N.B.: The delegate of the Secretary approved the minority
dissenting opinion in this case and granted the relief shown on the
last page on December 22, 2000.
DEPARTMENT OF TRANSPORTATION
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 1998-052
FINAL DECISION FOLLOWING REMAND
ANDREWS, Attorney-Advisor:
This case was remanded to the Board by the Secretary’s delegate, the
Deputy General Counsel, for additional consideration in accordance with the
provisions of section 52.64(b) of title 33 of the Code of Federal Regulations on
December 23, 1999. The original recommended final decision in this case was
signed on November 3, 1999.
Subsequent to the case being remanded, the Board asked the Coast Guard
if it would submit further evidence that might shed new light on the issues
raised in the Deputy General Counsel’s decision remanding the case to the
Board. The Coast Guard declined to submit further evidence.
This recommended final decision on remand, dated February 29, 2000, is
signed by two of the three duly appointed members who were designated to
serve as the Board in this case. The third member of the Board signed a separate,
dissenting opinion.
RELIEF REQUESTED
The applicant, a xxxxxxxxxxxxx on active duty in the Coast Guard, asked
the Board to correct her record by removing a court memorandum (form CG-
APPLICANT’S ALLEGATIONS
The applicant alleged that, in 198x, when she began working as a recruiter
in the Coast Guard Recruiting Office in xxxxxxxxx, she received a direct order to
file false claims for travel and entertainment expenses. She was told to file for
the maximum allowance of $60 per month whether or not she actually incurred
those expenses. The extra money was to serve as her “Pro” pay. She alleged that
she felt uncomfortable with the order, and she checked with her chain of com-
mand. However, every member of her chain of command told her to submit the
claims because it was “an accepted practice in recruiting.” She alleged that as
one of the lowest ranking members in the office, a xxxxxxxxxxx, she obeyed the
orders until she was transferred to the xxxxxxxx in xxxxxxxxxxx, in July 198x.
On May 25, 198x, she was told that the practices at the recruiting office
and the claims of 125 recruiters had been investigated and that she had been
charged with filing false claims. She was told that she was the first to be pun-
ished, and she was advised to choose to appear before a captain’s mast the next
day rather than risk a court-martial, which might result in harsher punishment.
Therefore, the applicant alleged, being then 7 months pregnant and believing
that others would be similarly or more harshly punished, she went to mast the
next day and received NJP. Thereafter, she repaid the entire sum owed,
approximately $1,400, although because of the statute of limitations, she was
only charged with $113.11 worth of false claims. Her command entered the
forms CG-3304 and CG-3307 into her file.
3304) and a page 7 administrative entry (form CG-3307) indicating that she had
been awarded non-judicial punishment (NJP) on May 26, 198x.
At the time of her mast, the applicant assumed that other members who
had worked at the recruiting office—particularly the officers who had ordered
her to make false claims—would also be charged and punished. However, in
199x, she learned that she “was the only recruiter that had received NJP, the oth-
ers did not and had, in fact, continued to advance in their careers.” The
applicant listed the names of 10 other members who, she alleged, worked in the
recruiting office, outranked her, filed false claims, and yet did not receive NJP.
Upon this discovery, the applicant “followed the procedures in the Mili-
tary Justice Manual and requested from the CO at xxxxxxxxx that the NJP … be
‘set aside’” but was told to apply to the BCMR. Within 90 days, however, she
was transferred and advanced to the rank of chief yeoman. Therefore, she
thought that the NJP would no longer affect her career, and she did not apply to
the BCMR. However, in 199x, when she became eligible for promotion to
xxxxxx, she realized that the NJP might stop her promotion. Therefore, she
alleged, she followed the procedures in COMDTINST M1080.10D for having
documents removed from a personnel record. On January 15, 199x, the Coast
Guard Personnel Command (CGPC) informed her that she should apply to the
BCMR for the correction.
VIEWS OF THE COAST GUARD
On July 14, 1998, the Chief Counsel of the Coast Guard submitted an advi-
sory opinion in which he recommended that the Board deny relief.
The Chief Counsel alleged that, to remove an NJP from a member’s
record, the Board must find “(1) that the commanding officer’s determinations
regarding commission of an offense were clearly erroneous; (2) that the accused
suffered material prejudice due to clear procedural error; or (3) that the punish-
ment imposed was a clear abuse of the broad professional discretion accorded
military commanders under Article 15, UCMJ [Uniform Code of Military Justice],
to take corrective action so as to maintain the good order and discipline within
the service.”
The Chief Counsel argued that the applicant’s NJP was neither in error
nor unjust because her commanding officer in xxxxxxx “found that she had
knowingly presented false and fraudulent claims amounting to $113.11 in viola-
tion of Article 132 UCMJ.” The Chief Counsel stated that the applicant has pre-
sented no evidence indicating that her commanding officer’s determination was
erroneous.
The Chief Counsel stated that the applicant has presented no proof that
other former recruiters who were equally or more culpable than her failed to
receive NJP. Moreover, the Chief Counsel argued, “the decision of whether to
impose [NJP] for a proven offense is committed by law to the commanding offi-
cer’s discretion.” Therefore, “even if similarly situated former recruiters
assigned to other commands did not receive the level of punishment that Appli-
cant did, it would not establish error or injustice in the punishment imposed
upon Applicant by Commanding Officer, xxxxxxxxxxx.”
The Chief Counsel further alleged that because the applicant did not
appeal her NJP at the time, the matter “should be deemed waived.” The Chief
Counsel also pointed out that, by accepting NJP, the applicant avoided the risk of
receiving much harsher punishment by court-martial. Furthermore, he argued,
her claim should be barred by the doctrine of laches because “[i]n the nine years
since her NJP, memories have faded, and documents have become less available,
if they still exist at all, making it impracticable or impossible to rebut or to verify
her claims.”
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On July 16, 1998, the Chairman sent the applicant a copy of the Chief
Counsel’s advisory opinion and invited her to respond within 15 days.
On July 30, 1998, the applicant responded to the views of the Coast Guard.
In response to the Chief Counsel’s argument that the applicant had not proved
other recruiters who were equally culpable had not been punished, the applicant
argued that the proof is in the hands of the Coast Guard because they can pro-
vide copies of the records of the other recruiters she has named and the report of
the investigation. However, the applicant did submit an affidavit from a former
recruiter who confirmed many of the applicant’s allegations (see below).
The applicant argued that her acceptance of NJP, rather than court-
martial, and her failure to appeal the NJP should not be held against her because
she “naively trusted [her] senior leaders to be doing a uniform and fair thing,”
and she “could not see, at the time, that this punishment would have very far-
reaching effects upon [her] career.” Furthermore, she thought that the records of
her NJP would be removed from her record upon her next reenlistment, which
was just three months away. “A change in administrative policy which requires
that the Court Memorandum, CG-3304 be kept in the Personnel Data Record for-
ever, versus being purged at the end of each enlistment, had been promulgated
at CG Headquarters two months prior to my NJP but had not been implemented
by training or practice yet at xxx.”
The applicant argued that, in filing the false claims, she essentially obeyed
an order that she should have disobeyed. She pointed out that members who
may have done much worse things but who were punished just a few months
earlier would have had the records of their NJPs removed when their enlistments
expired. She alleged that it is unfair for the records of this NJP to be preventing
her advancement to xxxxxxxxxxx,1 while the careers of those who had ordered
her to file the false claims had not been harmed.
RESPONSE OF THE CHIEF COUNSEL
On September 3, 1998, the BCMR forwarded a copy of the applicant’s
response to the Chief Counsel in accordance with 33 C.F.R. § 52.82(a). The
BCMR also wrote to Coast Guard Investigations, requesting a copy of the report
of the investigation that resulted in the applicant’s NJP. On September 23, 1998,
the Chief Counsel stated that his recommendation remained unchanged, and
1 The applicant was advanced to xxxxxxxxx in June 199x, after she filed her BCMR application.
Coast Guard Investigations informed the BCMR that no report of the
investigation could be found.
APPLICANT’S SUBMISSION OF FURTHER EVIDENCE
In response to the Coast Guard’s responses, the applicant waived her right
to a decision within 10 months under 14 U.S.C. § 425 so that she might seek and
submit more affidavits from fellow recruiters. She also asked the BCMR to con-
tinue to search for a report of the investigation. In January and March 1999, the
applicant submitted further affidavits (see below). Copies of this evidence were
forwarded to the Chief Counsel, but he did not respond. In April 21, 1999, after
unsuccessful attempts to find the report of investigations by telephone, the
Chairman again wrote Coast Guard Investigations a formal request for the
report. On June 2, 1999, the Coast Guard responded, stating that the report had
been transferred to the Federal Records Center and would be retrieved from
there. On June 22, 1999, Coast Guard Investigations forwarded a copy of the
report of the investigation of the filing of false claims by recruiters in the xxxx
office to the BCMR.
SUMMARY OF THE RECORD
The applicant enlisted in the Coast Guard on xxxxxxxx, 197x, and com-
pleted recruit training on xxxxxxx, 197x. She was first assigned to Coast Guard
headquarters in Washington, D.C., where she served until June 198x while being
promoted from xxxxxxxxxxxx and then to xxxxxxxx. For her service at
headquarters, she received a personal letter of thanks and commendation from
the Commandant and a Coast Guard Achievement Medal.
