DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-081 
 
xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxx   

 

 
 

FINAL DECISION 

 
 
This  proceeding  was  conducted  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 February 2, 
2007, upon receipt of the completed application, and assigned it to staff member J. Andrews to 
prepare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  October  25,  2007,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, a former boatswain’s mate, third class (BM3; pay grade E-4), asked the 
Board to set aside  non-judicial punishment (NJP) he received at mast under Article 15 of the 
Uniform Code of Military Justice (UCMJ) on September 17, 2001, by removing documentation 
of  the  mast  from  his  record,  including  his  September  17,  2001,  performance  evaluation  and 
attached comments on forms CG-3307 (“Page 7s”).   

 
The  applicant  stated  that  he  received  the  NJP  for  “allegedly  communicating  a  bomb 
threat to gate guards as he was leaving the base.  The misunderstood remark was reported and in 
the  days  following  September  11th  was  taken  seriously.”    After  a  short  investigation,  he  was 
taken to mast and awarded 45 days of extra duty and reduction to E-3, which was suspended and 
never enforced. 

 
The applicant claimed that the gate guard reported that he had “stated in a joking voice ‘I 
just planted the bombs.’”  The guard’s supervisor reported overhearing him say “I planted bombs 
all over the base.”  The applicant told his commanding officer (CO) that what he actually said 
was, “You guys be careful for bombs and all that stuff.” 

 
The applicant submitted the results of a polygraph test administered on August 17, 2006, 
by a licensed polygrapher trained at the Department of Defense Polygraph Institute.  The results, 
he alleged, confirmed that he “did not use the term ‘planted bombs’ in his remark.”  He alleged 

that the polygraph test is the most reliable evidence of his actual statement to the guards, who 
either misunderstood him or did not accurately remember his words when they testified at his 
mast.    Citing  Meier  v.  Department  of  the  Interior,  3  M.S.P.R.  247,  255  (1980),  the  applicant 
stated that polygraph evidence is admissible in administrative proceedings even though Rule 707 
of the Military Rules of Evidence state that “[n]otwithstanding any other provision of law, the 
results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an 
offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into 
evidence.”  He pointed out that polygraph evidence is admissible at Administrative Discharge 
Boards and in Article 32 investigations.  He argued that the Supreme Court’s decision in United 
States v. Scheffer, 523 U.S. 303 (1998), addressed the constitutionality of this rule and not the 
admissibility of polygraphs per se.  Moreover, as the dissent in Scheffer noted, “there are a host 
of  studies  that  place  the  reliability  of  polygraph  test  at  85%  to  90%”  and  some  studies  have 
found accuracy rates to be 90% or better.  Id. at 333 (Stevens, J., dissenting).  In addition, he 
argued that when polygraph tests err, they are more likely to find the innocent guilty than the 
guilty  innocent,  citing  Honts  &  Perry,  Polygraph  Admissibility:  Changes  and  Challenges,  16 
LAW  AND  HUMAN  BEHAVIOR  357,  362  (1992).    The  applicant  further  argued  that  polygraph 
evidence  is  “gain[ing]  increasingly  wide  acceptance  as  a  useful  and  reliable  scientific  tool,” 
citing United States v. Piccinonna, 885 F.2d 1529, 1535 (11th Cir. 1989), and United States v. 
Posado, 57 F.3d 428, 434 (5th Cir. 1995).  In fact, he alleged, some scientists have found that 
“polygraph evidence may be more trustworthy than handwriting analysis, eyewitness testimony 
and, in some cases, even fingerprint identifications,” citing Widacki and Horvath, An Experimen-
tal Investigation of the Relative Validity and Utility of the Polygraph Technique and Three Other 
Common Methods of Criminal Identification, 23 JOURNAL OF FORENSIC SCIENCES 596, 596-600 
(1978). 
 
The applicant argued that because the allegations of the guard conflicted with the allega-
tions of the guard’s supervisor and both contradicted his own statement, the CO erred in finding 
that the preponderance of the evidence showed that he had communicated a bomb threat.  He 
argued that his CO “placed excessive emphasis on the nature of the alleged offense,” failed to 
consider the joking manner with which he was speaking to the guard, and refused to give him the 
benefit of the doubt because of the tense climate that existed just six days after the attacks on 
September  11,  2001.    The  applicant  also  alleged  that  the  accusations  against  him  were  also 
inconsistent  with  his  exemplary  record  and  that  his  CO  should  have  dismissed  the  charges 
against him.  He argued that balancing his reliable polygraph evidence against the inconsistent 
evidence against him about a statement made in a  “joking context,” as  well as his  exemplary 
reputation and record, the Board should find that the NJP was wrongfully administered. 

 
The applicant stated that he was recently denied an internship by the Federal Bureau of 
Investigation  and  “fears  that  in  this  heightened  national  security  environment,  a  simple  mis-
understood  remark  may  foreclose  him  from  responsible  positions  in  the  security  field.”    The 
applicant argued that the NJP should be removed because it is having unintended negative con-
sequences on his civilian employment and because removing the NJP is “just the right thing to 
do” under the Board’s “general equity powers.”  The applicant averred that he was innocent of 
the charge against him and that his punishment at NJP should “shock the sense of justice,” as 
provided in Sawyer v. United States, 18 Cl. Ct. 860 (1989).  He alleged that had the incident 
occurred  now  or  before  September  11,  2001,  he  might  have  been  reprimanded  but  would  not 

have received NJP, and that his career in the law enforcement and security field should not be 
hindered by an “accident of timing.” 

