DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-125 
 
XXXXXXXXX. 
xxxxxxxx, LT 
 

 

 
 

FINAL DECISION 

 
 
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 April 20, 2007, 
upon receipt of the completed application, and subsequently prepared the final 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  February  7,  2008,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST  

 
 
 The  applicant  asked  the  Board  to  correct  her  record  by  removing  a  special  officer 
evaluation  report  (SOER)  for  the  period  from  March  16,  2004  to  May  5,  2004.    She  also 
requested that the captain’s mast (non-judicial punishment (NJP)) imposed on May 5, 2004 be 
removed from her record.   
 

BACKGROUND 

 

 
The applicant is a lieutenant (LT) in the regular Coast Guard.  She is a graduate of the 
Coast Guard Academy.  While assigned to a Coast Guard cutter as the operations officer (third in 
command  on  that  cutter),  the  applicant  was  taken  to  mast  for  a  violation  of Article  92  of  the 
Uniform Code of Military Justice (UCMJ).  The specification stated that the applicant failed to 
obey a lawful order in that “[she] did, . . . on or about [March 16, 2004], violate the Coast Guard 
Interpersonal Relationship regulations (section 8H, PERSMAN) when she engaged in a sexual 
encounter  with  SN  [J]  on  the  flying  bridge  of  CGC  [C]  while  moored  in  [GB]”    The 
commanding  officer  punished  the  applicant  by  restricting  her  to  the  Integrated  Support 
Command, New Orleans for 30 days and he also issued a non-punitive letter of reprimand.   
 
 
 
 

Applicant’s NJP Appeal 
 
 
On  May  10,  2004,  the  applicant  appealed  the  mast  to  the  Commander,  Eighth  Coast 
Guard  District  (Commander).    In  her  appeal  she  complained  that  she  was  not  advised  of  her 
Miranda-Tempia warnings (Article 31(b) rights) under the UCMJ)1 until 12 hours prior to the 
NJP proceedings that was held on May 5, 2004.  She alleged that when she reported the incident 
on March 16, 2004, she thought that her command understood that she was reporting an alleged 
sexual assault.  She stated that she was not aware that she was suspected of an offense until the 
cutter returned from a patrol on April 21, 2004.  The applicant stated that her first opportunity to 
contact  legal  counsel  was  at  2200  on  May  4,  2004  when  she  signed  her  Miranda-Tempia 
warnings waiving her right against self-incrimination and her right to consult with counsel.  She 
stated that the executive officer told her not to expect legal counsel to be available at 2200 that 
night but that he would give her the phone number if she desired to contact legal counsel.  The 
applicant argued that her declination of counsel on the Miranda-Tempia warnings form simply 
indicated her decision not to call anyone at 2200 that night and it was not a statement that she did 
not want counsel at all.   
 

The  applicant  also  complained  that  she  and  her  mast  representative  were  not  provided 
with the materials for the mast until 2200 on May 4, 2004.  According to the applicant, this was 
an insufficient amount of time for them to process the information prior to the mast on May 5, 
2004.  The applicant further stated that she wanted to plead innocent to the charges, but her mast 
representative told her that admitting the allegations would do the least amount of damage to her 
career and was, therefore, the best option.   

 
The applicant denied that she had  consensual sexual relations on board a Coast Guard 
unit with an enlisted member.  She stated that at the beginning of the incident she was hysterical 
and resisted the advances made toward her by verbally expressing her disapproval and saying 
“No,  I  can’t  do  this.”    She  stated  that  she  was  scared  and  repeatedly  attempted  to  halt  the 
situation.  She stated that she was eventually able to stop the situation by running away.  The 
applicant further stated the following in her appeal: 

 
I am not satisfied that his assault has been handled in an appropriate manner.  I 
feel [the cutter] has an obligation to recognize a sexual assault report and to be 

                                                 
1   Article 31 (Compulsory self-incrimination) of the UCMJ states as follows: 
“(a)  No person subject to this chapter may compel any person to incriminate himself or to answer any 
question the answer to which may tend to incriminate him. 
“(b) No person subject to  this chapter may interrogate, or request any statement from an accused  or a 
person suspected of an offense without first informing him of the nature of the accusation and advising 
him that he does not have to make a statement regarding the offense of which he is accused or suspected 
and that any statement made by him may be used as evidence against him in a trial by court-martial. 
“(c) No person subject to this chapter may compel any person to make a statement or produce evidence 
before  any  military  tribunal  if  the  statement  or  evidences  is  not  material  to  the  issue  and  may  tend  to 
degrade him. 
“(d) No statement obtained from any person in violation of this article, or through the use of coercion, 
unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-
martial.”   

