DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-060 
 
xxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxx 
   

FINAL DECISION 

 

 
 

 

SUMMARY OF THE RECORD 

 
 
The applicant received his commission as an ensign on May 24, 1995.  He received very 
high performance marks as an ensign (primarily marks of 5 and 6 on a scale of 1 to 7, with 7 
being best) and was promoted to lieutenant junior grade on November 24, 1996.  He received 
exceptionally  high  marks  as  a  lieutenant  junior  grade  (primarily  marks  of  6  and  7)  and  was 
repeatedly recommended for accelerated promotion on his officer evaluation reports (OERs).  He 
was promoted to lieutenant on November 24, 1999.  As a lieutenant, the applicant continued to 
receive excellent marks (primarily marks of 5 and 6) in the various performance categories in his 
OERs, as well as his reporting officers’ “highest recommendation” for promotion.   
 

In the summer of 2004, the applicant began serving as the supervisor of a Marine Safety 
Team  geographically  removed  from  the  parent  Marine  Safety  Office.    He  supervised  xx  petty 
officers.  Also in the summer of 2004, his name was included on the list of those selected by the 

This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section 425 of title 14 of the United States Code.  The Chair docketed the case on December 29, 
2006, 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  4,  2007,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST  

 
 
The applicant asked the Board to correct his record “by (1) expunging any and all docu-
mentation referring to the removal of his name from the PY05 [lieutenant commander (LCDR)] 
promotion list; and (2) promoting him pursuant to his selection by the PY05 promotion board 
retroactive to his original promotion date.  The board should also grant such other and further 
relief as may in the circumstances be just and proper.” 
 

PY 2005 LCDR selection board for promotion to LCDR, which list was subsequently approved 
by the President and confirmed by the Senate.1 
 
 
On  January  28,  2005,  a  preliminary  investigation  officer  (PIO)  issued  a  report  of  his 
investigation into the circumstances of the applicant’s computer use.  The unauthorized use had 
been detected by an Electronic Systems Support Unit, which provided a User Activity Log for 
the period November 5, 2004, through January 5, 2005.  The PIO reported the following facts, 
which the applicant forthrightly admitted: 
 

•  On thirteen dates between November 5, 2004, and January 5, 2005, during working 
hours, the applicant connected his personal computer to the Coast Guard Data Network at 
various times to access various internet websites. 

•  At 10:32 a.m. on Tuesday, January 4, 2005, the applicant used his Coast Guard work-
station computer to access for less than a minute a pornographic website that he had heard 
about on a radio program. 

•  During working hours on January 4 and 5, 2005, the applicant connected his personal 
computer to the Coast Guard Data Network “and accessed nine pornographic websites and 
streaming media (radio) on the internet.”  The applicant stated that he had switched from 
using his workstation computer to his personal computer to try to avoid detection. 

 

 

 

The PIO opined that the applicant had violated Article 92 of the UCMJ by failing to obey 
an order or regulation and Article 133 by committing conduct unbecoming an officer and gentle-
man.  He stated that the applicant was forthright and regretful and realized “the stupidity of his 
actions.”  The PIO recommended that the “case be disposed of at mast.”  He noted that enlisted 
members who had committed similar offenses had been awarded non-judicial punishment (NJP) 
“with fines and ranks suspended for 6 months.” 
 
 
tive Letter of Admonition as NJP: 
 

On February 10, 2005, the applicant was taken to mast and awarded the following Puni-

1.  Per references …, you are hereby admonished for your conduct at Marine Safety Team … from 
5 Nov 2004 until 5 Jan 2005.  I have found that your conduct violated Article 133 of the Uniform 
Code of Military Justice. 
 
2.  Your conduct, as described in [the report of the investigation], constitutes conduct unbecoming 
an officer and gentleman.  Specifically, you hooked an unauthorized computer on to the CG Data 
Network and viewed sexually explicit material using the CG Data Network.  You exercised poor 
judgment and your actions were contrary to the Coast Guard Core Values of Honor, Respect, and 
Devotion to Duty.  I will not tolerate this conduct. 

                                                 
1 14 U.S.C. § 271 states that “(a) [w]hen the report of a [selection] board convened to recommend officers for pro-
motion has been approved by the President, the Secretary shall place the names of all officers selected and approved 
on a list of selectees in the order of their seniority on the active duty promotion list. … (b) Officers on the list of 
selectees may be promoted by appointment in the next higher grade to fill vacancies in the authorized active duty 
strength of the grade as determined under section 42 of this title … (e) Appointments of regular officers under this 
section shall be  made by the President, by and  with the advice and consent of the Senate except that advice and 
consent is not required for appointments under this section in the grade of lieutenant (junior grade) or lieutenant. …”  
The regulations corresponding to these statutes appear in Article 5.A.4.g. of the Personnel Manual. 

 
3.  Your misconduct distracted personnel from the xxxxxxxxxxxxxxxxxxxx, Marine Safety Office 
…, and Marine Safety Team …, and consumed valuable time and resources that should have been 
used to effectively accomplish our  missions.  Any further  misconduct on  you part  will  be dealt 
with severely. 
 
4.  You are advised of your right to appeal to RADM …, Commander Xxx Coast Guard District, in 
accordance with Section 1.F. of [the Military Justice Manual]. 

The applicant was removed from the Marine Safety Team and did not appeal the NJP. 