 
 
In support of his allegations, the applicant submitted a copy of a polygraph examination 
report dated August 17, 2006.  The examiner reported that he conducted an examination of the 
applicant 
 

concerning  allegations  that  on  09-13-06  [sic],  as  he  was  leaving  AIRSTA  Xxxxxx,  he  made  a 
bomb threat to the gate guard.  The case facts and other information surrounding the allegation 
were provided to me in conversation with [the applicant’s attorney] prior to the examination. 
 
During the pretest interview, [the applicant] stated he was not completely sure what he said that 
evening.  He agreed that he used the word “bombs,” but he stated he was certain he did not use the 
phrase “planted bombs.”  He stated he had not withheld any information about the language used 
when he was questioned about the matter. 
 
After discussing and reviewing all questions to be asked, charts were collected using the Compari-
son Question Technique (CQT).  The relevant questions and answers on all charts were as follows: 
 
R5.  When you spoke to the gate guard, did you use the phrase “planted bombs”?  Answer:  no 
 
R7.  Did you say to the gate guard that you had planted bombs?  Answer:  no 
 
R10.  Did you use the phrase “planted bombs” when you exited AIRSTA Xxxxxx that evening in 
2001.  Answer:  no 
 
It is my opinion, based on my scoring of the charts, that [the applicant] did not exhibit reactions 
consistent  with  deception  to  any  relevant  question  and  that  he  did  answer  truthfully  about  this 
matter. 

 

deception is less than .01.”   

The  examiner  further  noted  that  there  was  “no  deception  indicated—probability  of 

 
The  applicant  also  submitted  a  statement  dated  August  9,  2006,  from  the  CO  of  the 
TACLET who signed the NJP, performance evaluation, and Page 7s in the applicant’s record.  
He wrote that “[a]part from the unfortunate incident 13 September 2001, which resulted in NJP, I 
do  not  recall  [the  applicant]  specifically  due  to  the  nature  of  TACLET  Xxxxxx’s  frequent 
deployments of law enforcement/security personnel.”  However, because he never vacated the 
suspension of the applicant’s reduction in grade, the CO concluded that the applicant must have 
“conducted himself with the same high standards and performance of duties which would have 
been expected of any member of my command.” 

 
In addition, the applicant submitted a statement from the subsequent CO of the TACLET 
dated  August  14,  2006.    CDR  G  wrote  that  the  applicant  had  served  under  his  command  at 
TACLET Xxxxxx “with great distinction.”  He also wrote that he remembers the incident for 
which the applicant was awarded NJP and that he counseled the applicant about the seriousness 
of the comment.  He stated that the applicant responded positively to his guidance, performed all 
required duties to his standards, and showed no evidence of a lack of judgment.  CDR G wrote 
that “had the incident involving [the applicant] happened on my watch, I would have done the 
same thing.  I would have counseled [him], verbally reprimanded him; or at the most, provided 

him with a letter of caution.  I probably would not have utilized NJP as a means of punishment 
for what was in my opinion, a momentary lapse of judgment.” 
 
 
The  applicant  also  submitted  a  general  letter  of  reference  from  his  congressman,  who 
praised the applicant’s work as an intern helping constituents, as well as his compassion, work 
ethic, and interest in public service. 
 

SUMMARY OF THE RECORD 

 
 
The applicant enlisted in the Coast Guard on June 11, 1998.  The applicant advanced to 
BM3  and  was  eventually  assigned  to  Tactical  Law  Enforcement  Team  (TACLET)  Xxxxxx,  a 
deployable law enforcement team based at Air Station Xxxxxx.  The log of the station’s Opera-
tions Duty Officer (ODO) for Thursday, September 13, 2001, notes that at 5:11 that afternoon, 
“front  gate called in bomb threat.  CDR [S] took call and briefed XO  [the executive officer].  
CDR [S] advised he will brief TACLET CO.  Apparently it was one of his personnel.  Presumed 
to be a joke.”  The log contains no further entries until more than three hours later when some 
barracks were evacuated because of a “suspicious package” that proved to be a member’s tool-
box. 
 

