DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for Correction of
the Coast Guard Record of:
BCMR Docket No. 2004-192
xxxxxxxxxxxxxxxxxxx
xxx xx xxxx, xxx/E-7
FINAL DECISION
AUTHOR: Andrews, J.
This is a proceeding under the provisions of section 1552 of title 10 and section
425 of title 14 of the United States Code. It was docketed on September 24, 2004, upon
the BCMR’s receipt of the applicant’s completed application. The Coast Guard submit-
ted an advisory opinion on February 15, 2005, and the applicant was granted a 42-day
extension and responded on April 29, 2005. The applicant’s response was forwarded to
the Coast Guard for consideration on May 2, 2005. On June 21, 2005, the BCMR asked
the Coast Guard to respond in writing to certain factual questions and a legal argument
raised in the applicant’s response to the advisory opinion. The Coast Guard submitted
a supplemental advisory opinion on June 29, 2005, and the applicant responded to it on
July 11, 2005.
members who were designated to serve as the Board in this case.
This final decision, dated July 28, 2005, is signed by the three duly appointed
APPLICANT’S REQUEST AND ALLEGATIONS
The applicant asked the Board to correct his record by removing his officer
evaluation report (OER) for the period April 1, 2001, to January 31, 2002, when he was
serving as a temporary lieutenant junior grade (LTJG). He also asked that his commis-
sion be reinstated and that he be promoted to lieutenant with his peer group and
receive all back pay and allowances.
The applicant stated that his commission was revoked as a result of an improper
imposition of non-judicial punishment (NJP) at mast after he was unjustly accused of
sexual harassment. He stated that on August 22, 2001, he was informed that an e-mail
conversation he was having with a second class petty officer (BM2 Y) “was becoming
uncomfortable and [she] had asked someone to let [him] know.” He alleged that he
immediately apologized to the BM2 “and considered the matter resolved.” However,
he was quickly summoned by the executive officer (XO), who told him that he would be
placed on report for sexual harassment. The applicant alleged that later that day, the
commanding officer (CO) told him, “It doesn’t matter what you have to say, your fate
has already been decided and all I have to do is find the facts to back it up.” Two days
later, he was reassigned from his cutter to a shore unit on temporary active duty (TAD).
The applicant alleged that on September 26, 2001, he met with the lieutenant (not
an attorney) who was appointed to serve as his mast representative. He was advised
that if he admitted to the charges, he would receive a lesser punishment. He alleged
that the next day, he saw the CO and XO and asked if he could have an attorney be his
spokesperson at mast. He alleged that the CO replied that he would not allow an attor-
ney to set foot on the cutter. He alleged that his CO’s decision not to permit him to be
represented by an attorney would only have been correct if the punishment had been
limited to fourteen days of restriction and an oral reprimand.
As a result of the mast on October 1, 2001, the applicant received NJP in the form
of a Punitive Letter of Reprimand. He appealed the NJP on the grounds that his pun-
ishment was disproportionate, but his appeal was denied. On July 25, 2002, he was told
that the Commandant had revoked his temporary commission as of October 25, 2002.
The applicant alleged that the NJP for sexual harassment was unjust because he
made no sexual advances or requests for sexual favors and his comments never affected
anyone’s work performance. He alleged that his comments were limited to one e-mail
conversation with the BM2, to whom he immediately apologized after he heard she felt
uncomfortable. Therefore, he argued, his comments “could not have created an intimi-
dating or hostile work environment.” He argued that he would only have been guilty
of sexual harassment if he had continued with his behavior after being told she felt
uncomfortable. In addition, he argued, his comments did not establish any “quid pro
quo” or pattern of sexual harassment.
The applicant stated that the BM2 never filed a complaint against him. He
alleged that particular comments in the e-mail conversation were “taken out of context
in order to support the charges.” He alleged that he would have been let off with a
warning had his command considered the entire e-mail conversation. Moreover, he
pointed out, during the investigation, his command could find no AIS User Acknowl-
edgement Form regarding computer and email use policy with his signature, even
though the form was used against him during the NJP and resulted in more charges.
The applicant also alleged that he attempted to refuse mast and demand trial by
court-martial but was not allowed to. He argued that he should have been allowed to
refuse mast because by the time the mast occurred, he had been transferred TAD to a
shore unit and did not expect to be returned. He argued that he was unjustly denied his
right to refuse NJP and request court-martial. He submitted no evidence to support his
various allegations. The applicant alleged that he did not learn that his rights had been
violated until almost two years later, in 2004, during conversations with others.
SUMMARY OF THE RECORD
On February 18, xxxx, after completing Officer Candidate School (OCS), the
applicant—then a chief petty officer with almost ten years of military service—signed
an Acceptance and Oath of Office to accept a temporary commission as an ensign. He
was assigned to a cutter as a Deck Watch Officer and his duties included serving as the
Education Services Officer (ESO). A “page 7” entry in his record indicates that on
March 24, 2000, the Code of Conduct was explained to him and the crew of the cutter.
On his first OER, covering his service on the cutter from February 19 to Septem-
ber 30, 2000, the applicant received ten marks for 4, seven marks of 5, and one mark of 6
in the various performance categories1 and a mark of 5 on the Comparison Scale.2 He
was recommended for promotion to LTJG. On his second OER, covering his service on
the cutter through March 31, 2001, he received six marks of 4, ten marks of 5, and two
marks of 6 in the performance categories, a mark of 5 on the Comparison Scale, and his
XO’s recommendation for promotion. The applicant was selected for promotion and
was promoted to LTJG on August 18, 2001.
Charges Against the Applicant
On August 22, 2001, the applicant acknowledged in writing that he had been
charged with these offenses: fraternization (interrelating on terms of military equality;
UCMJ Article 134; four counts), attempts at fraternization (UCMJ Article 80; seven
counts), failure to obey an order or regulation (by soliciting inappropriate interpersonal
relationships and using the email system to do so; UCMJ Article 92; thirteen counts),
dereliction of duty (by committing sexual harassment; UCMJ Article 92; two counts),
and conduct unbecoming an officer (by seeking inappropriate relationships with sub-
ordinates; UCMJ Article 133; seven counts). He was advised that the evidence against
him showed that he had verbally solicited an inappropriate relationship with YN3 B;
had sexually harassed YN3 B and BM2 Y; and had sought inappropriate personal rela-
tionships in email messages to YN3 B and BM2 Y. He was advised that his command
intended to impose NJP and that he was entitled to be accompanied at mast by a mast
representative or spokesperson.
1 Coast Guard officers are evaluated on a scale of 1 to 7 in a variety of performance categories, with 7
being the highest mark.
2 The Comparison Scale is not actually numbered. However, as with the performance categories, there
are seven possible marks. Officers are supposed to be marked in comparison with all other officers of the
same rank known to the reporting officer. A mark in the fifth place means the officer was rated to be a
“distinguished performer; give tough challenging, visible leadership assignments.”
The applicant was also advised in writing of various other rights, including the
right to review all evidence against him, to present evidence and witnesses, and to ques-
tion witnesses against him. In addition, he was advised that the maximum NJP that
could be imposed was an admonition or reprimand and thirty days of restriction and
that he had a right to appeal the NJP. The acknowledgement form that the applicant
signed is specifically for an officer attached to a vessel and so does not include a right to
consult counsel about the NJP or to refuse NJP and demand trial by court-martial. Also
on August 22, 2001, the applicant was sent to work at a shore unit, the Xxxxxxxx Area,
where he served as an anti-terrorism and force protection coordinator.
Following an investigation, on September 25, 2001, the investigator and the XO
recommended that the charges against the applicant be disposed of at mast. The mast
was held on October 1, 2001. A lieutenant served as the applicant’s mast representative.
The evidence gathered by the investigator included the following:
Evidence of BM2 Y
BM2 Y, a crewmember on the cutter, provided the following email messages:
Date
7/28/01 1454 Hello
Time Subject
From
App.
To
BM2 Y
8/16/01 2308 Party
App.
BM2 Y
8/16/01 2349 XXXXX
App.
BM2 Y
8/17/01 1608 RE: Party
8/17/01 1619 RE: Party
8/17/01 2333 RE: Party
BM2 Y
App.
BM2 Y App.
App.
BM2 Y
8/17/01 1616
8/17/01 1923 RE:
8/17/01 2142 RE:
8/18/01 1423 RE:
8/19/01 0254 RE:
8/19/01 1952 …
App.
App.
App.
App.
App.
App.
BM2 Y
BM2 Y
BM2 Y
BM2 Y
BM2 Y
BM2 Y
Message
“Hey Dee, It was great talking to you last night … You
can be my BMOW anytime!!! …”
“Hey Dee, I hope to see you at the wetting down
[promotion] party in XXXX. I haven’t decided on a
location yet, but I’ll let you know when I do. Bob”
“Dee, Let me know if you’re going to a tattoo parlor in
xxxxxx. I want to go with you so I can get some more
work done on one of mine. Bob”
“Which would you prefer … Sports Bar or Hotel Bar?”
“Either would be good, there’s beer at both.”
“Hey D, I just wanted to let you know that I have
decided to have the wetting down party in xxxxxx. I
can get a lot more alcohol for my money. But we can
still party in xxxxxx if you want to.”
“If I tell you something, can you keep it to yourself?”
“I’ve been wanting to ask this for a while now and don’t
quite know how you’ll react to it so I’m kind of
hesitant.”
“True … I’ll ask you next time we’re together and no
one else can hear what we’re saying.”
“D, Ever hear that song……If I said you have a
beautiful body would you hold it against me?”
“D, RDC dared me to say that to you … so tell him he
owes me a beer now.”
“D, Just so you know what started that whole
conversation … I told RDC that I thought you were
attractive and he told me that I didn’t have the balls to
tell you. So I figured that was an easier way to say it.
