DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2003-060
FINAL DECISION
Ulmer, Chair:
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. The application was
docketed on April 7, 2003, upon receipt of the applicant’s completed application and
military records.
appointed members who were designated to serve as the Board in this case.
This final decision, dated December 18, 2003, is signed by the three duly
APPLICANT’S REQUEST
The applicant asked the Board to remove a summary court-martial (SCM)
conviction from her military record. "Specifically, I request that the punishment be
removed . . . and I receive back pay from 2 March xxxx."
APPLICANT’S ALLEGATIONS
The applicant stated that she was appealing the SCM because of an error
prejudicial to her substantial rights and because the sentence was inappropriate. She
stated that on March 2, 2000, a SCM1 found her guilty of disorderly conduct, a violation
1 Rule 1301 of the MCM states that the function of the SCM is to promptly adjudicate minor offenses
under a simple procedure. It is composed on one commissioned officer on active duty and the accused is
not entitled to counsel. The maximum punishment that may be imposed by a SCM is confinement for not
more than one month, confinement without hard labor for not more than 45 days, and restriction to
specified limits for not more than 2 months, and forfeiture of not more than 2/3 pay for 1 month.
of Article 134 of the Uniform Code of Military Justice (UCMJ). She was convicted of
being disorderly "for knocking and shaking [an SK3's] door and for hitting his car with
my hand and a broom handle" on 19 September 199x. She was sentenced to be reduced
one rank to pay grade E-4.
The applicant further alleged that the SCM found her guilty of an inappropriate
relationship with an SK3. She stated that a relationship between an E-5 and an E-4 "is
hardly a reason for [her] to receive continuous and harsh punishment while the other
petty officer [an E-4] was not even counseled."
disproportionate to the offense for the following reasons:
the punishment was harsh, unusual, and
The applicant stated
that
Prior to the Courts-Martial I was banned from the office and sent to work
in an office space alone and with no contact with other member of the
command;
I received numerous Administrative Remarks2 (page 7 entries) placed in
my service record prior to the Courts-Martial, therefore, prior to any
adjudication of guilt . . .
I did not receive an award that was given to every other member in my
office (military and civilian) even though I was present and working in
that very office during the entire period of the award;
I was not recommended for reenlistment by my Commanding Officer
[CO] . . . and had to face a reenlistment board and plead for my livelihood;
My Enlisted performance evaluation dated 31 October 199x was
significantly lowered prior to the Courts-Martial or any adjudication of
guilt;
I was not recommended for advancement; and
I was removed from my workstation instead of a junior petty officer.
Subsection 2 states that "In the case of enlisted members above the fourth pay grade, summary courts-
martial may not adjudge confinement, hard labor without confinement, or reduction except to the next
pay grade."
2 An administrative remarks page (known as a page 7) is a document used to record miscellaneous
entries of a positive, adverse, or counseling nature.
The applicant stated that the reduction in rank was humiliating, particularly in
light of the fact that she had between 16 and 17 years of service. She stated that the
reduction in rate has cost her approximately $462 per month and an additional $500 per
month after her advancement to E-6. She commented that as a result of the reduction in
rank, she had to re-qualify and re-compete for advancement to E-5.
The applicant stated that she has learned her lesson. She asserted that in the 34
months since the incident she has dedicated herself to the mission of the Coast Guard
and has served with honor and integrity. She further stated that she fought hard for the
opportunity to reenlist because it was always her intention to serve in the Coast Guard
for 20 years.
SUMMARY OF THE RECORD
The applicant enlisted in the Coast Guard on June 17, 198x and has served
continually on active duty since that time. The applicant's military record contains the
following pertinent entries.
On August 18, 199x, a page 7 was placed in the applicant's record informing her
that the eligibility period for a good conduct award had been terminated due to an
unsatisfactory conduct mark on her performance evaluation for the period ending
August 18, 199x.
On September 20, 199x, the applicant's CO informed her on a page 7 that he had
received information indicating that the applicant had violated the UCMJ. The
applicant was ordered to avoid all contact with a co-worker until an investigation and
administrative action had been finalized.