On Friday, September 14, 2001, the XO of the TACLET ordered a chief yeoman to serve 
as a preliminary inquiry officer (PIO) to investigate the alleged bomb threat.  On September 17, 
2001, the PIO reported to the CO that the applicant “knowingly communicated a bomb threat to 
BM1 [A],” who “related the information to the CGAS ODO on duty (CDR [S]).”  The PIO stated 
that  the  applicant  “demonstrated  poor  judgment  and  verbiage  during  a  volatile  situation”  and 
recommended that the charge be disposed of at mast.  The PIO’s report included the following 
statements, although SK3 L’s statement was not mentioned in the narrative of the report or even 
listed as an attachment: 
 
•  SK3 L, to whom the applicant spoke as he drove past the gate on September 13, 2001, wrote 

that while he was standing guard that day the following occurred: 

 

 

As one of the TACLET Xxxxxx members was crossing the gate on his way out of the AIRSTA I 
remember him saying, “I just planted the bombs.”  He said this in a manner and voice that I took 
as joking and he also had both hands moving around in a playful way.  Two other details also led 
me to believe that he was initially joking.  Two XX TACLET members were with me at the gate 
and I thought he might have known them and was making the comment to them.  I had also earlier 
seen the member and his team come off watch in Ft. Lauderdale as they entered the gate, so I fig-
ured he knew the high base security that was in effect.  My watch was run by BM1 [A]; he also 
heard the comments and immediately questioned the statements made by the TACLET Xxxxxx 
member;  he  also  confirmed  that  he  did  not  know  the  member.    He  proceeded  to  inform  XX 
TACLET’s command as well as contact the AIRSTA OOD.  

 
•  BM1 A, who was the supervisor at the gate, wrote that while he was “on security detail … a 
black car exiting the front gate stopped and said ‘I planted bombs all over the base’ and then 
began to laugh.  I was not certain of which unit he was attached to.  I went over to the ODO 
building on the first level and reported the statement this individual made, also reported this 
to my OINC.” 

•  CDR  S,  who  was  working  in  the  ODO’s  office  on  September  13,  2001,  stated  that  she 
answered the call from BM1 A that afternoon.  BM1 A told her that a man in a black Honda 
Accord, who had entered the  gate minutes before in a  government van  carrying TACLET 
Xxxxxx personnel, had just passed out of the gate and, before leaving, told BM1 A “that he 
had just planted a bomb.”  BM1 A confirmed that he “was absolutely sure” that the person in 
the Accord was a member of TACLET Xxxxxx.  CDR S called the XO of the air station, who 
advised her to inform the CO of the TACLET and “let him deal with the member.”  There-
fore, she called the TACLET offices but “everyone was gone for the day.” 

 
•  After  being  advised  of  his  right  to  remain  silent  and  to  consult  an  attorney,  the  applicant 

waived those rights and signed the following statement: 

 

 

 

On Friday, September 14, my team was returning from STA xxxxxxxxxxx to TACLET offices.  
While in route, we stopped at the gate and had our ID’s checked by XX personnel who were parts 
of security.  We said “hey” and asked if anything was going on or was it all quiet.  After brief 
conversation and salutations we  were on our  way to the office.  I was in the office  for about 5 
minutes  before  starting  my  trip  home.    On  my  way  out  I  decided  to  say  good  bye  to  the  gate 
guards.   I came to a  stop in  front of the  gate  shack, put  my passenger  window down  and said, 
“You guys be careful for bombs and all that stuff.”  I smiled at the guard, he returned the smile; 
we waved hands and I drove off.  The gate guard that I spoke to was a third class petty officer.  
There were other petty officers sitting on a golf car about 10 feet behind me directly in front of the 
shack, but I don’t know if I was heard by them.  What I said to the guard was meant as a way to 
break the ice with some sense of comical relief at the most, and in no way a threat or hoax that 
would endanger the lives of my fellow guardsmen. 

Also on September 17, 2001, the XO informed the applicant that he was being charged 
with two offenses under Article 134 of the UCMJ: (1) committing an offense against a sentinel 
or  lookout  and  (2)  communicating  a  bomb  threat  or  hoax.    The  applicant  was  advised  of  his 
rights and accepted NJP instead of demanding trial by court-martial.  A chief petty officer was 
assigned to serve as his representative at mast. 
 

 
The applicant was taken to mast the same day, September 17, 2001, and awarded NJP for 
communicating a “bomb threat.”  As a result of the NJP, his record contains the following docu-
ments: 

•  A Court Memorandum of NJP states that the applicant made “a threatening statement toward 
the guards at the front gate of AIRSTA Xxxxxx.  As [he] departed AIRSTA Xxxxxx on 13 
SEP, he communicated a bomb threat to the base.”  The memorandum shows that the CO 
awarded him 45 days of extra duty and a reduction to pay grade E-3, which were suspended.   

 
•  A  special  performance  evaluation  dated  September  17,  2001,  contains  significant  lower 
marks than those on his prior and subsequent evaluations, including two low marks of 2 one 
low mark of 3 in the performance categories (a mark of 7 is best), an “unsatisfactory” con-
duct mark, and a mark of “not recommended” for advancement. 

 
•  A Page 7 documents his receipt of the unsatisfactory conduct mark because of the NJP.  
 

•  A second Page 7 documents the termination of his eligibility for a Good Conduct Award and 
also notes his receipt of low marks of 2 in the categories “Communicating” and “Setting an 
Example” on the special performance evaluation.   