But I guess that I just came out and told you again.
Anyway … that’s what started it.”
8/21/01 0010 Sometime
RDC
App.
“This is not cool sir, this is my name in print. I have full
confidence in your honor to enlighten those concerned
with the truth.”
will you
explain
this to
me?
8/21/01 1157 RE: [same
as above]
App.
RDC
“Chief, I am so sorry for getting you involved with this
mess. I will straighten this out and yes I will explain it
to you. Again, I hope you can forgive me.”
BM2 Y stated that she had never before had a private conversation with the
applicant, but when he asked her in an email on August 17, 2001, if she could keep a
secret, she responded, “Of course.” When he replied that he was hesitant, she told him
that she did not know how to react because she did not know what he was talking
about. When he said he would tell it to her when they were alone, she decided that he
was hinting at something inappropriate and so stopped responding to his emails. The
next day when he sent her the comment about holding her body against him, she
advised her supervisor about the problem. When the applicant continued sending sug-
gestive emails on the third day, August 19, BM2 Y again informed her supervisor. In
one of the emails, the applicant stated that he had been sending the emails because an
RDC had dared him to. However, when BM2 Y and her supervisor checked with the
RDC, he denied it but said that the applicant had told him that he had used his name
“in vain” and might have gotten him in trouble. The RDC told BM2 Y that the applicant
was just trying to “cover up for the inappropriate emails.” She knew that YN3 B was
having a similar problem with the applicant, and so she took the matter and copies of
the emails to her chief later that day, who passed them on to the XO. BM2 Y further
stated that a Navy petty officer who had been on their last patrol had “also complained
of inappropriate emails from [the applicant] toward the end of the patrol.”
Evidence of YN3 B
YN3 B, another crewmember, stated that the applicant asked her on several occa-
sions if she would go windsurfing with him and made it clear that it “would just be the
two of us.” Even though she always refused, he “would then push the question again.”
YN3 B stated that he asked her to go windsurfing in this way “about 4-5 times each
inport the last few inports.” She stated that she had heard another E-4 “talking about
him asking her several times too and her saying how uncomfortable she would be.”
YN3 B further stated that one time when she had to see him in his stateroom, she
noticed that his porthole was closed and said that, if she had a porthole, she would keep
it open. In response, the applicant “looked at me seductively and said ‘well we can
arrange that,’” with sexual overtones that made her uncomfortable. Finally, YN3 B
stated that on August 16, 2001, when the applicant told her by email that he had a hotel
room reserved and invited her there, she initially misunderstood and thought he was
talking about reserving a room for a party. She provided the following email messages:
Date
8/16/01 0002 Hello
Time Subject
From
App.
To
YN3 B
Message
“Hey [first name], I was wondering if you’re free next
Wednesday night?”
8/16/01 1044 RE: Hello
YN3 B App.
8/16/01 1050 RE: Hello
App.
YN3 B
8/16/01 1100 RE: Hello
8/16/01 1710 RE: Hello
YN3 B App.
App.
YN3 B
8/16/01 1715 RE: Hello
8/16/01 1717 RE: Hello
8/16/01 1718 RE: Hello
8/16/01 1720 RE: Hello
8/16/01 1725 RE: Hello
8/16/01 1727 RE: Hello
YN3 B
YN3 B App.
App.
YN3 B App.
App.
YN3 B App.
App.
YN3 B
YN3 B
8/16/01 1737 RE: Hello
YN3 B App.
8/16/01 1842 RE: Hello
App.
YN3 B
8/16/01 1844 RE: Hello
YN3 B App.
8/16/01 1847 RE: Hello
App.
YN3 B
8/16/01 1849 RE: Hello
8/16/01 2015 RE: Hello
8/17/01 0913 RE: Hello
YN3 B App.
App.
YN3 B App.
YN3 B
“Hi, you’re talking about your party right? Dee and I
both talked about it and we both want to go.”
“That sounds great, I think that I am taking the
Wardroom out for dinner first.. What about later on
afterwards?”
“Just tell us the time and place.”
“I’d love to have both of you there … are we going to
do anything later in the evening?”
“I am going to behave, and you???”
“that depends … I’d rather not.”
“When and Where?????”
“Wednesday evening … I’ve got reservations.”
“To the Hotel Bar?”
“I think we are talking about two different things … The
party will probably be at the Sports Bar. I meant that I
have reservations at the hotel for a room Wednesday
night.”
“I just made a deal with [another crewmate]. I will be
standing his duty. He offered me a deal I couldn’t
refuse.”
“Okay, question …Do you remember anything that you
and I talked about the last time we were in XXXXXX
XXXXXXX?”
“Not a thing. The last thing I remember was sitting at
the bar with my two fisher friends.”
“Okay I see where we’re going separate ways here.
As hard as this is going to be, I will try and forget it
ever happened. … Anyway, you’re not going to be
there at the party now? I was thinking that it might be
better at the Hotel Bar. What do you think? I think it is
a nicer place.”
“The hotel bar is nicer. [omitted text]”
“Well either way, [L], I want to take you out in xxxxx.”
“I have duty the first night, and then I am going to my
cousins and won’t be back until the day we get
underway.”
YN3 B also provided an email conversation in which she was asking the appli-
cant for guidance on how to pass certain tests. When she thanked him for his help, he
responded, “You’re welcome [L], I’ve always been willing to do anything for you I can.
All you have to do is just ask, and give me that look …”
Evidence of QM3 Y
QM3 Y, who was a subordinate in the applicant’s department, stated that the
applicant sometimes asked her what her plans were for the weekend in a way that
made her feel uncomfortable. Also, he would give her looks when they crossed paths
“that would give me chills because it gave me the creepiest feeling.” She stated that on
July 18, 2001, she was walking with an MK3 when the applicant came up and “insisted
that we would join him and go to a karaoke bar.” He told them that he would be upset
if they refused, and he gave them looks that made them feel uncomfortable. QM3 Y
Evidence of PWE
PWE stated that when the XO asked him to find an AIS User Acknowledgement
Form regarding computer and email use policy with the applicant’s signature, he was
unable to do so. “Although all SW III users must read, acknowledge and sign an AIS
form, one could not be found for [the applicant]” or for several other crewmembers.
Statement by the Applicant for the Investigation
On September 19, 2001, after being advised of his Miranda/Tempia rights,
including the right to consult counsel prior to questioning, the applicant signed a state-
ment in which he “emphatically den[ied] any attempt to have an inappropriate rela-
tionship with anyone.” Regarding the incident with QM3 Y and another female crew-
member on July 18, 2001, he stated that he ran into the two women standing with a
group of shipmates and told them that he and some others were going to a bar after
dinner and that “they should stop by later if they didn’t have any other plans.” When
QM3 Y stated that she was under 21, he told her she could get in but would not be
allowed to buy alcohol. The two women agreed to stop by the bar after dinner.
Regarding QM3 Y’s end of course material, the applicant alleged that the only
thing he said after he had told her that she would get the material in about six weeks
was to ask if there were anything else he could do for her. He stated that he asks this of
everyone because he enjoys helping people succeed and had no idea that the question
made her uncomfortable. He would have apologized if he had known.
Regarding YN3 B, the applicant stated that when she found out he liked to wind-
surf, she asked him, “When are you going to take me windsurfing?” He told her that he
“went every weekend and sometimes after work, so if she wanted to go, let me know
and I would bring the gear. I only have two windsurfing boards, so when I told her
that it would just be us going, I assumed it was understood why.” He stated that the
“look” he referred to when she was asking for help in studying for tests was a “lost
puppy” look she gave him every time she asked for something. He stated that when
she commented on his closed porthole and he said, “Well maybe we will be able to
arrange that,” he meant that if she could get into Officer Candidate School, she could
get a stateroom with a porthole of her own.
stated that the emails3 the applicant sent her after she asked him about end of course
material might have seemed harmless if they had come from someone else but made
her uncomfortable in light of her prior experiences with him. She also stated that from
February through July 2001, the applicant had been “flirty” with an E-3 she knew.
3 No copies of these emails are in the record before the Board.
Regarding his discussion of the “wetting down” party with YN3 B, the applicant
stated that when he said he did not want to behave, he simply meant that he wanted to
celebrate his promotion at a bar and that he told her he had a room reserved to indicate
that he would not try to return to the cutter if he had too much to drink. He stated that
when he told YN3 B that he wanted to take her out in Xxxxxx, he “thought it was
understood that [he] meant [he] wanted her to come to the wetting down party with
[him].” Later, he told her that the party was going to be on their second night in
Xxxxxx and that she could bring her cousins because he “would like for her to be at the
party if she could make it.” When she told him she did not know her cousins’ plans, he
dropped the subject and did not mention it again. He stated that he “never meant that
[he] wanted to go out on a date” with YN3 B.
The applicant stated that he told BM2 Y that she could be his BMOW (boat-
swain’s mate of the watch) any time because she had done a good job. He stated that he
asked to accompany her to a tattoo parlor because she had previously mentioned to him
that the tattoo parlors in Xxxxxx were good and cheaper than those in the United States
and because he did not know the city or which tattoo parlor was good. He stated that
he had no intention of having an inappropriate relationship with her.
The applicant stated that when he told BM2 Y that he thought she was attractive,
he said that the RDC had dared him to do so because the RDC “always joked around
with everyone, so I thought by saying he was involved she would realize that I did not
mean anything by it. I told RDC what I had said later that evening and apologized for
getting him involved.” The applicant stated that the next day the RDC told him that
BM2 Y had reported the matter to her supervisor and did not want the applicant “to
talk to her like that again.” The applicant planned to apologize to BM2 Y but was called
into the XO’s office two hours later.
