DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2002-005 
 
XXXXXXX, XXXX X. 
XXX XX XXXX, XXX 
   

 

 
 

FINAL DECISION 

 
GARMON, Attorney-Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on November 7, 2001, upon 
the BCMR’s receipt of the applicant’s request for correction. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated August 15, 2002, is signed by the three duly appointed 

APPLICANT’S REQUEST 

 

The applicant asked the Board to redact portions of a negative page 7 (CG-3307 
Administrative  Remarks)  and  a  Court  Memorandum  (CG-3304)  from  his  military 
service  record,  documented  in  October  1995.    He  stated  that  this  correction  would 
afford  him  “a  fair  opportunity  to  compete  for  appointment  to  Chief  Warrant  Officer 
[CWO].” 

 
 

APPLICANT’S ALLEGATIONS 

 
The  applicant  alleged  that  the  continued  presence  of  narrative  entries  in  his 
military  service  record,  associated  with  a  non-judicial  punishment  (NJP)  received  in 
1995, is an injustice.  He contended that the presence of these entries, which refer to a 
single  incident  of  adulterous  conduct,  have  affected  his  career  by  unfair,  prejudicial 
treatment that likely would endure in the future.   

 

Final Decision in BCMR Docket No. 2002-005                                                               p. 2  

In  support,  the  applicant  argued  that  the  2001  Chief  Warrant  Officer 
Appointment  Board’s findings  show  that  the  narrative  entries  constitute  a  continuing 
punishment  because  they  caused  his  disqualification  from  CWO  consideration.    He 
urged the Board to find that the 2001 CWO Appointment Board abused its discretion by 
considering a single incident to be a “pattern of disqualifying conduct.” He argued that 
the 2001 CWO Appointment Board’s  interpretation is not contemplated under Article 
1.D.8.e.2.  of  the  Coast  Guard  Personnel  Manual  in  that  it  exceeded  the  scope  of  and 
purpose served by NJP.  

   
The  applicant  stated  that  after  receiving  NJP  in  1995,  he  worked  diligently  to 
regain his rank and be promoted further.  He contended that notwithstanding his single 
act of indiscretion in 1995, he believes that he was a highly competitive candidate for 
CWO consideration in 2001, who closely abided by the Coast Guard’s core values. 

 
 

 

SUMMARY OF  THE APPLICANT’S RECORD 

The applicant enlisted in the Coast Guard for four years on October 12, 1982.  He 

joined a rate and was advanced to petty officer first class (paygrade E-6) in 1989. 

 
On October 30, 1995, the applicant received NJP from his commanding officer for 
having engaged in adulterous conduct with a married woman who was not his wife, a  
violation of Article 134 of the Uniform Code of Military Justice (UCMJ).  He received the 
following punishment:  (1) forfeiture of $806.00 of pay per month for two months, (2) 
reduction in pay grade to E-5, and (3) extra duties for 15 days.  A Court Memorandum 
was also entered in the applicant’s service record documenting the receipt of NJP. 

 
Also  on  October  30,  1995,  a  page  7  entry  was  made  in  the  applicant’s  service 
record documenting the violation and assigning him a mark of “2” on a scale of “7” in 
the  “Responsibility,”  “Setting  an  Example,”  “Customs  and  Courtesies,”  “Integrity,” 
“Loyalty,” and “Respecting Others” dimensions of an Enlisted Performance Evaluation 
Form (CG-3788) dated October 30, 1995, as a result of the NJP.   The applicant’s period 
of eligibility for a good conduct award was terminated and he was assigned a mark of 
“not recommended” for advancement as of this date, as well. 

 
In 1996, the applicant regained his rank.  He was subsequently advanced to chief 
petty officer.  In 2001, the applicant submitted an application for appointment to CWO 
to  the  2001  CWO  Appointment  Board,  which  convened  on  June  18,  2001.    By 
memorandum dated August 27, 2001, the applicant was advised that the Board found 
him  not  fully  qualified  and  therefore,  removed  him  from  consideration  and  did  not 
rank  him  among  those  applicants  found  fully  qualified  for  appointment.    The  stated 
reasons for the Board’s decision was as follows: 
 

Final Decision in BCMR Docket No. 2002-005                                                               p. 3  

“[Applicant] was found not fully qualified for appointment to CWO2.  Review of 
the member’s record revealed an adulterous offense, which called into question 
the  member’s  adherence  to  Core  Values.    The  incident  was  disruptive  to  good 
order and discipline at the commands and brought discredit to the Service.  The 
board  determined  the  incident  was  egregious  enough  to  find  the  member  not 
fully qualified for promotion to Chief Warrant Officer.” 