On November 4, 199x, a page 7 was entered in the applicant's record
documenting an unsatisfactory mark in conduct due to a civil arrest and her alleged
harassment of a civilian family on September 19, 199x.
On November 4, 199x, another page 7 was entered into the applicant's record
advising her that she was not recommended for advancement on the performance
evaluation ending October 31, 199x. The page 7 stated that the applicant had shown
poor judgment in dealing with others and had failed to conform to civilian and military
rules, regulations and standards.
On November 4, 199x, a third page was entered in the applicant's record
documenting the 2 that she received in the Human Relations category of her
performance evaluation for the period ending October 21, 199x. The CO pointed to the
counseling the applicant received on August 26, 199x concerning her actions in the
work place toward the victim of her disorderly conduct. He also stated that later that
day, the applicant was counseled again about a confrontation with this individual.
Last, the CO mentioned that a police report was filed against the applicant for harassing
a civilian family and for criminal trespassing, resulting in her arrest.
On November 9, 199x, the applicant was counseled on a page 7 regarding the
provisions of Article 8.H. of the Coast Guard Personnel Manual. She was further
counseled that any inappropriate behavior on her part against another member,
whether actual or perceived, that threatened the good order and discipline of the unit,
could result in further administrative or disciplinary action.
Summary Court-Martial (SCM)
On March 2, xxxx, a SCM convicted the applicant of "disorderly conduct for
repeatedly knocking and shaking [an SK3's] apartment door and repeatedly striking
[the SK3's] automobile with her hands and a broom handle," a violation of Article 134 of
the Uniform Code of Military Justice (UCMJ). The SCM heard testimony from the
applicant and from the victim (the E-4). According to the testimony, this incident
occurred off base at or around 0145 on September 19, 199x. The SCM also considered
the applicant's military record, including her performance marks, 3 Coast Guard Unit
Commendations, 4 good conduct awards, 2 special operation service awards, a
Bicentennial Unit Commendation, a National Defense Service Medal, a Humanitarian
Service Medal, and a Secretary's Outstanding Unit Award.
On March 9, xxxx, the applicant submitted an appeal of her SCM to the
convening authority (CA), in which she requested that the charge and specification of
which she was convicted be set aside. She also requested that her sentence of reduction
to the next inferior pay grade be remitted. She stated that she "was engaged in a
personal relationship with an individual plagued with months of dishonesty and anger"
and that she "realize[d] [she] put [her]self in a bad situation by going over to the
[victim's apartment]." In mitigation, she pointed out that she had sixteen years of
service, was the mother of two minor children who depended on her for their support,
and was providing housing for a foreign exchange student. She told the CA that she
was receiving anger management therapy and that she was sorry for her actions.
On March 10, xxxx, the applicant's military lawyer challenged the SCM's finding
that the applicant had been guilty of disorderly conduct. The lawyer argued that the
conduct that formed the basis for the applicant's conviction did not meet the definition
of disorderly conduct. She argued that the Manual for Courts-Martial defined
disorderly conduct as that "of such a nature as to affect the peace and quiet of persons
who may witness it and who may be disturbed or provoked to resentment thereby."
On March 15, xxxx, the CA approved the finding of guilty and sentence and
ordered it executed. On March 23, xxxx, a law specialist reviewed the SCM, including
the applicant's appeal and her lawyer's allegation of error. The law specialist
determined that based on Unites States v. Rogers, 50 M.J. 805 (1999), the evidence
presented was legally sufficient to sustain the finding that the applicant was guilty of
disorderly conduct. He also stated that her conduct "disturbed [the E-4's] peace and
quiet enough to cause him to call the police."
On July 24, xxxx, a lawyer in the office of the Chief Counsel reviewed the SCM
record of trial under Article 69 of the UCMJ.3 He found no basis for modification of the
findings or sentence.
