N.B.:  The delegate of the Secretary concurred in the relief recom-
mended by the Board in this case on June 30, 2000. 

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1998-035 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney Advisor: 
 
 
This  proceeding  was  conducted  under  the  provisions  of  section  1552  of 
title 10 of the United States Code.  It was commenced upon the BCMR’s receipt of 
the applicant’s application on November 24, 1997. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated November 5, 1998, is signed by the three duly 

RELIEF REQUESTED 

 
The  applicant,  a  xxxxxxxxx,  first  enlisted  in  the  Coast  Guard  on 
 
xxxxxxxxxx, 19xx.  On xxxxx, 199x, she accepted a voluntary discharge to avoid 
accepting orders she alleged were retaliatory for a sexual harassment complaint 
she had made.  After an investigation by the Departmental Office of Civil Rights 
(OCR),1 she signed a settlement agreement with the Coast Guard and reenlisted 
on xxxxxxxx, 199x.   
                                                 
1   The following persons were interviewed by the OCR investigator: 
Z. is the chief xxxx whom the applicant accused of seeking retribution. 
Y. is the administrative xxxx whom the applicant accused of seeking retribution at Z.’s instiga-

tion. 

X. is a commander and the executive officer at XXX Xxxxxxxx. 
A., B., C., and D. are all witnesses who were stationed at XXX Xxxxxxxx. 
Q. is another xxxx against whom Z. allegedly sought retribution. 
Cx is a captain and the commanding officer at XXX Xxxxxxxx. 

 

The applicant asked the Board to correct her record to show no break in 
service so that she would receive back-pay and benefits and be credited with ac-
tive service time for the year and a half between her discharge and reenlistment.   
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that she suffered retaliation as a result of lodging a 
sexual  harassment  complaint  against  a  petty  officer  in  199x,  while  stationed  in 
Xxxx.  As a result of the complaint and subsequent investigation, the petty officer 
went before a captain’s mast and took early retirement in lieu of a court-martial.  
The applicant was then transferred to the XXX (XXX) in Xxxxxxxx, Xxxx, because, 
she alleged, a xxxx (Z.) who was a very close friend of the petty officer threat-
ened to “get” her for lodging the complaint against his friend.  The applicant al-
leged that Z. told her that he would soon be her detailer,2 and then he would be 
able to “take care of” her. 
 
 
The applicant alleged that, after Z. became the xxxx detailer for the xxxxx, 
he  made  her  job  at  XXX  difficult  by  prejudicing  her  administrative  xxxx  (Y.) 
against  her  by  telling  that  officer  his  own  view  of  the  sexual  harassment  com-
plaint.  She alleged that thereafter Y. constantly criticized her without cause.  She 
also  alleged  that  Y.  wrote  a  Page  7  (administrative  remarks)  to  include  in  her 
record about an alleged inappropriate relationship but never wrote a Page 7 to 
include in the record of the supervisor with whom she was supposedly involved, 
even  though  the  regulations  hold  a  ranking  member  primarily  responsible  for 
having an inappropriate relationship with a member of lower rank.  The appli-
cant stated that she requested and received a transfer out of Y.’s department after 
he  told  her  that  he  knew  that  everything  that  had  happened  in  Xxxx  was  her 
fault. 
 
During her tour at XXX, the applicant alleged, she received several mes-
 
sages  from  Z.  through  other  members  to  the  effect  that  he  had  not  forgotten 
about her.  The applicant’s tour at XXX was scheduled to end in November 199x.  
In July 199x, she received notice from the Military Personnel Command (MPC) 
indicating that a request for extending her tour would probably be granted.  The 
applicant applied for an extension.  She wanted to stay in the area because she 
had a xxxxxxxxxxxx nearby. 
 
                                                                                                                                                 
R. is a commander, chief of the Enlisted Assignment Branch, and Z.’s second-line supervisor. 
S. is a lieutenant commander and the applicant’s last supervisor before her discharge. 
T. is a lieutenant commander and president of the 199x xxxx TERA panel. 
2      A  “detailer”  is  an  officer  who  recommends  and  has  significant  control  over  which  enlisted 
member is ordered to which billet. 

 
The applicant alleged that on January 2, 199x, she was contacted while on 
leave by another xxxx, who informed her that Z. had called the applicant perso-
nally to inform her that he was sending her to a new billet.  When she returned 
Z.’s call, he told her that she was being transferred to the Xxxx, a Coast Guard 
cutter based in xxxxxxxxxxxxxx, on April 1, 199x, “so [she] better start packing.”  
When she reminded him that her tour was not scheduled to end until November 
199x, he said, “This is it [applicant’s first name], and you should have expected 
something like this.”  She alleged that members are usually informed when their 
extension  requests  have  been  disapproved  so  that  they  can  submit  another 
“dream sheet” of preferred posts.   
 