 
To date, the applicant continues to serve on active duty as a chief petty officer. 
 
 
 
 
 

VIEWS OF THE COAST GUARD 

 
 
On March 26, 2002, the Chief Counsel provided the Coast Guard’s comments to 
the Board.  He attached to his advisory opinion a memorandum on the case prepared 
by Coast Guard Personnel Command (CGPC).  In concurring with CGPC’s analysis, the 
Chief Counsel recommended that the Board deny the applicant’s request. 
 
The Chief Counsel argued that the page 7 and Court Memorandum, specifically 
 
identifying  the  applicant’s  offense,  were  properly  filed  in  the  applicant’s  military 
service record.  He stated that in documenting a violation by express reference to the 
type of misconduct, there are no restrictions placed on the amount of specific detail that 
may  be  recorded  to  document  an  offense.    The  Chief  Counsel  asserted  that  Article 
10.B.6.b.  of  the  Personnel  Manual  mandates  that  the  rater  preparing  a  page  7  cite 
specific  examples  of  performance  or  behavior  that  clearly  demonstrates  how  the 
member  failed  to  meet  the  published  standard.    The  Chief  Counsel  stated  that,  once 
forms documenting an offense are filed in a member’s service record, they remain for 
the duration of the member’s career. Personnel Manual, Article 10.B.6.b.3. 
 
 
The Chief Counsel stated that by congressional delegation, selection boards have 
inherent  and  indisputable  discretion  in  the  selection  and  promotion  of  officers.    See 
generally U.S. Constitution; see also, United States v. Caceres, 440 U.S. 741 (1979); Cort v. 
Ash, 422 U.S. 66, 78 (1975).  He went on to state that as part of their discretion, selection 
boards  may  “consider  the  nature  of  the  offense,  the  time  that  has  elapsed  since  the 
offense,  the  service  member’s  performance  since  the  offense,  and  any  other  pertinent 
issues.”   
 

The Chief Counsel asserted that the 2001 CWO Appointment Board was charged 
with developing criteria per the Precept dated June 5, 2001, and subsequently followed 
the instructions in the Precept and the Personnel Manual.  The Chief Counsel stated that 
as a result of the applicant’s applying for appointment to CWO, his service record in its 
entirety went before the 2001 CWO Appointment Board, as part of the selection process.  

Final Decision in BCMR Docket No. 2002-005                                                               p. 4  

He  noted  that,  although  the  applicant  had  the  option  to  address  past  offenses  in  his 
application, he chose not to so do.  The Chief Counsel asserted that in making selection 
decisions  based  on  its  own  developed  criteria,  established  regulations,  and  the 
information  available  to  them,  the  2001  CWO  Appointment  Board  did  not  abuse  its 
discretion in finding that the applicant was not fully qualified for appointment to CWO. 
 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On March 29, 2002, the Chairman sent a copy of the views of the Coast Guard to 
the applicant and invited him to respond within 15 days.  The applicant responded on 
April  18,  2002,  informing  the  Board  that  he  generally  objected  to  the  Coast  Guard’s 
advisory opinion.  He stated that he had no further rebuttal or additional evidence to 
submit.   
 
 
 
 

APPLICABLE LAW 

 
Personnel Manual (COMDTINST M1000.6A) 
 
 
Article 10.B.2.a., titled “Adverse Administrative Remarks Entry, CG-3307,” states 
that “[t]his entry is required to document an unsatisfactory conduct mark or low factor 
marks as defined in Article 10.B.9.a. for … a. Non-judicial punishment.” 
 
 
Article 10.B.6.b.2. states that “[r]aters must document certain marks.  For a mark 
of  1,  2,  or  7  in  any  performance  dimension  or  an  unsatisfactory  in  conduct,  the  rater 
shall use the following procedure. 
 

a. 

 

b. 