The applicant further stated, “I am profoundly sorry for my actions and wish
that this entire situation had never occurred. I have realized that I may have been too
personal and not professional enough by calling junior personnel by their first name. …
I also know that I crossed the line by what was said to [BM2 Y] and am sorry. I have
also learned a valuable lesson about the way people interpret and perceive what is said
and will never be anything but professional with everyone I deal with from now on.”
He apologized for hurting the crew and his wife and stated that he knew he had “lost
any chance for continuing [his] sea career and … had to re-think [his] future.”
NJP and Appeal
1.
As a result of the mast on October 1, 2001, the applicant’s CO entered a Punitive
Letter of Reprimand in his record with the following text in pertinent part:
In accordance with [UCMJ, Art. 15; MJM, Para. 1.E.2.a.; and Pers. Man., Art. 8.E.2.],
you are hereby reprimanded for your conduct aboard [the cutter during] the period
16 July to 16 August 2001. You behaved in a reproachable manner by your conduct
toward two female crewmembers assigned aboard this cutter. Your behavior consist-
ed of attempts at fraternization, fraternization, failure to obey orders, dereliction of
duty, and conduct unbecoming an officer.
2. You used the cutter’s email system for unauthorized purposes, and initiated and pur-
sued to the point of harassment correspondence with two female crewmembers in a
wholly inappropriate and unprofessional manner. Your actions were not in keeping
with Coast Guard policies dealing with fraternization and the prevention of sexual
harassment. Lastly, your actions brought discredit upon the officer corps of the
United States Coast Guard.
3. You are advised of your right to appeal to … Commander, Xxxxxxxx Area. ...
On October 5, 2001, the applicant submitted an appeal to the NJP. He com-
plained that the “punishment awarded was, under the circumstances, disproportionate
to the acts of misconduct that I committed. While I do not question the seriousness of
the situation and a need for punishment, I respectfully ask that this being my first
offense, my service record and the following statement be taken into consideration as
mitigating factors.” The applicant went on to state that throughout his career—first as
an enlisted member, then as an “A” school instructor, and, following OCS, as the ESO of
the cutter—he had worked with junior enlisted personnel. As the ESO, he stated, he
had tried to make himself “more approachable” and “tried to befriend everyone that I
came in contact with just as I did as an instructor. I became friendly with both male and
female crewmembers so they would feel at ease speaking to me … . I was never given
any guidance to suggest that I may have been crossing the line between the enlisted and
officer corps.” He stated that he had changed his behavior completely after he was
advised of the complaints on August 20, 2001, but was transferred off the cutter too
quickly to prove to his command that he had corrected himself. He stated that he now
clearly understood “where the line is drawn between the enlisted and officer corps and
the need for professionalism over personalism.” He stated that the Punitive Letter of
Reprimand would effectively end his career as an officer and asked that it be replaced
with an Administrative Letter of Censure.
The applicant’s CO forwarded the appeal to the Area Commander with his own
recommendation that it be denied. The CO stated that he sent the applicant ashore
TAD because the evidence persuaded him that the applicant had created a hostile work
environment on the cutter. He stated that the applicant had admitted to all charges at
the mast and should be transferred off the cutter permanently once his appeal was
complete. The CO further stated that the applicant had clearly “crossed the line of
inappropriate relationships” and that his claim that he was never given any guidance to
indicate that he might be crossing the line was not credible. The CO pointed out that
the applicant had received training on the Commandant’s policies regarding interper-
sonal relationships, fraternization, and sexual harassment while assigned to the cutter
and that he presumably also received such training as a petty officer, as an “A” school
instructor, and at OCS.
The CO stated that the applicant’s actions in telling one subordinate that she had
a beautiful body and another that he wanted to take her out constituted not just a “mis-
step” but a “serious violation of the integrity expected of an officer” and a “flagrant dis-
regard for the rules.” The CO indicated that the applicant’s actions were particularly
egregious in light of the fact that both he and one of the subordinates he harassed were
married. The CO stated that although statements are often taken the “wrong way … in
a way not intended by the originator of the remark” and that such matters are normally
resolved satisfactorily at the lowest possible level, the CO could not dismiss the appli-
cant’s remarks “as mere misunderstandings and misinterpretations.” The CO stated
that the applicant’s inappropriate remarks were not those of “an officer innocently try-
ing to make himself more ‘approachable,’” but those of “an officer seeking out someone
who might be interested in his advances. I consider his remarks not innocent but
predatory. As such, an Administrative Letter of Censure doesn’t measure up to the
offenses committed, but a Punitive Letter of Reprimand does.”
On October 26, 2001, the Area Commander denied the applicant’s appeal. He
stated that a military lawyer had concluded that the evidence was sufficient to conclude
that the applicant had committed the charged offenses. The Area Commander stated
that he had reviewed the justness of the charges even though the applicant had not
appealed on that basis. He stated that his review indicated that some of the charges
“could be considered multiplicious under military law and if tried at court-martial
would likely be withdrawn or dismissed. Even after taking this into account, however,
I find that the NJP was justly imposed.” The Area Commander also stated that the
Punitive Letter of Reprimand “was not excessive under the circumstances, and that any
rational person could have come to the same conclusion about the type and quality of
punishment as did your commanding officer.”
Disputed OER
The disputed OER covers the applicant’s service from April 1, 2001, to January
31, 2002. The Punitive Letter of Reprimand is cited in block 2 as an attachment to the
OER. In the OER, the applicant received two marks of 1 for “Workplace Climate” and
“Responsibility,” two marks of 2 for “Judgment” and “Professional Presence,” four
marks of 4, six marks of 5, and four marks of 6 in the performance categories, and an
“Unsatisfactory” mark in the lowest spot on the Comparison Scale. The low marks
were supported by the following comments:
“At CO’s NJP, mbr was found to have committed the offenses of sexual har-
assment & violation of the CG’s human relations policy.”
“Leadership potential now severely limited after finding of commission of
sexual harassment & fraternization.”
“Poor judgment displayed in improper use of email, pursuit of inappropriate
relationships w/ juniors.”
“Unethical behavior displayed in initiating & pursuing inappropriate rela-
tionships w/ junior enl[isted]. Derelict in obligation to not commit sexual har-
assment. Discredited self/USCG thru conduct unbecoming an officer – violated
CG policy on use of email; used email to ask inappropriate questions, solicit
inappropriate interpersonal contact w/ juniors. Improperly addressed junior
enl[isted] by first names in violation of CG policy.”
“[The applicant] is not recommended for promotion to O-3. [He had] great
officer potential … —all of which was cast aside by abuse of position & authority
manifested in sexual harassment. This officer’s leadership ability has been
severely compromised and is of dubious future value to the CG.”
Because the marks of 1 rendered the disputed OER officially “derogatory,” the
applicant was permitted to submit an addendum to it for his record, in accordance with
Article 10.A.4.i. of the Personnel Manual. He submitted an addendum on March 29,
2002, in which he stated the following in pertinent part:
It is my sincere hope that readers of this OER will also take into consideration my 13
years of honorable, unblemished service. I deeply regret the events that gave rise to the
adverse aspects of this OER and I have learned—the hard way—a valuable lesson about
the need to ensure that my future conduct is entirely above reproach. I appreciate the
rating chain’s fairness in including in this OER matter that is favorable and accurately
reflects my performance of duty. … I believe that I can still be a productive member of
the Officer Corps. I am working hard to prove myself worthy of the commission I hold.
The applicant also received a “concurrent OER” from the Xxxxxxxx Area
command covering his work ashore from August 24, 2001, to January 31, 2002. This
OER does not mention any of the events that occurred on the cutter, and the description
of the applicant’s work during the period indicates that it did not involve the cutter.
Revocation of Commission
On May 29, 2002, after being notified that his record was to be reviewed by a
Board of Officers to determine whether his temporary commission should be revoked,
the applicant submitted a letter to a revocation panel at the Coast Guard Personnel
Command (CGPC). He apologized for his conduct and explained that he “became too
friendly with junior personnel, which led to my corresponding with them on a personal
level and eventually led to the inappropriate comments made to them.”
The applicant further stated that under the Personnel Manual, an officer’s com-
mission is to be revoked when he is unable to adapt to military life or when his per-
formance indicates that it is doubtful whether he can be formed into an effective leader.
He stated that neither criterion applied to him. He stated that despite his prior conduct,
he was “still an effective leader” trying to prove himself worthy of retaining his com-
mission. He concluded that should the Board of Officers decide that he did not deserve
a second chance, he would perform his enlisted duties “with the same performance of
duty and moral character that got [him] accepted to Officer Candidate School.”
On June 3, 2002, the applicant’s then current supervisor wrote to the Board of
Officers in his endorsement that the evidence against the applicant is “indicative of a
pattern of inappropriate if not predatory behavior vice a one-time lapse of judgment. It
is particularly troublesome since the members involved were all junior enlisted crew
aboard the [cutter] and [the applicant] is married…. As such, the behavior calls into
question the moral qualifications required of a commissioned officer as described in
Title 14.” The supervisor concluded that although he was happy to have the applicant
as a member of his staff, he agreed with the CO’s assessment that the applicant’s “effec-
tiveness as an officer has been irreparably damaged and he has very limited potential
for future service.”
On June 24, 2002, the Board of Officers met and reviewed the applicant’s record
to determine whether to recommend to the Commandant that his temporary commis-
sion be vacated. The Board of Officers recommended that his commission be vacated.
On July 25, 2002, the Commandant approved the recommendation.
On July 29, 2002, the applicant was informed that his commission would be
vacated as of October 25, 2002. He was advised that he could apply to reenlist by Sep-
tember 9, 2002, and that, if his reenlistment was approved, he would be reenlisted at a
pay grade no lower than the one he held prior to his appointment as a temporary offi-
cer. On October 26, 2002, the applicant was reenlisted. He is currently serving aboard a
different cutter as a chief petty officer.