 
•  A third Page 7 contains written comments supporting the lowest evaluation marks.  The CO 
wrote  in  support  of  the  mark  of  2  for  “Communicating”  that  the  applicant  “demonstrated 
poor communication skills and poor judgment by stating that he had left ‘bombs throughout 
the base.’  The Coast Guard was in threatcon condition when he relayed the statement to the 
sentinel on duty.  [His] actions were immature and unbecoming of a petty officer.”  In sup-
port of the mark of 2 for “Setting an Example,” the CO wrote that the applicant’s “actions 
during a high security threatcon was irresponsible and intolerable.  [His] behavior affected 
AIRSTA watchstanders and reflected negatively upon TACLET Xxxxxx.” 

 
The applicant was informed of his right to appeal the mast but did not do so.  The appli-
cant’s CO never vacated the suspension, so the extra work and reduction in pay grade were not 
actually enforced.   
 
 
The applicant continued to serve on active duty until May 10, 2004, when he was honora-
bly discharged upon completion of his required active duty service.  He was recommended for 
reenlistment but elected not to reenlist.  During his service, he earned one Good Conduct Medal 
and various unit commendations and other commendations and medals.  Aside from the docu-
mentation concerning the NJP and special evaluation, there are no other negative entries in his 
record. 
 

VIEWS OF THE COAST GUARD 

On June 25, 2007, the Judge Advocate General (JAG) of the Coast Guard recommended 

 
 
that the Board deny relief in this case.   
 

The JAG argued that the Board could deny relief based upon the applicant’s failure to 
appeal the NJP.  The JAG argued that the failure to appeal constituted a failure to exhaust his 
administrative remedies before applying to the Board, and such exhaustion is required under the 
Board’s rules at 33 C.F.R. § 52.13. 

 
Citing  33  C.F.R.  §  52.24  and  Arens  v.  United  States,  969  F.2d  1034,  1037  (Fed.  Cir. 
1992),  the  JAG  further  argued  that  the  applicant  failed  to  overcome  the  presumption  that  in 
awarding him NJP, his CO acted “correctly, lawfully, and in good faith.”  The JAG argued that 
the Board should “recognize that the commanding officer is the official responsible under statute 
and regulation for conducting the proceedings and determining an appropriate punishment” and 
that conducting such masts when members commit minor offenses is how COs preserve disci-
pline within their units and maintain an effective armed force. 
 
 
The JAG alleged that the applicant failed to prove a clear legal or factual error and failed 
to prove that the CO abused his discretion in awarding the NJP.  The JAG pointed out that at 
most, the polygraph examination results show that the applicant himself is certain that he did not 
use the phrase “planted bombs” when he spoke to the sentinel on September 13, 2001.  The JAG 

noted that the examiner’s report shows only how the applicant responded to three questions and 
“is not enough to remove the NJP from [his] record.”  The JAG alleged that without the complete 
report “it is impossible to determine how much weight the Board should lend the results.” 
 
 
The JAG further alleged that it “is undisputed that on 13 September 2001, the applicant 
made  some  sort  of  statement  regarding  bombs  on  the  base,  only  two  days  after  the  terrorist 
attacks of 11 September 2001” and that the guards who heard the statement believed they had a 
duty to report the statement as a bomb threat.  The JAG argued that the preponderance of the 
evidence “supports the finding by the NJP authority.” 
 
 
The JAG stated that because the applicant’s sentence was suspended and the suspension 
was never vacated, he received no punishment for his conduct except the entry of the documents 
in his record.  Moreover, he alleged, the “punishment was entirely proportional to the conduct for 
which it was awarded.” 
 

The applicant argued that the polygraph test is new evidence that his CO did not have and 
so the Board is “able to do a  de novo review of the case.”   Because of  the new evidence, he 
argued, a grant of relief by the Board “would not be a rebuke to the Commanding Officer.” 

 
The applicant argued that the NJP was arbitrary and capricious in light of his outstanding 
record  and an overreaction on the part of the CO.  He argued that CDR G’s recent statement 
proves that “there was at least a difference in opinion as to how the incident should have been 
handled.”  The applicant also pointed out that only one guard—the supervisor of the guard who 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On July 22, 2007, the applicant responded to the views of the Coast Guard.   The appli-
cant stated that he did not appeal the NJP but instead accepted it as a loyal member and profes-
sional without questioning authority.  He “had no idea that punishment under Article 15 would 
limit his future career opportunities.”  Therefore, he argued his failure to appeal the NJP should 
be excused.  Moreover, the applicant pointed out that the time for appealing the NJP has long 
since run out and it is no longer available to him. 
 
 
Regarding the polygraph test, the applicant submitted a chart showing his rate of respira-
tion and pulse in response to several questions.  In addition to the three questions discussed in the 
examiner’s report (R5, R7, and R10), the chart shows that the following questions were asked, 
though the questions are not shown in their entirety and the applicant’s answers are not shown:   
 
•  Do you remember exactly what you said [missing end of question]? 
•  Have you tried to unduly influence the [missing end of question]? 
•  Have you ever used a telephone to call a [missing end of question]? 
•  Have you ever threatened a friend or [missing end of question]? 
•  Have you ever taken a polygram? 
•  Re:  the exact words you spoke to the [missing end of question]?  
•  Do you understand and agree that the [missing end of question]? 
 

actually spoke with the applicant—felt that a report was necessary as the guard who spoke with 
the applicant clearly took his words as a joke. 
 