In July 198x, the applicant was transferred to the recruiting office in xxxx,
XX, where she served as a recruiter until June 198x. For her service at the
recruiting office, she received an Achievement Medal. The citation to the medal
states that the applicant displayed superior performance, initiative, enthusiasm,
perseverance, diligence, judgment, and devotion to duty.
In June 198x, the applicant was transferred to the XXX in Xxxxxx, XX,
where she was promoted to xxxxxxxx.
On May 26, 198x, the applicant went to mast before a commander at the
xxxxxxxxx. On June 13, 198x, a court memorandum was placed in the applicant’s
record indicating that she had been found guilty of filing false claims. Her
punishment, “reduction to the rate of xxx, [was] suspended for the remainder of
current enlistment contingent upon restitution of claims.” On June 13, 198x, a
page 7 entry was placed in the applicant’s record indicating that she had
received a mark of 2 (on a scale of 7) for poor conduct. On June 15, 198x, a page 7
entry was placed in her record concerning the schedule by which she was to
repay $1,473.86 in accordance with the NJP.2
On 10 June, 199x, the applicant wrote to her commanding officer at the
Xxxxxx XXX asking that her NJP be set aside. On September 8, 199x, she was
told that “[s]ince over three years have elapsed, it is impossible for me to assem-
ble the facts in your case in order to make a proper decision.” She was encour-
aged to apply to the BCMR.
On December 18, 1997, the applicant applied to the CGPC for the removal
of the records of her NJP pursuant to COMDTINST M1080.10D. She stated that
she was “not convinced that the circumstances surrounding [her] NJP did not
contain elements of discrimination, specifically [she] was the only one in an
office of five recruiters that received NJP for following a ‘standard procedure’—
all the other recruiters were senior to [her] and received, at the most, a page 7.”
On January 5, 1998, the applicant’s commanding officer forwarded her
request for correction to the CGPC “strongly recommending approval.” Her
commanding officer stated as follows:
In reviewing the circumstances surrounding the NJP in question, I believe
[the applicant’s] assertion that there may have been prejudicial factors
present has merit. Since the investigation which precipitated the Mast
was conducted after many of the affected recruiters had been transferred,
disposition of the resulting charges was left to the commands where the
recruiters had been transferred to. . . . Only much later was she able to
determine that only she was singled out for NJP in this instance. Further,
Coast Guard policy at the time of punishment was to purge such records
upon reenlistment. Subsequent change to that policy leaves this stand-
alone document in an otherwise stellar record. . . .
While deliberations of the xxxxx selection board are sealed, I am con-
vinced that she would easily have been selected but for the presence of
the NJP within her file. . . .
On June 1, 199x, the applicant was promoted to xxxxxxx. On June 1, 199x,
the applicant was promoted to xxxxxx. Since her NJP, the applicant has received
numerous marks of 7 (highest possible mark) in her evaluations.
Affidavits Signed by Other Recruiters
2 Apparently, because of the statute of limitations, the applicant was found liable only for false
claims in the amount of $113, but she alleged that she volunteered to pay the entire amount.
A member who was a petty officer first class at the time she worked in the
recruiting office from April 198x to December 198x and is now a xxxxxx (xxxxx)
signed the following statement:
On reporting to [USCG Recruiting Office xxxx, XX], both the OinC
[Officer in Charge] and the XPO [Executive Petty Officer] … instructed
me that I was required to put in reimbursement requests for lunches and
other recruiting personal expenditures at the maximum rate of $60 a
month, even when such expenses were not incurred. Their reasoning was
that that money would serve as our Pro pay. The then CCGxx (xx), a
[lieutenant] … and [a senior chief petty officer], condoned this practice
throughout the then xx District. Further fraudulent claims on travel
vouchers were made when both the OinC and XPO would piggy back
onto my travel claims even though they had not made the travel. The
OinC and XPO would later pressure me and the other recruiter, [the
applicant], to file similar travel claims with them. Failure to go along
with them often resulted in poor performance evaluations and or verbal
abuse in the office. I can only assume they wanted us to file fraudulent
claims with them so that we wouldn’t report them. Often the office
government vehicles, of which one had USCG RECRUITING, on the sides
of it would be found day or night at local bars. When approached on
these acts of misconduct both the OinC and the XPO would blow up and
there was simply no reasoning with them. These practices were fluent
throughout the then xx District. After 2 years in this environment and no
safe way out, I requested via letter to be reassigned, asking for any ship
any shore unit xxxx coast, due to irreconcilable differences. It was clear to
me that with the acceptance of these activities from the district down that
there was no way I could remain in recruiting. The emotional and
professional retribution that the OinC and his XPO used would certainly
end my previously high performance career. On departing, the XPO had
one final meeting with me and that was to find out if I would stir up any
investigations into their misconduct. I told him I just wanted out of the
office and as far away as I could get. … This statement is not the first on
this subject that I have made. Sometime in 198x – 199x Coast Guard
Intelligence interviewed me while I was stationed in xxxxxx, XX. It is my
opinion that [the applicant] should not have been held responsible for the
misconduct pressured onto her and myself during that recruiting tour.
A xxxxxx who served in the recruiting office from June 198x to June 198x
signed the following statement on the applicant’s behalf:
After reporting to the USCGC xxxxxxx in July 198x, I was the subject of
an investigation into subject allegations conducted by the Coast Guard
Intelligence out of the XX Coast Guard District in xxxxxxxx. I was told
and I understood that all recruiters with the XX District were also subject
A member who was a petty officer first class when he served in the xxxx
recruiting office submitted the following statement:
to the same investigation. I told the investigator that I was led to believe
it was a common and accepted practice for all recruiters to submit claims
for reimbursement for miscellaneous expenses, even false ones, and that I
did file these claims. The justification for this practice was that since
Coast Guard recruiters did not get the same Proficiency Pay as
Department of Defense recruiters, it was “our” way to get equal
entitlements, so we did it. I never heard another word concerning the
investigation or the results thereof. At the time, I had no personal
knowledge of any one else being subject to the same investigation.
I will not drop names, but I was later asked by my previous Officer in
Charge as to what happened as a result of my investigation. I told him
“nothing”. I still do not believe that any of the Officers in Charge of the
XX District recruiting offices were ever subject to the same investigation.
Why not?
Upon reporting to the USCG Recruiting Office in xxxx, XX, I was told by
the Executive Petty Officer … that all recruiters filed an out-of-pocket
expense report to compensate the Coast Guard recruiters for not
receiving “recruiter pay” or SDAP like the other armed services recruiters
received. I mentioned to him that this did not seem appropriate. He
stated that the Officer in Charge stated that all the people in his office
would file or none would and that the latter was not an option to us. The
Finance Officer from the Recruiting Command in xxxxxx would send us
our claims back occasionally with hand written notes to make this entry
or another to make it look better. I was told that this was an approved
procedure and the Recruiting Command knew and approved them each
month. This went on until a new Officer in Charge and Executive Petty
Officer were in position.
… Approximately two years after transferring to xxxxxx I had heard that
there was an investigation going on in a couple of the xxxxxx offices for
falsifying claims.
After looking into this matter, I realized the
investigation included recruiters that had filed out-of-pocket claims. I
informed my OIC that I had also filed false out-of-pocket claims but was
ordered to do so by my OIC and XPO in xxxx. We in turn notified the
Commanding Officer of the Central Recruiting Command in xxxxx that I
had been involved in similar incidents that were currently being investi-
gated. Members of Coast Guard Intelligence visited me for a period of
one year to give statements and to answer questions about others that
were involved.
At the end of the investigation, I was called by the Executive Officer (XO)
of the Recruiting Command. He informed me that the total for the out-of-
pocket claims was $1100.00. He stated that I did not have to reimburse
the Coast Guard but that it would look good if I did. I was informed that
I would receive a Page 7 entry into my record as my only punishment
unless I did not pay the monies back to the Coast Guard which would
look bad and Non-Judicial Punishment may be held in the future as they
would have to reevaluate my situation. I feel this was another example of
the way the entire investigation was held so I in turn immediately paid
the money to the Coast Guard to “cut my losses”. The only punishment I
received was a Page 7 for poor judgment on my part.
There was no standard procedure of punishment for the personnel
involved. Lower ranking individuals seemed to be given harsher pun-
ishments than the superiors that orchestrated the situation and who
forced their subordinates to follow unlawful orders.
Character References Submitted by the Applicant
A commander who supervised the applicant in 199x signed an affidavit
attesting to the applicant’s “high moral character” and “exemplary behavior.”
The applicant “chose truthfulness and candor when it would have been easier to
accept less objective versions of others.”
A senior chief petty officer who has known the applicant since 199x
signed an affidavit stating that the applicant “conducts herself in a very
professional manner both in official and social settings. … She is a very loyal
and honest individual whose core values are extremely high.”
A chief petty officer who worked with the applicant for 4 years during the
mid 1990s signed an affidavit stating that she “is the strongest leader I have met
in my 18 years of Coast Guard service. She exemplifies honesty, integrity, and
respect, and fosters the same values in those she comes in contact with.”
Summary of the Report of Investigation of the Applicant
On xxxxx, 198x, the commanding officer of the xxxxxxxxxx Recruiting
Office in xxxxxxxxx, wrote to the commander of the XX Coast Guard District
requesting an investigation. He wrote, “It has come to my attention that a
problem may exist at Recruiting Office xxxx concerning the submission of
fraudulent travel claims, out-of-pocket expense claims, etc. General information
concerning this matter surfaced during an investigation of Recruiting Office
xxxxxxxx for similar reasons.”