VIEWS OF THE COAST GUARD
On February 15, 2005, the Judge Advocate General (JAG) of the Coast Guard sub-
mitted an advisory opinion recommending that the Board deny the applicant’s request
for lack of proof and merit.
The JAG stated that the applicant’s command “properly followed [Coast Guard]
regulations” in awarding the applicant NJP and that the collateral consequences of the
NJP—including the disputed OER and the revocation of his temporary commission—
“were carried out properly after affording Applicant all the due process rights to which
he was entitled.”
The JAG stated that under Article 15 of the UCMJ, NJP is a means for COs to deal
with minor violations promptly and administratively and thus preserve discipline
“without the stigma of a court martial (i.e. criminal) conviction.” He argued that in
reviewing any NJP, 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.” The JAG stated that the applicant’s CO had
the opportunity to see both his demeanor and that of the witnesses during the mast and
that the CO’s findings are “therefore entitled to substantial deference.” He stated that
the applicant failed to submit any evidence to overcome the presumption that his CO
acted “correctly, lawfully, and in good faith.” Arens v. United States, 969 F.2d 1034, 1037
(1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979). He further argued that
“[a]bsent proof that the [CO’s] determinations were clearly erroneous, or that a substan-
tial right of Applicant was materially prejudiced by clear procedural error, the [CO’s]
decision should be upheld.” He further argued that even if the applicant proved a pro-
cedural or administrative error, “he would still not be entitled to relief on that basis
alone. Under regulations established by the President, non-compliance with any of the
procedural provisions for imposing non-judicial punishment does not invalidate a
punishment unless the error materially prejudiced a substantial right of the applicant.”
The JAG pointed out that the applicant admitted to committing numerous
offenses under the UCMJ at mast and appealed only the proportionality of his punish-
ment. The JAG argued that because in his appeal of the NJP, the applicant “did not
dispute the legality of the NJP proceeding or the basis for finding he committed the
charged misconduct,” the Board should deem these issues waived “absent proof of
compelling circumstances that prevented the Applicant from raising such issues within
the military justice system.” Moreover, the JAG pointed out, the Area Commander who
reviewed the applicant’s appeal considered sua sponte whether the NJP was unjust and
determined that it was not.
The JAG stated that the applicant’s argument that he did not sexually harass his
subordinates is misplaced because sexual harassment per se is not a violation of the
UCMJ and was not one of the charges at his mast. Therefore, the “assertion of error …
has no application to Applicant’s NJP.” The JAG further stated that although sexual
harassment was not one of the charges at mast, the CO “reasonably characterized
Applicant’s conduct as sexual harassment” in the disputed OER.
The JAG stated that a member has no right to legal counsel at mast. Moreover,
he pointed out, the applicant submitted no evidence to support his allegation that the
CO refused to allow him to be represented by an attorney and did not mention the issue
in his appeal and therefore failed to overcome the presumption of regularity on this
issue. The JAG argued that even assuming arguendo that the CO “did improperly deny
Applicant the right to a spokesperson, this would still not afford Applicant any right to
relief. The right to have a spokesperson is not a material right and a command does not
have to postpone a NJP proceeding to allow for the attendance of a spokesperson. Id.
In accordance with the orders of the President, failure to comply with any of the proce-
dural provisions for NJP proceedings isn’t grounds for invalidating a punishment
unless the error materially prejudiced a substantial right of the servicemember.” Man-
ual for Courts-Martial (MCM), Part V, Para. 1h. The JAG stated that the role of a
spokesperson at mast is “severely limited” and stated that since the applicant admitted
to the charges “[i]t is hard to imagine how the presence of a spokesperson would have
changed the outcome of the NJP.”
Finally, the JAG argued that the applicant’s assertion that he should have had the
right to refuse NJP because he had been transferred from the cutter on TAD at the time
of the mast “is simply false as a matter of law.” See, e.g., St. Clair v. Secretary of Navy, 155
F.3d 848 (7th Cir. 1998); Bennett v. Tarquin, 466 F. Supp. 257 (D. Haw. 1979).
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On February 16, 2005, the BCMR sent the applicant a copy of the Coast Guard’s
views and invited him to respond within 30 days. He requested and was granted a 42-
day extension of the time to respond. His response was received on April 29, 2005.
The applicant argued that the purported purpose of NJP to preserve good order
and discipline by promptly dealing with minor infractions was not fulfilled in his case
since he had been removed from the cutter for 41 days by the time his mast was held.
Moreover, he argued, in Robinson v. Dalton 45, F. Supp. 2d 1 (D.D.C. 1998), the Board for
Correction of Naval Records removed an officer’s letter of reprimand when he was
taken to mast without an opportunity to request court-martial even though he had been
transferred TAD to a shore unit.
Regarding his failure to refute the charges at mast, the applicant alleged that his
mast representative “directed” him to admit to the charges and that he “felt pressured
into not defending” himself. Regarding his request for a spokesperson, the applicant
alleged that it was verbal and that after denying his request, the CO scheduled the mast
for the next day, so the applicant had no time to submit a formal written request.
Finally, the applicant stated that “it was readily apparent before I was ever
placed on report that the [CO] had already determined the outcome of the investigation
against me. After I was assigned [TAD] to a shore unit, the Command held several
‘closed door’ meetings with all females on board the ship to obtain statements against
me. While I understand the need for Commanding Officer’s NJP, there must be some
sense of impartiality and undue influence [sic] on the investigation. Therefore, I feel
that my right to due process was violated by failing to provide me with the opportunity
to consult with my counsel and request courts-martial in lieu of NJP.”
SUPPLEMENTAL ADVISORY OPINION
On June 21, 2005, the BCMR staff asked the Coast Guard to address the following
factual and legal issues raised in the case: (1) what date the applicant received TAD or
permanent transfer (PCS) orders to a new post; (2) whether the applicant continued to
do any work for the cutter after he was removed from it; (3) whether the mast was held
and the Punitive Letter of Reprimand was delivered on the cutter; and (4) whether the
applicant’s circumstances met the criteria for when a military service may deny a mem-
ber the right to refuse NJP and demand trial by court-martial enunciated in United States
v. Edwards, 46 M.J. 41 (C.A.A.F. 1997)—i.e., whether the “vessel exception” applied to
him. The BCMR staff noted that in Edwards, the court indicated that the vessel excep-
tion to the right to refuse NJP and demand court-martial should be interpreted very,
very narrowly so as to apply to only those members who are (a) actually serving aboard
the vessel when the mast (not the misconduct) occurs, (b) in the immediate vicinity and
in the process of boarding the vessel when the mast occurs, or (c) AWOL but attached to
a vessel in a foreign port.4
On June 29, 2005, the JAG responded to the BCMR’s request. The JAG stated that
no orders could be found to show that the applicant transferred TAD from the cutter.
Instead, the JAG alleged, the applicant’s CO received permission from his chain of
command to send the applicant to work at a shore unit “because of the serious nature of
the offenses and the hostile work environment created aboard the [cutter]. … At all
relevant times Applicant was assigned [on a permanent basis] to the [cutter] and
received career sea pay and he was credited with sea duty until permanently reas-
signed.” In support of these allegations, the JAG submitted a copy of the applicant’s
orders dated February 20, 2002, which show that he was transferred on a permanent
basis from the cutter to a shore unit as of March 20, 2002, and copies of the applicant’s
Leave and Earnings Statements, which show that he received sea pay until March 20,
2002. The JAG also submitted an affidavit from the XO of the cutter, who stated that the
applicant was “expedited” off the cutter to maintain good order and discipline and
because three female crewmembers “expressed a credible fear of harassment from him.”
He stated that the applicant returned to the cutter at least twice thereafter, under escort,
either for work or to remove personal items.
The JAG stated that after being sent ashore, the applicant did not work directly
for the cutter. The JAG stated, however, that the mast was held and the Punitive Letter
of Reprimand was awarded to the applicant on board the cutter, as indicated in the
CO’s endorsement of the applicant’s appeal of his NJP.
The JAG argued that the decisions in St. Clair v. Secretary of Navy, 155 F.3d 848
(7th Cir. 1998), and Bennet v. Tarquin, 466 F. Supp. 257 (D. Haw. 1979), support the Coast
Guard’s position that the applicant could be denied the right to refuse NJP because he
had not been transferred TAD, was still permanently assigned to the cutter at the time
of the mast, and was still drawing sea pay. The JAG also pointed out the CO of the cut-
ter was “the sole interest in good order and discipline in this matter because the offense
occurred aboard the vessel and involved members of the crew.” The JAG also argued
that the NJP would have been proper even if the applicant had been assigned TAD
because Coast Guard regulations permit NJP either by the CO of the member’s perma-
nent unit or by the CO of the temporary duty station.
4 United States v. Edwards, 46 M.J. 41, 45 (C.A.A.F. 1997) (hereinafter “Edwards”).
The JAG argued that the decision in Edwards is not directly applicable to this case
because the court in Edwards was deciding whether the NJP should be admissible evi-
dence in another proceedings, not whether the NJP itself was proper. Moreover, the
JAG pointed out, in Edwards, the court looked to the factors analyzed in a previous case,
United States v. Yatchak, 35 M.J. 379 (C.M.A. 1992), to determine the meaning of the
phrase “attached to or embarked on a vessel.” The JAG stated that those factors
included where the mast was held, where the accused was assigned, the operational
status of the vessel, and where the sentence was served. The JAG noted that in Edwards,
the court cited the following as factors relevant in the determination of a member’s rela-
tionship to a vessel: “whether he lived aboard, performed duties aboard, was adminis-
tered [NJP] aboard, or served his punishment aboard.” The JAG argued that because
the applicant was permanently assigned to and physically on the cutter at the time of
the misconduct and the NJP, the “vessel exception” applied to him. The JAG argued
that the fact that the applicant was sent ashore during the investigation because of the
hostile work environment he had created for female enlisted personnel did not mean
that the vessel exception did not apply.