able to respond to an assault victim, which I believe I am.  In the initial interview 
I  had  with  the  [XO],  I  was  feeling  guilty  about  the  incident.    The  command 
perceived I was admitting guilt of consensual relations, when in fact my feelings 
were what I understand are a typical response to sexual assault and these feelings 
were not recognized nor responded to by [the cutter].   

 
Commanding Officer’s (CO) Comments on the NJP Appeal 
 
 
On  May  12,  2004,  the  applicant’s  commanding  officer  (CO)  recommended  that  the 
Commander, Eighth Coast Guard District (Commander) deny the applicant’s appeal.  The CO 
stated  that  at  the  mast  he  had  before  him  the  preliminary  investigation,  CG  4910  (Report  of 
Offense  and  Disposition  (often  called  a  booking  or  report  chit)), Witnesses’  statements,  CGIS 
investigation2, the applicant’s service record, and the live statements of the XO, the applicant’s 
mast representative, and the applicant who admitted to the allegations.  The CO stated that based 
on the documentary, written, and oral evidence, he resolved the disputed issues and found the 
following: 
 
“a. That [the applicant] was drinking on the pier in Guantanamo Bay, Cuba on the night of 15 
March 04. 
“b. The [the applicant] had been consuming alcoholic beverages prior to the incident. 
“c. That [the applicant] left the pier and went to the fantail where she was joined with two other 
crewmembers. 
“d. That [the applicant] of her volition, left the fantail and went to the flying bridge with an E-3. 
“e.  That  while  on  the  flying  bridge  with  the  E-3  she  engaged  in  an  inappropriate  consensual 
sexual encounter with him. 
“f. That when [the applicant] wanted to cease the encounter, she did so freely and voluntarily.  
She then was able to leave the E-3 and departed the area without restraint. 
“g. That based on the statements given by [the applicant] and statements contained in the CGIS 
report  which  were  not  challenged  during  the  mast  proceeding,  I  find  that  the  allegations  of 
assault, sexual or otherwise are unfounded.” 
 
 
In recommending that the mast appeal be denied, the CO stated that the applicant’s initial 
admission  of  the  incident  was  made  to  the  XO  and  HSC  G3.    He  stated  that  at  that  time  the 
applicant was not the focus of any criminal investigation and was not in custody or suspected of 
any  wrong-doing,  and  therefore,  her  statements  would  be  considered  a  spontaneous  statement 
against her interest, which is generally admissible in a criminal proceeding.  He noted however, 
                                                 
2  The Board obtained an unredacted copy of the CGIS investigation with a cover memo stating that any 
disclosure and copying of the investigation was not authorized.  The Board requested a redacted copy but 
it was not provided.   Accordingly, the Board did not consider the contents of the CGIS investigation in 
deciding this case.  See 33 CFR § 52.43.  However, the record indicates that the applicant was provided 
with a copy of the investigation prior to mast and she actually submitted a witness statement from the 
investigation in presenting her case to the Board.  Considering that the applicant has the burden of proof, 
she  could  and  should  have  submitted  the  complete  investigation  to  the  Board,  if  she  considered  it 
important to her case.   
3   At the time of the incident this individual was an HS1 and was subsequently advance to HSC.  He will 
be referred to as an HSC throughout this decision.   

that rules of evidence do not apply in mast proceedings and that the CO may hear evidence in a 
mast proceeding, which otherwise may not be admissible in a criminal trial.   
 
 
With regard to the applicant’s complaint about her mast representative, the CO stated that 
at  no  time  during  the  mast  proceeding  did  the  applicant  make  the  CO  aware  of  her  concerns 
about her mast representative, nor did she request a continuance of the  proceeding to procure 
another mast representative. 
 