On xxxxxx, 198x, an investigator in the Chief Law Enforcement Branch
submitted a report on the investigation of five members, including the applicant,
who had served as recruiters in the xxxx recruiting office.
The investigator reported that the current Officer in Charge [OinC], who
was assigned to the recruiting office on xxxxx, 198x, following the xxxxxxx of the
previous Officer in Charge, had discovered and stopped the practice of filing
false claims. The new OinC stated that he had reported the false claims to his
supervisors several times but received no response until November 198x, when
he received a letter from the commanding officer of the xxxxx Recruiting Center
stating only that anyone who was submitting false claims should stop.
The new OinC further stated that he had contacted the recruiting offices in
xxxxx, xxxxx, xxxxx, and xxxxx and discovered that the practice of filing false
claims was long-standing at those offices. At a conference for recruiting office
OinCs in xx 198x, personnel from the xxxxxxx Recruiting Center questioned him
about whether he had “blown the whistle” on the practice and counseled
concerning his “bad attitude.” They apparently did not believe him when he
denied having “blown the whistle” because they told him that they “hoped no
other names are mentioned and no other offices are brought into the
investigation.”
On April 13, 198x, the investigator attempted to interview one of the sub-
jects (S#1) of the investigation, but he refused to answer questions before con-
sulting a lawyer.
On April 18, 198x, the investigator visited the xxxx recruiting office and
attempted to interview the applicant, who was still working there, but she
refused to answer questions before consulting a lawyer. However, a XXX (S#2)
who was also a subject of the investigation waived his rights and answered the
investigator’s questions. S#2 told the investigator that all claims submitted by
the recruiters were legitimate, but he refused to sign a statement to that effect.
On July 11, 198x, the investigator reinterviewed S#1, who stated that he
had decided to tell the truth and waive his right to consult a lawyer. S#1 stated
that the practice of filing false claims had been ongoing at the xxxx recruiting
office when he first arrived there in September 198x. He was instructed in the
practice by the XPO. Both of the previous OinCs knew and condoned the prac-
tice. S#1 stated that he did not know the practice was wrong until the new OinC
arrived and stopped the practice. However, he refused to sign a written state-
ment.
On August 11, 198x, the investigator spoke again with S#2, who waived
his rights. S#2 stated that the former OinC had told him to submit the false
claims. S#2 claimed that “[e]veryone in [the xxxx office] was doing it and [the
xxxxxxx Recruiting Center] was aware it was going on.” He stated that he had
discussed the matter with personnel at the Center but could not recall who. S#2
further stated that he stopped submitting false claims when the new OinC
arrived, but he would not sign a written statement.
On November 18, 198x, the investigator spoke with another subject of the
investigation, S#3.3 S#3 told him that the applicant had informed him about the
practice of filing false claims soon after he arrived at the recruiting office in 198x.
She told him that the practice was not “technically” approved but that “it was
known about and an accepted abuse.” The applicant told S#3 that she did not
want to file false claims but did so because the XPO had taken her “to the office
storeroom and told her that she was no longer working at Headquarters and that
she worked for him now and she would do things his way or he would have
orders [to transfer] her within the day.” S#3 told the applicant that “he could
stand up to [the XPO] better than a woman could.” However, soon thereafter,
the XPO came to his desk, slid a blank claims for reimbursement for
expenditures on it, and told him to fill it out. When S#3 questioned the XPO, he
was told that the OinC wanted it done and S#3 “would do them.” S#3 then saw
the applicant look at him with an expression “as if to say I told you so.” S#3 and
the applicant then told the XPO that they did not want to submit the claims but
were told by the XPO that “he ran the office and they would do as they were
told.” S#3 told the investigator that he went along because “he was afraid to
buck the system and wondered if anyone would stand behind him against a xxxx
and xxxx [the XPO and OinC] with a combined 30 some years of active service
and obviously someone else in district or elsewhere.” He stated that the OinC
also requested the claims from him and that later he learned that the practice was
widespread and well known throughout Coast Guard recruiting. The OinC told
him that at a conference for recruiting office OinCs, personnel from the xxxxxx
Recruiting Center had instructed the conferees to be “creative financiers,” which
he and others at the conference interpreted as tacit approval of the practice of
filing false claims. S#3 further stated that the XPO would review his claims and
raise them to the allowed limit of $60 per month, but when he heard rumors of
an investigation, the XPO told them to file claims for about $40 per month.
On January 25, 198x, the investigator requested an interview with the
applicant, but she refused to speak to him before consulting a lawyer. He called
her on February 3, 198x, and she still refused to speak to him because the Coast
3 S#3 is the petty officer first class who signed the third affidavit excerpted on page 7, above.
Guard legal staff had told her “they could provide no legal service for her unless
charges were brought against her.”
The investigator determined which claims filed by the subjects of the
investigation were false by contacting some of the potential recruits with whom
the subjects had claimed to eat lunch and submitted claims for the costs of the
lunches. By this method, the investigator reviewed 27 of the applicant’s monthly
claims filed between March 198x and June 198x. He determined that they con-
tained $1,546.85 worth of false claims, averaging $57.29 per month. The investi-
gator reviewed 13 of the monthly claims filed by S#1 from October 198x to May
198x. S#1’s fraudulent claims totaled $734.57,4 or $56.50 per month, on average.
The investigator reviewed 10 monthly claims filed by S#2 in August and Septem-
ber 198x and from November 198x to June 198x and determined that the fraudu-
lent claims totaled $544.16, or $54.42 per month, on average. The investigator
reviewed 17 monthly claims filed by S#3 from August 198x to April 198x. S#3’s
fraudulent claims totaled $956.31 and averaged $56.25 per month. The investi-
gator reviewed 4 monthly claims that the unit’s XPO, S#4, filed in March, Sep-
tember, and October 198x and April 198x. The XPO’s fraudulent claims for those
months totaled $240.00 and averaged $60.00. The investigator reported that the
review of monthly official expenditure claims was still incomplete.
APPLICABLE LAWS
Under Article 121 of the UCMJ, embezzlement is a form of larceny. The
maximum possible sentence imposed by a court-martial for a conviction for lar-
ceny of military property worth more than $100 is dishonorable discharge; for-
feiture of all pay and allowances; and confinement for 10 years.
Under Article 15 of the UCMJ, the maximum possible sentence imposed
by a captain’s mast is correctional custody for up to 30 days; forfeiture of one-
half pay for up to two months or detention of one-half pay for up to three
months; reduction in grade; extra duties for up to 45 days; and restriction to
certain areas for up to 60 days.
According to Chapter 100-3(f) of the Military Justice Manual (COMDT-
INST M5810.1A), “if at the time [NJP] is to be imposed the accused is no longer
assigned or attached to the unit, the alleged offense should be referred for
appropriate action to a competent authority in the chain of command over the
individual concerned.”
4 The investigator added the column of false claims to $793.47. It is unclear whether he
miscalculated or whether he failed to include a monthly claim in his report.
Under section 916(d) of the Rules for Courts-Martial, “[i]t is a defense to
any offense that the accused was acting pursuant to orders unless the accused
knew the orders to be unlawful or a person of ordinary sense and understanding
would have known the orders to be unlawful.”
According to Article 8-D-2a. of the Personnel Manual (COMDTINST
M1000.6A), a copy of each letter of censure issued pursuant to Article 15 of the
UCMJ shall be retained in a member’s official personnel record. According to
Article 8-D-3, a copy of the court memorandum shall also be filed in an appli-
cant’s personnel record.
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of
the applicant's military record and submissions, the Coast Guard's submissions,
and applicable law:
The Board has jurisdiction concerning this matter pursuant to sec-
1.
2.
tion 1552 of title 10 of the United States Code.
3.
The applicant requested an oral hearing before the Board. The
Chairman, acting pursuant to 33 C.F.R. § 52.31, denied the request and recom-
mended disposition of the case without a hearing. The Board concurs in that
recommendation.
The applicant alleged that she was punished for filing false claims
pursuant to direct orders. She alleged that the practice of filing false claims was
widespread among recruiters in the XX District. She further alleged that,
although she was ordered to file false claims, she was punished more harshly
than her superiors whom she was obeying and than other recruiters of higher
rank. The Chief Counsel did not deny these allegations.
The Chief Counsel argued that the applicant’s request should be
denied under the doctrine of laches. However, the Board finds that discovering
the facts and results of such a widespread investigation, even xxx years after the
fact, is not sufficiently onerous to justify denying the applicant’s request.
The Chief Counsel argued that the applicant had waived her right
to contest her NJP because she failed to appeal it in 198x. The Board finds that
the applicant’s failure to waive her NJP did not constitute waiver of her right to
seek relief from the Board.
4.
5.
6.
Under the Uniform Code of Military Justice (UCMJ), acting pursu-
ant to orders is a complete defense unless the member knew or should have
known the orders to be unlawful. Rules for Courts-Martial, 916(d). It is clear
from the record that the applicant knew the order to file false claims was unlaw-
ful and yet obeyed it anyway. Therefore, the fact that she was following an order
is no defense and did not justify her actions.
7.