Finally, the JAG stated that the applicant’s NJP “is not relevant to either [his]
OER or the revocation of his commission. [He] engaged in serious misconduct. His
misconduct had three separate consequences—NJP, a derogatory OER, and revocation
of his commission. The derogatory OER and decision to revoke [his] commission are a
direct result of his actions, not his NJP.”
APPLICANT’S RESPONSE TO THE SUPPLEMENTAL ADVISORY OPINION
On July 5, 2005, the JAG’s supplemental advisory opinion was faxed to the appli-
cant. He responded on July 11, 2005. Along with his response, he submitted a copy of
TAD orders showing that on August 23, 2001, he was reassigned TAD “for
approx[imately] 22 days” to a shore unit on August 24, 2001. Initially, while TAD, the
applicant worked on an xxxxxxxxxxxx Instruction, but after September 11, 2001, he
worked on xxxxxxxxxxxxxxxxxx. In September, the XO told him that he was to remain
TAD ashore indefinitely and did not allow him on the cutter except once to remove his
personal effects. On September 30, 2001, the applicant stated, he received a telephone
call ordering him to appear on the cutter the next day at 10:00 a.m. for the mast.
Therefore, he argued, under Edwards, the vessel exception did not apply to him because
he had been working TAD ashore for 39 days when his mast occurred and so none of
the criteria provided in the Edwards decision for when the vessel exception should apply
were met.
The applicant stated that when he received his permanent orders in March 2002,
his unit and duties did not change. Regarding sea pay, he pointed out that according to
the Pay Manual, his eligibility for sea pay should have ended after he was TAD from
the cutter for 30 days. Therefore, he argued, if he continued to receive sea pay, it was
an administrative oversight and irrelevant to this case.
The applicant argued that contrary to the JAG’s statement, his NJP was relevant
to both the derogatory OER and the revocation of his commission. He alleged that he
received the derogatory OER because of the NJP and that it was because of the NJP ref-
erenced in the OER that his commission was revoked. He argued that if the NJP and
derogatory OER had not happened, his commission would not have been revoked.
APPLICABLE LAW
UCMJ
Under Article 134, any officer who fraternizes “on terms of military equality”
with a person the officer knows to be an enlisted member in a way that “violated the
custom” of the officer’s service to the “prejudice of good order and discipline” or that
“was of a nature to bring discredit upon the armed forces” may be charged with frater-
nization. MCM, Part IV, Para. 60. Under Article 80 of the UCMJ, any member who
commits an “act, done with specific intent to commit an offense under [the UCMJ],
amounting to more than mere preparation and tending, even though failing, to effect its
commission” may be charged with attempt. MCM, Part IV, Para. 4.
Article 133 of the UCMJ provides that “conduct unbecoming an officer and gen-
tleman” is any “action or behavior in an official capacity which, in dishonoring or dis-
gracing the officer’s character as a gentleman, or action or behavior in an unofficial or
private capacity which, in dishonoring or disgracing the officer personally, seriously
compromises the person’s standing as an officer. MCM, Part IV, Para. 59.
Article 92 of the UCMJ provides that members who disobey a lawful general
order or regulation or who are derelict in the performance of known duties may be
charged under this article. MCM, Part IV, Para. 16.
Under Article 15 of the UCMJ, commanding officers, at their discretion, may
impose NJP for minor violations of the UCMJ to maintain good order and discipline
when administrative corrective measures seem inadequate and court-martial seems
excessive. MCM, Part V, Para. 1.d.(1). “[E]xcept in the case of a person attached to or
embarked in a vessel, punishment may not be imposed upon any member of the armed
forces under [Article 15] if the member has, before the imposition of [NJP], demanded
trial by court-martial in lieu of [NJP].” 10 U.S.C. § 815(a). “A person is ‘attached to’ or
‘embarked in’ a vessel if, at the time [NJP] is imposed, that person is assigned or
attached to the vessel.” MCM, Part V, Para. 3. If a member exercises his right to
demand trial by court-martial, the NJP is terminated and it “is within the discretion of
the commander whether to forward or refer charges for trial by court-martial. MCM,
Part V, Para. 4.b.(1). However, “[f]ailure to comply with any of the procedural provi-
sions of Part V of this Manual shall not invalidate a punishment imposed under Article
15, unless the error materially prejudiced a substantial right of the servicemember on
whom the punishment was imposed.” MCM, Part V, Para. 1.h.
Military Justice Manual
Chapter 1 of the Military Justice Manual (MJM) contains the Coast Guard’s regu-
lations governing NJP, which is a non-adversarial, administrative procedure that does
not result in a criminal conviction as does a court-martial. Chapter 1.B.4. provides that
members must be given notice of the charges against them and informed of their rights.
Chapter 1.B.5.f. provides that a “member attached to or embarked in a vessel does not
have the right to demand trial by court-martial in lieu of NJP.” Chapter 1.A.4.b. states
that “NJP may be imposed upon TAD personnel by the commanding officer of the
member's permanent unit, or by the commanding officer of the unit to which the mem-
ber is temporarily assigned. A member should not be assigned TAD from a shore unit
to a vessel for the primary purpose of thwarting the member's right to demand trial by
court-martial in lieu of NJP.”
Under Chapters 1.C.3.a. and 1.B.3.b., the XO should appoint an officer of the unit
of the CO conducting the mast to serve as a “mast representative” for the accused.
Under Chapter 1.C.3.a., the role of the mast representative is to “assist the member in
preparing for and presenting his or her side of the matter and to speak for the member, if the
member desires. It is Coast Guard policy that the mast representative may question witnesses,
submit questions to be asked of witnesses, present evidence, and make statements inviting the
commanding officer's attention to those matters he or she feels are important or essential to an
appropriate disposition of the matter.”
Chapter 1.C.1. states that because a mast is not an adversarial proceeding, a member “has
no right to be represented by an attorney at mast.” However, “the member may obtain the
services of an attorney or any other person, at no expense to the government, to appear as his or
her spokesperson.” Chapter 1.C.4.b. states that a spokesperson, “at the member's election,
speaks for him or her at those times during the mast when the member's responses are
invited by the commanding officer. A spokesperson may be anyone, including an
attorney retained by the member.” Chapter 1.C.4.c. states that the CO “may not exclude
the spokesperson from the mast solely because he or she is an attorney.” Chapter
1.C.4.e. provides that a “spokesperson is not permitted to examine or cross-examine witnesses,”
except at the discretion of the CO, but “is always permitted to speak for a member when the
member is otherwise entitled to speak.”
Chapter 1.E. provides that the maximum punishment a captain (O-6) may impose on a
subordinate officer at mast is an admonition or reprimand and 30 days of restriction. Chapter
1.E.2.a. states that a “reprimand is a more severe form of censure than an admonition” and that
the admonition or reprimand of a commissioned officer “must be administered in writing.”
Chapter 1.F.1. provides that a member may appeal an NJP “if he or she considers
the punishment imposed ‘unjust’ or ‘disproportionate’ to the acts of misconduct for
which punished … in writing within 5 calendar days of the imposition of the punish-
ment.” Chapter 1.F.1.a. defines “unjust” to include various kinds of illegality and
denial of rights but does not expressly mention an erroneously denied right to demand
trial by court-martial.
Regulations Concerning Personal Relationships and Sexual Harassment
Article 8.H. of the Personnel Manual concerns inappropriate relationships among
Coast Guard personnel. Article 8.H.1.c. states that “[p]rofessional interpersonal rela-
tionships always acknowledge military rank and reinforce respect for authority.” Arti-
cle 8.H.2.c., entitled “Acceptable Personal Relationships,” states that “Service custom
recognizes that personal relationships, regardless of gender, are acceptable provided
they do not, either in actuality or in appearance: 1. Jeopardize the members' impartial-
ity, 2. Undermine the respect for authority inherent in a member's rank or position, 3.
Result in members improperly using the relationship for personal gain or favor, or 4.
Violate a punitive article of the UCMJ.” Article 8.I.2.b. states that in response to sexual
harassment, COs may avail themselves of discrimination complaint processes, adminis-
trative processes and UCMJ provisions. These actions are not mutually exclusive and
two or all three of them may be pursued simultaneously.”
Chapter 1 of the Coast Guard Equal Opportunity Program Manual (COMDT-
INST 5350.4), issued in March 1999, requires annual training on sexual harassment for
all members. Enclosure 1 to Chapter 1 provides the Commandant’s Sexual Harassment
Policy Statement and states that sexual harassment “includes unwelcome sexual
advances, requests for sexual favors and other verbal or physical conduct of a sexual
nature that is made a condition of employment, affects employee decisions, unreason-
ably interferes with work performance or creates an intimidating or hostile work envi-
ronment. … Every Commanding Officer … must hold accountable those who commit
sexual harassment and take immediate corrective action.” Enclosure 18 to Chapter 5
provides examples of offenses of sexual harassment, including making offensive
remarks about appearance, body, or sexual activities; body language, staring, leering, or
ogling that makes one feel uncomfortable; attempts to establish a sexual relationship;
and making continual requests for dates even though the respondent says “no.”