Reenlistment Board Proceedings
On May 2, xxxx, the applicant was advised by the CO that she was not
recommended for reenlistment because of two separate disciplinary actions during the
current enlistment. She was informed that she had the right to present her case and
appear before a reenlistment board, the right to be represented by counsel, and the right
to waive the reenlistment board, in writing, with the advice of counsel. The applicant
acknowledged this advice with her signature.
On June 13, xxxx, a reenlistment board convened to consider whether to
recommend to the Commandant that the applicant be allowed to reenlist. The
reenlistment board found that the applicant had been punished at non-judicial
punishment (NJP) on August 18, 1997 for failure to obey a lawful order as a result of her
relationship with a chief petty officer; that she was removed from recruiting duty as a
result of her relationship with the chief petty officer and the NJP; and that she was
convicted at a SCM for disorderly conduct involving an incident with a co-worker, an
SK3.
The reenlistment board offered the following pertinent opinions: 1. That the
relationship between the applicant and the SK3 while not prohibited by the Coast
Guard, was nonetheless inappropriate due to the close working relationship between
the two and the size of the office in which they worked. 2. That a pattern of
inappropriate behavior had not been established on the part of the applicant. 3. That
the applicant's performance has been average or above average during her Coast Guard
career.
reenlistment board made the following recommendations to the Commandant:
3 Rule 1201(b)(3)(A) of the Manual for Courts-Martial states that the Judge Advocate General may, sua
sponte or at the request of the accused, review a final conviction by court-martial for several reasons,
including sentence appropriateness or for an error prejudicial to the substantial right of the accused.
Subsection (C) requires that such request be made within two years of the convening authority's action
approving the SCM findings and sentence.
On the issue of whether the applicant should be allowed to reenlist, the
That [the applicant] be granted a probationary extension of
1.
reenlistment for a period not to exceed 12 months.
2. That [the applicant] be transferred to a billet within the Storekeeper
rating at a Coast Guard unit outside [of the] area.
3. That during the probationary period [the applicant] shall not have any
UCMJ violations or equivalent civilian convictions. . . .
4. That during the probationary period [the applicant] shall complete all
requirements for advancement to SK2. Failure to meet this requirement
shall be grounds for immediate discharge from the Coast Guard.
5. That the applicant be evaluated by a qualified health care professional
for her recurring anger management and relationship problems. If this
evaluation recommends continued counseling
it
is strongly
recommended by the board that this counseling be pursued.
.
.
.
On September 28, xxxx, the Commander, Coast Guard Personnel Command
(CGPC) approved the findings of fact, opinions, and recommendations of the
reenlistment board. CGPC stated that the applicant would be eligible to reenlist at the
end of the 12-month probationary period if she met all of the requirements of her
probations.
acknowledged the terms of her probation.
On October 18, xxxx, a page 7 was placed in the record, wherein the applicant
VIEWS OF THE COAST GUARD
On August 20, xxxx, the Chief Counsel of the Coast Guard submitted an advisory
opinion recommending that the Board deny the applicant’s request. He argued that the
application should be denied because the applicant did not exhaust the administrative
remedies that were available to her under the Manual for Courts-Martial MCM)
because she did not seek review of the SCM from the Judge Advocate General of the
Coast Guard. See Rule 1201 of the MCM. He asserted that "because of the appeal
procedures established by statute and regulation within the military system, the Board
should deem any issue not raised through this process to be waived, absent proof of
compelling circumstances that prevented the applicant from raising such issues within
the military justice system."
The Chief Counsel stated that under 10 U.S.C. § 801, a SCM is defined as a
congressionally established, quasi-judicial means for military commanders to deal with
relatively minor violations, as an essential part of their responsibility to preserve
discipline and maintain an effective armed force. He further stated that it is an interim
step between the less formal non-judicial punishment and the more formal special or
general court-martial, where a finding of guilty could result in a federal conviction.
