DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-099 
 
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FINAL DECISION 

 
 
This is a proceeding under the provisions of section 1552 of Title 10 and section 
425 of Title 14 of the United States Code.  The Chair docketed the case on April 21, 2006, 
upon receipt of the completed application. 
 
 
members who were designated to serve as the Board in this case.  
 

This final decision, dated January 31, 2007, is signed by the three duly appointed 

APPLICANT'S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  correct  his  military  records  by  removing 
evidence  of  a  November  22,  2005  non-judicial  punishment  (NJP)  (also  referred  to  as 
captain's mast) under  Article 15 of the Uniform Code of Military Justice (UCMJ).   He 
was punished at captain's mast with a reduction in rate to E5/SK2 and restriction to the 
base  for  30  days,  suspended  for  three  months,  for  an  unauthorized  absence  (UA)  of 
approximately two hours.   
 
 
unjust and too severe for the misconduct he committed.  He further stated as follows: 
 

The  applicant  alleged  that  the  punishment  awarded  at  the  captain's  mast  was 

I  feel  that  my  punishment  was  based  on  the  personal  opinion  and 
judgment of my personal life, rather than the offense at hand.  I also feel 
that based on the date for which my Article 15 NJP was scheduled, I was 
not given the adequate tools or resources to file an appeal.  The Article 15 
NJP  was  scheduled  one  day  prior  to  the  Thanksgiving  holiday  and  the 
majority  of  my  division  as  well  as  the  Administrative  Branch  were  on 
holiday leave.   

 

 
The applicant also stated that he felt that he was singled out and targeted based 
on  "personal  dislikes,  discrimination,  and  possible  prejudice."    He  stated  that  his 
feelings in this regard were based on the fact that 99% of the members of his division 
were  Caucasian  males  "who  seemed  to  get  away  with  far  more  situations  than  they 
should."  He alleged that over a six-month period, sixteen minority members had been 
taken  to  NJP,  which  he  opined  was  a  very  high  number  considering  Training  Center 
Yorktown's overall population.   
 
 
The applicant's UA occurred on the morning of October 13, 2005.   Prior to that 
date, the applicant stated that he was under stress due to family and marital problems.  
He  stated  that  in  April  2005,  he  and  his  wife  set  aside  their  divorce  so  that  his  wife 
could  deal  with  the  death  of  her  sister  and  make  child  care  arrangements  for  her 
nephew.    He  stated  that  in  May  2005  the  stress  from  his  marital  situation  began  to 
interfere with the performance of his duties and he became somewhat depressed.  He 
informed his immediate supervisors about the problems.  
 
 
The  applicant  explained  that  July  2005  was  a  very  busy  period  for  processing 
purchase requests because the command was attempting to spend money prior to the 
end of the fiscal year.  In this regard, he stated that division heads were unhappy with 
him when it was necessary for him to deny their purchase requests to stay within the 
budget.  The applicant stated that in September 2005, the funds certifying officer (FCO) 
was relieved of duty and replaced with LT W who became the applicant's supervisor.  
 
The applicant stated that his divorce was finalized in a hearing on the afternoon 
 
of October 12, 2005.   He stated that later that evening he  was informed of some very 
depressing information and went to a friend's house in Virginia Beach.  According to 
his NJP statement, the woman he had been in a relationship with for approximately two 
years (apparently he and his wife had been separated although not divorced) told him 
that  she  had  made  a  mistake  by  marrying  an  Army  soldier  in  August  2005.    The 
applicant  stated  that  he  became  very  upset  and  on  the  way  to  his  friend's  house  he 
bought liquor.  While explaining the situation to his friend and feeling sorry for himself 
he had a few drinks.  His friend refused to let him drive home.  The applicant stated 
that  he  awoke  the  next  morning  at  approximately  7:00  am  and  drove  back  to  his 
Newport News home and prepared himself for work.  He reported to work around 9:50 
am.  The workday started at 7:30 am.  He stated that when he arrived at work he told 
the  FCO,  LT  W,  that  he  had  his  divorce  hearing  the  previous  day  and  that  he  got 
together  with  some  friends  for  drinks  but  was  too  embarrassed  to  explain  that  his 
girlfriend  of  two  years  had  married  someone  else  without  his  knowledge.    He  stated 
that he was then placed on report.   
 