Officer Evaluation Reports
Article 10.A.4.c.4. of the Personnel Manual instructs supervisors to assign marks
and write comments for the first thirteen performance categories on an OER as follows
(nearly identical instructions appear in Article 10.A.4.c.7. for reporting officers, who
complete the rest of the OER):
b. For each evaluation area, the Supervisor shall review the Reported-on Officer's per-
formance and qualities observed and noted during the reporting period. Then, for each
of the performance dimensions, the Supervisor shall carefully read the standards and
compare the Reported-on Officer's performance to the level of performance described by
the standards. … After determining which block best describes the Reported-on Officer's
performance and qualities during the marking period, the Supervisor fills in the appro-
priate circle on the form in ink.
• • •
d. In the "comments" block following each evaluation area, the Supervisor shall include
comments citing specific aspects of the Reported-on Officer's performance and behavior
for each mark that deviates from a four. The Supervisor shall draw on his or her observa-
tions, those of any secondary supervisors, and other information accumulated during the
reporting period.
Article 10.A.4.f.1. prohibits a rating chain from mentioning that an “officer’s con-
duct is the subject of a judicial, administrative, or investigative proceeding, including
criminal and non-judicial punishment proceedings under the Uniform Code of Military
Justice, … except as provided in Article 10.A.3.c. … These restrictions do not preclude
comments on the conduct that is the subject of the proceeding. They only prohibit refer-
ence to the proceeding itself.”
Article 10.A.4.c.8.a. instructs the Reporting Officer to complete the Comparison
Scale on an OER by filling in the circle that most accurately reflects his or her ranking of
the Reported-on Officer in comparison to all other officers of the same grade whom the
Reporting Officer has known.
Article 10.A.4.h. states that any OER which contains a numerical mark of 1 in any
performance category or an “unsatisfactory” mark on the Comparison Scale is deemed
“derogatory.” When derogatory OERs are prepared, the reported-on officers must have
an opportunity to prepare an addendum to the OER “to explain the failure or provide
their views of the performance in question.” The rating chain members must endorse
the addendum by signature and may address the addendum in a written attachment.
Regulations Regarding Vacation of Temporary Commission
Article 12.A.12.b.1. of the Personnel Manual provides that a CO or a superior in
the chain of command or the Personnel Command may recommend or initiate vacation
of any temporary officer’s appointment “based on adverse information about the offi-
cer.” Article 12.A.11.a. states that “[s]ome officers either are unable to adapt to service
life or their performance indicates it is doubtful whether the time and effort required
will form them into effective officers.” Article 12.A.11.b. provides that a CO or a supe-
rior in the chain of command may recommend revoking the commission of an officer
“based on knowledge of adverse information about the officer.” When this happens,
“the officer concerned [must have] an opportunity to review the recommendation and
… comment as desired by letter endorsement.” Then a panel of senior officers reviews
the officer’s record and makes a recommendation to the Commandant, who may
approve, disapprove, or modify the recommendation.
FINDINGS AND CONCLUSIONS
2.
1.
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C.
The Board makes the following findings and conclusions on the basis of the
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law:
§ 1552. The application was timely.
The applicant argued that because he had been assigned TAD to a shore
unit for several weeks when he was taken to mast/NJP and the Coast Guard had no
intention of allowing him to return to his billet on the cutter, he was erroneously denied
the right provided under 10 U.S.C. § 815(a) (hereinafter “Article 15”) to refuse mast and
demand trial by court-martial in lieu thereof. The form the applicant signed regarding
his rights at mast was a form created specifically for an officer attached to a vessel and
did not include a right to consult counsel about NJP or a right to refuse NJP and
demand court-martial. The JAG has indicated that the applicant was not given the
option of refusing NJP. Therefore, the Board finds that the applicant has proved that he
was not given the right to demand trial by court-martial in lieu of NJP. Whether he
was actually entitled to and erroneously denied that right remains to be answered.
3.
The JAG argued that the Board should consider the issue of whether the
Coast Guard erred in denying the applicant the right to demand trial by court-martial
in lieu of NJP to be waived because the applicant did not appeal his NJP based on this
issue. However, the form the applicant signed in acknowledging his rights at mast
shows that he was not entitled to consult an attorney about his mast rights. Therefore,
it is not clear how he could have known he should appeal the NJP on this basis, even if
he knew that other members under other circumstances had been given this right. Fur-
thermore, Congress provided that members should have at least three years to seek
relief from an error or injustice via the BCMR,5 and section 205 of the Soldiers’ and Sail-
ors’ Civil Relief Act of 1940 “tolls the BCMR’s limitations period during a servicemem-
ber’s period of active duty.”6 Although the Board’s rules do require applicants to
exhaust available administrative and legal remedies prior to applying to the Board,7 the
Coast Guard has limited the right to appeal NJP to within five days of imposition.8
Therefore, the remedy is no longer available to the applicant, and deeming him to have
waived the issue would in effect negate Congress’s determination of how long an active
duty member should have to seek relief from this Board. Moreover, under the circum-
stances of this case, the Board is not persuaded that, without counsel, the applicant can
be considered to have intentionally conceded the right to refuse NJP when submitting
5 10 U.S.C. § 1552(b).
6 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994).
7 33 C.F.R. § 52.13.
8 Military Justice Manual, Chap. 1.F.1.
4.
a.
his appeal. Therefore, the Board finds that the applicant did not waive this issue in
failing to mention it in his appeal.
The JAG argued that denying the applicant the right to refuse NJP was not
an error because of the “vessel exception” in Article 15, which denies members
“attached to or embarked in a vessel” the right to demand trial by court-martial in lieu
of NJP. The JAG argued that the vessel exception applied to the applicant because (a)
the misconduct was committed aboard the cutter and the CO of the cutter was “the sole
interest in good order and discipline in this matter because the offense occurred aboard
the vessel and involved members of the crew”; (b) at the time of the mast, the applicant
was still “assigned or attached to” the cutter, pursuant to Part V, Paragraph 3, of the
Manual for Courts-Martial, since the Coast Guard had not issued transfer orders to
make official that which it had done in fact (reassigning the applicant to work at a shore
unit); and (c) the applicant was brought back on board the cutter to attend the mast.
These arguments are addressed below:
An important purpose of NJP under Article 15 is to enable the CO
of a vessel to maintain “good order and discipline.”9 Therefore, the logic of allowing
the CO of a vessel to exert his “interest”—as the JAG called it—and conduct NJP for
offenses committed aboard the vessel is clear. However, the same interest and logic
would apply to every CO in every military unit whether on a vessel or not, and yet in
Article 15 Congress and the President have given the vast majority of military members
the right to refuse their CO’s NJP and demand trial by court-martial. In enacting the
vessel exception, Congress intended “all military members [to have] a right to demand
trial in lieu of nonjudicial punishment except ‘in some cases where a ship is at sea.’”10
In deciding whether the vessel exception should apply, the law looks not to the mem-
ber’s assignment and location at the time of the misconduct, but to his assignment and
location at the time of the NJP.11 Although the applicant was ordered aboard the cutter
under escort for his mast on October 1, 2001, he had been assigned TAD for more than
five weeks to a shore unit under a different command, which also had authority to offer
him NJP.12 Therefore, whether he had a right to demand trial by court-martial in lieu of
NJP hinged not on where the offenses took place nor on who was his CO when he
committed the offenses but on whether he was still “attached to or embarked in”
(according to UCMJ Article 15) or “assigned or attached to” (according to the Part V,
Para. 3, of the Manual for Courts-Martial) the cutter by October 1, 2001, at which time
he had not worked on the cutter for five weeks. The CO’s interest in punishing the
applicant aboard the cutter without convening a court-martial may not trump the appli-
9 Manual for Courts-Martial, Part V, Para.1.d.(1).
10 Edwards, at 44 (citing 108 CONG. REC. 17,560 (1962)).
11 MCM, Part V, Para. 3; see also Robinson v. Dalton, 45 F. Supp. 2d 1, 2-3 (D.D.C. 1998); St. Clair v. Sec’y of
the Navy, 155 F.3d 848, 853 (7th Cir. 1998); United States v. Edwards, 43 M.J. 619, 621 (N-M.C.C.C.A. 1995),
rev’d on other grounds, Edwards v. United States, 46 M.J. 41, 44 (C.A.A.F. 1998).
12 Military Justice Manual, Chap. 1.A.4.b.
b.
cant’s right to demand trial by court-martial unless he was still “assigned or attached
to” or “embarked in” the cutter within the meaning of the law on October 1, 2001.
The JAG argued that the applicant was still “assigned or attached
to” the cutter on October 1, 2000, because the Coast Guard had not yet issued orders to
transfer him to another unit, even though he had worked at the shore unit for several
weeks and the Coast Guard had no intention of allowing him to return to his billet on
the cutter. The applicant has produced a copy of the TAD orders by which he was
assigned off the cutter on August 24, 2001. According to the record, the TAD orders
were originally issued for “approximately” 22 days, but the XO told the applicant they
were extended indefinitely, and no other orders were issued until February 20, 2002.
The JAG’s argument about orders would allow the Coast Guard to apply the “vessel
exception” to any member who had recently worked on a cutter simply by delaying
issuing the orders that would make official a de facto transfer to a shore unit and by con-
tinuing to pay the member sea pay, contrary to regulation,13 as it did in the applicant’s
case. Moreover, in United States v. Yatchak, 35 M.J. 379 (C.M.A. 1992), the court found
that the respondent was not “attached to or embarked in a vessel” even though he was
a crewmember of the ship.14 Also, in St. Clair v. Secretary of the Navy, 155 F.3d 848 (7th
Cir. 1998), the court concluded that the appellant was “attached to” the vessel, even
though he was confined to barracks ashore, because “the Navy did not reassign him
until January 24, 1992, when it placed him on temporary duty.”15 Therefore, since the
applicant had been reassigned TAD for several weeks at the time of his mast, the fact
that he was officially still a crewmember of the cutter because the Coast Guard did not
issue permanent transfer orders until several months after his removal from the cutter
does not prove per se that he was still attached to the cutter for the purpose of Article 15
by October 1, 2001.