On April 18, 2005, CGPC validated a special OER (SOER) prepared by the applicant’s 
rating chain in accordance with Article 10.A.3.c.1.(a) of the Personnel Manual to document per-
formance “notably different [from] previous period and loss of command confidence.”  The rat-
ing chain included the executive officer of the MSO as the supervisor; the commanding officer 
(CO) of the MSO as reporting officer; and the Commander of the Xxx District Marine Safety 
Division  as  the  reviewer.    The  SOER  noted  that  the  applicant  had  been  awarded  NJP  and 
removed from his primary duty on February 10, 2005.  The Punitive Letter of Admonition was 
attached  to  the  SOER.    In  the  SOER,  the  applicant  received  marks  of  2  for  “Judgment”  and 
“Workplace Climate”; marks of 3 for “Results/Effectiveness,” “Responsibility,” and “Profession-
al Presence”; and a mark in third spot on the comparison scale, which means that, in comparison 
with other lieutenants, the reporting officer rated the applicant as a “fair performer.”  The other 
performance marks on the SOER are mostly 5s and there are many positive comments, but the 
executive officer and CO supported the low marks with the following comments: 
 

 
 
 

 

 

…  Improper  usage  of  CG  computers  resulted  in  NJP/relief,  caused  extra  work/disruption  for 
team/command: to divert scarce qualified individuals fm unit’s departments to fill the Supervisory 
billet, to cover the extensive inspection load, to counsel impacted team members, etc. … 
 
… By choosing to view sexually explicit sites at work, did not consider long/short impacts of his 
personal  decisions  on  unit/crew/self  or  that  such  actions  are  juxtaposed  [sic]  to  intent  of  CG 
human resource policies and Core Values. … 
 
Despite institutionalized warnings, very poor personal decisions led to NJP & relief as Tm Leader, 
but [the applicant] readily took full responsibility for his actions. … 
 
… Personal judgment lapse led to NJP: for “streaming” utilizing CG computer/work time; access-
ing sexually explicit web sites; & hooking personal computer to CG network, a possible security 
threat.  Took responsibility for actions when questioned & had not involved/exposed crew to per-
sonal actions. … 
 
…  NJP/relief  as Team  Leader  drove  his  personal  decisions  and  the  long  range  impact  of  those 
decisions on others, home.  Due to strong past performance & obvious lessons learned during NJP 
proceedings, recommend [the applicant] selection to LCDR be given favorable consideration for 
promotion.    [He]  has  been  temporarily  reassigned  to  xxm  where  he  should  be  able  to  clearly 
demonstrate his continued worth to the CG.  Recommended for future promotion with peers. 

The reviewer attached the following extra comments to the SOER: 

[The applicant] has been TAD to XX(m) as the result of NJP.  Member is very productive and has 
demonstrated superb initiative by coordinating the Compliance Branch’s input to the XX(d) morn-
ing brief, is the property and record administrator, and has involved himself with every aspect of 
day to day Marine Safety functions.  Member is highly motivated and is remorseful for his lapse in 

personal  judgment  that  led  him  to  NJP.    I  recommend  that  member  be  promoted  to  Lieutenant 
Commander as previously scheduled. 

Because the SOER was derogatory, the applicant was entitled to attach an addendum of 

 
 
comments concerning his conduct.  He wrote the following: 
 

I am aware of the performance report and know that I displayed poor judgment during this mark-
ing  period.    Understandably  this  mistake  has  brought  down  my  marks  significantly  during  this 
period but I am confident in my abilities to recover from this, learn from my mistakes and show 
the Coast Guard the high performing officer I’ve been in the past.  I would also like to clarify the 
statement in the attached Letter of Admonition “viewed sexually explicit material using the CG 
Data Network” were specifically on the dates of 04JAN05 and 05JAN05.  I have been counseled 
on the contents of Article 10.A.4.h. of the Coast Guard Personnel Manual. 

 
 
His rating chain’s endorsement to the SOER addendum states that the investigation indi-
cated that the applicant “hooked an unauthorized personal computer on to the CG Data Network 
at  various  times  from  5  November  2004,  until  5  January  2005;  utilized  streaming  media  and 
‘chat’ rooms at various times from 8 December until 26 December 2004; and viewed sexually 
explicit material using the CG Data Network on 4 and 5 January 2005.  The viewing time for the 
sexually explicit material using the CG Data Network was approximately 34 minutes.” 
 
 
On April 28, 2005, CGPC informed the applicant that a special board would be convened 
to recommend whether his name should be removed from the promotion list because information 
had been received that cast doubt on his qualification for promotion.  CGPC advised him that he 
could submit written comments on his own behalf within 21 days of receiving the notification. 
 
 
 

On May 4, 2005, the applicant submitted the following statement to the special board: 

1.  Thank you for allowing me the opportunity to address the special board that has convened to 
determine  whether I should remain on the  Lieutenant Commander promotion list.  I understand 
and appreciate that you must ultimately decide what is best for the Coast Guard.  Regardless of 
your  decision,  I  shall  continue  to  perform  and  contribute  to  the  best  of  abilities.    That  said,  I 
respectfully request you allow me to remain on the promotion list. 
 
2.  First and foremost, I take full responsibility for my actions and I make no excuse for my behav-
ior.    I  understand  that  my  actions  were  not  consistent  with  our  core  values  and  the  behavior 
expected of a Coast Guard officer.  I have tarnished my reputation, adversely impacted my career, 
and  embarrassed  my  family.    I  am  so  sorry  for  the  burden  I  have  placed  upon  my  co-workers, 
superiors  and  the  Coast  Guard.    I  know  by  connecting  my  personal  laptop  to  the  Coast  Guard 
server to listen to the radio, I created a potential security risk.  I also understand that accessing 
inappropriate web sites is against Coast Guard policy, completely inappropriate and downright stu-
pid.  Again, I make no excuse for my lapse of judgment. 
 