  
discrimination, he explained as follows: 
 

 
With  respect  to  the  applicant's  allegation  of  personal  reprisal,  prejudice,  and 

I  feel  as  though  I  am  the  victim  of  personal  reprisal,  prejudice,  and 
discrimination.  Up until the EO's [engineering officer's] arrival sometime 
in  late  June  2005,  I  was  considered  an  "Above  Average"  performer  and 
had just been evaluated in May 2005.  During the period of time for which 
I  was  assigned  to  Boat  Forces  &  Cutter  Operations  Center,  I  witnessed 
several  occasions  where  BM's  and  MK's  reported  late  to  duty,  BM's  and 
MK's  reporting  late  to  work,  BM's  reporting  to  work  with  the  scent  of 
alcohol and the appearance of being under the influence of alcohol . . .  I 
have  noticed  various  instances  of  selective  punishment,  prime  example 
being  Chief  Warrant  Officer  [M],  a  superior  officer,  who  as  an  officer  is 
expected  to  set  a  higher  level  of  example,  was  arrested  for  DUI  and 
received  next  to  no  punishment  for  his  offense.    SNSK  [P],  who  was  an 
E4/SK3, was reduced to E3/SNSK for failure to appear for duty the same 
weekend, after several other BM's and MK's also missed duty, or arrived 
late without consequences as severe as being reduced to the next inferior 
pay  grade.    All  incidents  of  late  arrival  by  [unit]  members    .  .  .  are 
documented in the Officer of the Day (OOD) and Command Duty Officer 
(CDO) logs, which I have no access to.   

 
 
The  applicant  offered  the  following  as  examples  of  the  command's  retribution 
against him:  having him psychologically evaluated by a flight surgeon, placing him on 
performance  probation  when  the  effort  to  convene  an  administrative  board  failed, 
placing him on performance probation without a termination date, and accusing him of 
committing an offense by storing inappropriate material on a flash drive after he had 
been reassigned to another unit, a charge the applicant vehemently denied.   
 

VIEWS OF THE COAST GUARD 

 
 
On  August  30,  2006,  the  Board  received  the  advisory  opinion  from  the  Judge 
Advocate  General  (JAG)  of  the  Coast  Guard,  recommending  that  the  Board  deny  the 
applicant's request for relief.   The JAG stated that the applicant failed to prove that the 
Coast  Guard  committed  any  error  by  punishing  him  at  NJP  for  violating  Article  86  
(UA) of the UCMJ. 
 
 
The JAG argued that the applicant failed to exhaust his administrative remedies 
by  not  appealing  the  NJP  and  the  Board  could  deny  the  application  on  that  basis.  
However,  should  the  Board  consider  the  case  on  the  merits,  the  JAG  stated  that  the 
applicant has not presented evidence that government officials failed to carry out their 
duties correctly, lawfully, and in good faith.  Arens v. United States, 969 F.2d 1034, 1037 
(Fed. Cir. 1992).   The JAG further argued that to establish a claim of error or injustice 
regarding the imposition of the NJP, the applicant must prove a  clear legal or factual 
error,  or  a  clear  abuse  of  broad  discretion  by  NJP  authorities  and  that  such  error 

resulted  in  material  prejudice  to  his  substantial  rights.1    The  JAG  stated  that  the 
applicant offered no argument or proof that he was not UA and only alleged that the 
NJP was unfair.  The JAG noted that the applicant admitted that he was UA on October 
13, 2005 from 0730 to 0950.  The JAG argued that based on the applicant's admission, the 
CO was well within his authority to determine the appropriate level of punishment.   
 