 
With regard to the applicant’s allegation that she was not allowed adequate time to seek 
legal counsel, the CO stated that it is well settled that a member attached to or embarked on a 
vessel has no right to demand a trial by court-martial in lieu of NJP, or consequently, to consult 
with a military or civilian attorney prior to NJP regarding the option to demand a trial by court-
martial.  “A [CO] at his or her sole discretion, and if it does not unduly delay proceedings, may 
permit the member to consult with an attorney.” 
 
 
The CO stated that the applicant’s allegation that she was not afforded adequate time to 
review evidence that would be used in the proceeding was raised for the first time on appeal.  
The CO stated that the MJM allows the CO, in NJP, to review the documents and evidence for 
the first time with the member during the mast hearing.  The CO stated that in the applicant’s 
case, she was given copies of the report of investigation the day before the proceedings.   
 
Denial of NJP Appeal by Commander, Eighth Coast Guard District (Commander) 
 

On June 4, 2004, the Commander denied the applicant’s appeal and informed her that her 
allegations on the alleged improper handling of her sexual assault complaint would be addressed 
in a separate letter.   With respect to the NJP appeal, the Commander found no basis to conclude 
that the mast proceeding was either unjust or that the punishment imposed was disproportionate 
to the act of misconduct.  He further stated that the CO appropriately considered the evidence 
and circumstances surrounding the offense and that the misconduct for which the applicant was 
punished is highly prejudicial to good order and discipline of the unit and brings discredit upon 
the Coast Guard.  

 
The Commander stated that under Article 31(b) of the UCMJ “[n]o person subject to this 
chapter may interrogate, or request any statement from an accused or a person suspected of an 
offense without first informing him of the nature of the accusation and advising him that he does 
not have to make any statement regarding the offense of which he is accused or suspected and 
that any statement made by him may be used as evidence against him in a trial by court-martial.”  
He informed the applicant that her reporting of the incident on March 16 was a voluntary act on 
her part and that it came at a time that the cutter was readying to get underway.  The Commander 
stated  that  the  interaction  between  the  applicant,  HSC  G  and  the  XO  was  aimed  at  quickly 
gathering  information,  assessing  the  situation,  and  making  an  appropriate  personnel  decision.  
The Commander stated that the record did not indicate that there was any interrogation or request 
for statements from the applicant, “other than fact-driven questions to determine if you believed 
that your encounter with [the enlisted person] was non-consensual.  The Commander noted that 
the applicant subsequently spoke with the CO, but he did not question her about the incident or 
seek  any  further  statements.    The  Commander  stated  that  the  CO  left  the  applicant  in 

Guantanamo Bay to seek counseling, but he also noted that it was command policy to remove the 
senior crewmember from the vessel when allegations of the nature involved in this case arose.   

 
According  to  the  Commander,  the  cutter  returned  to  port  on  March  22,  2004  and  the 
applicant requested to meet with the CO.  It was at this meeting that the applicant reported that 
she believed that the incident with the enlisted person had been a sexual assault.  Coast Guard 
Investigative Service (CGIS) was contacted and an investigation was undertaken.  He informed 
the applicant that her interview with CGIS was that of an alleged victim of an assault and the 
investigation was not initiated in response to any alleged violation of Coast Guard policy.   

 
Specifically, with respect to the applicant’s allegation that her Article 31(b) rights were 
violated, the Commander stated that one could argue that she should have been given such rights 
during  the  CGIS  interview.   The  Commander  stated  however  that  such  a  violation  would  not 
have materially prejudiced the outcome of the mast proceeding.  First, he stated that the rules of 
evidence do not normally apply at a mast proceeding and second that excluding any statement 
the applicant made during the CGIS investigation, there was still sufficient evidence for the CO 
to determined that a consensual sexually intimate encounter occurred.  In this regard, he stated 
the following: 
 