3.  As you review my record, I hope you see this incident is clearly an aberration.  I have worked 
extremely  hard  over  the  last  10  years,  establishing  a  reputation  as  a  high  performing  officer.    I 
have always been one who is willing to take calculated risks, shoulder additional responsibilities, 
and  assume  leadership  roles.    It  is  this  performance  and  potential  that  led  to  my  selection  for 
LCDR.  I know this incident has rightfully brought doubt to that selection.  However, I assure you 
I am still that high performing officer today.  This incident has not changed that nor has it lessened 
my commitment to the Coast Guard.  I have been extremely pro-active as a member of the Xxx 
District Marine Safety staff since arriving here three months ago.  I have volunteered to take on 
numerous projects and have consistently provided great results while maintaining a positive atti-
tude and displaying a strong work ethic.  I have received orders to take over the coordination of 

the Incident Command System (ICS) program for Atlantic Area and am looking forward to show-
ing the true high performing officer I am.  The LCDR promotion board recognized that potential.  
I have so much to offer the Coast Guard.  Please allow me the opportunity to prove it. 
 
4.  This incident has made me more knowledgeable and helped me to better understand my short-
comings, all of which has helped me become a better person.  I know that I am far from perfect, 
and am keenly aware that a temporary lapse in judgment can change your life in a second.  With 
that, I believe a true sense of a person’s character is not in the mistakes a person makes in life but 
how one responds to and learns from those mistakes.  I can honestly say that I have become a bet-
ter  officer  and  person  having  gone  through  this  and  will  do  whatever  it  takes  to  prevent  others 
from making the same mistake.  If I can serve as an example to others and reiterate to them the 
consequences of not following the rules, it will somehow make my mistake worthwhile. 
 
5.  Thank you for this opportunity to communicate to you directly.  Again, I am so sorry for what I 
did and I sincerely hope that you consider everything I’ve done throughout my ten-year career as 
well as my future potential to the organization. 

It is the unanimous recommendation of the Board that [the applicant’s] name should remain on the 
PY  2005  list  of  selectees  for  promotion  to  lieutenant  commander.    The  reason  for  this  recom-
mendation is as follows: 
 
[The applicant] showed an egregious lapse in judgment and absolute disregard for the [Comman-
dant’s] core values when he used the Coast Guard network to view sexually explicit materials, and 
used unauthorized websites over a two-month period.  However, his exceptional past performance 

 
 
On May 9, 2005, the CO of the Marine Safety Office endorsed the applicant’s statement 
to  the  special  board  and  recommended  “favorable  consideration  to  retain  [him]  on  the  LCDR 
promotion list.”  The CO wrote that the applicant’s “abilities and ‘can do spirit’ to his credit have 
not faltered since his NJP was conducted.  He went to District and fully engaged right off which 
is not the path that many take after such a significant event.  I believe he has fully accepted his 
actions, learned fully from the consequences and will be a stronger officer for the experience.” 
 
 
Commander, Xxx District Marine Safety Division also endorsed the applicant’s statement 
to the special board and “highly recommend[ed] favorable consideration to retain [him] on the 
Lieutenant Commander promotion list.”  He wrote that during his three months serving on the 
Commander’s staff, the applicant “has proven to be an exemplary officer, highly intelligent and 
has become one of the most productive members on staff.  I completely trust [the applicant] and 
hold  him  in  high  regard.    I  can  say  with  certainty  and  with  nearly  30  years  of  Coast  Guard 
experience, that the Coast Guard is a much better organization having [the applicant] within its 
officer ranks.  If I were able to pick my own staff, [he] would be my first choice.” 
 

On a concurrent OER covering the applicant’s service from February 11 through May 31, 
2005, the applicant received very high marks of 5 and 6 in the various performance categories 
and a mark in the fifth spot, denoting an “excellent performer,” on the comparison scale.  His 
reporting  officer  highly  recommended  him  for  promotion.    Because  the  applicant’s  name  was 
still on the list of selectees from 2004, his record was not reviewed by the LCDR selection board 
that convened in the summer of 2005. 
 
 
On June 7, 2005, a special board of three commanders convened at CGPC to consider 
whether the applicant should be removed from the list of selectees for promotion to LCDR and 
issued the following recommendation: 
 

coupled with his genuine remorse and ownership of his mistakes, leads the Board to recommend 
that he remain on the PY05 promotion list.  We feel he will be of continued value to the Coast 
Guard at the O-4 level.  

 
 
The special board’s report notes that the applicant’s May 4, 2005, statement was consid-
ered, along with his personnel data record, his notification and acknowledgement of the special 
board, and the board’s precept, but the report appends only the precepts as Appendix “A” and 
does not expressly append the applicant’s statement or any of the other considered documents. 
 