 
Moreover, the applicant argued, even if there was sufficient evidence to impose NJP in 
2001, the Board has broad equitable powers to consider the NJP in light of the new evidence 
from the polygraph test.  He argued that it was wrong for the JAG to ignore the impact of the 
NJP on his career.   The applicant argued that his rejection  as an intern  for the  FBI is a clear 
injustice “that cannot be undone unless this NJP is set aside.”  He argued that the unintended 
repercussions of the NJP “shock the sense of justice” as his ability to serve his country in the 
field of law enforcement and security has been severely limited. 
 

APPLICABLE LAW 

 
 
 
Part V-1 of the Manual for Courts-Martial (MCM) states that NJP under Article 15 of the 
UCMJ “is a disciplinary measure more serious than the administrative corrective measures … 
but less serious than trial by court-martial,” which “provides commanders with an essential and 
prompt  means  of  maintaining  good  order  and  discipline  and  also  promotes  positive  behavior 
changes in servicemembers without the stigma of a court-martial conviction.”  Each CO exer-
cises personal discretion in considering cases for disposition under Article 15 and in determining 
sentences.  NJP is normally reserved for minor offenses, but the “decision whether an offense is 
‘minor’ is a matter of discretion for the commander.”  MCM, Part V-1; see Coast Guard Military 
Justice Manual (MJM), Chap. 1.A.5.  Unless the accused is attached to or embarked on a vessel, 
he or she may refuse NJP.  MCM, Part V-2; MJM, Chap. 1.B.5.   
 

At mast, the member is entitled to representation by a spokesperson and to present evi-
dence and witnesses.  MJM, Chap. 1.C.  The standard of proof is the preponderance of the evi-
dence.  MJM, Chap. 1.D.1.f.  The maximum NJP a CO may impose at mast includes correctional 
custody for not more than 30 days; forfeiture of not more than one-half of one month’s pay per 
month for two months; reduction in grade; extra duties for not more than 45 consecutive days; 
and restriction to specified limits (geographical) for not more than 60 consecutive days. MCM, 
Part V-5; MJM, Chap. 1.E.1.c.  Any member may appeal his NJP to a superior authority within 
five days of the mast, and the superior authority must refer the case to a judge advocate for con-
sideration and advice before acting on the appeal. MCM, Part V-8; MJM, Chap. 1.F. 
 

Military Rule of Evidence 707 provides that “the results of a polygraph examination, the 
opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of 
a polygraph examination, shall not be admitted into evidence.”  However, the Military Rules of 
Evidence do not apply during mast proceedings. MJM, Chap. 1.D.1.g.   

 
Under Article 134 of the UCMJ, it is an offense to communicate a bomb threat or hoax.  

Part IV-121 of the MCM lists the elements of a “bomb threat” as follows: 

 
(a)  That the accused communicated certain language;  
(b)  That the language communicated amounted to a threat;  
(c)  That the harm threatened was to be done by means of an explosive;  
(d)  That the communication was wrongful; and  
(e)  That, under the circumstances, the conduct of the accused was to the prejudice of good order 
and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.   

 
Part IV-121 of the MCM lists the elements of a “bomb hoax” as follows:  
 
(a)  That the accused communicated or conveyed certain information;  
(b)  That the language or information concerned an attempt being made or to be made by means of 
an  explosive  to  unlawfully  kill,  injure,  or  intimidate  a  person  or  to  unlawfully  damage  or 
destroy certain property;  

(c)  That the information communicated by the accused was false and that the accused then knew 

it was false;  

(d)  That the communication of the information by the accused was malicious; and  
(e)  That, under the circumstances, the conduct was to the prejudice of good order and discipline 

in the armed forces or was of a nature to bring discredit upon the armed forces. 

 
The explanatory notes in paragraph 109 at Part IV-121 of the MCM state that for these 

offenses: 
 
A “threat” is an expressed present determination or intent to kill, injure, or intimidate a person or 
to damage or destroy certain property presently or in the future.  Proof that the accused actually 
intended to kill, injure, intimidate, damage, or destroy is not required.  See also paragraph 110. 
 
A  communication  is  “malicious”  if  the  accused  believed  that  the  information  would  probably 
interfere with the peaceful use of the building, vehicle, aircraft, or other property concerned, or 
would cause fear or concern to one or more persons. 

Paragraph 110 at Part IV-122 of the MCM, which concerns the offense of communicating 

 
 
a threat (which does not involve an explosive), states that the following regarding threats: 
 

To establish the threat it is not necessary that the accused actually intended to do the injury threat-
ened.  However, a declaration made under circumstances which reveal it to be in jest or for an in-
nocent or legitimate purpose, or which contradict the expressed intent to commit the act, does not 
constitute this offense.  Nor is the offense committed by the mere statement of intent to commit an 
unlawful act not involving injury to another.  See also paragraph 109 concerning bomb threat. 

 

1. 