 
The  applicant  alleged  that  when  her  leave  ended  on  January  8,  199x,  a 
lieutenant commander told her that “she had talked to [Z.] the week before and 
that he had told her that I was to receive those orders because of some guy I went 
after in Xxxx.”  She also alleged that when she informed her department head of 
the situation and told him she did not want to accept orders arranged by Z., he 
told her there was nothing he could do because there was no proof.  The com-
mand’s xxxx responded similarly. 
 
 
The applicant alleged  that the executive officer (X.) asked her that same 
day what orders she would be happy with.  She told him she was afraid to take 
anything Z. offered her.  She said she would rather be discharged than accept or-
ders to a unit in which she would not feel safe.  She “fear[ed] being sent out in 
the  middle  of  the  ocean  with  someone  who  believed  I  deserved  whatever  he 
could get away with doing to me.”  She alleged that she finally told the [execu-
tive  officer]  she  would  take  “any  shore  billet  anywhere”  because  “[h]e  didn’t 
seem to hear anything I had said to him of my concerns or my fears.”  When the 
executive officer asked her why she didn’t cite her xxxxxxx as a “special needs” 
situation to get out of orders to a ship, she responded that she did not mind ac-
cepting orders to a ship, it was receiving any orders from Z. that she feared.  
 
 
The applicant lodged a civil rights complaint of retribution with her com-
mand on January 16, 199x.  On January 17, 199x, an opportunity to apply for ear-
ly  retirement  was  announced,  and  the  applicant  applied  for  it  on  January  19, 
199x.  On the same day, she was called by a Coast Guard civil rights counselor 
about her civil rights complaint.  She told him she had applied for early retire-
ment but that she was afraid Z. “would have some say on the results.”  He told 
her that her command believed that she just did not want to go to sea.  He said 
her  command  was  drafting  a  letter  to  request  that  her  tour  be  extended  for 
another year.  
 

The applicant’s request for early retirement was denied.  She alleged that 
it was because Z. was one of the officers on the committee that decided whose 

applications would be accepted.  She alleged that it was discriminatory for the 
Coast Guard to allow the officer who had sexually harassed her to retire early in 
lieu of court-martial but to deny her early retirement.  

 
On January 31, 199x, X. asked her if she would settle her complaint infor-
mally at the command level.  After discussing her options with him, she decided 
to file a formal complaint.  She also asked him about the letter the counselor had 
told her the command was writing regarding her extension.  She alleged that the 
executive officer told her “there were some editing problems and the letter isn’t 
going to be sent, besides you have filed a Civil Rights claim and seem to be tak-
ing care of it yourself.”  Rather than accept the orders to the Xxxx arranged by Z., 
the applicant chose to be discharged. 

 
The applicant was discharged on xxxxxx, 199x.  In April 199x, she received 
a copy of the Report of Investigation prepared by the Department of Transporta-
tion’s Office of Civil Rights.  (A summary of the report begins on page 6, below.)  
The  report  arrived  with  a  letter  urging  her  to  settle  informally  with  the  Coast 
Guard and stating that, if they did not settle, the OCR would issue a final agency 
decision after 30 days.  However, in August 199x, after the OCR had repeatedly 
refused to issue its decision, the applicant finally accepted an offer to settle with 
the  Coast  Guard.    (All  pertinent  parts  of  the  settlement  provisions  are  repro-
duced on pages 12 and 13, below.)   
 

VIEWS OF THE COAST GUARD 

 
 
On September 30, 1998, the Chief Counsel of the Coast Guard submitted 
an advisory opinion recommending that the Board deny the applicant’s request. 
 
 
The Chief Counsel argued that relief should be denied because the appli-
cant voluntarily left the Coast Guard at the end of her enlistment3 instead of ac-
cepting  orders.    Rather  than  accept  a  voluntary  discharge,  the  Chief  Counsel 
alleged, the applicant should have accepted the orders she received to serve on 
the Xxxx.  Once there, she could have used Article 138 of the Uniform Code of 
Military  Justice  (UCMJ)  or  other  prescribed  complaint  processes  to  contest  the 
orders or address her concerns.  Furthermore, the Chief Counsel alleged, the ap-
plicant “provide[d] no evidence[4] that she would have faced an intolerable situ-
ation if she executed the orders and, furthermore, there is no evidence that her 
future command would not have taken appropriate action if called upon to do 
so.” 
                                                 
3   The applicant’s six-year enlistment was due to end xxxxxxx, 199x, but she was not discharged 
until xxxxxxxx, 199x. 
4   Paragraph eight of the Settlement Agreement prohibits the applicant from submitting evidence 
to the BCMR other than the OCR’s Report of Investigation. 