Commander, CGPC forwarded the report of the special board to the Commandant via the 
Assistant Commandant for Human Resources.  Commander, CGPC stated in his “first endorse-
ment” that he disagreed with the findings of the special board.  He noted that connecting a per-
sonal computer to the Coast Guard’s data network “is a prohibited action in itself” and that the 
applicant was attempting to avoid detection by using his personal computer.  He stated that the 
applicant had significant responsibilities as the supervisor of an independent duty station and that 
his conduct required his removal.  He also stated the following:    
 

Selection to the grade of lieutenant commander is an important milestone in an officer’s career.  
By  selection  to  lieutenant  commander,  you  transition  to  positions  of  greater  responsibility  and 
leadership and you are guaranteed, with satisfactory performance, to stay in the Service and col-
lect a retirement regardless of future promotions.  Given these important considerations, LCDR 
Selection Boards are very competitive and if this material had been presented to a LCDR Selection 
Board, it is my opinion that he would not have been selected for promotion. 
 
The Assistant  Commandant  for  Human  Resources  forwarded  the  report  of  the  special 
board to the Commandant and wrote a short “second endorsement” on the first endorsement, in 
which  he  stated  that  he  disagreed  with  the  recommendation  of  the  special  board  as  “[t]his  is 
unacceptable conduct for an officer expected to assume more senior leadership positions.” 

 
On August  1,  2005,  the  Commandant  forwarded  the  report  of  the  special  board  to  the 
Secretary and added a “third endorsement” in which he “recommend[ed] you disagree with the 
recommendation of the Board and remove [the applicant’s] name from the PY05 list of selectees 
for promotion to lieutenant commander.” 

 
On October 25, 2005, the applicant was informed that his promotion to  LCDR, which 
was scheduled for November 1, 2005, would be delayed pursuant to Article 5.A.13. of the Per-
sonnel Manual based upon the “special board action” initiated on April 28, 2005.2 
 
On December 9, 2005, acting on behalf of the President, the Secretary signed a “fourth 
 
endorsement” in which he “removed [the applicant] from the PY05 list of selectees for promo-
tion to lieutenant commander” pursuant to 10 U.S.C. § 272.  This endorsement states that the 

                                                 
2 14 U.S.C. § 271(f) states the “promotion of an officer who is under investigation or against whom proceedings of a 
court-martial or a board of officers are pending may be delayed without prejudice by the Secretary until completion 
of the investigation or proceedings. However, unless the Secretary determines that a further delay is necessary in the 
public  interest,  a  promotion  may  not  be  delayed  under  this  subsection  for  more  than  one  year  after  the  date  the 
officer would otherwise have been promoted. An officer whose promotion is delayed under this subsection and who 
is subsequently promoted shall be given the date of rank and position on the active duty promotion list in the grade 
to which promoted that he would have held had his promotion not been so delayed.” 

“proceedings, findings, and recommendation of the Board are noted.”  The removal constituted 
the applicant’s first failure of selection for promotion to LCDR.3 
 
 
On his regular OER for the period February 11, 2005, through March 31, 2006, the appli-
cant received exceptionally high marks of 6 and 7 in the various performance categories and a 
mark as an “excellent performer” on the comparison scale.  His reporting officer wrote that the 
applicant was an outstanding officer who “has my highest recommendation for promotion to O-4 
w/  best  of  peers.”    His  reviewer  also  added  a  page  of  comments  strongly  recommending  the 
applicant for promotion.   
 
 
as follows:  
 

On March 27, 2006, CGPC notified the applicant of his removal from the promotion list 

1.  On 07 June 2005, a Coast Guard board was convened under the provision of [10 U.S.C. § 272 
and Article 5.A.13.f. of the Personnel Manual] to recommend to the President whether your name 
should be removed from the list of selectees for promotion to the grade of lieutenant commander.  
On 09 December 2005, the Secretary of Department of Homeland Security, acting for the Presi-
dent, approved the recommendation that  your name be removed  from the 2005 lieutenant com-
mander selection list.  A copy of the Board report is provided. 
 
2.  You will go before the Promotion Year 2007 Lieutenant Commander Selection Board.  If not 
selected, you will be considered as having twice failed of selection for promotion. 

 

The  applicant  failed  of  selection  a  second  time  when  his  record  was  reviewed  by  the 
LCDR selection board that convened in August 2006, and so he was separated on June 30, 2007, 
in accordance with 14 U.S.C. § 283,4 having completed more than twelve years of active duty. 
 

APPLICANT’S ALLEGATIONS 

 
 
The  applicant  stated  that  when  interviewed  by  the  PIO  he  immediately  and  honestly 
admitted to his misuse of the Coast Guard Data Network.  He stated that he had connected his 
personal  computer  to  the  Data  Network  to  access  streaming  media  (radio)  and  nine  sexually 
explicit websites.  He visited the sexually explicit websites on two occasions—January 4 and 5, 
2005—for a total of about 34 minutes.   
 
 
The applicant pointed out that in the SOER he received as the supervisor of the Marine 
Safety Team, his rating chain had recommended his retention on the promotion list in the SOER.  
In addition, when forwarding his May 4, 2005, statement to the special board, his new command-
ing officer also “highly recommend[ed]” that he be retained on the promotion list, and the special 
board unanimously recommended his retention despite his “egregious lapse in judgment.” 
 

                                                 
3 14 U.S.C. § 262(a) states that an officer “fails of selection if he is not selected for promotion by the selection board 
which considered him, or if having been recommended for promotion by the board, his name is thereafter removed 
from the report of the board by the President.” 
4  14  U.S.C.  §  283  states  that  active  duty  lieutenants  who  twice  fail  of  selection  for  promotion  to  LCDR  will  be 
“honorably discharged on June 30 of the promotion year in which his second failure of selection occurs” unless they 
request an earlier separation date or unless they have accrued 18 years of active duty. 