The Coast Guard’s Report of Investigation and affidavits submit-
ted by the applicant support her allegations that she was pressured to file false
claims by her chain of command. However, the evidence fails to establish the
level of coercion sufficient to negate her intent to file false claims: She was not
threatened with bodily harm, only with early transfer. Moreover, during her
almost five years at the unit, there was plenty of time for her to report the prob-
lem to Coast Guard officers outside of the recruiting command, but she failed to
do so.
8.
The applicant admitted that she filed false claims when she went to
mast in 198x. She was given the option of contesting her case before a court-
martial but chose to accept NJP. In doing so, she waived certain procedural
rights but avoided the potentially much greater punishment that could be
imposed by court-martial. The applicant has not proved by a preponderance of
the evidence that she was deprived of any due process she did not voluntarily
waive.
9.
10.
The applicant argued that the affidavits she submitted prove that
she was punished more harshly than those who outranked her and who ordered
her to file the false claims. Therefore, she argued, it is unjust for the records of
her NJP to remain in her record and hamper her career especially since, when she
accepted NJP, she did not know that those forms would remain in her record
past the end of her enlistment.
The Record of Investigation and affidavits indicate that all of the
recruiters, the Officer in Charge, and the Executive Petty Officer of the appli-
cant’s unit filed false claims in similar amounts on a monthly basis for as long as
they worked there. Most of these members outranked her and thus arguably
should have received harsher punishments. See United States v. Burton, 1998
Lexis 429, *4 (CCA); United States v. D’Amico, 199x Lexis 624, *5 (AFCMR); United
States v. Guaglione, 27 M.J. 268, 271 (CMA 198x); United States v. Means, 10 M.J.
162, 165 (CMA 198x); United States v. Capps, 1 M.J. 1184, 1188 (AFCMR 1976). On
the other hand, the applicant’s tenure at the unit was longer than some of the
others’, resulting in a larger total of money embezzled. Given the incomplete-
ness of the Report of Investigation and the record, it is impossible for the Board
to determine exactly the culpability of the members of the applicant’s unit and
compare their punishments to that of the applicant. However, the apparent lack
or insufficiency of punishment of the other members who filed false claims does
not constitute an injustice against the applicant. While it is in the public interest
for justice to be applied with an even hand, co-defendants and co-conspirators
have no right to exactly equal punishment. See United States v. Reeder, 29 M.J.
563, 564 (AFCMR 198x). Moreover, although the Report of Investigation is
incomplete and there is some evidence indicating that the applicant was more
severely punished than those who were arguably more culpable, there is no evi-
dence that the applicant was targeted for investigation or punishment because of
any prejudice.
11. Under Article 15 of the UCMJ, Congress gave commanding officers
wide discretion to maintain order and discipline within their units by offering
NJP, in lieu of court-martial, for a minor offense that requires more than an
administrative reprimand. Such discretion inherently means that not all mem-
bers will receive exactly the same punishment for the same offense. Moreover,
Chapter 100-3(f) of the Military Justice Manual (COMDTINST M5810.1A) pro-
vides that, “if at the time [NJP] is to be imposed the accused is no longer
assigned or attached to the unit, the alleged offense should be referred for
appropriate action to a competent authority in the chain of command over the
individual concerned.” Therefore, the applicant’s case was properly referred to
her command in Xxxxxx, and there is no evidence indicating that her
commanding officer at Xxxxxx was unaware that she had been intimidated and
ordered to file the false claims by her chain of command in xxxx. Furthermore,
the applicant presented no evidence indicating that her commanding officer in
Xxxxxx abused his discretion with respect to her NJP or committed any error or
injustice in adjudicating her case and awarding the NJP.
12. As the court stated in United States v. Capps, 1 M.J. 1184 (AFCMR
1976), “appropriateness of a sentence in a case under review is to be determined
on the basis of its own facts and circumstances, not on a comparison with sen-
tences in other cases. … The factors that must be evaluated in determining an
appropriate sentence for the particular offender in light of the offenses and the
facts and circumstances of the case are numerous and complex. Each case is
unique. Thus seldom, if ever, is the sentence imposed in one case truly relevant
to that which should be adjudged in another. It is only in the most unusual of
circumstances that sentences in other cases are germane to the question of what
sentence should be approved in a case under review.” Id. at 1187 (citations
omitted). In light of this principle and the wide discretion accorded command-
ing officers in awarding NJP, the Board should not second-guess the lawful and
reasonable decision made by the applicant’s commanding officer with regard to
her punishment.
13.
14.
The dissenting Board member argues that, given the breadth of the
conspiracy and embezzlement, the Coast Guard should have ensured that mem-
bers were punished consistently in accordance with their rank and culpability
and that the Coast Guard’s apparent failure to do so caused an injustice against
the applicant. However, we do not agree that the Coast Guard’s decision to
permit the culpable members’ commanding officers to exercise their discretion
under Article 15 of the UCMJ was wrongful or unjust so as to require removal of
a record of a crime to which the applicant confessed.
The applicant has not proved by a preponderance of the evidence
that she was unfairly punished for the embezzlement she committed or that it is
unjust for the records of that embezzlement to remain in her personnel records.
15. Accordingly, the applicant’s request should be denied.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
The application for correction of the military record of XXXXXXX, USCG,
ORDER
Angel Collaku
Gareth W. Rosenau
(see Dissenting Opinion Following Remand)
Sharon Y. Vaughn
is hereby denied.
DEPARTMENT OF TRANSPORTATION
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 1998-052
DISSENTING OPINION FOLLOWING REMAND
ANDREWS, Attorney-Advisor:
This case was remanded to the Board by the Secretary’s delegate, the
Deputy General Counsel, for additional consideration in accordance with the
provisions of section 52.64(b) of title 33 of the Code of Federal Regulations.
This dissenting opinion following remand, dated February 29, 2000, is
signed by one of the three duly appointed members who were designated to
serve as the Board in this case.
FINDINGS AND CONCLUSIONS
This dissenting opinion following remand adopts the Findings numbered
1, 2, 3, 4, 5, 6, and 9 that appear in the majority’s final decision following remand.
The following findings and conclusions are based on the applicant's military
record and submissions, the Coast Guard's submissions, and applicable law, as
summarized in the Board’s majority recommended decision in this case:
1.
The Coast Guard’s Report of Investigation and the affidavits sub-
mitted by the applicant prove that she was ordered to file false claims by her
chain of command. She was intimidated and threatened with immediate trans-
fer, which would have been detrimental to her career, if she failed to file false
claims. The Report of Investigation and the affidavits also show that the filing of
false claims was a widespread practice among recruiters in the XX District and
several other Coast Guard districts in the 1980s and that the punishment of some
recruiters who filed false claims was carried out separately by the new
commands to which recruiters had been transferred. The new commands exer-
cised their own discretion in determining what level of punishment was appro-
2.
3.
priate. The Chief Counsel did not deny or present any evidence contradicting
these findings.
While it is clear from the record that the applicant knew the order
to file false claims to be unlawful, it is also clear that she and other recruiters
tried to avoid following the order by verifying it up her unit’s chain of command.
Unfortunately, her chain of command verified her supervisor’s unlawful order,
and she did not complain of the unlawful order outside of her chain of com-
mand. It is apparent from the Report of Investigation and the affidavits of other
recruiters that the consequences of attempting to whistleblow on the embezzle-
ment could have been quite negative for the whistleblower. Thus, while the
applicant tried to avoid filing false claims, she did not go out on a limb and
jeopardize her career to do so. Although these facts may not legally negate her
intent to embezzle, they certainly indicate that she would not have embezzled
had she not been ordered and pressured to do so and had she not been told by
her superiors that it was an accepted practice.
The Report of Investigation submitted by the Coast Guard indicates
that, like the applicant, the other recruiters in her office, including those who out-
ranked her and served in her chain of command, submitted false claims worth,
on average, between $54 and $60 (the maximum allowed) each month. The sum
total of the applicant’s false claims revealed in the Report of Investigation is
apparently larger than the other recruiters’ totals only because the investigator
submitted the report after completing his investigation of her claims but before
finishing his investigation of other recruiters’ claims. For example, the Report of
Investigation shows that he investigated 27 of her monthly reports but only four
of the monthly reports of the unit’s XPO, who ordered her to file the false claims.
However, in each of those four monthly reports, the investigator found at least
$60 worth of false claims. There is no explanation in the record of why the
investigator failed to complete his investigation of the other recruiters or, if he
did ultimately complete it, what the results were. It is also unclear whether the
Coast Guard followed up on the evidence of widespread embezzlement con-
doned by the regional recruiting command by investigating and punishing
recruiters in other units and districts.
The applicant submitted several affidavits indicating that she was
punished more harshly than those who outranked her and who ordered her to
file the false claims. The Coast Guard has possession of, but failed to submit,
evidence concerning the amount of wrongdoing by, and punishment of, each of
her superiors and the other recruiters who filed false claims. Therefore, the
applicant has proved by a preponderance of the evidence that she was punished
more harshly than those who ordered her to file the false claims and than
recruiters of higher rank who filed false claims. This was unjust because mem-
4.
6.
bers of higher rank are supposed to be more accountable for their actions, not
less. See United States v. Burton, 1998 Lexis 429, *4 (CCA); United States v.