 

 

In addition, the Chief Counsel alleged that the applicant had waived the 
argument  that  her  discharge  was  unjust  when  she  accepted  the  settlement 
agreement.  As proof of this, the Chief Counsel quoted several paragraphs from 
the settlement agreement. 
 
 
Finally, the Chief Counsel argued that the Coast Guard lacks authority to 
pay  a  member  for  time  not  served  on  active  duty.    The  Chief  Counsel  cited 
BCMR Docket No. 1997-114 for the proposition that the applicant cannot receive 
back-pay  because  she  chose  to  be  discharged  rather  than  pursuing  her  claims 
while on active duty.  Although paragraph eight of the settlement agreement al-
lows the applicant to seek relief through the BCMR, the Chief Counsel argued 
that it did “not concede that her claim has any merit nor that the Coast Guard 
has  any  fiscal  law  authority  to  pay  Applicant  active  duty  pay  and  allowances 
and grant benefits including leave for a period of time when the Applicant did 
not serve on active duty.” 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
 
On October 9, 1998, the applicant responded to the Chief Counsel’s advi-
sory opinion by stating that she “accepted discharge because [she] had no other 
alternative other than to accept orders from an individual who had threatened 
me  with  retribution.”    She  stated  that  she  “chose  discharge  over  reenlistment 
simply because to reenlist and then refuse orders would have allowed the Coast 
Guard the opportunity to prosecute, making me a criminal.”  Punishments could 
have  included,  she  alleged,  a  dishonorable  discharge,  forfeiture  of  all  pay  and 
allowances, and up to two years’ confinement, under Article 90 of the UCMJ, or a 
bad  conduct  discharge,  forfeiture  of  all  pay  and  allowances,  and  up  to  six 
months’ confinement, under Article 92 of the UCMJ. 
 
In  response  to  the  Chief  Counsel’s  argument  that  she  should  have  re-
 
ported to the Xxxx and used Article 138 remedies to resolve the problem, she al-
leged “[t]he UCMJ process was not recommended by my superiors as the goal 
was to stop issuance of orders by this officer or cancel the orders issued by this 
officer.    To  submit  a  CG-4910  against  the  Detailer  for  violation  of  Article  138 
would not have taken the Detailer out of the loop.”  “Further, when I pursued 
Article  138  charges  while  still  at  XXX  Xxxxxxxx,  I  was  advised  that  since  the 
members were from two different commands, Article 138 would not be appro-
priate.” 
 

SUMMARY OF REPORT OF INVESTIGATION 

 
 
On  April  14,  199x,  an  investigator  for  the  Departmental  Office  of  Civil 
Rights sent the applicant and the Coast Guard a report of his investigation of the 

applicant’s complaint.  The report largely substantiated many of the applicant’s 
allegations concerning Z. 
 
In 199x, a petty officer who had gone before a captain’s mast for sexually 
 
harassing  the  applicant  took  early  retirement  in  lieu  of  being  court-martialed.  
The applicant’s complaint and the result were common knowledge at the base.  
Several witnesses stated that Z. was a very close friend of the petty officer.  The 
applicant was soon transferred to XXX Xxxxxxxx.  Z. became the xxxx detailer in 
xxxxxxxxxx  199x.    He  exercised  significant  control over the  decisions  made  re-
garding her request for extension, her orders to the Xxxx, and her denial of early 
retirement. 
 
Witnesses’ Statements Concerning Retribution by Z. 
 
 
Y., the administrative xxxx, confirmed that he had prepared a Page 7 for 
the applicant’s record regarding an inappropriate relationship with her supervi-
sor.  He stated further that “he did not get around to writing a Page 7 on [the su-
pervisor] because the issue got elevated with [the applicant’s] reaction to being 
issued the Page 7 and all was resolved in a counseling session.”  He denied that 
the Page 7 had anything to do with his friendship with Z., but he admitted that 
Z. had told him about her sexual harassment complaint. 
 
 
A witness, A., stated that she believed “[the applicant] got the Page 7 in 
this case instead of [the supervisor] because [Y.] did not like [the applicant].”   A. 
also stated that Y. and Z. were in frequent contact and “got along rather well.”  
She indicated that the two did favors for each other.  Another witness, B., stated 
that Y. and the applicant “did not get along well.” 
 

