DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
Application for Correction of  
Coast Guard Record of: 
 
 

    

 
 
 
BCMR Docket  
No. 2003-026 
 

  FINAL DECISION 

This final decision, dated September 25, 2003, is signed by three duly appointed 

 
ULMER, Chair: 
 
 
This is a proceeding under section 1552 of title 10 and section 425 of title 14 of the 
United States Code.  It was docketed on December 23, 2002, upon the Board's receipt of 
the applicant's complete application for correction of his military record.  
 
 
members who were designated to serve as the Board in this case. 
 
The applicant asked the Board to correct his record by removing all evidence of 
 
his  November  29,  xxxx,  non-judicial  punishment  (NJP  or  captain's  mast)  for  missing 
ship's movement through neglect.   
 
 
The  applicant  alleged  that  the NJP proceeding was biased against him because 
his executive officer (XO) served as both the person placing the applicant on report and 
the preliminary investigating officer.  He submitted with his application the Report of 
Offense and Disposition Form (Offense Form), which shows in the first section that the 
XO  placed  the  applicant  on  report.    Under  the  second  section  on  the  Offense  Form 
entitled  "Initial  Action  of  the  [XO],"  the  XO  appointed  himself  as  the  preliminary 
investigation officer (PIO).  As PIO, the XO recommended in the fourth section of the 
Offense Form, that the applicant be punished at captain's mast (NJP) on the basis of the 
following results of his investigation: 
 

[The applicant] had knowledge of the Commanding Officer's requirement 
for  all  active  duty  personnel  assigned  to  [the  cutter]  during  a  Bravo-2 
status  to  respond  to  crew  recall.    [The applicant] had knowledge of [the 
cutter's]  Bravo-2  status.    On  the  morning  of  25  November  xxxx  a  group 
page was ordered by the Commanding Officer and executed by [an] MK3  
.  .  .  The  group  page  ordered  the  immediate  return  to  the  ship  of  all 
personnel  subject  to  recall.    [The  applicant]  did  not  respond  to  the  page 
and  therefore  missed  ship's  movement.    [The  applicant]  was  later 
contacted through another page and he then stated that he was an hour 
from the ship.  [The applicant] also stated that he did not receive the first 
page.    When  [the  applicant]  was  informed  by  the  XO  that  the  ship  was 

returning to port and needed him to handle lines, he displayed a lack of 
concern and stated that he did not want to leave his family and travel an 
hour to meet the ship.  Through his inability to respond to the page, his 
distance from the unit, and his lack of concern displayed negligence on his 
part. 

In  the  fifth  section  of  the  Offense  Form  entitled  "Action  of  the  [XO],"  the  XO 

 
 
recommended that the applicant go before a captain's mast, 
 
 
On  November  29,  xxxx,  the  CO  punished  the  applicant  at  captain's  mast  for 
missing ship's movement.  The punishment consisted of restriction to the ship for seven 
days and extra duties for 7 days.  The Report of Offense and Disposition Form indicates 
that  the  applicant  was  advised  of  his  right  to  appeal  the  NJP  on  November  29,  xxxx.  
The record contains no evidence that the applicant appealed the NJP.   
 
 
As  a  result  of  the  NJP,  the  applicant  had  an  adverse  administrative  remarks 
(page 7), dated November 29, xxxx, entered into his military record.  It stated that the 
applicant  was  given  an  unsatisfactory  conduct  mark,  which  terminated  his  good 
conduct award eligibility period.  He also was given a mark of "not recommended" for 
advancement.   
 
Views of the Coast Guard  
 
 
Chief Counsel, recommending that the Board deny the applicant's request.     
 
 
With  respect  to  the  applicant's  allegation  that  the  NJP  proceeding  was  biased 
against  him  because  the  executive  officer  (XO)  served  as  the  person  placing  the 
applicant on report and the PIO, the Chief Counsel stated that neither the Coast Guard 
Military  Justice  Manual  nor  the  Manual  for  Courts-Martial  indicate  that  this  practice 
constitutes procedural error.   
 
 
The Chief Counsel stated that Article 15 (NJP) of the Uniform Code of Military 
Justice  (UCMJ)  is  a  congressionally  established  administrative  means  for  military 
commanders to deal with minor violations, as an essential part of their responsibility to 
preserve  discipline  and  maintain  an  effective  armed  force.    He  stated  that  NJP  is 
intended  to  provide  military  commanders with a prompt means of maintaining good 
order and discipline and promoting behavioral changes in members without the stigma 
of a court-martial conviction.  See, Part V, papa. 1c.,  Manual for Courts-Martial (1995 
ed.) 
 

On June 24, 2003, the Board received an advisory opinion from the office of the 

The  Chief  Counsel  stated  that  the  CO  and  designated  appeal  authorities  are 
charged  with  the  responsibility  of  determining  if  an  offense  has  occurred  and  the 
appropriate punishment in cases where such a determination has been made.  He stated 
that absent strong evidence to the contrary, government officials are presumed to have 

carried out their duties correctly, lawfully, and in good faith.  Arens v. United States, 
969 F.2d 1034, 1037 (D.C. Cir. 1992).   