The  applicant  complained  that  despite  these  strong  recommendations  in  his  favor,  the 
Commandant recommended to the Secretary, without explanation, that he disapprove the recom-
mendation of the special board, and the Secretary removed the applicant’s name from the promo-
tion list without any explanation.  Therefore, the applicant argued, the Secretary’s removal of his 
name from the promotion list “was arbitrary, capricious, and an abuse of discretion.”  He argued 
that he should not have been denied promotion based on “an isolated lapse of judgment” that is 
inconsistent with his “stellar 11-year record” as an excellent performer.   

 
The applicant noted that Commander, CGPC, argued for his removal from the list based 
upon his opinion that the applicant would not have been selected for promotion had the Punitive 
Letter  of Admonition  and  the  SOER  been  in  his  record  when  it  was  reviewed  by  the  LCDR 
selection board.  However, he argued, the special board that recommended his retention on the 
promotion  list  was  convened  under  the  same  guidelines  provided  for  selection  boards.    The 
applicant argued that although a special board’s recommendation is not binding on the Secretary, 
it is “entitled to deference. Otherwise, the process is pro forma and serves no useful purpose.”  
However, the Coast Guard treated the special board “as a perfunctory exercise.” 
 

The applicant also alleged that language in the March 27, 2006, letter notifying him of 
the Secretary’s action shows that the Secretary was unaware of the special board’s actual recom-
mendation when he removed the applicant from the promotion list.  He pointed out that the letter 
notes  the  fact  that  the  special  board  had  convened  to  make  a  recommendation  regarding  his 
retention  on  the  list  and  then  immediately  states  that  the  Secretary  had  “approved  the  recom-
mendation that your name be removed from the … list.”  The applicant argued that this language 
indicates that the Secretary removed the applicant’s name from the promotion list contrary to the 
recommendation of the special board without actually seeing the special board’s recommenda-
tion.  He also argued that the Secretary acted without an articulated rationale and so his removal 
from the promotion list must be considered “arbitrary, capricious, and an abuse of discretion.” 
 

VIEWS OF THE COAST GUARD 

 
 
On June 7, 2007, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion in which he recommended that the Board deny relief.  The JAG adopted the 
facts and analysis of the case provided in a memorandum prepared by CGPC.   
 

CGPC stated that the special board was convened in accordance with regulations and that 
the “forwarding endorsements on the special board report clearly articulated the rationale behind 
providing a counter recommendation to that of the special board of officers.”  CGPC alleged that 
the “Secretary made his decision in the light of day with the express knowledge that the Com-
mandant’s recommendation was counter to that of the special board” and “exercised his discre-
tion appropriately.” 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On June 12, 2007, the Chair sent the applicant copies of views of the Coast Guard and 
invited him to respond within 30 days.  The applicant requested and was granted an extension of 
the time to respond and responded on August 15, 2007. 
 

 
The applicant submitted copies of an email exchange with the JAG’s Office of Military 
Justice.  In response to an email from the applicant dated July 11, 2007, asking whether his state-
ment to the special board and the positive endorsements from his superior officers were reviewed 
by the Secretary, the Office of Military Justice replied that “[i]t is not the practice to send to the 
Secretary  a  member’s  correspondence  submitted  pursuant  to  PERSMAN  Ch.  5.A.13.f.4.  to  a 
special board convened to consider removal of an officer from a promotion list.  All records indi-
cate that the Coast Guard followed this practice in [the applicant’s] case and his 04 May 2005 
communication to the Special Board was not provided to the Secretary.” 
 

The applicant argued that under Law v. United States, 11 F.3d 1061 (Fed. Cir. 1993), Title 
14 of the United States Code “does not impose procedural constraints on the President’s power to 
remove names from a Coast Guard promotion list.  Nor does Article 5.A.13.f. of the Personnel 
Manual require in so many words that a respondent’s submission in a Show Cause Board case be 
supplied to the final decision maker.”  The applicant argued, however, that “in keeping with [the 
BCMR’s] broad remedial power under 10 U.S.C. § 1552,” the BCMR must determine “whether 
it is fair and equitable for such a submission (or the chain of command’s endorsements to it) not 
to  be  among  the  papers  considered  by  the  decision  maker  at  the  end  of  the  promotion  list 
removal process.”  The applicant argued that the BCMR should set aside the removal of his name 
from the promotion list because it was unfair for CGPC to forward its recommendation without 
also forwarding his statement and the attached recommendations from his superiors. 
 

APPLICABLE LAW 

 
1.  Each officer in the chain of command or Commander, (CGPC-opm) is responsible for delaying 
a promotion if he or she knows the appointee has disqualified him or herself after being placed on 
a promotion list.  Disqualification here means any circumstance which casts doubt on the moral or 
professional qualifications of the officer concerned, including pending action by a board of offi-
cers, courts-martial, or investigative proceedings (14 U.S.C. 271(f)). 
 
2.  A complete report of the circumstances recommending removing the selectee from the promo-
tion list under Article 5.A.4. shall be sent to Commander (CGPC-opm).  If the promotion letter is 
used for notification, include it if received; a copy of the OPAL need not be included.  The selec-
tee shall be furnished a copy of the report and required to acknowledge receipt.  Attach a signed 
copy of the acknowledgment as an enclosure to the report. 
 
3.  If Commander (CGPC-opm) initiates delaying a promotion, he or she shall advise the officer 
concerned in writing of the reasons for so doing and require acknowledgment of receipt. 
 