Prepare  an  Administrative  Remarks,  CG-3307,  entry  containing  specific 
examples of performance or behavior that clearly demonstrate how the member 
exceeded,  met,  or  failed  to  meet  the  published  standard.    Paraphrasing  the 
written  standard  does  not  meet  this  requirement;  the  rater  must  cite  specific 
examples of performance or behavior.  Administrative Remarks documenting an 
unsatisfactory  conduct  mark  must  also  contain  a  Good  Conduct  termination 
statement. … 

Counsel  the  member,  who  must  acknowledge  the  CG-3307  entry  on  the  same 
day as the counseling. … ” 

 
 
Article 10.B.6.b.3. provides  that “[t]hese remarks are made on an Administrative 
Remarks, CG-3307, form, so they become part of the member’s official record; therefore, 
the rater should write them for an audience outside the member’s command.”   

Final Decision in BCMR Docket No. 2002-005                                                               p. 5  

 
 
 
Article 1.D.8.c., titled “Oath of Board Members,” provides that “[m]embers of the 
Board [which recommend eligible candidates for appointment to warrant grade] shall 
swear or affirm that they will, without prejudice or partiality, and having in view both 
the special fitness of officers and the efficiency of the Coast Guard, perform the duties 
imposed upon them.” 
 

 

Article 1.D.8.e. provides for the method of selection, as follows: 

 

 

1. 
[T]he Board must first determine, by specialty, if all primary candidates are fully 
qualified  to  become  chief  warrant  officers  based  on  the  information  furnished  in 
subparagraph  d.1  …  and  the  professional  judgment  of  the  Board  members.    After 
making this determination, the Board must then rank order the primary candidates on a 
best-qualified basis. 

2. 
The  Board  shall  not  recommend  candidates  for  appointment  whose  personal 
conduct and associations are such that reasonable grounds exist for rejection on the basis 
of loyalty.  Although a candidate may have been considered as meeting the minimum 
requirements,  the  board  may  find  trends  or  patterns  of  conduct,  indebtedness, 
performance,  or  behavior  which  it  considers  disqualifying  and  therefore  may  find  the 
candidate not fully qualified for appointment. 
 
3. 
specialty to the Secretary of Transportation (the Secretary) for appointment authority. 

The Board will submit a report of those recommended for appointment in each 

 
Military Justice Manual, COMDTINST M5810.1D 
 
 
Article 1.G.3.a., titled “Court Memorandum (Form CG-3304), provides that “the 
court  memorandum  provides  input  to  the  service  records  of  officer  and  enlisted 
personnel for all masts resulting in the imposition of punishment.  If mast was held, but 
no  punishment  as  described  under  Article  15,  UCMJ,  was  awarded,  then  Article  15 
punishment  (or  NJP)  was  not  awarded.    No  Court  Memoranda  shall  be  prepared  if, 
instead  of  imposing  punishment,  the  matter  is  dismissed,  dismissed  with  a  warning, 
dismissed  with  administrative  action  taken,  referred  to  court-martial,  or  results  in 
recommendation for general court-martial because these actions are not considered the 
imposition of punishment.” 
 
 

 

FINDINGS AND CONCLUSIONS 

                                                 
1 Article 1.D.8.d., titled “Information to be Furnished to the Board” states that “Commander, CGCP shall 
furnish the appointment Board with:  

1.  A listing, by specialty, of all primary candidates for appointment to warrant grade. 
2.  The OER and resume of all eligible primary candidates. … 
3.  The Headquarters PDR of all primary candidates.” 

Final Decision in BCMR Docket No. 2002-005                                                               p. 6  

1. 

2. 

4. 

3. 

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

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law: 
 
 
§ 1552.  The application was timely. 
                   
 
The  applicant  requested  the  removal  of  adverse  information,  associated 
with an NJP awarded in 1995, from his military service records; however, the request is 
unsupported by evidence which shows that the continued retention of such entries is 
unjust.  Because the applicant was awarded NJP, a court memorandum was prepared in 
accordance  with  Article  1.G.3.a.  of  the  Personnel  Manual  and  placed  in  his  service 
record.  Under Article 10.B.2.a., a page 7 entry was required to document a low factor 
mark that he received as a result of the NJP.  Moreover, because the applicant received a 
low factor mark of “2” in at least one performance dimension, under Articles 10.B.6.b.2. 
and 10.B.6.b.3, the page 7 entry contained detailed facts of the unsatisfactory conduct 
and was incorporated into his permanent records. 
 