The Chief Counsel stated that the BCMR may review a SCM only with respect to
granting clemency on the sentence. See, 10 U.S.C. § 1552(f). However, when doing so it
should recognize that the officer appointed to serve as the SCM is responsible for
determining the appropriate punishment after weighing the evidence including the
demeanor of the witnesses. He further stated that the applicant's commanding officer
(CO), as convening authority, is charged with oversight of the entire process and has
the ability to grant clemency or to set aside the decision of the SCM. He argued that
absent evidence that the CO's determinations were clearly erroneous or that there was a
violation of one of the applicant's substantial rights, the CO's decision should be
upheld. The Chief Counsel argued that the applicant has failed to prove any factual or
legal error with respect to the SCM.
The Chief Counsel argued that the applicant has presented no substantial reason
that the Board should grant clemency in her case. He stated that the power of clemency
like the power of pardon is intended to address extraordinary circumstances that
normal legislative and judicial processes cannot effectively address. See 59 AM JUR 2d
10-11. He stated that the punishment the applicant received was far less than the
maximum she could have received. In addition, he argued that the applicant's conduct
toward a junior service member was more than enough evidence for the SCM to
conclude that reduction in rank was an appropriate punishment. He stated that the
punishment was fair, fitting, appropriate and anything but unjust.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On August 25, xxxx, the BCMR sent the applicant a copy of the views of the
Coast Guard and invited her to respond. No response was received.
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the
applicant's military record and submissions, the Coast Guard's submissions, and
applicable law:
1. The Board has jurisdiction concerning this matter pursuant to section 1552 of
title 10 of the United States Code. The application was timely.
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 recommended disposition
of the case without a hearing. The Board concurs in that recommendation.
3. The Board is not persuaded by the Chief Counsel's argument that the BCMR is
barred from reviewing this application because the applicant failed to exhaust her
administrative remedies by failing to seek a review of her SCM from the Judge
Advocate General (TJAG), as permitted under Rule 1201.(b)(3) of the Manual for
Courts-Martial. The time for a TJAG review has expired. Review under this rule must
be requested within two years of the date on which the CA takes action approving the
sentence. The CA's action in this case occurred on March 15, xxxx. Therefore, this
remedy was no longer available to the applicant at the time she filed her application
with the Board on March 24, 2003. The Board deems that in situations where a remedy
is no longer available, exhaustion of administrative remedies has occurred.4
4. Moreover, the SCM record of trial shows that, through her own statement and
that of her lawyer, the applicant appealed the SCM to the CA. The record of trial
further shows that a review under Rule 1201.(b)(3), which allows the TJAG to complete
such a review sua sponte or upon application of the accused, was completed on July 24,
2000. Since the SCM was thoroughly reviewed by the CA, a law specialist, and TJAG,
the Board finds that the applicant exhausted her administrative remedies.
5. The applicant has not shown that she was denied any of her rights. She was
advised of all of her rights with respect to the SCM and was represented by counsel
during the entire process.
6. With respect to the applicant's request to set aside the conviction, the Board
does not have the authority to remove the SCM conviction from her record. Section
1552(a) of title 10 of the United States Code authorizes the Board to correct any military
record to remove an error or an injustice. However, the Board's authority with respect
to courts-martial convictions is limited by section 1552(f)(2) of title 10 of the United
States Code, which states the Board may only act to grant clemency with respect to a
court-martial sentence. Clemency is defined as "bestowing mercy -- treating an accused
with less rigor than he deserves." See, United States v. Healy, 26 M.J. 394 (CMA 1988).
7. The applicant asked the Board to grant her clemency by setting aside the
punishment she received for disorderly conduct. Although the applicant argued that
her punishment was excessive, she received only a reduction to the next inferior pay
4 The Board does not agree with the Chief Counsel's position that the requirement to exhaust
administrative remedies, as discussed in the Board's rules (33 CFR § 52.13), bars the Board from
considering an application where a remedy was but is no longer available due to a statute of limitations.
If no current remedy is available, the applicant is considered to have exhausted his or her administrative
remedies.
grade, E-4, which was less than the maximum punishment that could have been
imposed. The maximum allowable punishment the applicant could have received at
the SCM was 60 days restriction, forfeiture of 2/3 of one month's pay, reduction to next
inferior pay grade and a reprimand.