4.    The  Commandant  shall  refer  the  case  to  a  board  of  officers  to  recommend  to  the  President 
whether to remove the selectee from the promotion list.  The officer concerned will be afforded 21 
days’ notice of the proceedings, and may communicate directly by letter to the board, in care of 
Commander  (CGPC-opm-1),  before  the  board  convenes.  Chain  of  command  endorsements  are 
optional.  Enclosures or attachments are limited to copies of official records and materials allowed 
to be submitted with Officer Evaluation Reports under Article 10.A.4.c.3.  Letters from other offi-
cers shall not be solicited or submitted as enclosures.  To receive an acknowledgement, the officer 
should submit a completed, self-addressed  Acknowledgement/Referral  Card, CG-4217, with the 
letter. 
 

 

Article 5.A.13.f. of the Personnel Manual provides the following procedures for delaying 

the promotion of an officer whose name is on a list of selectees: 

5.  The President of the Board will forward a report of the proceedings of the board containing a 
recommendation  to  the  Commandant  as  to  whether  the  officer  should  be  promoted,  along  with 
reasons  for  the  recommendation.    If  the  Commandant  finds  removal  from  the  promotion  list 
appropriate, he or she will forward the report with endorsements to the Secretary of [Homeland 
Security] (acting as  the alter ego of the President),  who is the  final reviewing authority.  If the 
Commandant determines that removal is inappropriate, the case is closed, and the delay of promo-
tion is cancelled.  [Emphases added.] 

Title 14 U.S.C. § 272 states the following regarding the removal of an officer from a list 

 

of selectees for promotion:  
 

(a) The President may remove the name of any officer from a list of selectees established under 
section 271 of this title. 
 
(b)  If  the  Senate  does  not  consent  to  the  appointment  of  an  officer  whose  name  is  on  a  list  of 
selectees established under section 271 of this title, that officer's name shall be removed from this 
list. 
 
(c) An officer whose name is removed from a list under subsection (a) or (b) continues to be eligi-
ble for consideration for promotion. If he is selected for promotion by the next selection board and 
promoted, he shall be given the date of rank and position on the active duty promotion list in the 
grade to which promoted that he would have held if his name had not been removed. However, if 
the officer is not selected by the next selection board or if his name is again removed from the list 
of selectees, he shall be considered for all purposes as having twice failed of selection for promo-
tion. 
 
Article 5.A.4.h. of the Personnel Manual provides the following regarding the removal of 

an officer from a list of selectees for promotion:   

 
1. The President may remove any officer from a list of selectees established under Article 5.A.4.g. 
 
2. If the Senate does not consent to appoint an officer whose name is on a list of selectees estab-
lished under Article 5.A.4.g., that officer's name shall be removed from this list. 
 
3. An officer whose name is removed from a list under these subparagraphs remains eligible for 
consideration for promotion. If promoted as a result of selection by the next selection board, he or 
she holds the date of rank and position on the ADPL in the grade to which promoted which he she 
would have held if his or her name had not been removed. However, if the next selection board 
does not select the officer or if his or her name again is removed from the list of selectees, the 
officer shall be considered for all purposes as having twice failed of selection for promotion (14 
U.S.C. 272). 
 

FINDINGS AND CONCLUSIONS 

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

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

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

1. 

The application was timely. 
 

2. 

The applicant requested an oral hearing before the Board.  The Chair, acting pur-
suant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case without 
a hearing.  The Board concurs in that recommendation. 

 

3. 

Absent specific evidence to the contrary, the  Board presumes that Coast Guard 
officers, including the applicant’s CO, have acted correctly, lawfully, and in good faith in per-
forming their duties.5  The applicant alleges and bears the burden of proving by a preponderance 
of the evidence6 that the Coast Guard committed an error or injustice in removing his name from 
the  list  of  selectees  for  promotion.    The  applicant  alleged  that  his  removal  from  the  list  was 
unjust because  

 
a)  Commander,  CGPC  based  his  negative  recommendation  on  an  assumption  that  the 
applicant would have failed of selection in 2004 had the selection board seen the SOER 
and the Punitive Letter of Admonition;  
b)  the Secretary was not aware of the positive recommendation of the special board; 
c)  the  Secretary  abused  his  discretion  by  removing  him  from  the  list,  contrary  to  the 
special board’s recommendation, without written explanation and contrary to significant 
evidence of the applicant’s ability to perform at the grade of LCDR; and  
d)  the applicant’s May 4, 2005, statement to the special board, with the positive endorse-
ments attached by his chain of command, was not forwarded to the Secretary.  
 
4. 

In recommending that the Secretary remove the applicant from the promotion list, 
Commander, CGPC wrote near the end of his first endorsement to the report of the special board 
that “LCDR Selection Boards are very competitive and if this material had been presented to a 
LCDR Selection Board, it is my opinion that he would not have been selected for promotion.”  
The  applicant  argued  that  this  statement  was  improper  and  unfair  since  the  special  board  that 
recommended  his  retention  was  convened  under  the  same  guidelines  provided  for  selection 
boards.  Although the guidelines may be similar, the functions of such boards are quite different.  
The  applicant’s  special  board  reviewed  only  his  records  and  made  a  recommendation  about 
whether he should be removed from a promotion list, whereas a selection board compares the 
records of all eligible candidates for promotion to determine who is “best qualified.”  Given this 
functional difference, the Board finds that the applicant has not proved that Commander, CGPC’s 
statement—which  is  an  opinion  based  on  significant  experience  if  also  an  assumption—was 
inaccurate, improper, or unfair.  The Board notes that in addition to making the point that the 
applicant would not have been selected for promotion in 2004 if the selection board had seen the 
SOER,  Commander,  CGPC’s  first  endorsement  discusses  several  other  sound  reasons  for  his 
negative recommendation. 