 
The JAG attached a memorandum from the Commander, Coast Guard Personnel 
Command  (CGPC)  and  asked  the  Board  to  accept  it  as  part  of  the  Coast  Guard's 
advisory  opinion.    CGPC  stated  that  the  applicant  was  afforded  the  required  due 
process prior to imposing NJP and that the punishment awarded by the CO was within 
the limits of that authorized for officer's in pay grade O-6 (captain).   
 
 
CGPC  stated  that  although  the  applicant  argued  that  the  punishment  was  too 
severe for the offense he committed, the evidence of record clearly established that the 
CO  considered  the  applicant's  extenuating  and  mitigating  circumstances  and  military 
record before imposing punishment.   CGPC noted that since 2001, four negative page 7 
entries  have  been  placed  in  the  applicant's  record  for  UA,  failure  to  report  to  duty, 
financial  irresponsibility,  and  a  NJP  for  violation  of  Article  89  (disrespect  toward  a 
superior  commissioned  officer)  of  the  UCMJ.    CGPC  stated  that  based  upon  the 
applicant's record and the UA, the punishment does not appear to be disproportionate.     
 

APPLICANT'S REPLY TO THE VIEWS OF THE COAST GUARD 

On  September  1,  2006,  the  Chair  sent  a  copy  of  the  Coast  Guard  views  to  the 

 
 
applicant for his response.  The Board did not receive a reply from the applicant.   
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  of  fact  and  conclusions  of  law  on  the 
basis of the submissions of the applicant and the Coast Guard, the applicant's military 
record, and applicable law: 
 
 
The application was timely.  
 
 
2.    The  applicant  asked  the  Board  to  remove  the  NJP  from  his  record  on  the 
ground  that  the  punishment  imposed  (reduction  in  rate  to  SK2  and  restriction  to  the 

1.  The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  

                                                 
1 Cf. Cochran v. United States, 1 Cl. Ct. 759 (Cl. Ct. 1983), reh. Denied, 3 Cl. Ct. 3 (1983); aff'd 732 F. 2d 168 
(Fed.  Cir  1984  (reviewing  courts  may  only  review  NJP  for  constitutional,  statutory,  or  regulator 
violations,  and  absent  a  strong  preliminary  showing  of  bad  faith,  must  defer  to  the  evidentiary 
determinations and judgment of military authorities.)" 

base for 30 days suspended for three months) for a two-hour UA was unjust and too 
severe for the offense that he committed.  
 
3. Subsection 1.F.1.a. (1) of the Military Justice Manual defines unjust as denoting 
 
illegality.  The applicant has failed to submit any evidence that the NJP was illegal.  In 
this regard, he has presented nothing showing that the CO did not have the authority to 
impose punishment or that the punishment imposed exceeded that authorized by the 
Military Justice Manual. In fact, the punishment imposed by the CO was less than that 
permitted  by  Article  1.E.1.a.  of  the  Military  Justice  Manual.    More  importantly,  the 
applicant admitted that he committed the UA offense.  The NJP was not unjust.   
 
 
4.    The  applicant  also  argued  that  the  punishment  was  disproportionate  to  the 
offense.  In this regard, Article 1.F.1.a.(2) states that the term disproportionate "indicates 
that  although  the  punishment  imposed  was  legal,  it  was  excessive  or  too  severe 
considering all of the circumstances, as, e.g., the nature of the misconduct involved, the 
absence  of  aggravating  circumstances,  the  prior  good  record  of  the  member,  or,  any 
other circumstances that tend to lessen the severity of the misconduct or explain it in a 
light more favorable to the member."  
 