Witnesses’ Statements Concerning Extension and Orders to Cutter 
 

Another witness, C., stated that she had heard Z. confront the petty officer 
who  had  harassed  the  applicant  “about  the  fact  that  he  would  jeopardize  his 
marriage and career over ‘someone like [the applicant].’”  She also stated that,  
 

when [Z.] got his orders to become the Detailer, he made a state-
ment to people in the office that he had a list of all of the people he 
would pay back once he became Detailer.  He then named some of 
the names of people that were on his list.  She said there was only 
one name of the people he mentioned that she knew, [Q.], who had 
previously been stationed at xxxxx.  She said that Z. disliked [Q.] 
less than he disliked [the applicant].  Therefore, they (the people in 
the office) knew that [the applicant] would definitely be a target if 
[Q.] was to be a target. 

Regarding the applicant’s request for extension at XXX, Witness D. stated 
that  in  July  199x,  the  MPC  asked  commands  about  staffing  concerns.    He  re-
sponded by indicating that all of the xxxx at his command were due to leave at 
about the same time, “leaving the command with little or no ‘corporate’ knowl-
edge.”  At the time, only two of the command’s seven xxxx “could realistically 
expect  to  be  extended.”    One  of the  two  was  the  applicant.      D.  received  a  re-
sponse from Z.’s second-line supervisor (R.) at MPC stating that it would “con-
sider an extension.”   D. stated that in his experience, such a response meant that 
a  request  for  extension  would  be  granted.    He  “had  never  seen  a  xxxx  not  be 
granted an extension when told he or she would probably get one through writ-
ten correspondence, unless there was an overriding concern . . . .” 

 
 D.  further  stated  that,  when  he  heard  of  the  applicant’s  orders,  he  was 
very surprised, and he questioned Z., who told him that they needed to fill billets 
with “the most qualified candidates, and that all options would be considered.”   
Although  D.  got  the  impression  that  no  concrete  decision  had  been  made,  he 
soon received the applicant’s orders to the Xxxx, and 

[t]his disturbed him, . . . because he was aware that [Z.] had already 
telephoned at least two female xxxx [sic] stationed at Coast Guard 
xxxxxxxxx  who  did  not  want  to  remain  at  their  commands  and 
were told by [Z.] that they would be extended in their current as-
signments whether they wanted to be or not.  Yet, he had two xxxx 
[sic] who wanted to stay, but [Z.] would not give them extensions.  
He said that both xxxx [sic] . . . were initially extended against their 
wishes. . . . 

 
 D.’s  statements  were  corroborated  by  X.   X.  also  stated  that the  normal 
process for assigning enlisted members was that, “if nothing is available for the 
member  in  the  areas  that  he/she  enters  on the  Assignment  Data  Form  (dream 
sheet), the Detailer gets back to the member and lets him/her know that none of 
the desired options are available.  The member is then asked for other choices.”   
D.’s statement regarding the two xxxx whose tours had been extended against 
their wishes was corroborated in regard to one of the xxxx by C., who knew the 
xxxx in question.  
 
 
In response to questions concerning the procedure for reviewing and de-
ciding on extension requests, R. indicated that Z. forwarded extension requests 
to the branch with recommendations.  Z. did not have final authority to approve 
or disapprove such requests.  He stated that, when he had informed the appli-
cant’s  command  that  they  would  “consider  an  extension,”  no  guarantees  were 
made.  R. stated that no action was ever taken on the applicant’s request for ex-
tension because she was ordered to the Xxxx before it was necessary.  High prior-
ity  is  given  to  filling  empty  billets  on  ships.    Decisions  regarding  extension 
requests are usually made last.   
 
 D. also stated that Z. had explained the applicant’s orders to the Xxxx by 
 
saying  that  the  cutter  “had  a  female  berthing  requirement  and  that  [the  appli-
cant] was the closest female xxxx who did not have sea duty.”  However, “when 
all xxxx orders had come out, they discovered that there was a female xxxx al-
ready stationed in xxxxxx who got transferred to . . . xxxxxxxxx, and a second 
female xxxx at . . . xxxxxx, [Xxxx], was sent to either Headquarters or [xxxx]. . . . 
[N]either of these two xxxx [sic] had sea duty time as a xxxx and both were closer 
to the [cutter] than [the applicant was].”  Moreover, D. stated, in contradiction to 
Z.’s claim that the Xxxx required a female, a male xxxx was assigned to the cutter 
when  the  applicant  chose  to  be  discharged  rather  than  accept  the orders.    D.’s 
statement regarding the two transfers was corroborated by B. 
 
 
 C. stated that she and several other members had monitored the transfer 
orders that year “because they knew who [Z.] liked and disliked.  The few people 
they  knew  were  his  favorites  went  where  the  group  knew  they  wanted  to  go.  
The few that they knew for sure that [Z.] disfavored, [the applicant and Q.] both 
got assignments they did not want.” 
 