 
2. 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

 
 
submissions, the Coast Guard's submissions, and applicable law: 
 

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

The application was timely.1  

 
 The JAG argued that the Board should consider the matter waived and deny relief 
because the applicant did not appeal his NJP.  The Board’s rules at 33 C.F.R. § 52.13 do require 
applicants to exhaust available administrative and legal remedies prior to applying.  However, as 
the right to appeal NJP is limited to five days, the remedy is no longer available to the applicant.  
Under 10 U.S.C. § 1552(b), Congress provided a three-year statute of limitations for members to 
seek  correction  of  their  military  records,  including  records  of  NJP,  and  the  Board’s  policy  in 
                                                 
1 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that section 205 of the Soldiers’ and Sailors’ Civil 
Relief Act of 1940 “tolls the BCMR’s limitations period during a servicemember’s period of active duty”). 

such cases is to consider an applicant’s failure to avail himself of an expired right to appeal not 
as a waiver of the right to seek correction of the record but as evidence of his state of mind with 
respect to the action taken against him at that time. 
 

The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair,  acting 
pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case with-
out a hearing.  The Board concurs in that recommendation. 

The applicant alleged that at mast his CO erroneously found that the preponder-
ance of the evidence showed that he had communicated a bomb threat.  He argued that his own 
testimony and his exemplary performance record were sufficient to outweigh the guards’ state-
ments that he had indicated to them that he had put bombs in or around the base.  He argued that 
the statements of the guards should be considered unreliable because one, BM1 A, accused him 
of saying, “I planted bombs all over the base,” while the other, SK3 L, wrote that he said, “I just 
planted the bombs.”  The Board finds that despite the difference in the guards’ reports about the 
applicant’s words at the gate, there was sufficient evidence for his CO to find that the preponder-
ance of the evidence indicated that the applicant had told the guards that he had planted or in 
some other fashion placed bombs in or around the base. 

3. 

 
4. 

 
5. 

 
6. 

The applicant alleged that his CO erred in finding that he had communicated a 
“bomb threat” in violation of Article 134 of the UCMJ because he was joking and the guards 
knew  he  was  joking.    SK3  L  wrote  that  he  understood  the  applicant’s  statement  to  be  a  joke 
because  of  his  manner,  tone  of  voice,  and  playful  gestures;  because  SK3  L  knew  he  was  a 
TACLET member and thought he was talking to two other TACLET members who were stand-
ing nearby; and because the applicant had just entered the gate a few minutes before with other 
TACLET members and knew the level of security in effect.  BM1 A stated that the applicant 
began laughing after he spoke, but BM1 A reported his words to the ODO anyway.  The ODO’s 
log shows that that office did not react to BM1 A’s report as if there were any potential danger, 
and the log states that the applicant’s statement was “presumed to be a joke.”  It is not clear from 
the report of the investigation whether BM1 A reported the applicant’s conduct because he actu-
ally felt that there might be a threat or because he felt it was his duty to inform his superiors of 
the applicant’s irresponsible joke.   

The applicant was originally charged with communicating a bomb threat or bomb 
hoax.    Because  there  were  no  bombs  and  the  applicant  was  clearly  joking,  communicating  a 
bomb hoax would seem to be the most apt charge since the lack of any explosive device is an 
element of that offense.  However, maliciousness is an element of a bomb hoax,2 and there is no 
evidence of malicious intent in the record.3  Instead, the CO found that the applicant’s conduct 
met the elements of a “bomb threat,” and so one question before the Board is whether a state-
ment about having planted bombs that is intended and understood by at least one witness to be a 
joke meets the elements of a “bomb threat” under Article 134 of the UCMJ.  Those elements are 
                                                 
2 MCM, Part IV-121, para. 109. 
3 But see United States v. Pugh, 28 M.J. 71 (C.M.A. 1989) (holding that a practical joke involving a fake bomb on 
the window ledge of the guard booth met the requirement of “maliciousness” because the security guard became 
concerned and pressed a “duress button,” even though the fake bomb was pointed out to him by a servicemember 
whom he knew to be a practical joker). 

 
7. 

(a)  that  the  accused  communicated  certain  language;  (b)  that  the  language  communicated 
amounted to a threat; (c) that the harm threatened was to be done by means of an explosive; (d) 
that the communication was wrongful; and (e) that, under the circumstances, the conduct of the 
accused was to the prejudice of good order and discipline in the armed forces or was of a nature 
to bring discredit upon the armed forces. 

The explanatory note for the offense of “bomb threat” under paragraph 109 at Part 
IV-121 in the MCM states that the Government need not show that the accused actually intended 
to destroy anything but also directs one to the explanatory note for a “threat” under paragraph 
110,  which  states  that  “[t]o  establish  the  threat  it  is  not  necessary  that  the  accused  actually 
intended to do the injury threatened.  However, a declaration made under circumstances which 
reveal it to be in jest … or which contradict the expressed intent to commit the act, does not con-
stitute this offense.”  Both military and civilian courts have long held that whether a threat is 
communicated depends not only upon the accused’s intent but also on the surrounding circum-
stances and the understanding of and effect on whoever hears the alleged threat, assuming the 
hearer is an ordinary and reasonable person.4  A jest may be a threat if the hearer’s reaction is 
foreseeable given particularly sensitive circumstances.5  A jest may be a threat even if the joker 
states that he is joking, especially if the joker is not personally known to the hearer.6 
                                                 
