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
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