[The  Coast  Guard  Personnel  Manual]  prohibits  members  from  engaging  in 
sexually intimate behavior on board any Coast Guard vessel.  [It] also states that 
such  factors  used  in  assessing  the  propriety  of  interpersonal  relations  between 
officer  and  enlisted  personnel  include  the  organizational  relationship  of  the 
members, the relative rank and status of the individuals, and the character of the 
relationship.    It  is  undisputed  that  at  the  time  of  the  incident  you  were  the 
Operations Officer on board [the cutter].  You and [the enlisted member] were on 
the flying bridge together.  You embraced each other and laid on the deck with 
you head on [the SN’s] chest.  The nature of your conversation transgressed from 
casual  conversation  about  constellations  to  personal  matters.    Based  on  your 
initial account of the incident that you voluntarily made to HSC [G] and the [XO], 
you admitted to having  physical contact of  a sexually intimate nature with [the 
enlisted  member]  on  board  [the  cutter].    Statements  provided  by  [the  enlisted 
member] indicate that you placed or had your hand placed on [his genitals].  You 
further acknowledged that you were not “handled” or forced during the encounter.  
During  your  interview  with  CGIS  agents,  initiated  after  disclosing  that  you 
believed  that  the  encounter  was  non-consensual  in  nature,  you  admitted  to 
voluntarily  engaging in  physical contact of a sexually intimate nature with [the 
enlisted member].  These actions are a violation of [the Personnel Manual] and as 
such, a violation of Article 92 of the UCMJ.  You were given your Article 31(b) 
rights  approximately  12  hours  prior  to  the  mast  proceeding  on  May  4,  2004.  
Additionally, you understood your rights during the mast proceeding and elected 
to admit the offense charged.  Even discounting your admissions contained in the 
[record of investigation], the CO had sufficient evidence to bring you to a mast 
proceeding and find you had committed the offense based on a preponderance of 
the evidence.  Your allegation that Article 31(b) right were not given in a timely 

manner did not materially prejudice the outcome of the mast, and therefore the 
mast proceeding was not unjust.   
 
 
The  commander  was  not  persuaded  by  the  applicant’s  argument  that  she  did  not  have 
sufficient time to review the mast materials prior to mast.  He made similar findings as to those 
articulated  by  the  CO.    Neither  was  the  Commander  persuaded  by  the  applicant’s  complaints 
against her mast representatives.  Again he made the same findings with regard to this issue as 
the CO made.   
 
 
counsel, the Commander stated the following:   
 

With respect to the applicant’s argument that she did not waive the right to consult with 

[The  suspect’s  rights  from]  indicates  that  you  voluntarily  chose  to  waive  your 
right  to  consult  a  lawyer  and  that  you  desired  to  make  a  statement  during  the 
proceedings.    You  allege  that  when  you  signed  the  warning  you  did  not 
understand that the result was that you were waiving your opportunity to consult 
with a lawyer on the following day (the day of the mast).  However during the 
mast you did not indicate that you wished to revoke your waiver or consult with a 
lawyer even though you were again provided with that opportunity.  Furthermore, 
as a member of the military attached to a vessel you have “no right to demand 
trial by court-martial in lieu of NJP, or consequently, to consult with a military or 
civilian attorney prior to NJP regarding the option to demand trial by court martial 
in lieu of NJP, or consequently, to consult with a military or civilian attorney prior 
to NJP regarding the option to demand trial by court-martial.”  . . . In accordance 
with chapter 1.C.4 of [the MJM], a spokesperson may appear at a mast in lieu of a 
mast  representative  and  must  be  selected  and  arranged  for  by  the  member.  
However, because a mast is not an adversarial proceeding a spokesperson is not 
permitted to examine or cross-examine witnesses.    

 
 
The Commander told the applicant that he did not find her punishment disproportionate.  
He stated that the maximum punishment she could have received was 30 days restriction and a 
punitive letter of reprimand.  Her punishment was 30 days restriction and a non-punitive letter of 
reprimand.   
 
Review of Handling of Sexual Assault Allegation 
 
In a letter to the applicant dated June 4, 2004, the Commander advised the applicant that 
 
he takes all assault allegations seriously and therefore, he directed his legal staff to conduct an 
independent review of the procedural actions taken by the command following the applicant’s 
report that she had been a victim of sexual assault.  The Commander stated that although there 
may have been some irregularities in the sequence in which follow-up action was taken, he found 
that the applicant’s report of a sexual assault was handled in an appropriate manner. 
 