4  United  States  v.  Schnable, 65  M.J. 566,  571  (2006)  (noting  that  a  “comment  made  under  circumstances  which 
indicate  it  was  made  in  jest  or  for  an  innocent  or  legitimate  purpose,  or  which  contradicts  the  express  intent  to 
commit the act is not an offense. …  In evaluating whether a threat exists, we view the evidence from the viewpoint 
of a reasonable man”); United States v. Gilluly, 32 C.M.R. 458, 461 (1963) (noting that a “statement may declare an 
intention to injure and thereby ostensibly establish this element of the offense, but the declarant’s true intention, the 
understanding of the persons to whom the statement is communicated, and the surrounding circumstances may so 
belie or contradict the language of the declaration as to reveal it to be a mere jest or idle banter”); United States v. 
Whiffen, 121 F.3d 18, 20-21 (1st Cir. 1997) (noting that under “a general intent standard, whether a communication 
is a ‘true threat’ is determined objectively from all the surrounding facts and circumstances, rather than from the 
defendant’s  subjective  purpose.  …  In  determining  what  constitutes  a  ‘true  threat,’  the  Fulmer  panel  found  the 
governing  standard  to  be  ‘whether  [the  defendant]  should  have  reasonably  foreseen  that  the  statement  he  uttered 
would be taken as a threat by those to whom it is made. [United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 
1997).]  This test takes into consideration the context in which the remark  was  made and avoids the risk that an 
otherwise innocuous statement might become a threat if directed at an unusually sensitive listener”); United States v. 
Cothran,  286  F.3d 173,  176 (3rd  Cir.  2002)  (noting  that  the  “question  is  whether  an  ordinary,  reasonable  person 
would  view  the  language  as  a  threat.  [United  States  v.  Malik,  16  F.3d  45,  49  (2nd  Cir.  1994).]    Another  way  of 
looking at this test is asking  whether Cothran should have reasonably  foreseen that the airline industry  is highly 
sensitive to bomb threats and that his statement would be taken as a threat by the U.S. Air reservationist.  [Citation 
omitted.]  In determining whether something is a threat, ‘proof of the effect of the alleged threat upon the addressee 
is highly relevant.’” [Malik, at 49.]). 
5 See Cothran, at 176; see also United States v. Silver, 196 F. Supp. 677, 678 (E.D. Pa. 1961) (noting that “[t]here is 
no doubt that the statement that he had a bomb in his brief case was made in jest, but the peculiar sense of humor 
attributable to this defendant does not lessen the seriousness of the legal consequences of his acts”). 
6 See Cothran, at 176; Roy v. United States, 416 F.2d 874, 878 (9th Cir. 1969) (holding that the “allegation that the 
threat was made as a joke is therefore relevant to the issue of whether a threat was knowingly and willfully made, 
and  it  is  to  be  considered  by  the  trier  of  fact  in  light  of  all  the  circumstances.    Here  there  was  a  conflict  in  the 
testimony as to whether Roy later told the telephone operator that the threat was a joke. But even if we assume for 
the purpose of argument that Roy later told the operator that the threat was a joke, one could not reasonably expect 
that this would eradicate the apprehension created by the first call.  The telephone operator was not acquainted with 
the anonymous caller and she was not talking to him face to face; she had no reliable way to determine whether the 
anonymous  caller  was  joking.    The  later  statement  that  the  threat  was  a  joke  would  therefore  not  necessarily 
eliminate the mischief created”). 

The applicant is in essence asking the Board to second-guess his CO, who was the 
designated trier of fact under Article 15 of the UCMJ.  Presumably, the CO had before him all of 
the statements in the report of the investigation,7 as well as the oral testimony of the applicant 
and witnesses at mast.  On the basis of this evidence, the CO concluded that the applicant had 
communicated a bomb threat under Article 134.  The record before the Board shows that SK3 L 
thought the applicant’s statement was a joke, that BM1 A heard the applicant laughing after he 
spoke, and that the ODO presumed it was a joke and took no action.  On the other hand, the 
applicant was not personally known to the guards to whom he spoke, and they were in a “high 
security threatcon” status.  The guards were able to report only that they thought he was a mem-
ber of the TACLET team that had recently entered the gate in a Government van and that he was 
driving a black Honda Accord when he said he had planted bombs at the base.  Moreover, the 
applicant did not stay and tell them that he was joking or introduce himself but drove away, so 
they could not quickly confirm his joking intent.  BM1 A felt obligated to report the applicant’s 
statement.  Under these circumstances and realizing that the CO may have heard testimony that 
is not available to the Board, the Board cannot conclude that the CO erred in determining that the 
applicant had communicated a “bomb threat” within the meaning of Article 134 of the UCMJ 
just because at least one guard and the ODO presumed his statement to be a joke.  The CO could 
reasonably have concluded that it was or should have been foreseeable to the applicant that in the 
immediate aftermath of September 11th, an ordinary, reasonable gate guard who did not know 
him personally would feel some concern and report his statement about placing bombs around 
the base as a bomb threat. 

 
8. 

 
9. 