D’Amico, 199x Lexis 624, *5 (AFCMR); United States v. Guaglione, 27 M.J. 268, 271
(CMA 198x); United States v. Means, 10 M.J. 162, 165 (CMA 198x); United States v.
Capps, 1 M.J. 1184, 1188 (AFCMR 1976).
While commanding officers must be able to exercise discretion in
conducting NJP under Article 15 of the UCMJ, the evidence of widespread
involvement, conspiracy, intimidation by superior officers, and unlawful orders
revealed by the Report of Investigation clearly called for some oversight to insure
that justice was applied fairly among those involved in the embezzlement. High-
er ranking members are supposed to be held to higher standards, and this should
be true especially in instances where higher ranking members have abused their
positions to induce unlawful acts by their subordinates. Yet, the applicant has
presented unrebutted evidence indicating that higher ranking members and
members in her chain of command who ordered her to file false claims were not
punished as severely as she was despite their greater culpability. Although the
applicant waived certain procedural rights when she accepted NJP in lieu of
court-martial, she did not waive her right to fair punishment.
The majority of the Board argues that “the apparent lack or insuffi-
ciency of punishment of other members who filed false claims does not
constitute an injustice against the applicant.” However, courts have long
recognized that comparison of sentences is appropriate in connected or closely
related cases. See United States v. Capps, 1 M.J. 1184, 1187 (AFCMR 1975); United
States v. Kent, 9 M.J. 836, 837-39 (AFCMR 1980); United States v. Olinger, 12 M.J.
458, 460 (CMA 198x). Under United States v. Kent, 9 M.J. 836 (AFCMR 1980),
courts may compare the sentences of members if (1) their unlawful activity is
“closely related or connected”; (2) their sentences are highly disparate; and (3)
there are no cogent reasons for the disparate punishment. Id. at 838. Moreover,
the fact that different authorities may have imposed the sentences does not
constitute a cogent reason for a disparity. United States v. Coldiron, 9 M.J. 900, 903
n5 (AFCMR 1980). The preponderance of the evidence indicates that the
applicant received significantly harsher punishment, NJP, than did members
who outranked her, ordered her to file false claims, and filed false claims
themselves. There is no cogent explanation in the record of why the applicant
should have been punished more harshly than her superiors, who were, if
anything, more culpable than she. Therefore, the applicant’s NJP was unjustly
harsh in light of the punishment meted out to others who committed the same
crime.
Although the applicant’s NJP for embezzlement may not seem
unjust when viewed in isolation, I am persuaded that, in light of the circum-
5.
7.
stances of this case, the applicant has suffered an injustice. She has proved that
she was assigned to serve under a corrupt chain of command, whose members
ordered her to embezzle and used threats to procure her acquiescence. She also
presented unrebutted evidence that the Coast Guard meted out punishment
inconsistently among those involved in the embezzlement and that she alone
received NJP for filing false claims. Therefore, while the applicant’s NJP could
not be considered wrong if the Coast Guard had meted out punishments consis-
tently and fairly among the recruiting command, I am convinced that it is in the
interest of justice for the documents referring to her NJP to be removed from her
record so that they may no longer retard her advancement. Therefore, the court
memorandum dated June 13, 198x, and the page 7 entry dated June 15, 198x,
which document the applicant’s NJP should be removed from the file.
The applicant’s record also contains a page 7 entry dated June 13,
198x, which notes only that she received a mark of 2 in conduct. The record indi-
cates that other recruiters who filed false claims received negative page 7 entries
in their records. The applicant has not shown by a preponderance of the evi-
dence that the June 13, 198x, page 7 entry in her record is in error or unjust.
shown in the recommended Order below.
Accordingly, the applicant’s request should be granted in part as
8.
9.
ORDER
the applicant’s record.
The application for correction of the military record of XXXXXXXXX,
USCG, is hereby granted in part as follows.
The court memorandum, form CG-3304, dated June 13, 198x, shall be
removed from the applicant’s record.
The page 7 entry, form CG-3307, dated June 15, 198x, shall be removed
from the applicant’s record.
Any other document referring to the applicant’s mast on May 26, 198x,
and her consequent NJP shall be removed from her record.
All other requests are denied.
No copy of the decisions and opinions issued in this case shall appear in
Sharon Y. Vaughn
DEPARTMENT OF TRANSPORTATION
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 1998-052
FINAL DECISION
ANDREWS, Attorney-Advisor:
This proceeding was conducted according to the provisions of section
1552 of title 10 and section 425 of title 14 of the United States Code. It was dock-
eted on February 12, 1998, following the BCMR’s receipt of the applicant’s com-
pleted application.
This recommended final decision, dated November 3, 1999, is signed by
two of the three duly appointed members who were designated to serve as the
Board in this case. The third member of the Board signed a separate, dissenting
opinion.
RELIEF REQUESTED
The applicant, a xxxxxx (xxxxx) on active duty in the Coast Guard, asked
the Board to correct her record by removing a court memorandum (form CG-
3304) and a page 7 administrative entry (form CG-3307) indicating that she had
been awarded non-judicial punishment (NJP) on May 26, 198x.
APPLICANT’S ALLEGATIONS
The applicant alleged that, in 198x, when she began working as a recruiter
in the Coast Guard Recruiting Office in xxxx, XX, she received a direct order to
file false claims for travel and entertainment expenses. She was told to file for
the maximum allowance of $60 per month whether or not she actually incurred
those expenses. The extra money was to serve as her “Pro” pay. She alleged that
she felt uncomfortable with the order, and she checked with her chain of com-
mand. However, every member of her chain of command told her to submit the
claims because it was “an accepted practice in recruiting.” She alleged that as
one of the lowest ranking members in the office, a xxxxxx (xxxx), she obeyed the
orders until she was transferred to the xxxxx (XXX) in Xxxxxx, xxxxxx, in July
198x.
On May 25, 198x, she was told that the practices at the recruiting office
and the claims of 125 recruiters had been investigated and that she had been
charged with filing false claims. She was told that she was the first to be pun-
ished, and she was advised to choose to appear before a captain’s mast the next
day rather than risk a court-martial, which might result in harsher punishment.
Therefore, the applicant alleged, being then 7 months pregnant and believing
that others would be similarly or more harshly punished, she went to mast the
next day and received NJP. Thereafter, she repaid the entire sum owed,
approximately $1,400, although because of the statute of limitations, she was
only charged with $113.11 worth of false claims. Her command entered the
forms CG-3304 and CG-3307 into her file.
VIEWS OF THE COAST GUARD
On July 14, 1998, the Chief Counsel of the Coast Guard submitted an advi-
sory opinion in which he recommended that the Board deny relief.
At the time of her mast, the applicant assumed that other members who
had worked at the recruiting office—particularly the officers who had ordered
her to make false claims—would also be charged and punished. However, in
199x, she learned that she “was the only recruiter that had received NJP, the oth-
ers did not and had, in fact, continued to advance in their careers.” The
applicant listed the names of 10 other members who, she alleged, worked in the
recruiting office, outranked her, filed false claims, and yet did not receive NJP.
Upon this discovery, the applicant “followed the procedures in the Mili-
tary Justice Manual and requested from the CO at XXX Xxxxxx that the NJP … be
‘set aside’” but was told to apply to the BCMR. Within 90 days, however, she
was transferred and advanced to the rank of xxxxxxxxx. Therefore, she thought
that the NJP would no longer affect her career, and she did not apply to the
BCMR. However, in 1997, when she became eligible for promotion to xxxxxx,
she realized that the NJP might stop her promotion. Therefore, she alleged, she
followed the procedures in COMDTINST M1080.10D for having documents
removed from a personnel record. On January 15, 1998, the Coast Guard
Personnel Command (CGPC) informed her that she should apply to the BCMR
for the correction.
The Chief Counsel alleged that, to remove an NJP from a member’s
record, the Board must find “(1) that the commanding officer’s determinations
regarding commission of an offense were clearly erroneous; (2) that the accused
suffered material prejudice due to clear procedural error; or (3) that the punish-
ment imposed was a clear abuse of the broad professional discretion accorded
military commanders under Article 15, UCMJ [Uniform Code of Military Justice],
to take corrective action so as to maintain the good order and discipline within
the service.”
The Chief Counsel argued that the applicant’s NJP was neither in error
nor unjust because her commanding officer in Xxxxxx “found that she had know-
ingly presented false and fraudulent claims amounting to $113.11 in violation of
Article 132 UCMJ.” The Chief Counsel stated that the applicant has presented no
evidence indicating that her commanding officer’s determination was erroneous.
The Chief Counsel stated that the applicant has presented no proof that
other former recruiters who were equally or more culpable than her failed to
receive NJP. Moreover, the Chief Counsel argued, “the decision of whether to
impose [NJP] for a proven offense is committed by law to the commanding offi-
cer’s discretion.” Therefore, “even if similarly situated former recruiters
assigned to other commands did not receive the level of punishment that Appli-
cant did, it would not establish error or injustice in the punishment imposed
upon Applicant by Commanding Officer, XXX Xxxxxx.”
The Chief Counsel further alleged that because the applicant did not
appeal her NJP at the time, the matter “should be deemed waived.” The Chief
Counsel also pointed out that, by accepting NJP, the applicant avoided the risk of
receiving much harsher punishment by court-martial. Furthermore, he argued,
her claim should be barred by the doctrine of laches because “[i]n the nine years
since her NJP, memories have faded, and documents have become less available,
if they still exist at all, making it impracticable or impossible to rebut or to verify
her claims.”