 
 

The  Chief  Counsel  stated  that  even  if  the  applicant  could  show  that  an 
administrative or procedural error had occurred in his case, he must go the extra step of 
showing  that  such  error  materially  prejudiced  one  of  his substantial rights. He stated 
that  an  applicant  seeking  relief  from  NJP  must  prove  (1)  that  the  CO's  determination 
regarding commission of an offense was clearly erroneous; (2) that the accused suffered 
material prejudice due to a clear procedural error; or (3) that the punishment imposed 
was a clear abuse of the broad professional discretion accorded military commanders to 
take corrective action so as to maintain good order and discipline within the service.   

 
"[The]  applicant  was  awarded  7  days  restriction  and  7  days  of  extra  duty  for 
missing  ship's  movement.    The  basis  for  the  imposition  of  punishment  at  NJP  was 
applicant's violation of Article 87, UCMJ.  Specifically, the applicant chose not to return 
to  his  ship  when  called  to  do  so  on  25  November  1999  and  purposely  stayed  away.  
Based  on  the  aforementioned  conduct,  his  commanding  officer  would  have  sufficient 
cause  to  adjudge  applicant  in  violation  of  his  obligation  to  report  to  the  ship  for 
movement. 
  The  applicant  has  provided  absolutely  no  evidence,  beyond  his 
unsupported  allegation,  to  overcome  the  presumption  that  his  [CO] and [XO] carried 
out their official duties correctly, lawfully, and in good faith." 
 
Applicant's Response to the Views of the Coast Guard 
 
 
applicant for reply.  He did not submit a response. 
 

On  June  30,  2003,  the  Board  mailed  a  copy  of  the  Coast  Guard  views  to  the 

FINDINGS AND CONCLUSIONS 

1.  The Board has jurisdiction of this case pursuant to section 1552 of title 10 U.S. 

 
 
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 
applicable law: 
 
 
Code.  The application was timely. 
 
 
2.  The applicant has not proved that the punishment he received on November 
29,  xxxx  was  in  error.    He  did  not  deny  that  he  missed  ship's  movement  through 
neglect, but rather he alleged that the NJP proceeding was biased against him because 
the  XO  served  as  the  person  placing  him  on  report  and  as  the  investigating  officer.  
While  having  the  XO  serve  in  the  these  two  roles,  while  also  making  a  disposition 
recommendation to the CO in his capacity as XO, may appear unfair, it is not prohibited 
by either the Manual for Courts-Martial or the Military Justice Manual, which contain 
regulations for the imposition of NJP.   
 

 
3. While not error, having the XO perform the functions of the accuser, the PIO, 
and  the  XO  could  amount  to  an  injustice.    In  this  regard,  the  Board  notes  that  the 
Military Justice Manual encourages that the PIO be someone other than the XO.  Article 
1.C.3.a.  of  the  Military  Justice  Manual  states  that  the  XO  is  to  review  the  reported 
offense for probable cause, and if such exists, the XO should inform the accused of the 
alleged offense and that a PIO has been assigned to investigate the case.  In addition, 
Article 1.C.5.a. states after the return of the PIO's report, the XO should again review 
the Offense Form and dismiss the matter, if the CO has given the authority to do so, or 
refer  the  matter  to  the  CO  recommending  either  dismissal  or  disposition  at  captain's 
mast.    
 
4.  However,  the  Board  is  not  persuaded  that  the  applicant  has  shown  by  a 
 
preponderance of the evidence that he has suffered an injustice under the circumstances 
of this case.  He has not presented any evidence, except for his own statement, that the 
NJP  proceeding  was  biased  against  him.  Nor  has  he  explained  which,  if  any,  of  the 
rights afforded to him under Manual for Courts-Martial or the Military Justice Manual 
were prejudiced by having the XO serve in all pre-mast capacities.  And as stated above, 
he did not deny that he missed ship's movement through neglect.   
 
 
5.  In addition, the CO was free to decide the applicant's punishment and was not 
bound by the input from the XO.  Article 1.d. (2) of Part V. of the Manual for Courts-
Martial  states  that  "[a]  commander  who  is  considering  a  case  for  disposition  under 
Article 15 will exercise personal discretion in evaluating each case, both as to whether 
nonjudicial  punishment  is  appropriate,  and,  if  so,  as  to  the  nature  and  amount  of 
punishment appropriate."  The applicant has presented nothing to indicate that the CO 
failed to carry out his responsibility as required by the Manual for Courts-Martial.  The 
applicant also failed to appeal the NJP, an avenue available to him, if he believed he had 
suffered an injustice.  A mere allegation is an insufficient basis on which to grant relief.  
In  the  absence  of  proof  of  prejudice  or  a  violation  of  a  regulation,  the  Board  will  not 
second-guess the punishment imposed by the CO.  
 
 
6.  The applicant has failed to prove by a preponderance of the evidence that the 
NJP he received on November 29, xxxx, was in error or unjust.  Accordingly, his request 
should be denied.    

 

ORDER 

 
The application of xxxxxxxxxxxxxxxxx, USCG, for the correction of his military 

 
 

 
 
 
record is denied.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

______________________________  
 Julia Andrews 

______________________________ 
 Margot Bester 

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 Donald A. Pedersen