8. Despite the applicant's argument that the court-martial sentence is excessive
in light of the number of page 7s that were placed in her record before and after her
conviction, the CO acted properly in causing the page 7s to be placed in her record. The
page 7s are administrative actions by the applicant's CO and they are independent of
the court-martial charges, conviction, and punishment. In this regard several of them
were prepared in support of low or adverse marks the applicant received on her
performance evaluation for the period ending October 31, 199x. While the page 7s may
appear excessive to the applicant in light of her other punishment, they were executed
in accordance with the Personnel Manual, as discussed below.
9. Under Article 10.B. of the Personnel Manual, the rating chain must document
any low performance marks (1 or 2 on a 7 point scale, with 7 being the highest) on a
page 7. Therefore, the page 7 documenting the 2 she received in the Human Relations
category for the evaluation period ending October 31, 199x was proper. It was
appropriate for the rating chain in evaluating the applicant to consider the event of
September 19, 199x, as it occurred during the reporting period.
10. In addition, the applicant was not recommended for advancement on the
evaluation. Pursuant to 10.B.4.d.5.(4) of the Personnel Manual, this adverse mark
required the CO to support it with a page 7, which he did on November 4, 199x. The
page 7 advised the applicant that she was not recommended for advancement because
of poor judgment in dealing with others and her failure to conform to civilian and
military rules and standards. Under Article 10.B.7. of the Personnel Manual, a mark of
not recommended is final and may not be appealed.
11. Article 10.B.4.d.5.(4) also required the CO to place a page 7 in the applicant's
record to document the termination of her eligibility for good conduct due to the
unsatisfactory conduct mark on the performance evaluation for the period ending
October 31, ,199x. Article 10.B.2. requires an unsatisfactory mark in conduct when in
the judgment of the CO a service member does not comply "with civilian and military
rules, regulations, and standards." It was the CO's judgment that the applicant failed to
meet this standard because of her civil arrest and her harassment of a civilian family in
September 199x. As a member with sixteen years of service, the applicant knew or
should have known that her CO would not tolerate her actions.
12. The CO was required to document on a page 7 his decision not to
recommend the applicant for reenlistment, which he did on May 2, xxxx. This
recommendation against reenlistment represented the judgment of the CO after the
applicant's conviction at an SCM. However, because the applicant had eight years of
service, she was entitled to a reenlistment board, which recommended her retention
pending the successful completion of a probationary period.
13. The applicant's statement that she was convicted for having an inappropriate
relationship with an E-4 is without merit. The SCM shows that she was convicted only
of disorderly conduct that was prejudicial to good order and discipline. She also
complained that the E-4 was not punished. However, maintaining good order and
discipline within the command is within the purview of the CO and unless an abuse of
that power is demonstrated the Board will not substitute its judgment for that of the
CO. In the Board's experience, it is the senior person involved in a relationship with a
junior who is usually held to a higher standard.
14. The Board is not persuaded that the applicant's good military service or her
responsibility for the sole support of her minor children is a compelling reason to grant
clemency, which would require the Board to set aside the only punishment she
received. In light of the behavior for which the applicant was convicted, the
punishment was not inappropriate. The applicant was outside the E-4's apartment at
approximately 0200 knocking repeatedly on his door and repeatedly hitting his car with
a broom handle. The act placed the applicant, the E-4 and the Coast Guard in a bad
light. In addition, the applicant's family situation and good military service were
considered by the SCM when it imposed sentencing on her. The CA also considered
her circumstances during his post trial review. The applicant has not proved any error
with respect to her SCM nor has she presented the Board with such exigent
circumstances that a refusal to grant clemency on the sentence would be tantamount to
an injustice.
15. There is insufficient evidence in the record establishing what award the
applicant's unit received, if any, or whether the CO abused his discretion by not
including the applicant as a recipient of that award.
16. Accordingly, the applicant’s request should be denied.
[ORDER AND SIGNATURES ON NEXT PAGE]
The application of xxxxxxxxxxxxxxxxx, USCG, for correction of her military
ORDER
record is hereby denied.