 
5.    In  his  statement  to  the  preliminary  investigating  officer,  the  applicant 
explained  the  circumstances  that  led  to  his  late  arrival  to  work  on  October  13,  2005.  
This information was available to the CO as was the applicant's military record.  After 
deliberating the applicant's case, the CO determined that a reduction in rate to SK2 and 
restriction  (suspended  for  three  months)  was  an  appropriate  punishment.    The 
applicant has not presented any evidence to the Board, except for his own argument, 
that  shows  the  CO's  actions  to  be  an  abuse  of  the  discretion  afforded  to  him  under 
Article  15  of  the  UCMJ,  the  Military  Justice  Manual,  and/or  the  Manual  for  Courts-
Martial.  While a two-hour UA may appear to be a minor offense to the applicant, the 
CO, who is responsible for maintaining good order and discipline within the command 
and for imposing punishment when necessary, considered it a more significant offense.  
The Board will not substitute its judgment for that of the CO in the absence of evidence 
that  proves  the  CO  abused  his  authority.    The  applicant  has  not  shown  that  the 
punishment imposed was disproportionate to the misconduct he committed.   
 
 
6.    The  applicant  made  allegations  of  discrimination,  retaliation,  and  prejudice 
but  did  not  submit  any  corroborating  evidence  that  he  was  the  victim  of  such 
prohibited practices.  He has failed to prove this allegation.   
 
 
7.    Likewise,  the  applicant  alleged  that  he  was  not  given  adequate  tools  and 
resources  to  file  an  appeal  because  most  of  his  division  and  the  administrative 
personnel were on Thanksgiving leave.   The applicant did not provide the Board with 
any  evidence  on  how  the  absent  division  and  administrative  personnel  would  have 

8.    Accordingly,  the  Board  finds  that  the  applicant  has  failed  to  prove  that  the 

contributed to his appealing the NJP or why the members who were not on leave could 
not have assisted him with submitting an appeal. 
 
 
Coast Guard committed any error or injustice in his case and it should be denied. 
 
 
9.  The Board notes the Coast Guard's argument that the Board could deny the 
applicant's  request  based  solely  on  his  alleged  failure  to  exhaust  his  administrative 
remedies by appealing the NJP within the five days allotted for him to do so.    Section 
5213(b)  of  the  CFR  states,  "no  application  shall  be  considered  by  the  Board  until  the 
applicant  has  exhausted  all  effective  administrative  remedies  afforded  under  existing 
law or regulations, and such legal remedies as the Board may determine are practical, 
appropriate, and available to the applicant."  This provision  is intended to require an 
applicant to seek relief through other avenues that are available to him prior to filing an 
application with the Board.  The five-day window for appealing the NJP had long ago 
closed  and  therefore  was  not  an  available  remedy  at  the  time  the  applicant  filed  his 
application with the BCMR.  The Coast Guard has presented no law or regulation and 
the Board is aware of none that permits the denial of an application based solely on the 
ground that an applicant failed to avail himself of a past remedy that no longer exists at 
the time of filing his or her BCMR application.   Section 1552 of title 10 of the United 
States  Codes  empowers  the  Secretary  to  correct  any  military  Coast  Guard  record  to 
remove  an  error  or  injustice.      To  emphasize  the  point,  the  Board  does  not  deny 
applications  requesting  upgrades  to  discharges  based  solely  on  the  ground  that  an 
applicant  did  not  seek  relief  from  the  DRB  during  the  fifteen  years  that  remedy  was 
available to him or her.  Likewise, the Board does not deny applications based solely on 
a member's failure to seek relief from the Personnel Records Review Board within its 
one-year  statute  of  limitations.  Therefore,  the  Board  is  not  persuaded  by  the  Coast 
Guard's  suggestion  that  this  applicant's  case  should  be  denied  because  he  failed  to 
appeal the NJP during the five-day period that was available for doing so.  However, 
the failure to appeal an NJP is one factor that the Board may consider in deciding the 
merits of an application.   
 
 

 

ORDER 

The application of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG for the correction 

 

 

                                                             
 

 

 

 

 

 

 

 Bruce D. Burkley 

 

 

 

 

 

 
 
of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 
 

 
 
 

 
 
 

 
 

 
 

 
 

 
 

 

 

 

 

 
 

 

 

 

 

 

 

 

 

 

 
 

 
 
 

 

 

 
 Harold C. Davis, M.D. 

 

 

 

 

 
 George A. Weller