 
 A. stated that Y. “told her he knew [where the applicant] was being or-
dered to, that [the applicant] did not yet know, and that she was going to be sur-
prised.    A.  stated  that  “she  got  the  impression  [Y.]  was  happy  about  [the 
applicant’s] going to a ship.  She also said it seemed like he knew that [Z.] was 
doing this intentionally and he was satisfied that it was happening.  She said fur-
ther  that  “it  was  her  sense  that  while  she  and  [Y.]  were  discussing  [the  appli-

cant’s]  orders,  that  [Y.]  knew  something  about  [the  applicant’s]  incident  in 
Xxxx.” 
 
S.,  who  was  the  applicant’s  last  supervisor  before  her  discharge,  stated 
 
that she asked Y. about the applicant’s orders and that “he said something to the 
effect that he was not surprised that [the applicant] was going to a ship and al-
luded to the fact that he was not surprised because . . . the Detailer was stationed 
with [the applicant] in Xxxx and knew of the incident in Xxxx.”  S. stated that she 
informed the applicant of the substance of her conversation with Y. because she 
knew it “somewhat confirmed [the applicant’s] concerns.” 
 
 
The  applicant’s  commanding  officer  (Cx)  at  XXX  stated  that  he  did  not 
learn of her concerns about Z. until January 11, 199x.  He stated that before that 
date, he thought her chief concern was to stay near her xxxxxxx.  When Cx tried 
to arrive at an informal resolution to the complaint, the applicant asked (1) for 
orders to any shore unit and (2) for Z. to be removed as detailer.  On January 31, 
199x, when X. told R. about the applicant’s retribution complaint, R. responded 
that,  unless  she  enrolled  in  the  special  needs  program,  the  applicant’s  orders 
would not be changed because “on paper” she “fit” the billet profile.  “[R.’s] bot-
tom line was that even if there were some personal differences between [the ap-
plicant] and [Z.], there was still a fit for her to go to the [cutter] and that if [Z.] 
had not made the assignment someone else would have.”  Cx stated that when 
the applicant learned of R.’s response, she decided to follow through with a for-
mal complaint. 
 
 
In a letter to OCR dated February 15, 199x, that accompanied the appli-
cant’s complaint, Cx also stated that “it is difficult to measure the impact that this 
very real perception of retribution by [Z.] has had on [the applicant]. . . .  If this 
investigation proves [Z.] was using his position as detailer against [the applicant] 
to  get  revenge  for  [the  petty  officer’s]  forced  retirement,  then  [the  applicant] 
should be given the option of retiring . . . .  It is further requested that [the appli-
cant] be allowed to remain on active duty and assigned to [the same unit] pend-
ing the outcome of this investigation.” 
 
 
R. stated that enlisted members are considered tour complete and may be 
transferred at any time during the calendar year their tours are scheduled to end.  
Regarding the applicant’s orders to the Xxxx, he stated that, “a need for a xxx 
aboard  USCGC  Xxxx  came  up  unexpectedly.  .  .  .  [T]he  incumbent  xxx  aboard 
USCGC Xxxx, who was not tour complete in 199x and thus not expected to have 
to be replaced, decided to leave the Service rather than reenlisting as had been 
previously expected.”  This development “created a need for a relatively rapid 
transfer of a xxx.”  He explained that Z. had “immediately looked for [xxxx] who 
were tour complete in 199x and for units with ‘extra’ [xxxx] that could more easi-

ly  absorb  the  transfer  of  a  member  a  few  months  earlier  in  the  assignment 
process than might normally be expected.”  In addition, “[t]he Cutter Command 
had expressed a strong need for mid-grade enlisted women to be assigned, due 
to the distribution of pay grades of the women already aboard.”  Because the ap-
plicant fit the requirements and her command had “extra” xxxx, she was “an ex-
cellent choice for the position.”  R. stated that, after X. informed him of the appli-
cant’s  fear  of  retribution,  he  and  another  officer  reviewed  the  rationale  for  her 
orders, agreed the decision was a good one, and decided it should not be can-
celled. 
 
 
When questioned further about these statements, R. stated that he had mi-
sremembered the circumstances.  The xxxx whom the applicant was supposed to 
replace was a male who was tour complete that year.  In fact, he was overdue for 
transfer.  Coast Guard records indicate that, apart from the applicant, six female 
xxxx stationed in Xxxx and xxxxxxxx were tour complete and had not done sea 
duty  at  the  time  of  the  applicant’s  orders.    The  OCR  investigator  interviewed 
four of the six.  All of those interviewed were tour complete before November 
199x, and all were transferred to land-based assignments.  Two were already sta-
tioned  in  xxxxxxx  at  the  time.    Another  was  stationed  closer  to  xxxxxxxx  than 
was the applicant’s unit.  Of the four, three had no “extenuating circumstances or 
conditions to prevent them from performing sea duty.” 
 