 
The Board may exercise its equitable power to correct injustice if it finds 
that  a  member’s  “treatment  by  military  authorities  shocks  the  sense  of  justice.”2  
However, the Board finds that the 1995 NJP narrative entries, though adverse in nature, 
were  properly  recorded  in  the  applicant’s  file,  in  compliance  with  applicable 
regulations  and  policies.    Consequently,  the  applicant  has  not  presented  persuasive 
evidence  that  the  Coast  Guard  acted  toward  him  in  a  way  that  “shocks  the  sense  of 
justice” in maintaining the subject narrative entries in his service record. 
 
 
The  applicant  alleged  that  if  the  narrative  entries  were  to  remain  in  his 
record,  he  would  be  subjected  to  enduring  obstacles  to  promotions  in  the  future.  
However,  the  fact  that  documentation  of  past  misconduct  might  prevent  his 
appointment  to  CWO  does  not  render  that  documentation  erroneous  or  unjust.  
Moreover,  it  has  not otherwise  deterred  his  advancement.    Since  the  NJP  in  1995,  his 
record  shows  that  in  October  of  1998,  he  received  a  Letter  of  Commendation  for  his 
“outstanding performance of duty,” and marks of “7s” on his performance evaluations 
for  the  periods  ending  May  31,  1999,  and  November  30,  1999.    Moreover,  his  record 
displays other favorable career developments which include, as stated by the applicant, 
that he “regained [his] rank almost immediately and … advanced to the rank of xxxxxx 
xxxxxxxxx.”  The Board finds that the applicant has failed to show why the narrative 
entries associated with his 1995 NJP should not remain in his military record. 
                                                 
2 Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989),  rev’d on other grounds, 930 F.2d 1577 (Fed. Cir. 1991); 
see also Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976).  The Deputy General Counsel has also ruled 
that in the absence of legal error, an applicant’s treatment by military authorities must “shock the sense of 
justice” to justify correction by the Board.  BCMR Docket No. 346-89. 

Final Decision in BCMR Docket No. 2002-005                                                               p. 7  

6. 

5. 

 
 
The applicant alleged that the 2001 CWO Appointment Board abused its 
discretion by judging his adultery to be “a pattern of disqualifying conduct.” There is a 
presumption  that  in  the  absence  of  evidence  to  the  contrary,  members  of  a  selection 
board  performed  their  duties  in  a  fair  and  impartial  manner  and  in  accordance  with 
law, and that in so doing, give an applicant due and proper consideration, along with 
all of the other candidates for promotion.  Brenner v. United States, 202 Ct. Cl. 678, 692 
(1973),  cert.  denied,  419  U.S.  831,  95  S.  Ct.  54  (1974);  see  also  Article  1.D.8.c.  of  the 
Personnel Manual.  
 
 
In  accordance  with  Article  1.D.8.e.,  the  CWO  Appointment  Board  found 
the  applicant  not  fully  qualified,  and  he  was  subsequently  not  recommended  for 
appointment.    However,  contrary  to  the  applicant’s  allegation,  the  excerpt  from  the 
appointment  board’s  report  fails  to  indicate  that  it  identified  a  “trend  or  pattern  of 
conduct,”  pursuant  to  Article  1.D.8.e.2.    In  fact,  the  2001  CWO  Appointment  Board 
stated  in  its  excerpt  that  “the  incident  was  egregious  enough  to  find  the  member  not 
fully qualified for promotion…” (emphasis added).  The applicant has not rebutted the 
presumption  that  the  2001  CWO  Appointment  Board  “discharge[d]  their  duties 
correctly, lawfully, and in good faith.”  Sanders v. United States, 219 Ct. Cl. 285, 302, 594 
F.2d 804, 813-14 (1979).  As the applicable regulations provide general guidance only, 
the  language  of  paragraphs  1  and  2  of  Article  1.D.8.e.  does  not  limit  the  CWO 
Appointment Board’s authority to decide who is not “fully qualified.”  Since the records 
have been found to contain a fair and accurate portrayal of the applicant’s career, this 
Board has no reason to question the findings of the CWO Appointment Board. 
 
 
 

Accordingly, the applicant’s request should be denied.   

7. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 
 
 
 
 

ORDER 

The  application  of  XXX  XXXXXXX  X.  XXXX,  XXX  XX  XXXX,  USCG,  for 

 
 
correction of his military record is denied. 
 
 
 
 
 

 

 

 

 

 

 

        

 

 

 

 

Final Decision in BCMR Docket No. 2002-005                                                               p. 8  

Christopher A. Cook  

 

 
Karen L. Petronis  

 

 

 
Kathryn Sinniger