In Edwards v. United States, 46 M.J. 41 (C.A.A.F. 1998), the appellant
had been denied the right to refuse NJP because he was assigned to a ship, even though
the ship was undergoing repairs throughout his tour of duty. The Court of Appeals for
the Armed Forces stated that in extending the right to refuse NJP (which had previously
applied only to members of the Army and Air Force) to the members of the Navy and
Coast Guard, “both Congress and the President intended the ‘vessel exception’ to be
limited to situations such as where service members were [a] aboard a vessel, [b] in the
immediate vicinity and in the process of boarding, or [c] attached to vessels and absent
c.
13 Coast Guard Pay Manual (COMDTINST M7220.29A), Fig. 4-4, Rule 4, states that when a member on sea
duty is assigned ashore TAD, sea pay “accrues for 30 days past the date of the member’s departure.”
Note 4 to Fig. 4-4 states that “sea pay and time terminates at 2400 the 30th actual day the member is
TD/TAD away from the career sea pay eligible vessel or ashore at a mobile unit.”
14 United States v. Yatchak, 35 M.J. 379, 380-81 (C.M.A. 1992). Although the issue in Yatchak was whether
the respondent was “attached to or embarked in a vessel” for purposes of whether he could be confined
on bread and water, this phrase in Article 15(b)(2)(A) has the same meaning as in Article 15(a). Edwards v.
United States, 46 M.J. 41, 43 (C.A.A.F. 1998).
15 St. Clair v. Sec’y of the Navy, 155 F.3d 848, 853 (7th Cir. 1998).
5.
without authority in foreign ports.”16 Likewise, in Yatchak, the court stated that “Con-
gress devised the term, ‘attached to or embarked in a vessel,’ to cover those actually at
sea as well as those in port when their ship is about to depart.”17 None of these circum-
stances applied to the applicant during the five weeks prior to his mast on October 1,
2001. Although the applicant was ordered to and did return to the cutter for his mast
on October 1, 2001, a member who is permanently assigned to a shore unit cannot be
ordered to a cutter just to impose NJP and deny him the right to demand trial by court-
martial in lieu of mast.18 Therefore, although the applicant did not receive permanent
transfer orders for several months, the Board is not persuaded that the vessel exception
applied to him simply because the CO ordered him back to the cutter for the mast.
The JAG argued that the decision in Edwards19 does not directly apply in
this case because the court was not determining the correctness of the NJP itself but was
deciding whether evidence of the NJP was properly used as evidence against the
appellant during the sentencing phase of his trial by court-martial for a later crime.
However, the court in Edwards acknowledged that its jurisdiction “does not extend to
direct review of [NJP] proceedings,”20 but still focused the entire decision not on the
admissibility of evidence but on whether the vessel exception was properly applied to
the appellant given the meaning of the phrase “attached to or embarked in a vessel” as
it was intended by Congress and the President. Furthermore, in Robinson v. Dalton, 45
F. Supp. 2d 1 (D.D.C. 1998), the court found that the delegate of the Secretary of the
Navy had been arbitrary and capricious in failing to consider the limits to the vessel
exception provided in Edwards.21 The delegate in Robinson had refused to reconsider an
application to the Board for Correction of Naval Records (BCNR) to remove a punitive
letter of reprimand received at NJP by the captain of a ship who had been denied the
right to refuse NJP and demand trial by court-martial even though by the time NJP was
imposed, he had been transferred TAD ashore.22 After the court remanded the case to
the BCNR “for a more fully reasoned explanation” in light of the decision in Edwards,23
the Navy agreed “to remove the punitive letter of reprimand and all references to that
letter and the nonjudicial punishment proceeding from Plaintiff’s military personnel
16 Edwards, at 45.
17 Yatchak, at 381 (citing Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of
the House Armed Services Comm., 81st Cong., 1st Sess. 945-46 (1949), reprinted in Index and Legislative
History, Uniform Code of Military Justice (1949)).
18 Military Justice Manual, Chap. 1.A.4.b.
19 In Edwards, the vessel exception had been applied to the appellant at NJP for an unauthorized absence
and for carrying a concealed weapon even though his ship, the U.S.S. Constellation, was undergoing reno-
vation during his tour. Edwards, at 42. The court found that the NJP was incorrectly admitted as evidence
during the sentencing phase of a court-martial for a later crime because the vessel exception should not
have applied to the appellant since the ship was not operational at the time of the NJP. Id. at 45-46.
20 Edwards, at 43.
21 Robinson v. Dalton, 45 F. Supp. 2d 1, 4 (D.D.C. 1998).
22 Id. at 2-3.
23 Id. at 4.
record” and to pay the plaintiff’s attorney’s fees “for the sole purpose of settling this
case and for no other reason.”24
6.
The JAG argued that the applicant was attached to the cutter because in
St. Clair the court found that the Navy properly applied the vessel exception because
the appellant was still “attached to” the vessel at the time of his NJP, even though he
had been restricted to barracks ashore after his arrest.25 However, in St. Clair, the court
based its finding that the appellant was attached to the vessel on the fact that the Navy
did not reassign him TAD until several months after the NJP.26 In the instant case, the
Coast Guard assigned the applicant to a shore unit TAD more than five weeks before
the NJP. Therefore, the Board is not persuaded by the decision in St. Clair that the ves-
sel exception was properly applied to the applicant. Furthermore, the Board notes that
the decision in St. Clair was issued before the Court of Appeals for the Armed Forces
narrowly defined the circumstances under which the vessel exception should be applied
in its decision in Edwards.
7.
The JAG argued that the Board should find that the applicant was
attached to or assigned to the cutter because of the decision in Bennett v. Tarquin, 466 F.
Supp. 257 (D. Haw. 1979), wherein the court found that the Navy properly applied the
vessel exception to crewmembers of a two-crew nuclear submarine who were training
ashore in Hawaii while the other crew was at sea in the submarine near Guam.27 In
Bennett, the court based the decision on (a) the fact that the plaintiffs’ assignment orders
indicated that they were still crewmembers on sea duty and sea pay; (b) as part of the
“off-crew,” they were training for further submarine duty; (c) they were subject to recall
to and expected to return to duty on the submarine; (d) “[a]t no time does the adminis-
tration of discipline over the off-crew fall upon a person other than the Commanding
Officer”; and (e) the interpretation of the legislative history of Article 15 in Jones v. Frud-
den, 4 MIL. L. REP. 2606 (N.D. Cal. 1976).28 However, by the time of his NJP, the appli-
cant had been assigned TAD to a shore unit, was performing no work for the cutter,
was not expected ever to return to duty on the cutter, and was subject to the discipline
of the shore unit command.29 Moreover, the interpretation of the legislative history of
Article 15 in Jones v. Frudden was relied on in the lower court’s decision in United States
24 Robinson v. Danzig, Civ. Act. No. 98-0467 (JR), Settlement Agreement and Mutual Release (D.D.C.
February 26, 1999).
25 St. Clair, at 14.
26 Id. at 15.
27 Bennett v. Tarquin, 466 F. Supp. 257, 259 (D. Haw. 1979).
28 In United States v. Edwards, 43 M.J. 619, 622 (N-M.C.C.C.A. 1995), rev’d, Edwards v. United States, 46 M.J.
41, 44 (C.A.A.F. 1998), the lower court stated that “[t]he District Court [in Jones v. Frudden, 4 MIL. L. REP.
2606 (N.D. Cal. 1976)] considered congressional hearings and floor proceedings and found them not to be
definitive, noting that the measure had not been controversial, and concluded that the broad language
used did not suggest that the exception applied only to ships at sea, or that the ‘unique responsibilities of
the ship’s captain’ are not present even when the ship is in port.”
29 Military Justice Manual, Chap. 1.A.4.b.
v. Edwards, 43 M.J. 619, 622 (N-M.C.C.C.A. 1995),30 and rejected when that decision was
overturned by the Court of Appeals for the Armed Forces in 1998 based on a very dif-
ferent interpretation of the legislative history.31 Furthermore, as with St. Clair, the
Board notes that the decision in Bennett was issued before the Court of Appeals for the
Armed Forces narrowly defined the circumstances under which the vessel exception
should be applied in its decision in Edwards. Therefore, the Board is not persuaded by
the decision in Bennett that the vessel exception was properly applied to the applicant.
8.
In Yatchak, the Court of Military Appeals found that “Congress devised
the term, ‘attached to or embarked in a vessel,’ [in Article 15] to cover those actually at
sea as well as those in port when their ship is about to depart.”32 In St. Clair, the Court
of Appeals for the Seventh Circuit concluded that the appellant was “attached to” the
vessel because “the Navy did not reassign him until January 24, 1992, when it placed
him on temporary duty.”33 In Edwards, the Court of Appeals for the Armed Forces
stated that “both Congress and the President intended the ‘vessel exception’ to be limit-
ed to situations such as where service members were [a] aboard a vessel, [b] in the
immediate vicinity and in the process of boarding, or [c] attached to vessels and absent
without authority in foreign ports.”34 In addition, the court in Edwards held that the
appellant’s relationship to the ship at the time of his NJP depended upon such factors as
“whether he lived aboard, performed duties aboard, was administered [NJP] aboard, or
served his punishment aboard.”35 The record is clear that at the time of his mast, the
applicant had neither lived nor performed duties aboard the cutter for more than five
weeks, he had been assigned TAD to a shore unit, and there was no expectation that he
would ever return to his billet on the cutter. He was ordered back to the cutter just to
attend the mast under escort. The cutter’s CO could issue this order because, in the
absence of permanent transfer orders, the cutter was still the applicant’s permanent
duty station. However, in Yatchak, Edwards, and Robinson, the fact that the plaintiffs/
appellants were permanently assigned to vessels when NJP was imposed was not dis-
positive of the issue of whether they were “attached to” the vessels for the purpose of
the vessel exception. And in St. Clair, the court indicated that TAD orders would have
been sufficient to sever the attachment.36 Therefore, the Board finds that that by Octo-
ber 1, 2001, the applicant was no longer assigned to, attached to, nor embarked on the
cutter for the purposes of Article 15, in accordance with the meaning given those terms
in Yatchak, St. Clair, and Edwards, and he was erroneously denied the right to consult
with counsel concerning NJP and to demand trial by court-martial in lieu of NJP.