 
X. indicated that, at the time the applicant received her orders, there were 
no  “extra”  xxxx  assigned  to  his  command.    However,  on  January  3,  199x,  the 
same day the applicant learned of her orders from Z., Z. sent a message to  D. in-
dicating that he was assigning an “extra” xxxx to the station.  The “extra” xxxx 
arrived in mid-January. 
 
 
When the investigator first questioned Z., he stated that he could not re-
call the nature of the charges the applicant had brought against the petty officer 
in Xxxx, what findings had been made at the captain’s mast, or what the results 
were.  Later, however, Z. insisted that, when he made the decision to assign the 
applicant to the Xxxx, he had informed R. that his decision might be attributed to 
that fact that she had accused his friend of sexual harassment and he had been 
forced to retire.   
 

Z. admitted having known that the applicant’s xxxxxxxxxxxx at the time 
he recommended that she be transferred to the Xxxx.  He stated that the cutter 
had  requested  a  mid-grade  female  xxxx  and  that  a  process  of  elimination  had 
brought him to choose the applicant. 
 
Witnesses’ Statements Concerning Early Retirement 
 

 
On January 16, 199x, the Commandant solicited applications for early re-
tirement (Temporary Early Retirement Authority (TERA)) from officers and en-
listed members.  The applicant met the announced qualifications.  She applied on 
January 19, 199x, to be retired on October 1, 199x. 
 
 
When  questioned  about  the  selection  process,  Z.  stated  that  the  panel’s 
first priority was that ships not be adversely affected.  “’Anyone,’ according to 
[Z.],  ‘[a]pplying  for  TERA  who  had  been  ordered to  a  ship  would  not get rec-
ommended.’” 
 
 
T., the president of the TERA panel, stated that “the criteria for selection 
would include, but not be limited to, factors such as grade, years of service, obli-
gated service, special skills, performance history, and programmatic needs . . . .”  
In addition, the applicants’ rotation dates, time in service, time in grade, expira-
tion of enlistment, conduct, special skills, requested retirement dates, and com-
mand  endorsements  had  been  considered  to  minimize  adverse  impacts  on  the 
units.  No other criteria were developed.  “[T]here was no hard and fast rule re-
garding  applicants  who  had  been  order[ed]  to  or  [were]  stationed  on  a  ship.  
However, information indicating that people were already aboard ships or had 
been ordered to ships, was used in helping them make their decisions because 
ships were their highest priority.” 
 
 
T. further stated that there were five members, including Z., on the xxxx 
TERA selection panel.  Four of the five members had to be in agreement as to 
each person on the final list of those selected for TERA.  Of the fifteen xxxx who 
applied for TERA, eight were approved.  “When asked why [the applicant] was 
not recommended for the early retirement program given she would have had 
fifteen years service by the requested retirement date, she was tour complete in 
199x,  her  enlistment  expired  in  199x,  her  conduct  was  acceptable,  and  she  re-
ceived her command’s endorsement for early retirement, [T.] stated that the pan-
el’s report . . . indicated that [the applicant] was not recommended because she 
was under orders afloat.”  
 

FIRST:  [The applicant] agrees and accepts that this Agreement is the result of a 
compromise and shall never at any time for any purpose be construed as an ad-
mission by [DOT] of any liability or responsibility to [the applicant] . . . as a re-
sult of [her] prior enlisted service in the United States Coast Guard. 
 

EXCERPTS OF THE SETTLEMENT AGREEMENT 

 
 
On  xxxxxx,  199x,  the  applicant  signed  a  settlement  agreement  with  the 
Secretary, the Department of Transportation (DOT), and the Coast Guard.  The 
parties agreed as follows: 
 

SECOND:  [The applicant] agrees to report to U.S. Coast Guard Recruiting Office 
. . . for processing back into the Coast Guard. . . . 
 
THIRD:  [DOT] will offer [the applicant] a five (5) year enlistment contract.  This 
contract is contingent on [the applicant’s] ability to qualify for enlisted status in 
the Coast Guard. 
 
FOURTH:  Upon return to service in the Coast Guard, [DOT] will immediately 
assign [the applicant] to . . . a Xxxx billet. . . . 
 
FIFTH:  With the exception of the specification of the duty location, [the appli-
cant] will be subject to all the laws, regulations . . . applicable to all enlisted per-
sonnel . . . . 
 
SIXTH:  [The applicant] will make no further claims against [DOT] in connection 
with  her  prior  enlisted  service  in  the  United  States  Coast  Guard  except  as  set 
forth in EIGHT below. 
 