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On July 16, 1998, the Chairman sent the applicant a copy of the Chief
Counsel’s advisory opinion and invited her to respond within 15 days.
On July 30, 1998, the applicant responded to the views of the Coast Guard.
In response to the Chief Counsel’s argument that the applicant had not proved
other recruiters who were equally culpable had not been punished, the applicant
argued that the proof is in the hands of the Coast Guard because they can pro-
vide copies of the records of the other recruiters she has named and the report of
the investigation. However, the applicant did submit an affidavit from a former
recruiter who confirmed many of the applicant’s allegations (see below).
The applicant argued that her acceptance of NJP, rather than court-
martial, and her failure to appeal the NJP should not be held against her because
she “naively trusted [her] senior leaders to be doing a uniform and fair thing,”
and she “could not see, at the time, that this punishment would have very far-
reaching effects upon [her] career.” Furthermore, she thought that the records of
her NJP would be removed from her record upon her next reenlistment, which
was just three months away. “A change in administrative policy which requires
that the Court Memorandum, CG-3304 be kept in the Personnel Data Record for-
ever, versus being purged at the end of each enlistment, had been promulgated
at CG Headquarters two months prior to my NJP but had not been implemented
by training or practice yet at XXX.”
The applicant argued that, in filing the false claims, she essentially obeyed
an order that she should have disobeyed. She pointed out that members who
may have done much worse things but who were punished just a few months
earlier would have had the records of their NJPs removed when their enlistments
expired. She alleged that it is unfair for the records of this NJP to be preventing
her advancement to xxxxxx,5 while the careers of those who had ordered her to
file the false claims had not been harmed.
APPLICANT’S SUBMISSION OF FURTHER EVIDENCE
In response to the Coast Guard’s responses, the applicant waived her right
to a decision within 10 months under 14 U.S.C. § 425 so that she might seek and
submit more affidavits from fellow recruiters. She also asked the BCMR to con-
tinue to search for a report of the investigation. In January and March 1999, the
applicant submitted further affidavits (see below). Copies of this evidence were
forwarded to the Chief Counsel, but he did not respond. In April 21, 1999, after
5 The applicant was advanced to xxxxxx in June 199x, after she filed her BCMR application.
RESPONSE OF THE CHIEF COUNSEL
On September 3, 1998, the BCMR forwarded a copy of the applicant’s
response to the Chief Counsel in accordance with 33 C.F.R. § 52.82(a). The
BCMR also wrote to Coast Guard Investigations, requesting a copy of the report
of the investigation that resulted in the applicant’s NJP. On September 23, 1998,
the Chief Counsel stated that his recommendation remained unchanged, and
Coast Guard Investigations informed the BCMR that no report of the
investigation could be found.
unsuccessful attempts to find the report of investigations by telephone, the
Chairman again wrote Coast Guard Investigations a formal request for the
report. On June 2, 1999, the Coast Guard responded, stating that the report had
been transferred to the Federal Records Center and would be retrieved from
there. On June 22, 1999, Coast Guard Investigations forwarded a copy of the
report of the investigation of the filing of false claims by recruiters in the xxxx
office to the BCMR.
SUMMARY OF THE RECORD
The applicant enlisted in the Coast Guard on xxxxxx, 197x, and completed
recruit training on xxxxxx, 197x. She was first assigned to Coast Guard
headquarters in Washington, D.C., where she served until June 198x while being
promoted from xxxxxxxxxx and then to xxxxx. For her service at headquarters,
she received a personal
letter of thanks and commendation from the
Commandant and a Coast Guard Achievement Medal.
In July 198x, the applicant was transferred to the recruiting office in xxxx,
XX, where she served as a recruiter until June 198x. For her service at the
recruiting office, she received an Achievement Medal. The citation to the medal
states that the applicant displayed superior performance, initiative, enthusiasm,
perseverance, diligence, judgment, and devotion to duty.
In June 198x, the applicant was transferred to the XXX in Xxxxxx, XX,
where she was promoted to xxxxxxxxxxxxxx.
On May 26, 198x, the applicant went to mast before a commander at the
xxxxxxxxxx. On June 13, 198x, a court memorandum was placed in the
applicant’s record indicating that she had been found guilty of filing false claims.
Her punishment, “reduction to the rate of xxx, [was] suspended for the remain-
der of current enlistment contingent upon restitution of claims.” On June 13,
198x, a page 7 entry was placed in the applicant’s record indicating that she had
received a mark of 2 (on a scale of 7) for poor conduct. On June 15, 198x, a page 7
entry was placed in her record concerning the schedule by which she was to
repay $1,473.86 in accordance with the NJP.6
On 10 June, 199x, the applicant wrote to her commanding officer at the
Xxxxxx XXX asking that her NJP be set aside. On September 8, 199x, she was
told that “[s]ince over three years have elapsed, it is impossible for me to assem-
6 Apparently, because of the statute of limitations, the applicant was found liable only for false
claims in the amount of $113, but she alleged that she volunteered to pay the entire amount.
ble the facts in your case in order to make a proper decision.” She was encour-
aged to apply to the BCMR.
On December 18, 199x, the applicant applied to the CGPC for the removal
of the records of her NJP pursuant to COMDTINST M1080.10D. She stated that
she was “not convinced that the circumstances surrounding [her] NJP did not
contain elements of discrimination, specifically [she] was the only one in an
office of five recruiters that received NJP for following a ‘standard procedure’—
all the other recruiters were senior to [her] and received, at the most, a page 7.”
On January 5, 199x, the applicant’s commanding officer forwarded her
request for correction to the CGPC “strongly recommending approval.” Her
commanding officer stated as follows:
In reviewing the circumstances surrounding the NJP in question, I believe
[the applicant’s] assertion that there may have been prejudicial factors
present has merit. Since the investigation which precipitated the Mast
was conducted after many of the affected recruiters had been transferred,
disposition of the resulting charges was left to the commands where the
recruiters had been transferred to. . . . Only much later was she able to
determine that only she was singled out for NJP in this instance. Further,
Coast Guard policy at the time of punishment was to purge such records
upon reenlistment. Subsequent change to that policy leaves this stand-
alone document in an otherwise stellar record. . . .
While deliberations of the xxxxxx selection board are sealed, I am con-
vinced that she would easily have been selected but for the presence of
the NJP within her file. . . .
On June 1, 199x, the applicant was promoted to xxxxxxxxxx. On June 1,
199x, the applicant was promoted to xxxxxx. Since her NJP, the applicant has
received numerous marks of 7 (highest possible mark) in her evaluations.
Affidavits Signed by Other Recruiters
A member who was a petty officer first class at the time she worked in the
recruiting office from April 198x to December 198x and is now a xxxxxx (xxx)
signed the following statement:
On reporting to [USCG Recruiting Office xxxx, XX], both the OinC
[Officer in Charge] and the XPO [Executive Petty Officer] … instructed
me that I was required to put in reimbursement requests for lunches and
other recruiting personal expenditures at the maximum rate of $60 a
month, even when such expenses were not incurred. Their reasoning was
that that money would serve as our Pro pay. The then CCGxx (xxx), a
[lieutenant] … and [a senior chief petty officer], condoned this practice
throughout the then XX District. Further fraudulent claims on travel
vouchers were made when both the OinC and XPO would piggy back
onto my travel claims even though they had not made the travel. The
OinC and XPO would later pressure me and the other recruiter, [the
applicant], to file similar travel claims with them. Failure to go along
with them often resulted in poor performance evaluations and or verbal
abuse in the office. I can only assume they wanted us to file fraudulent
claims with them so that we wouldn’t report them. Often the office
government vehicles, of which one had USCG RECRUITING, on the sides
of it would be found day or night at local bars. When approached on
these acts of misconduct both the OinC and the XPO would blow up and
there was simply no reasoning with them. These practices were fluent
throughout the then XX District. After 2 years in this environment and no
safe way out, I requested via letter to be reassigned, asking for any ship
any shore unit east coast, due to irreconcilable differences. It was clear to
me that with the acceptance of these activities from the district down that
there was no way I could remain in recruiting. The emotional and
professional retribution that the OinC and his XPO used would certainly
end my previously high performance career. On departing, the XPO had
one final meeting with me and that was to find out if I would stir up any
investigations into their misconduct. I told him I just wanted out of the
office and as far away as I could get. … This statement is not the first on
this subject that I have made. Sometime in 198x – 199x Coast Guard
Intelligence interviewed me while I was stationed in xxxxxx, XX. It is my
opinion that [the applicant] should not have been held responsible for the
misconduct pressured onto her and myself during that recruiting tour.
A xxxxxx who served in the recruiting office from June 198x to June 198x
signed the following statement on the applicant’s behalf:
After reporting to the USCGC xxxxxxx in July 198x, I was the subject of
an investigation into subject allegations conducted by the Coast Guard
Intelligence out of the XX Coast Guard District in xxxxxxx. I was told and
I understood that all recruiters with the XX District were also subject to
the same investigation. I told the investigator that I was led to believe it
was a common and accepted practice for all recruiters to submit claims
for reimbursement for miscellaneous expenses, even false ones, and that I
did file these claims. The justification for this practice was that since
Coast Guard recruiters did not get the same Proficiency Pay as
Department of Defense recruiters, it was “our” way to get equal
entitlements, so we did it. I never heard another word concerning the
investigation or the results thereof. At the time, I had no personal
knowledge of any one else being subject to the same investigation.