30 United States v. Edwards, 43 M.J. 619, 622 (N-M.C.C.C.A. 1995), rev’d, Edwards v. United States, 46 M.J. 41,
44 (C.A.A.F. 1998). See footnote 28, above.
31 Edwards v. United States, 46 M.J. 41, 44-45 (C.A.A.F. 1998).
32 Yatchak, at 381 (citing Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of
the House Armed Services Comm., 81st Cong., 1st Sess. 945-46 (1949), reprinted in Index and Legislative
History, Uniform Code of Military Justice (1949)).
33 St. Clair, at 853.
34 Edwards, at 45.
35 Edwards, at 46.
36 St. Clair, at 853.
9.
10.
The applicant argued that, because he sought and was erroneously denied
the right to demand trial by court-martial in lieu of NJP, the record of the NJP and the
Punitive Letter of Reprimand should be removed from his record. The JAG argued that
a “failure to comply with any of the procedural provisions for NJP proceedings isn’t
grounds for invalidating a punishment unless the error materially prejudiced a substan-
tial right of the servicemember.”37 Although the applicant ultimately pled guilty to the
charges at mast, the Board finds that his right to refuse NJP and demand trial by court-
martial was a substantial right that was materially prejudiced by the Coast Guard.
Accordingly, the record of the NJP, the Punitive Letter of Reprimand that he received as
punishment at NJP, and any other mention of the NJP or Punitive Letter of Reprimand
should be removed from his record.
The applicant alleged that the NJP was unjust because his CO refused to
allow him to use an attorney as his spokesperson at mast and because he was coerced
into pleading guilty at mast. He submitted no evidence to support these allegations.
Moreover, in light of finding 9 above, the Board need not address these issues. For the
same reason, his allegation that he should not have been charged with and found guilty
of misusing the email system at mast since the command could find no user form
regarding Coast Guard email policy with his signature on it need not be addressed.
The applicant alleged that the disputed OER improperly describes his
offenses as “sexual harassment” and should be removed from his record because the
poor marks and comments are based on the unjust NJP. However, he has not proved
that the investigation into his misconduct was erroneous. His rating chain was entitled
to base marks and comments in the OER on the information discovered in the investi-
gation whether or not the NJP occurred.38 Article 8.I.2.b. of the Personnel Manual states
that commands may respond to allegations of sexual harassment with “discrimination
complaint processes, administrative processes and UCMJ provisions. These actions are
not mutually exclusive and two or all three of them may be pursued simultaneously.”
The applicant’s command responded to the emails an enlisted female crewmember
complained about to her supervisor with administrative processes (TAD transfer, inves-
tigation, derogatory OER) and with NJP under Article 15 of the UCMJ.
11.
12.
Enclosure 18 to Chapter 5 of the Equal Opportunity Employment Manual
states that “sexual harassment” may include making offensive remarks about appear-
ance, body, or sexual activities; body language, staring, leering, or ogling that makes
one feel uncomfortable; attempts to establish a sexual relationship; and making contin-
ual requests for dates even though the respondent says “no.” The evidence gathered in
the investigation includes descriptions not only of these sorts of behavior but of a pat-
tern of such behavior by the applicant, which the rating chain reasonably relied on to
37 Manual for Courts-Martial, Part V, Para. 1.h.
38 Coast Guard Personnel Manual (COMDTINST M1000.6A), Arts. 10.A.4.c.4.d., 10.A.4.c.7.d., 10.A.4.f.1.
use the term “sexual harassment” in the OER. Although the applicant now attempts to
retract his guilty pleas and argue that he was not seeking a sexual relationship or creat-
ing an intimidating or hostile work environment, the preponderance of the evidence in
the record shows that he was fishing for a sexual, inappropriate relationship with sub-
ordinate enlisted members of his command. In particular, the Board notes his email
conversation with YN3 B in which he invited her to a party, told her that he’d rather not
“behave” that night, told her that he had a hotel room reserved, and then—even though
he realized that she had quickly maneuvered to ensure she would be on duty the night
of the party so as to avoid his party—pressed the issue by saying that he still wanted to
“take [her] out.” His email conversation with BM2 Y is equally incriminating in that,
after trying unsuccessfully to get her to promise to keep something he wanted to tell her
secret, he sent her the sexual come-on line “If I said you have a beautiful body would
you hold it against me.” In a military environment, such a fishing expedition by an
officer in one’s chain of command for a sexual relationship is fraught with danger for
the enlisted members’ careers as well as for that of the officer. Unlike in most civilian
environments, any subordinate who responded positively to the applicant’s behavior or
who even failed to report his behavior was potentially subject to punishment. In light
of the email conversations and other evidence in the record of sexually loaded com-
ments and body language by the applicant that clearly left some female subordinates
uncomfortable and wary, the Board finds that his rating chain did not commit error or
injustice in describing his conduct in the disputed OER as “sexual harassment” or for
that matter as fraternization, improper use of email, pursuit of inappropriate relation-
ships, unethical behavior, and conduct unbecoming an officer.
The disputed OER refers to the NJP and Punitive Letter of Reprimand in
three places. The Punitive Letter of Reprimand is cited as an attachment in block 2. In
light of finding 9, the reference to the letter should be removed from block 2. In block 5,
the low mark of 1 for the performance category “Workplace Climate” is supported by
the comment, “At CO’s NJP, mbr was found to have committed the offenses of sexual
harassment & violation of the CG’s human relations policy.” In block 7, the applicant’s
reporting officer wrote, “Leadership potential now severely limited after finding of
commission of sexual harassment & fraternization.” As there is ample evidence in the
report of the investigation to support the rating chain’s comments about sexual harass-
ment and fraternization, the Board finds that only the language concerning the NJP,
findings, and offenses must be removed. Therefore, from block 5, the words “At CO’s
NJP, mbr was found to have” and “the offenses of” (which implies criminal charges)
should be removed. These deletions would leave the comment supporting the mark of
1 for “Workplace Climate” as “… committed … sexual harassment & violation of the
CG’s human relations policy.” From block 7, only the words “finding of” need be
removed. The applicant has not proved that any other part of the OER is erroneous or
unjust. Nor is there reason to remove the entire OER as the applicant requested. In
BCMR Docket No. 151-87, the Board held that “an OER will not be ordered expunged
unless the Board finds that the entire report is infected with the errors or injustices
alleged; unless the Board finds that every significant comment in the report is incorrect
13.
14.
or unjust; or unless the Board finds it impossible or impractical to sever the incor-
rect/unjust material from the appropriate material.” In the instant case, the Board finds
that it is both possible and practical to remove the language that refers to the NJP and
the Punitive Letter of Reprimand from the written comments.
The applicant asked the Board to reinstate his commission and promote
him to lieutenant with backpay and allowances. Even if the applicant had never gone
to NJP and there were no NJP or Punitive Letter of Reprimand in his record, however,
the Board of Officers and those who reviewed and approved that board’s recommen-
dation would still have seen the derogatory OER with the details of his misconduct and
condemnatory language from his chain of command. Therefore, the Board is not per-
suaded that in the absence of the NJP and Punitive Letter of Reprimand he would have
been allowed to retain his temporary commission. In his letter dated May 29, 2002, the
applicant argued that under the Article 12.A.11.a. of the Personnel Manual, an officer’s
commission should be revoked only when he is unable to adapt to military life or when
his performance indicates that it is doubtful whether he can be formed into an effective
leader and that neither criterion applied to him given his own assessment of his per-
formance and leadership. However, the derogatory OER contains the same information
as that in the Punitive Letter of Reprimand and ample evidence on which the Board of
Officers and those who reviewed and approved the board’s recommendation could
base their determination that his commission should be revoked under the criteria in
Article 12.A.11.a. The applicant has not proved by a preponderance of the evidence that
the Coast Guard committed any error or injustice in revoking his commission.
15. Accordingly, the applicant’s request should be granted in part by remov-
ing the documentation of the NJP and the Punitive Letter of Reprimand from his record;
by removing the reference to the Punitive Letter of Reprimand from block 2 of the
derogatory OER; by removing the words “At CO’s NJP, mbr was found to have” and
“the offenses of” from block 5; and by removing the words “finding of” from block 7 of
the OER. All other relief should be denied.
The application of xxxxxxxxxxxxxxxxxxx, xxx xx xxxx, USCG, for correction of
The documentation of his NJP on October 1, 2001, and the Punitive Letter of
ORDER
his military record is granted in part as follows:
Reprimand shall be removed from his record.
shall be corrected by
The derogatory OER covering his service from April 1, 2001, to January 31, 2002,
a)
b)
deleting the phrase “Punitive Letter of Reprimand (NJP awarded on
2001/10/01)” from block 2;
deleting the words “At CO’s NJP, mbr was found to have” and “the
offenses of” from block 5; and
deleting the words “finding of” from block 7.
c)
These corrections shall be made to the extant derogatory OER by hand and shall
be made in all paper and electronic copies retained for his Personal Data Record.
No copy of this decision shall be placed in his Personal Data Record.
No other relief is granted.
David Morgan Frost
Patrick B. Kernan
Audrey Roh
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