SEVENTH:  After execution of this agreement, a copy shall be provided to the 
Departmental Office of Civil Rights and [the applicant’s] formal complaint shall 
be  dismissed  with  prejudice.    [The  applicant]  and  [DOT]  mutually  agree  that 
from the date of the execution  of this Agreement they will keep the terms and 
fact of this Agreement completely confidential, and that they will not release or 
disclose any information concerning this Agreement to anyone except as other-
wise required by law. 
 
EIGHTH:  [The applicant] may file a petition to [DOT’s] Board for the Correction 
of Military Records in which she can seek backpay and credible [sic] service for 
the period of time between the expiration of her prior enlistment contract and the 
initiation  of  the  enlistment  contract  signed  in  conformity  with  this  Agreement, 
and if the evidence supporting such petition is limited to the evidence in the De-
partment’s Report of Investigation, the Coast Guard will not present additional 
evidence regarding such petition. 
 
NINTH:    [The  applicant]  acknowledges  that  she  has  thoroughly  reviewed  and 
discussed  all  aspects  of  this  Agreement,  and  acknowledges  that  she  is  fully 
aware that she is entitled to seek legal counsel to review the document, and to 
advise her concerning the document.  [The applicant] also acknowledges that she 
is voluntarily entering into this Agreement of her own free will. 
 
TENTH:  [The applicant] hereby totally and unconditionally releases, and forever 
discharges [DOT] . . . from any and all charges, causes of action . . . arising from 
[her] prior enlistment in the Coast Guard. 
• • • 

SEVENTEENTH:    By  executing  this  Agreement,  [the  applicant]  acknowledges 
that this agreement was the result of mutual consideration; and that this Agree-
ment was made freely and fairly and was not the result of any duress or bad faith 
negotiations. 

APPLICABLE LAWS 

 

 

 
According  to  Chapter  5-D-5  of  the  Civil  Rights  Manual  (COMDTINST 
M5350.11B), all members have the right “[t]o present a discrimination complaint 
to the command without fear of intimidation, reprisal or harassment.” 
 
 
 

Article 138 of the UCMJ (10 U.S.C. § 938) states as follows: 

Any member of the armed forces who believes himself wronged by 
his  commanding  officer,  and  who,  upon  due  application  to  that 
commanding officer is refused redress, may complain to any supe-
rior commissioned officer, who shall forward the complaint to the 
officer exercising general court-martial jurisdiction over the officer 
against whom it is made. 

 
According  to  Chapter  7-B-3  of  COMDTINST  M5810.1C,  which  contains 
 
the regulations that interpret the UCMJ, a “commanding officer” means “[a]ny 
Coast Guard commanding officer empowered to impose nonjudicial punishment 
upon the complainant, which includes any superior commanding officer in the 
chain of command.” 
 
 
According  to  Chapter  7-I  of  COMDTINST  M5810.1C,  “Notwithstanding 
anything to the contrary in this Part, the provisions of Coast Guard regulations 
addressing  civil  rights  complaints  shall  apply  to  complaints  falling  under  the 
purview thereof.” 
 

According to Chapter 5-I-1 of the Civil Rights Manual, “Any member who 
experiences an incident of reprisal as a result of filing a complaint of discrimina-
tion or participating in the discrimination complaint procedures in this chapter, 
should file a complaint of reprisal with their district or Headquarters unit Civil 
Rights Officer. . . .” 
 
 
According to Chapter 5-F-1 of the Civil Rights Manual, “All members of 
the chain of command shall do everything possible, within Coast Guard policy, 
to facilitate a satisfactory informal resolution of any complaint of discrimination 
prior to resorting to the formal complaint procedures described in this chapter.” 
Chapter 5-F-6 provides that, after the complaint is lodged with the command, a 
military  civil  rights  counselor/facilitator  “shall  meet  with  the  member,  explain 
the discrimination complaint procedures and attempt to facilitate a resolution at 
the  lowest  level  of  the  command.    Complainants  will  be  counseled  to  seek  re-
dress  of  their  complaints  through  other  appropriate  administrative  or  discipli-
nary  procedures  if  the  requested  remedy  is  not  within  the  purview  of  this 
instruction.  If a resolution is not achieved within 15 days, the [counselor/facili-
tator] shall assist the member in preparing the formal complaint if the complai-
nant so desires.”   