The  juxtaposition  of  the  first  two  sentences7  in  CGPC’s  letter  to  the  applicant 
dated March 27, 2006, could lead an unknowing reader to believe that the special board recom-
mended the applicant’s removal from the promotion list.  Unstated in CGPC’s letter is the fact 
that the negative recommendation approved by the Secretary on December 9, 2005, was not the 
                                                 
5 33 C.F.R. § 52.24(b); Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 
F.2d 804, 813 (Ct. Cl. 1979).   
6 33 C.F.R. § 52.24(b). 
7 The sentences are as follows:  “On 07 June 2005, a Coast Guard board was convened under the provision of [10 
U.S.C.  §  272  and Article  5.A.13.f.  of  the  Personnel  Manual]  to  recommend  to  the  President  whether  your  name 
should be removed from the list of selectees for promotion to the grade of lieutenant commander.  On 09 December 
2005, the Secretary of Department of Homeland Security, acting for the President, approved the recommendation 
that your name be removed from the 2005 lieutenant commander selection list.” 

 
5. 

special  board’s  recommendation  but  the  Commandant’s.    However,  this  letter  was  sent  from 
CGPC to the applicant to notify him of the Secretary’s decision.  Presumably, the letter was nei-
ther written nor seen by the Secretary, and it cannot be considered significant evidence of what 
the Secretary knew when he made his decision.  On the other hand, the Commandant’s endorse-
ment highlighted for the Secretary the special board’s stance by recommending that the Secretary 
“disagree  with  the  recommendation  of  the  Board  and  remove  [the  applicant’s]  name  from  the 
PY05 list of selectees for promotion to lieutenant commander.”  And the Secretary’s endorsement 
removing  the  applicant  from  the  promotion  list  noted  the  “proceedings,  findings,  and  recom-
mendation of the Board.”  Therefore, the applicant has failed to prove by a preponderance of the 
evidence  that  the  Secretary  mistakenly  believed  that  the  special  board  had  recommended  his 
removal when the Secretary removed him from the promotion list. 

The applicant alleged that the Secretary’s decision to remove him “was arbitrary, 
capricious, and an abuse of discretion” because he acted contrary to the special board’s recom-
mendation and the endorsement the Secretary signed to remove the applicant from the promotion 
list did not explain his reason for doing so.  However, in making his decision, the Secretary had 
before him not only the special board’s recommendation and the Commandant’s endorsement, 
but  also  the  endorsements  of  Commander,  CGPC  and  the Assistant  Commandant  for  Human 
Relations, which provided several sound reasons for the Secretary to remove the applicant from 
the  promotion  list.   Although  the  Secretary  did  not  elaborate  upon  which  of  those  reasons  he 
found most compelling, his failure to do so does not render his decision arbitrary or capricious or 
an abuse of discretion given that there were ample reasons for removing the applicant clearly 
articulated in the record.  

Under 14 U.S.C. §§ 271 and 272, which provide for the delay of the promotion of 
a Coast Guard officer and for his removal from a promotion list, Congress has not required that 
any input from the officer be presented to the final decision maker, who is the Secretary acting 
with delegated authority on behalf of the President.  In Law v. United States, 11 F.3d 1061, 1067-
68 (Fed. Cir. 1993), when the appellant argued that the Secretary should have received the appel-
lant’s  submissions  before  approving  his  removal  from  a  promotion  list,  the  court  held  that 
“[a]ppellant’s argument must be rejected.  Section 272(a) does not impede the President’s discre-
tion, nor the Secretary’s discretion when acting for the President, [citation removed] to remove a 
name from the promotion list. … Congress has not imposed the procedural limitations on the 
President’s exercise of the authority which appellant asserts.  It would be outside our province to 
create them.” 

 
6. 

 
7. 

 
8. 

Nor do Coast Guard regulations require an officer’s input on his possible removal 
from a promotion list to be presented to the Secretary.  While paragraph 4 of Article 5.A.13.f. of 
the Personnel Manual affords the officer a right to submit a statement to the special board that 
will make a recommendation on his removal, paragraph 5 of that article requires the president of 
the special board to forward only a report of the proceedings to the Commandant, who in turn 
must forward to the Secretary only the special board’s report and any endorsements added to the 
report by intermediary authorities.  The JAG’s office has confirmed that “[i]t is not the practice 
to  send  to  the  Secretary  a  member’s  correspondence  submitted  pursuant  to  PERSMAN  Ch. 
5.A.13.f.4. to a special board convened to consider removal of an officer from a promotion list.  
All records indicate that the Coast Guard followed this practice in [the applicant’s] case and his 
04 May 2005 communication to the Special Board was not provided to the Secretary.”  

 
9. 

 
10. 

 
11. 