Julia Andrews
George J. Jordan
Kathryn Sinniger
CG | BCMR | Enlisted Performance | 1999-124
The two disputed page 7s were in his record before this appointment board. The xxx stated that xxx was a member of the section at that time. The applicant appeared xxx on the 199x Final Eligibility List for appointment to CWO and would have been appointed to CWO on June 1, 199x, except for the incompleteness of his record.
CG | BCMR | Enlisted Performance | 1999-118
He also asked the Board to remove from Coast Guard records his command’s negative endorsement of his request for assignment to recruiting duty (Assignment Data Card; form CG-3698A), as well as any other negative correspondence concerning his request for recruiting duty. CGPC stated that, aside from the two negative page 7s dated June 15, 199x, in the applicant’s per- sonal data record, the Coast Guard has a negative endorsement dated October 4 The Chief Counsel stated that there are only...
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...
CG | BCMR | Discharge and Reenlistment Codes | 2001-104
The Board determined that because of her diagnosed PTSD, the applicant was erroneously denied evaluation by a medical board under the Physical Disability Evaluation System. provides that personality disorders, including “Personality Disorder NOS,” qualify a member for administrative discharge pursuant to Article 12 of the Personnel Manual instead of medical board processing. Adjustment disorders are not personality disor- ders.11 Therefore, and as stated in finding 8, above, it would be...
CG | BCMR | Discrimination and Retaliation | 1998-035
[N]either of these two xxxx [sic] had sea duty time as a xxxx and both were closer to the [cutter] than [the applicant was].” Moreover, D. stated, in contradiction to Z.’s claim that the Xxxx required a female, a male xxxx was assigned to the cutter when the applicant chose to be discharged rather than accept the orders. has had on [the applicant]. Coast Guard records indicate that, apart from the applicant, six female xxxx stationed in Xxxx and xxxxxxxx were tour complete and had not done...
CG | BCMR | Enlisted Performance | 1998-052
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. 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. On May 25, 198x, she was told that the practices at the recruiting office and the claims of 125 recruiters had been investigated and...
CG | BCMR | Discharge and Reenlistment Codes | 1999-163
This final decision, dated May 18, 2000, is signed by the three duly appointed RELIEF REQUESTED The applicant, a former xxxxxxx, asked the Board to correct his military record by changing his reenlistment code from RE-4 (ineligible for reenlistment) to RE-3 (eligible for reenlistment except for disqualifying factor) so that he can enlist in the Army. ALLEGATIONS OF THE APPLICANT The applicant alleged that he was discharged on July 28, 199x, because he had an “inappropriate relationship”...
CG | BCMR | Discharge and Reenlistment Codes | 1999-037
She was advised that “[a]ny further incidents will result in further administrative action.” On May 6, 199x, the applicant was evaluated by Dr. z, the Senior Medical Officer at XXX xxxxxxx Health Services, at the request of her commanding officer following a “continuous pattern of inappropriate behavior.” Dr. z reported the following based on his examination and information provided by her command: [The applicant’s] behavior has been observed declining over the past year and she has become...
CG | BCMR | OER and or Failure of Selection | 2000-163
2000-163 Application for Correction of Coast Guard Record of: DECISION OF THE DEPUTY GENERAL COUNSEL ACTING UNDER DELEGATED AUTHORITY The Final Decision of the Board for Correction of Military Records (the Board) accurately summarizes the Applicant’s Request for Relief, the Summary of the Record, the Applicant’s Allegations, the Decision of the Personnel Records Review Board, the Applicant’s Further Allegations, the Views of the Coast Guard, the Applicant’s Response to the Views of the Coast...
CG | BCMR | Alcohol and Drug Cases | 1999-161
On February 12, 199x, the applicant’s CO documented his “second alcohol incident” with a page 7 in his record. According to Article 20.B.2.h.2., “[e]nlisted members involved in a second alcohol incident will normally be processed for separation in accordance with Article 12.B.16.” Under the Military Rules of Evidence, Rule 304(h)(4), if a member refuses a lawful order to submit to a breathalyzer test, the “evidence of such refusal may be admitted into evidence on … [a]ny other charge on...