 

BCMR CASE CITED BY THE COAST GUARD 

 
In BCMR Docket No. 1997-114, the applicant was in second place on the 
 
chief xxxx promotion list when she was offered a promotion before the man who 
was first on the list.  However, her promotion was conditioned upon her accept-
ing  orders  to  a  cutter  based  in  xxxxxxx.    The  applicant  alleged  that  the  Coast 
Guard wanted to assign a woman to the cutter because another woman had al-
ready  received  orders  to  the  cutter.    Coast  Guard  policy  states  that,  whenever 
possible, it will assign women to ships in groups of two or more.  Accepting the 
orders would have been difficult for her as it would have moved her far away 
from her xxxxxx and forced her to sell or rent her house at a loss.  She alleged 
that, had the Coast Guard not considered her gender, she would have received 
orders that did not create a hardship for her.  Instead of accepting the orders, she 
declined  the  tendered  appointment  and  therefore  gave  up  a  chance  to  be  pro-
moted.   
 

The Board denied relief, finding that the applicant had confused permis-
sible  gender  consideration  with  illegal  gender  discrimination.    The  Board  also 
found that, in refusing the orders to xxxxx, the applicant had violated Article 4-
A-6.a. of the Personnel Manual, which requires members to be available for un-
restricted duty assignment worldwide. 
 

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 sec-

tion 1552 of title 10 of the United States Code.  The application was timely. 
 

2. 

The Report of Investigation prepared by the Departmental Office of 
Civil Rights includes statements by several credible witnesses who corroborated 
the applicant’s allegations that in January 199x, a detailer issued her orders to the 
Coast  Guard  cutter  Xxxx  in  retaliation  for  her  filing  a  sexual  harassment  com-
plaint against a friend of his in 199x.  Witnesses also corroborated her allegations 
that the detailer had threatened to use his position against her and had induced 
another  officer  to  act  against  her.    The  detailer’s  denials  of  many  of  the  appli-
cant’s allegations were contradicted by witnesses and by some of his own state-
ments.  His explanation for how she was chosen for the orders to the Xxxx was 
contradicted by witnesses and by Coast Guard records.   

 

3. 

Therefore, the Board finds that the applicant has proved by a pre-
ponderance of the evidence that in January 199x she received orders to a cutter 
from a detailer whose primary motivation for the assignment was to exact retri-
bution for a sexual harassment complaint she had filed.   

The  Coast  Guard  argued  that  the  applicant  should  have  accepted 
the orders and sought a remedy through Article 138 of the Uniform Code of Mili-
tary Justice or the civil rights complaint procedures rather than accept a volunta-
ry  discharge.    The  Board  finds  that  none  of  the  remedies  promulgated  by  the 
Coast Guard would have permitted the applicant to avoid accepting the orders 
chosen by the detailer (shipboard duty on the Xxxx) who sought to use his posi-
tion to exact retribution from her. 

The Board finds that the Coast Guard erred when it issued orders 
intended as a reprisal against the applicant for filing a sexual harassment com-
plaint.    Furthermore,  the  Board  finds  that  the  Coast  Guard  committed  an  in-
justice when it forced the applicant to choose between accepting orders crafted 
by a detailer who had threatened her and accepting a voluntary discharge. 

7. 

 The Board finds that the applicant did not waive the argument that 
her  discharge  was  unjust  when  she  signed  the  settlement  agreement  in  xxxxx 
199x.  Moreover, the agreement expressly preserves her right to ask the Board to 
add the time between her discharge and reenlistment to her total creditable ser-
vice so that she may receive the consequent benefits and back-pay. 
 
 
The Board finds that the final decision in BCMR Docket No. 1997-
114 is not relevant to the decision in this case.  The applicant in that case was not 
the target of reprisals for filing a sexual harassment complaint.  
 
 
Although the Coast Guard argued that it has no authority to pay a 
member for time not served on active duty, it is well established that the Board 
may exercise its authority to correct an applicant’s record by removing an unjust 
discharge and break in service.   
 
 
cant. 
 
 
 

Therefore, the Board should grant the relief requested by the appli-

8. 

9. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
4. 

 
5. 

 
6. 

 

 

 
• 

ORDER 

 

The application for correction of the military record of XXXXXXX, USCG, 

is hereby granted as follows: 

The applicant’s DD Form 214 dated xxxxxxxx, 199x, and all other 

• 

 
 

 
 

        

 
Charles Medalen 

 

• 

references to her discharge on that date shall be removed from her record. 
 
The applicant’s record shall be corrected to show no breaks in ser-
vice  at  anytime  in  199x  and  199x.    The  time  between  xxxxx,  199x,  and  xxxxx, 
199x, shall be credited to her as time served on active duty. 
 
The  Coast  Guard  shall  pay  the  applicant  all  back-pay  and  allow-
ances she is due as a result of these corrections, minus any wages she may have 
earned from other sources while discharged from the Service. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
Karen Y. Petronis 

 
Walter B. Myers