A member who was a petty officer first class when he served in the xxxx
recruiting office submitted the following statement:
I will not drop names, but I was later asked by my previous Officer in
Charge as to what happened as a result of my investigation. I told him
“nothing”. I still do not believe that any of the Officers in Charge of the
XX District recruiting offices were ever subject to the same investigation.
Why not?
Upon reporting to the USCG Recruiting Office in xxxx, XX, I was told by
the Executive Petty Officer … that all recruiters filed an out-of-pocket
expense report to compensate the Coast Guard recruiters for not
receiving “recruiter pay” or SDAP like the other armed services recruiters
received. I mentioned to him that this did not seem appropriate. He
stated that the Officer in Charge stated that all the people in his office
would file or none would and that the latter was not an option to us. The
Finance Officer from the Recruiting Command in xxxxxx would send us
our claims back occasionally with hand written notes to make this entry
or another to make it look better. I was told that this was an approved
procedure and the Recruiting Command knew and approved them each
month. This went on until a new Officer in Charge and Executive Petty
Officer were in position.
… Approximately two years after transferring to Louisville I had heard
that there was an investigation going on in a couple of the xxxxxxx offices
for falsifying claims. After looking into this matter, I realized the
investigation included recruiters that had filed out-of-pocket claims. I
informed my OIC that I had also filed false out-of-pocket claims but was
ordered to do so by my OIC and XPO in xxxx. We in turn notified the
Commanding Officer of the xxxxx Recruiting Command in xxxxxx that I
had been involved in similar incidents that were currently being investi-
gated. Members of Coast Guard Intelligence visited me for a period of
one year to give statements and to answer questions about others that
were involved.
At the end of the investigation, I was called by the Executive Officer (XO)
of the Recruiting Command. He informed me that the total for the out-of-
pocket claims was $1100.00. He stated that I did not have to reimburse
the Coast Guard but that it would look good if I did. I was informed that
I would receive a Page 7 entry into my record as my only punishment
unless I did not pay the monies back to the Coast Guard which would
look bad and Non-Judicial Punishment may be held in the future as they
would have to reevaluate my situation. I feel this was another example of
the way the entire investigation was held so I in turn immediately paid
the money to the Coast Guard to “cut my losses”. The only punishment I
received was a Page 7 for poor judgment on my part.
There was no standard procedure of punishment for the personnel
involved. Lower ranking individuals seemed to be given harsher pun-
ishments than the superiors that orchestrated the situation and who
forced their subordinates to follow unlawful orders.
Character References Submitted by the Applicant
A commander who supervised the applicant in 199x signed an affidavit
attesting to the applicant’s “high moral character” and “exemplary behavior.”
The applicant “chose truthfulness and candor when it would have been easier to
accept less objective versions of others.”
A senior chief petty officer who has known the applicant since 199x
signed an affidavit stating that the applicant “conducts herself in a very
professional manner both in official and social settings. … She is a very loyal
and honest individual whose core values are extremely high.”
A chief petty officer who worked with the applicant for 4 years during the
mid 199xs signed an affidavit stating that she “is the strongest leader I have met
in my 18 years of Coast Guard service. She exemplifies honesty, integrity, and
respect, and fosters the same values in those she comes in contact with.”
Summary of the Report of Investigation of the Applicant
On xxxxxxxxx, 198x, the commanding officer of the xxxxxxxx Recruiting
Office in xxxxxxx, xx, wrote to the commander of the XX Coast Guard District
requesting an investigation. He wrote, “It has come to my attention that a
problem may exist at Recruiting Office xxxx concerning the submission of
fraudulent travel claims, out-of-pocket expense claims, etc. General information
concerning this matter surfaced during an investigation of Recruiting Office
xxxxxx for similar reasons.”
On xxxxxxxxxx, 198x, an investigator in the Chief Law Enforcement
Branch submitted a report on the investigation of five members, including the
applicant, who had served as recruiters in the xxxx recruiting office.
The investigator reported that the current Officer in Charge [OinC], who
was assigned to the recruiting office on June 1, 198x, following the xxxxxxxxx of
the previous Officer in Charge, had discovered and stopped the practice of filing
false claims. The new OinC stated that he had reported the false claims to his
supervisors several times but received no response until November 198x, when
he received a letter from the commanding officer of the xxxxxxxx Recruiting
Center stating only that anyone who was submitting false claims should stop.
The new OinC further stated that he had contacted the recruiting offices in
xxxxxx, xxxxxxxx, xxxxxxxx, and xxxxxxxxx and discovered that the practice of
filing false claims was long-standing at those offices. At a conference for recruit-
ing office OinCs in xxxxxxx 198x, personnel from the xxxxxxx Recruiting Center
questioned him about whether he had “blown the whistle” on the practice and
counseled concerning his “bad attitude.” They apparently did not believe him
when he denied having “blown the whistle” because they told him that they
“hoped no other names are mentioned and no other offices are brought into the
investigation.”
On April 13, 198x, the investigator attempted to interview one of the sub-
jects (S#1) of the investigation, but he refused to answer questions before con-
sulting a lawyer.
On April 18, 198x, the investigator visited the xxxx recruiting office and
attempted to interview the applicant, who was still working there, but she
refused to answer questions before consulting a lawyer. However, a CWO (S#2)
who was also a subject of the investigation waived his rights and answered the
investigator’s questions. S#2 told the investigator that all claims submitted by
the recruiters were legitimate, but he refused to sign a statement to that effect.
On July 11, 198x, the investigator reinterviewed S#1, who stated that he
had decided to tell the truth and waive his right to consult a lawyer. S#1 stated
that the practice of filing false claims had been ongoing at the xxxx recruiting
office when he first arrived there in September 198x. He was instructed in the
practice by the XPO. Both of the previous OinCs knew and condoned the prac-
tice. S#1 stated that he did not know the practice was wrong until the new OinC
arrived and stopped the practice. However, he refused to sign a written state-
ment.
On August 11, 198x, the investigator spoke again with S#2, who waived
his rights. S#2 stated that the former OinC had told him to submit the false
claims. S#2 claimed that “[e]veryone in [the xxxx office] was doing it and [the
xxxxxxxx Recruiting Center] was aware it was going on.” He stated that he had
discussed the matter with personnel at the Center but could not recall who. S#2
further stated that he stopped submitting false claims when the new OinC
arrived, but he would not sign a written statement.
On November 18, 198x, the investigator spoke with another subject of the
investigation, S#3.7 S#3 told him that the applicant had informed him about the
7 S#3 is the petty officer first class who signed the third affidavit excerpted on page 7, above.
practice of filing false claims soon after he arrived at the recruiting office in 198x.
She told him that the practice was not “technically” approved but that “it was
known about and an accepted abuse.” The applicant told S#3 that she did not
want to file false claims but did so because the XPO had taken her “to the office
storeroom and told her that she was no longer working at Headquarters and that
she worked for him now and she would do things his way or he would have
orders [to transfer] her within the day.” S#3 told the applicant that “he could
stand up to [the XPO] better than a woman could.” However, soon thereafter,
the XPO came to his desk, slid a blank claims for reimbursement for
expenditures on it, and told him to fill it out. When S#3 questioned the XPO, he
was told that the OinC wanted it done and S#3 “would do them.” S#3 then saw
the applicant look at him with an expression “as if to say I told you so.” S#3 and
the applicant then told the XPO that they did not want to submit the claims but
were told by the XPO that “he ran the office and they would do as they were
told.” S#3 told the investigator that he went along because “he was afraid to
buck the system and wondered if anyone would stand behind him against a
xxxxx and xxx [the XPO and OinC] with a combined 30 some years of active
service and obviously someone else in district or elsewhere.” He stated that the
OinC also requested the claims from him and that later he learned that the
practice was widespread and well known throughout Coast Guard recruiting.
The OinC told him that at a conference for recruiting office OinCs, personnel
from the xxxxxxxx Recruiting Center had instructed the conferees to be “creative
financiers,” which he and others at the conference interpreted as tacit approval of
the practice of filing false claims. S#3 further stated that the XPO would review
his claims and raise them to the allowed limit of $60 per month, but when he
heard rumors of an investigation, the XPO told them to file claims for about $40
per month.
On January 25, 198x, the investigator requested an interview with the
applicant, but she refused to speak to him before consulting a lawyer. He called
her on February 3, 198x, and she still refused to speak to him because the Coast
Guard legal staff had told her “they could provide no legal service for her unless
charges were brought against her.”
The investigator determined which claims filed by the subjects of the
investigation were false by contacting some of the potential recruits with whom
the subjects had claimed to eat lunch and submitted claims for the costs of the
lunches. By this method, the investigator reviewed 27 of the applicant’s monthly
claims filed between March 198x and June 198x. He determined that they con-
tained $1,546.85 worth of false claims, averaging $57.29 per month. The investi-
gator reviewed 13 of the monthly claims filed by S#1 from October 198x to May
198x. S#1’s fraudulent claims totaled $734.57,8 or $56.50 per month, on average.