The  Commander  stated  that  COMDTINST  1754.10A  (cancelled  on  April  2,  2004  by 
 
COMDTINST  1754.10B)  outlined  the  Coast  Guard’s  procedures  in  reporting  rapes  or  sexual 
assaults. He noted that the CO had primary responsibility for carrying out the following upon 

receipt  of  a  rape  or  sexual  assault  report:  immediately  refer  rape  or  sexual  assault  victims  to 
medical or mental health resources and closely monitor victim’s progress; establish direct contact 
between the victim and Employee Assistance Program Coordinators (EAPC); offer mental health 
intervention  to  a  person  who  falsely  reports  rape  and  sexual  assault,  since  such  behavior  can 
indicate  the  person  has  unresolved  psychological  or  emotional  issues;  immediately  notify  the 
servicing  regional  Coast  Guard  Investigative  Services  office,  Special  Agent  in  charge,  by 
telephone  of  all  alleged  rape  or  sexual  assault  incident  in  which  active  duty  Coast  Guard 
members or their dependents are victims or assailants to ensure investigative efforts are pursued 
immediately and evidence protected; consult with a law specialist prior to taking disciplinary or 
administrative action against the suspected offender; and ensure the victim is informed of his/her 
rights, options, and available resources throughout the investigative and legal processes. 
 
 
The Commander found that the CGIS investigation was thorough and properly conducted 
and that the actions taken by the CO were consistent with Coast Guard and command policies.  
The Commander also found that the CO failed to fully comply with the reporting requirements 
outlined in the instruction.  The Commander stated:   
 

Ultimately,  however,  those  procedures  were  fully  implemented.    Specifically,  it 
appears that once you were sent back to Mobile, your command did not ensure 
that you were in contact with mental health resources in the Mobile area, did not 
ensure direct contact between you and EAPC, and did not initially inform you of 
your rights, options, and available resources throughout the investigative process.  
In  large  part,  these  omissions  appear  to  have  been  due  to  the  operational 
commitments of [the cutter] and the communication difficulties inherent in those 
operations.   
 
While these oversights are regrettable, I note that you were eventually contacted 
by the EAPC staff and did receive timely counseling.  I encourage you to continue 
to utilize these important resources.  To that end, I have ordered that the terms of 
your restriction be modified to facilitate follow-up contact with your counselor.   

A SOER for the period March 16, 2004, to May 5, 2004, was prepared and submitted for 

 
The Special OER (SOER) 
 
 
the following reason: 
 

This OER is submitted under Article 10.A.3.c.1.b due to non-judicial punishment 
on 5 May 2004, for violation of Article 92 of the UCMJ, failure to obey an order 
or regulation, Section 8H of the Personnel Manual.  Punishment awarded was 30 
days restriction.   
 
In Block 5 (Leadership Skills) of the SOER, the applicant’s observed marks consisted of 

 
a 3 in workplace climate.  The comments were as follows: 
 

Unit was in the middle of a two month deployment in theater of Op ABLE Sentry 
when incident occurred, disruption and curiosity amongst the crew significantly 

decreased unit focus and morale during peak op tempo.  Loss of watchstander & 
Dept  Head  greatly  increased  burden  and  stress  on  other  OODs  and  negatively 
impacted unit’s operational efficiency.   

 

In Block 8 (Personal and Professional qualities) of the SOER, the applicant’s observed 
marks consisted of 2s in the judgment and health and wellbeing categories.  The comments were 
as follows: 
 

Used  extremely  poor  judgment  regarding  interpersonal  relationship  with  non-
rated crewmember, violated the Personnel Manual 8H policy.  Actions led to the 
need for a premature relief of this officer as the Operations Department Head and 
permanent removal from the ship.  Actions brought discredit to the command and 
the  Coast  Guard  at  large.    Irresponsible  use  of  alcohol;  excessive  alcohol 
consumption found to be a significant casual factor, first alcohol incident.   

The applicant was marked as a qualified officer, the equivalent of a 2 (out of a high of 7) 
on  the  comparison  scale  where  the  reporting  officer  compared  her  with  other  LTs  that  he  has 
known throughout his career.   
 

In block 10 of the SOER, the reporting officer described the applicant's potential in the 

following manner: 
 

 

 

 

Up to the time of this incident [the applicant] had performed all manner of duties 
adequately and was a trusted OOD both U/W and import.  It is only because of 
that performance that I continued to endorse [the reported-on officers’] promotion 
to  O-3.    I  do  not  endorse  this  officer’s  current  orders  to  USCGA  Instructor 
Program and recommend reassignment to a support or administrative assignment 
at a District or HQ. This officer is neither a belligerent nor a malcontent, but the 
regulation concerning inappropriate relationships and conduct in conjunction with 
the consumption of alcohol are explicit.  This behavior can neither be condoned 
nor ignored and is contrary to the Coast Guard’s core values.    