The  applicant  argued  that  he  is  not  asking  the  Board  to  second-guess  the  CO 
because he is presenting evidence of a polygraph test to which the CO did not have access.  He 
argued that the results of the polygraph test cast sufficient doubt on the statements of the guards 
to tip the balance of evidence so that the preponderance of the evidence shows that he did not 
communicate a bomb threat.   In United States  v. Scheffer, 523  U.S. 303 (1998), the Supreme 
Court found that “there is simply no consensus that polygraph evidence is reliable.”8  However, 
even assuming that the applicant’s polygraph test is reliable, the test questions were so narrowly 
focused  that  at  best  the  results  can  be  considered  proof  that  the  applicant  does  not  remember 
using  the  phrase  “planted  bombs”  or  did  not  use  that  exact  phrase  when  speaking  to  the  gate 
guards on September 13, 2001.  Although SK3 L and BM1 A used that phrase when describing 
his statement to the PIO, the Board finds that the test results fail to prove that he did not tell the 
guards that he had in some fashion put a bomb or bombs in or around the military base.  The 
Board notes that the applicant could have, but did not, use the polygraph test to try to prove that 
his statement to the PIO that he said “You guys be careful for bombs and all that stuff” was more 
true to his actual words.  Nor did he use the test to try to prove that his words to the guards did 

                                                 
7 Although SK3 L’s statement was not mentioned by the PIO in his report, it was apparently included in the report 
with the other witnesses’ statements. 
8 United States v. Scheffer, 523 U.S. 303, 309 (1998).  The Court explained that “[t]o this day, the scientific com-
munity remains extremely polarized about the reliability of polygraph techniques.  [Citation omitted.]  Some studies 
have concluded that polygraph tests overall are accurate and reliable.  [Citation omitted.]  Others have found that 
polygraph tests assess truthfulness significantly less accurately -- that scientific field studies suggest the accuracy 
rate of the ‘control question technique’ polygraph is ‘little better than could be obtained by the toss of a coin,’ that 
is, 50 percent.  [Citation omitted.]”  Id. at 309-10. 

not communicate that he had put bombs in or around the base.  The Board finds that the results 
of the polygraph test do not affect the preponderance of the evidence in this case and so do not 
prove that the applicant did not communicate a bomb threat to the gate guards on September 13, 
2001. 

The applicant argued that his joke would not have been considered a bomb threat 
if he had made it at a different time and that he received NJP only because of an “accident of 
timing.”   However, the timing of the applicant’s joke on September 13, 2001, was no accident.  
The terrorism of September 11th and the Coast Guard’s “high security threatcon” status apparent-
ly evoked his joke and presumably affected BM1 A’s reaction to the joke.  The timing made the 
offense more egregious, and the fact that the subsequent CO of the TACLET stated in 2006 that 
he “probably would not have utilized NJP as a means of punishment for what was in my opinion, 
a momentary lapse of judgment” does not persuade the Board that the NJP was an unjust over-
reaction.  Congress authorized NJP under Article 15 to empower COs to enforce “good order and 
discipline” within their units,9 and the applicant has not proved that his CO abused his discretion 
in finding that his conduct merited the NJP and the supporting documentation he received even 
though that conduct was the result of a “momentary lapse of judgment.” 

 
10. 

 
11. 

The applicant alleged that the NJP should be removed from his record because his 
joke is now hampering his civilian career.  He argued that this long-term, unintended impact of 
the NJP “shocks the sense of justice.”10  The applicant alleged but failed to prove that the NJP 
caused  his  application  for  an  internship  with  the  FBI  to  be  rejected.    The  Board  notes  that 
although the guards’ statements in the report of the investigation indicate that the applicant was 
joking, neither the court memorandum nor the Page 7s documenting the NJP show that the appli-
cant was joking and that his “bomb threat” was understood to be a joke.  Because he received 
NJP, which is for minor offenses, and was not discharged or court-martialed, a knowledgeable 
reader  of  the  record  may  infer  that  the  applicant  was  joking.11    However,  the  applicant  is  in 
possession of the report of the investigation and, if he believes a potential employer may learn of 
the NJP, may show the employer that his “bomb threat” was understood to be a joke. 

 
12.   Accordingly, the applicant’s request should be denied because he has not proved 
by a preponderance of the evidence that the NJP and corresponding performance evaluation and 
Page 7s in his record are erroneous or unjust. 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

                                                 
9  See generally MCM Part V-1, para. 1. 
10  According to Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989), rev’d on other grounds, 930 F.2d 1577, and 
Reale  v.  United  States,  208  Ct.  Cl.  1010,  1011  (1976),  for  purposes  of  the  BCMRs  under  10  U.S.C.  § 1552, 
“injustice” is “treatment by military authorities that shocks the sense of justice.” 
11  The maximum punishment for a bomb threat under Article 134 of the UCMJ is a dishonorable discharge, for-
feiture of all pay and allowances, and confinement for five years.  MCM, Part IV-121, para. 109. 

The  application  of  former  xxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of 

ORDER 

 

 

 
 

 
 

his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Philip B. Busch 

 

 
 
 Jordan S. Fried 

 

 
 
 Eric J. Young