Although the applicant’s name was removed from a promotion list, the Board is 
not persuaded that he had a constitutional liberty or property interest in his promotion that would 
mandate any due process except that granted by statute or regulation.8  The applicant was not 
entitled to any more procedure than that required by Article 5.A.13.f. of the Personnel Manual.  
Therefore, the Board finds that the Coast Guard committed no legal error in failing to forward 
the applicant’s statement to the Secretary.  However, the Board must still consider whether the 
applicant’s removal from the promotion list was unjust because his statement was not forwarded 
to the Secretary.9  For purposes of the BCMRs under 10 U.S.C. § 1552, “injustice” is “treatment 
by military authorities that shocks the sense of justice but is not technically illegal.”10  The Board 
has “an abiding moral sanction to determine insofar  as possible, the true nature of an alleged 
injustice and to take steps to grant thorough and fitting relief.”11   

In considering this issue, the Board bears in mind that, although the report of the 
special board in this case recommended the officer’s retention on the promotion list, in many if 
not most such cases an officer’s own statement would be the only voice in favor of his retention, 
and yet the Coast Guard would not forward it to the Secretary under current regulation and prac-
tice.   And  even  in  the  applicant’s  case,  where  the  special  board’s  recommendation  was  in  his 
favor, the special board’s positive recommendation was so brief—five sentences in all—that it 
barely  mentions  the  applicant’s  “exceptional  past  performance”  and  makes  no  mention  of  the 
recommendations of his rating chain for the SOER and of his new chain of command that he be 
retained on the promotion list.  Certainly the Board believes that the better practice would be to 
present an officer’s statement on his own behalf along with such positive endorsements to the 
Commandant and the Secretary, who must make the final decision whether to remove the officer 
from the promotion list.  All military officers should be entitled to such minimal due process par-
ticularly because removal from a promotion list constitutes a failure of selection for promotion 
and two such failures often require the officer to be separated from the Service,12 as has hap-
pened to the applicant.  

The  Board  notes  that  under  10  U.S.C.  §  624(d)(3),  Congress  has  required  the 
Army,  Navy,  and Air  Force  to  forward  an  officer’s  own  statement  about  his  possible  removal 
from  a  promotion  list  to  the  Secretary  as  follows:    “An  officer  whose  promotion  has  been 
delayed under this subsection shall be afforded an opportunity to make a written statement to the 
Secretary concerned in response to the action taken.  Any such statement shall be given careful 
consideration by the Secretary.”  The Army, Navy,  and Air Force have each made  regulations 
requiring an officer’s statement to be presented to the Secretary concerned.  Army regulations, 
for example, provide that “[t]he officer will be afforded a reasonable opportunity to submit com-
                                                 
8 Blevins v. Orr, 721 F.2d 1419, 1421-22 (D.C. Cir. 1983) (holding that “it is clear that military promotion decisions 
simpliciter are not susceptible to due process challenges, inasmuch as there exists no property or liberty interest in a 
military promotion per se”). 
9 Under 10 U.S.C. § 1552(a), the Board should correct a military record when it “considers it necessary to correct an 
error or remove an injustice.” 
10  Sawyer  v.  United  States,  18  Cl.  Ct.  860,  868  (1989),  rev’d  on  other  grounds,  930  F.2d  1577  (citing  Reale  v. 
United States, 208 Ct. Cl. 1010, 1011 (1976)). 
11 Caddington v. United States, 178 F. Supp. 604, 607 (Ct. Cl. 1959). 
12 14 U.S.C. §§ 262(a), 272, and 283; see 10 U.S.C. §§ 629(d)(2) and 632(a) for comparable statutory provisions for 
the Army, Navy, and Air Force. 

ments  on  that  information  to  the  [Promotion  Review  Board]  and  the  officials  reviewing  the 
recommendation”13 and the officer “may include the opinion and statements of third persons in 
his or her submission.”14  Navy regulations state that the Secretary must receive a “statement by 
the officer” when a promotion has been delayed so that the Secretary may consider exercising his 
authority to remove a Naval officer.15  In the Air Force, the officer’s written response is included 
in the case file,16 which is forwarded in its entirety to the Secretary of the Air Force.17   

Although the Board believes the Coast Guard’s practice of withholding from the 
file forwarded to the Secretary its officers’ own statements about their possible removal from a 
promotion list to be unreasonable, the Board is not persuaded that the applicant’s removal from 
the  promotion  list  was  unjust  under  the  circumstances.    In  their  endorsements  to  the  special 
board’s report Commander, CGPC and the Assistant Commandant for Human Resources articu-
lated several sound reasons why an officer who had recently committed the misconduct that the 
investigation revealed should not receive a pending promotion.  Commander, CGPC stressed not 
only the applicant’s short lapse in judgment in viewing pornography over the Coast Guard Data 
Network, but his long-term attempt to avoid detection of his misuse of the network by connect-
ing  his  personal  computer  to  it,  which  was  also  contrary  to  regulation.   The  Board  notes  that 
according to the officer who investigated the applicant’s misconduct, enlisted members who had 
committed  similar  offenses  had  been  awarded  NJP  “with  fines  and  ranks  suspended  for  6 
months.” 
 
13. 

Accordingly, the applicant’s request should be denied because he has not proved 
by a preponderance of the evidence that his removal from the promotion list was erroneous or 
unjust. 

 
12. 

 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
13 Army Regulation 600-8-29, Chap. 8-6. 
14 Army Regulation 600-8-29, Chap. 8-7.c. 
15 SECNAVINST 1420.1A, para. 23.b.(2)(b). 
16 Air Force Instruction 36-2501, para. 5.7.1.6. 
17 Air Force Instruction 36-2501, para. 5.7.3.5., 5.7.4., and 5.7.6. 

The  application  of  xxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his  military 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Toby Bishop 

 

 

 
 Patrick B. Kernan 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

 

 

        

 

 

 

 

record is denied. 
 
 
 
 
October 4, 2007                  
Date