The applicant submitted a reply to the SOER disagreeing with the marks and comments.  
She stated in the reply that her actions did not have a negative impact on workplace climate.  She 
noted that in her appeal of the NJP she stated that she did not consent to the sex act with the SN.  
She further argued as she had in her appeal of the NJP that while she was intoxicated, the SN 
took advantage of her and physically placed her in a position that she could not escape. 

 

ALLEGATIONS 

 

 
The  applicant  stated  that  prior  to  the  March  16,  2004  incident,  the  cutter  had  been 
underway for several weeks and it was an especially stressful time for the crew.  In addition, it 
was an especially stressful time for her due to family problems.  The day of the incident had been 
a particularly trying day for the applicant because the ship had a near-grounding while she was 
serving as OOD.  The applicant further stated that work days were long, the ship was down to 
two junior officers, and the tropical environment was exhausting.   

 
 
The applicant stated that on March 15 pier-side liberty was granted to all hands and the 
consumption of alcoholic beverages was authorized, except for the duty section.  The applicant 
stated that all hands partook of beers and hard liquor; some at various clubs, while others like the 
applicant enjoyed themselves throughout the evening in the vicinity of the ship.  According to the 
applicant  she  became  inebriated.    She  alleged  that  the  enlisted  member  who  had  also  been 
drinking took advantage of her by leading her back aboard the cutter and up to the flying bridge, 
which  is  a  secluded  part  of  the  ships  superstructure.   The  applicant  stated  that  she  is  5’2”  in 
height and weighed approximately 130 lbs and that the enlisted member is 6’ tall and roughly 
twice her weight.  She stated that she was more inebriated than he was.  The applicant claimed 
that  the  enlisted  man  caused  her  to  engage  in  a  sexual  act  with  him  on  the  flying  bridge  at 
approximately 0100 hours.    The applicant alleges that the enlisted member was the initiator and 
sough to deflect responsibility for the incident onto her.  She stated that there were no third party 
witnesses to the incident.   
 
 
The  applicant  stated  that  she  fled  the  flying  bridge  at  her  first  opportunity,  and  still 
inebriated sought the seclusion of her stateroom.  She stated that when she awoke several hours 
later she brought the incident to the attention of the ship’s corpsman, and thereafter to that of the 
XO.  She stated that she did not use the word assault because she was still in shock from the 
disturbing event. 
 
 
The applicant stated that the command reacted by sending her ashore so she could obtain 
the assistance of a mental health provider and a chaplain.  She stated that the ship got underway 
and  subsequently  returned  to  port  after  a  week,  at  which  time  she  asked  to  see  the  CO.    She 
stated that she told the CO that the incident with the enlisted member was nonconsensual.  She 
stated that the CO instructed her to write a statement, which she did, and told her that she would 
remain  on  shore.    The  applicant  stated  that  on  March  24  she  was  interviewed  by  CGIS  and 
provided a statement as requested.  She stated that she continued to receive counseling.   
 
 
The applicant stated that on April 30 she was contacted and told to report to mast on May 
3; however the mast actually occurred on May 5.  The applicant stated that she was not provided 
with  a  copy  of  the  investigative  report  until  2200  hours  on  May  4.    She  stated  that  she  was 
afforded the assistance of a non-lawyer officer as her mast representative.  The applicant claimed 
that her mast representative told her that she had to admit to the charge and that she should make 
a statement in extenuation and mitigation.  The applicant stated that at the mast on May 5 she 
admitted to the charge as she had been directed to do by her mast representative.  She stated she 
appealed the mast (the mast appeal and denial was addressed earlier).   
 
 
The applicant stated that she served her restriction at ISC, New Orleans and received a 
favorable OER for her duty there as a special projects officer.  She stated that at the time of the 
mast,  her  name  was  on  the  list  for  promotion  to  LT.   Although  CGPC  recommended  that  her 
name be removed from that list, higher authority disapproved the recommendation, and she was 
promoted on her scheduled promotion date of May 17, 2004.   
 

