, 365 F.3d 1358, 1364 (Fed. Cir. 2004));  see Denton v. United States, 204 Ct. 
Cl. 188, 199-200, cert. denied, 421 U.S. 963 (1975), cited in Bliss v. Johnson, 279 F. Supp. 2d 29, 35 (D.D.C. 2003) 
(holding that under 10 U.S.C. § 1552, an applicant is entitled to “nothing more than placement in the same position 
he would have been had no error been made.”); Kimmel v. United States, 196 Ct. Cl. 579, 591 (1971) (“The injustice 
was removed by placing plaintiff in the same position he would have been had no error been made. This was all that 
plaintiff  was  entitled  to  receive.”);  Hamrick  v.  United  States,  120  Ct.  Cl.  17,  25,  96  F.  Supp.  940,  943  (1951) 
(holding that “full correction of the error would require plaintiff’s being put in the same position he would be in had 
the erroneous determination not been made”),  cited in Ramsey v. United States, 123 Ct. Cl. 504, 506 (1952), cert. 
denied, 345 U.S. 994 (1953). 
20  Texas  v.  Lesage,  528  U.S.  18,  21  (1999)  (“[W]here  a  plaintiff  challenges  a  discrete  governmental  decision  as 
being  based  on  an  impermissible  criterion  and  it  is  undisputed  that  the  government  would  have  made  the  same 
decision regardless, there is no cognizable injury  warranting relief”); Hary v. United States, 618 F.2d 704, 707-09 
(Ct.  Cl.  1980)  (finding  that  the  plaintiff  had  to  show  that  the  proven  error  “substantially  affected  the  decision  to 
separate him” because “harmless error … will not warrant judicial relief.”). 
21  See  note  14  above  (allegations  of  misconduct  against  the  applicant  that  could  constitute  “serious  offenses”  as 
defined  in  Article  12.B.18.b.3.  of  Change  41  of  the  Personnel  Manual  because  the  maximum  punishment  for  that 
offense under the UCMJ includes a punitive discharge). 
22 Boyle, at 600. 
23 See BLACK’S LAW DICTIONARY, 4th Rev. Ed. (1979), p. 656-57.  

 

 

15. 

From Change 39 to Change 41 of the Personnel Manual, the potential reasons for 
an administrative discharge for conduct were reduced and consolidated.  Under Change 39, the 
applicant was subject to  discharge for drug abuse; discreditable involvement with civil or mili-
tary authorities; abuse of a family member; and sexual perversion, including lewd and lascivious 
acts,  indecent  exposure,  “other  indecent  acts  or  offenses,”  and  involvement  in  a  prohibited 
romantic  relationship  (adultery).    Under  Change  41,  the  only  potentially  applicable  reasons  for 
discharge  were  drug  abuse  and  commission  of  a  serious  offense.    However,  the  applicant  was 
advised of the necessity to make arguments about drug abuse.  And whether an act of misconduct 
constitutes a “serious offense” depends upon whether “the circumstances of the offense warrant 
separation,”  which  is  the  obvious,  fundamental  argument  anyone  must  make  to  an  ASB,  and 
whether  the  maximum  punishment  for  the  offense  under  the  UCMJ  includes  a  punitive  dis-
charge, which is not subject to argument because the maximum punishment for each offense is 
published  in  a  table.24    Moreover,  the  applicant’s  counsel  had  the  opportunity  to  submit  argu-
ments—in essence, a new closing statement—in response to the revised ASB report.  He had the 
opportunity to address any new issues he felt were raised by the new regulations in Change 41 in 
his response.  Therefore, the Board is not persuaded that the erroneous use of Change 39 of the 
Personnel  Manual  when  the  ASB  convened  in  open  session  in  October  2007  prevented  the 
applicant or his counsel from presenting his best defense and making his strongest arguments on 
the issues that determined the outcome of the ASB.   

 
16. 

17. 

 
The twist in this case lies in the fact that although Commander, PSC approved the 
applicant’s discharge for “commission of a serious offense” on April 8, 2009, the very next day 
the  PSC  issued  orders  for  the  applicant  to  be  discharged  for  a  “pattern  of  misconduct.”    The 
orders and resulting DD 214 are clearly erroneous given Commander, PSC’s final action on the 
case  and  the  peculiar  requirements  for  a  “pattern  of  misconduct”  discharge  under  Article 
12.B.18.b.2. of the Personnel Manual.  However, the applicant did not ask the Board to correct 
the narrative reason for separation on his DD 214 from “pattern of misconduct” to “commission 
of a serious offense,” and such a correction is not clearly in the applicant’s favor.25   
 
The record shows that the ASB made some extraneous findings of fact  and opi-
 
nions that were not foreseen by the Recorder.  In addition, after the ASB convened in open ses-
sion, it met in closed session twice and considered whether the facts warranted a recommenda-
tion for discharge under Article 12.B.18., first as it appears in Change 39 and then as it is written 
in  Change  41.    The  ASB  recommended  a  General  Discharge  for  the  applicant  under  both  ver-
sions of the Personnel Manual.  The Board is satisfied that the applicant had notice of the bases 
for  his  separation  processing  before  the  ASB  convened  and  that  he  had  ample  opportunity  to 
present  arguments  about  whether  he  could  be  discharged  for  commission  of  a  serious  offense.  
The  Board  finds  that  the  applicant  has  not  proved  by  a  preponderance  of  the  evidence  that  his 
General Discharge for misconduct resulted from a denial of substantive due process.   
 
 

Accordingly, the applicant’s requests for relief should be denied. 

18. 

                                                 
24  Personnel  Manual  (Change  41),  Article  12.B.18.b.3.;  MANUAL  FOR  COURTS-MARTIAL  UNITED  STATES  (1995), 
App’x 12 (Maximum Punishment Chart). 
25  See  Friedman  v.  United  States,  141  Ct.  Cl.  239,  252-53  (1958)  (holding  that  the  correction  boards  were 
established to review military records to consider making corrections of errors or injustices  against members upon 
application, not to correct errors that are in their favor). 

 

 

The application of  former xxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

his military record is denied. 

ORDER 

 

  

 
 Reid Alan Cox  

 

 

 

 
 Jeffrey E. VanOverbeke 

 

 

 

 
 
 Darren S. Wall