The investigator reviewed 10 monthly claims filed by S#2 in August and Septem-
ber 198x and from November 198x to June 198x and determined that the fraudu-
lent claims totaled $544.16, or $54.42 per month, on average. The investigator
reviewed 17 monthly claims filed by S#3 from August 198x to April 198x. S#3’s
fraudulent claims totaled $956.31 and averaged $56.25 per month. The investi-
gator reviewed 4 monthly claims that the unit’s XPO, S#4, filed in March, Sep-
tember, and October 198x and April 198x. The XPO’s fraudulent claims for those
months totaled $240.00 and averaged $60.00. The investigator reported that the
review of monthly official expenditure claims was still incomplete.
8 The investigator added the column of false claims to $793.47. It is unclear whether he
miscalculated or whether he failed to include a monthly claim in his report.
APPLICABLE LAWS
Under Article 121 of the UCMJ, embezzlement is a form of larceny. The
maximum possible sentence imposed by a court-martial for a conviction for lar-
ceny of military property worth more than $100 is dishonorable discharge; for-
feiture of all pay and allowances; and confinement for 10 years.
Under Article 15 of the UCMJ, the maximum possible sentence imposed
by a captain’s mast is correctional custody for up to 30 days; forfeiture of one-
half pay for up to two months or detention of one-half pay for up to three
months; reduction in grade; extra duties for up to 45 days; and restriction to
certain areas for up to 60 days.
According to Article 8-D-2a. of the Personnel Manual (COMDTINST
M1000.6A), a copy of each letter of censure issued pursuant to Article 15 of the
UCMJ shall be retained in a member’s official personnel record. According to
Article 8-D-3, a copy of the court memorandum shall also be filed in an appli-
cant’s personnel record.
FINDINGS AND CONCLUSIONS
1.
2.
The Board makes the following findings and conclusions on the basis of
the applicant's military record and submissions, the Coast Guard's submissions,
and applicable law:
The Board has jurisdiction concerning this matter pursuant to sec-
tion 1552 of title 10 of the United States Code.
3.
The applicant requested an oral hearing before the Board. The
Chairman, acting pursuant to 33 C.F.R. § 52.31, denied the request and recom-
mended disposition of the case without a hearing. The Board concurs in that
recommendation.
The applicant alleged that she was punished for filing false claims
pursuant to direct orders. She alleged that the practice of filing false claims was
widespread among recruiters in the XX District. She further alleged that,
although she was ordered to file false claims, she was punished more harshly
than her superiors whom she was obeying and than other recruiters of higher
rank. The Chief Counsel did not deny these allegations.
The Chief Counsel argued that the applicant’s request should be
denied under the doctrine of laches. However, the Board finds that discovering
4.
7.
the facts and results of such a widespread investigation, even x years after the
fact, is not sufficiently onerous to justify denying the applicant’s request.
The Chief Counsel argued that the applicant had waived her right
to contest her NJP because she failed to appeal it in 198x. The Board finds that
the applicant’s failure to waive her NJP did not constitute waiver of her right to
seek relief from the Board.
The Coast Guard’s Report of Investigation and affidavits submit-
ted by the applicant support her allegations that she was pressured to file false
claims by her chain of command. However, the evidence fails to establish a suf-
ficient level of coercion to negate her intent to file false claims.
The applicant admitted that she had filed false claims. She was
given the option of contesting her case before a court-martial but chose to accept
NJP. The applicant has not proved by a preponderance of the evidence that she
was deprived of due process or that her command in Xxxxxx committed any
error or injustice in adjudicating her case or awarding the NJP.
The applicant argued that the affidavits she submitted prove that
she was punished more harshly than those who outranked her and who ordered
her to file the false claims. Therefore, she argued, it is unjust for the records of
her NJP to remain in her record and hamper her career especially since, when she
accepted NJP, she did not know that those forms would remain in her record
past the end of her enlistment. However, the Board finds that the apparent lack
of punishment of the other members who filed false claims does not constitute an
injustice against the applicant. There is no evidence of abuse of discretion with
respect to the applicant’s punishment.
The applicant has not proved by a preponderance of the evidence
that she was unfairly punished for the embezzlement she committed or that it is
unjust for the records of that embezzlement to remain in her personnel records.
8.
10. Accordingly, the applicant’s request should be denied.
[ORDER AND SIGNATURES ON FOLLOWING PAGE]
5.
6.
9.
The application for correction of the military record of XXXXXXX, USCG,
ORDER
Angel Collaku
Gareth W. Rosenau
(see dissenting opinion)
Sharon Y. Vaughn
is hereby denied.
DEPARTMENT OF TRANSPORTATION
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 1998-052
DISSENTING OPINION
ANDREWS, Attorney-Advisor:
This proceeding was conducted according to the provisions of section
1552 of title 10 and section 425 of title 14 of the United States Code. It was dock-
eted on February 12, 1998, following the BCMR’s receipt of the applicant’s com-
pleted application.
This dissenting opinion, dated November 3, 1999, is signed by one of the
three duly appointed members who were designated to serve as the Board in this
case.
FINDINGS AND CONCLUSIONS
The following findings and conclusions are based on the applicant's mili-
tary record and submissions, the Coast Guard's submissions, and applicable law,
which are summarized in the Board’s majority opinion in this case:
1.
The Board has jurisdiction concerning this matter pursuant to sec-
tion 1552 of title 10 of the United States Code.
2.
The applicant requested an oral hearing before the Board. The
Chairman, acting pursuant to 33 C.F.R. § 52.31, denied the request and recom-
mended disposition of the case without a hearing. The Board concurs in that
recommendation.
The applicant alleged that she was punished for filing false claims
pursuant to direct orders. She alleged that the practice of filing false claims was
widespread among recruiters in the XX District. She further alleged that,
3.
4.
5.
6.
although she was ordered to file false claims, she was punished more harshly
than her superiors whom she was obeying and than other recruiters of higher
rank. She alleged that it was therefore unjust for the records of her NJP to
remain in her record and hamper her career especially since, when she accepted
NJP, she did not know that those forms would remain in her record past the end
of her enlistment.
The applicant has proved by a preponderance of the evidence that
she was ordered and coerced to file false claims by her chain of command. She
has also proved by a preponderance of the evidence that the filing of false claims
was a widespread practice among Coast Guard recruiters in the 1980s and that
the punishment of some recruiters who filed false claims was carried out sepa-
rately by members’ new commands. The Chief Counsel failed to present any evi-
dence contradicting these findings.
The Chief Counsel argued that the applicant’s request should be
denied under the doctrine of laches. However, discovering the facts and results
of such a widespread investigation, even xxxx years after the fact, is not sufficient
to justify denying the applicant’s request.
The Chief Counsel argued that the applicant had waived her right
to contest her NJP because she failed to appeal it in 198x. The applicant’s failure
to waive her NJP did not constitute waiver of her right to seek relief from the
Board.
The evidence presented by the applicant indicating that she was
punished more harshly than those who outranked her and who ordered her to
file the false claims is necessarily anecdotal because she does not have access to
the Coast Guard records of other members. However, in light of the Chief Coun-
sel’s failure to shed any light on this matter, the applicant has proved by the pre-
ponderance of the evidence that she was punished more harshly than those who
ordered her to file the false claims and than recruiters of higher rank who filed
false claims.
Although the applicant’s NJP for embezzlement does not seem
unjust when viewed in the abstract, the Board is persuaded that, under the cir-
cumstances of this case, she has suffered an injustice. The applicant has proved
that she served under a corrupt chain of command, whose members ordered and
coerced her to embezzle. She also presented unrebutted evidence that she alone
received NJP for filing false claims. In light of the coercion and the apparent
inconsistency of the punishments meted out by the Coast Guard, the applicant
has proved by a preponderance of the evidence that it is in the interest of justice
for the documents referring to her NJP to be removed from her record. There-
7.
8.
9.
fore, the court memorandum dated June 13, 198x, and the page 7 entry dated
June 15, 198x, which document the applicant’s NJP should be removed from the
file.
The applicant’s record also contains a page 7 entry dated June 13,
198x, which notes only that she received a mark of 2 in conduct. The applicant
has not shown by a preponderance of the evidence that this page 7 is in error or
unjust.
10. Accordingly, the applicant’s request should be granted in part.
ORDER
The application for correction of the military record of XXXXX, USCG, is
hereby granted in part as follows.
The court memorandum, form CG-3304, dated June 13, 198x, shall be
removed from the applicant’s record.
The page 7 entry, form CG-3307, dated June 15, 198x, shall be removed
from the applicant’s record.
Any other document referring to the applicant’s mast on May 26, 198x,
and her consequent NJP shall be removed from her record.
All other requests are denied.
No copy of the decisions and opinions issued in this case shall appear in
the applicant’s record.
Sharon Y. Vaughn
CG | BCMR | Other Cases | 1997-174
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CG | BCMR | OER and or Failure of Selection | 1998-067
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CG | BCMR | Advancement and Promotion | 1998-116
This final decision, dated June 10, 1999, is signed by the three duly RELIEF REQUESTED The applicant, a xxxxxxxxx, asked the Board to correct his military record by promoting him to xxxxxxx because the Coast Guard refused to promote him in accordance with the terms of the Board’s order in the applicant’s previous case, BCMR Docket No. Therefore, the applicant alleged, because neither the investigation nor the Special Board of Officers was “pending” on July 1, 199x, he should have been...
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