The  applicant  alleged  that  the  mast  and  SOER  should  be  removed  because  the 
proceedings underlying them were illegal and unjust.  The applicant set forth several arguments 

as to why the mast and SOER were illegal or unjust.  First, the applicant stated that she was not 
the  initiator  of  the  encounter  for  which  she  was  punished.    She  recognized  that  the  enlisted 
member provided a statement that was contrary to hers, but she argued she was never afforded 
the  opportunity  to  cross-examine  him.    She  further  argued  that  the  alleged  enlisted  member’s 
statement on which the CO relied was not a sworn one.    
 
 
Second, the applicant asserted that her intoxication impaired her faculties and rendered 
her incapable of consenting to the sex act.  She stated that she was wrong to permit herself to 
become inebriated, but she does not feel that that error on her part is tantamount to consent.  She 
argued that the incident was an alcohol incident and should have been handled as such.   
 
 
Third,  the  applicant  alleged  that  her  Article  31(b)  rights  were  violated  when  the  XO 
obtained  a  written  statement  from  her  without  warning  her  and  then  the  CO  relied  on  the 
statement  at  mast.    She  argued  that  the  Commander’s  claim  that  the  remaining  evidence  is 
sufficient  to  sustain  the  non-judicial  punishment  is  unsupported.    She  contended  that  her 
admission  to  the  charge  at  mast  was  infected  by  the Article  31  violation  and  by  the  blatantly 
wrong  advice  her  non-lawyer  mast  representative  gave  her  concerning  a  legal  matter.    The 
applicant stated that there is no evidence in the record that her mast representative was aware of 
the Article 31(b) violation.  She further contended that she was still in counseling during the mast 
and  that  the  Board  should  consider  whether  her  acknowledgment  of  guilt  at  the  mast  was  a 
product of continuing emotional trauma.   
 
 
Fourth,  the  applicant  contended  that  the  punishment  imposed  on  her  at  mast  was 
irregular.  She alleged that a non-punitive letter is not a mast punishment and should not have 
been  combined  with  a  mast  punishment.      She  argued  that  if  the  command  believed  that  an 
administrative  letter  was  warranted,  it  should  not  have  imposed  the  restriction  and  the  mast 
would not have become a matter of record.   
 
 
She  also  argued  that  the  CO’s  inflexible  view  that  “in  every  case  I  have  permanently 
removed  the  senior  member  from  my  command  (an  administrative  action,  not  a  punishment 
awarded at Mast) and given both parties a minimum of 30 days restriction and other punishments 
as appropriate to the case” was an abandonment of the quasi-judicial role Congress contemplated 
in codifying non-judicial punishment authority.   
 
 
The applicant noted her excellent previous and subsequent performance and argued that 
“a giant-sized enlisted man who takes advantage of a pint-sized junior officer whom he knows to 
be impaired does not deserve to be the instrument by which that officer’s career is destroyed.” 
 
 
The  applicant  submitted  a  statement  from  HSC  G.    He  stated  that  when  the  applicant 
spoke  to  him  on  March  16  she  was  not  emotional  during  their  discussion  but  did  become 
emotional in her discussion with the XO.  HSC G stated that based on his observations of the 
applicant, he has found her to be an honest and truthful person. 
 
The applicant also submitted a one page record of medical care in which she saw a doctor 
 
on  March  22,  2004.   The  entry  stated  that  the  applicant  was  informed  on  March  21,  that  she 
would not be returning to the cutter.  It stated that she tended to focus on what she thought was 

wrong  in  how  the  command  handled  her  situation.    The  entry  stated  that  the  applicant  was 
encouraged to seek counseling to address family problems at her next assignment.  A late entry 
dated  March  29,  2004  stated  that  the  applicant  had  been  diagnosed  with  a  “stressful  work 
Schedule.”  
 
 
The applicant also submitted a copy of a Behavioral Healthcare Service Initial Evaluation 
Questionnaire  consisting  of  12  pages  dated  March  18,  2004.      The  provider’s  note  on  this 
document stated that the applicant reported that she drank too much and was taken advantage of 
sexually by an enlisted man.  The applicant stated that she reported the incident to the XO as 
though she consented to the sexual encounter and did not remember telling the XO that she told 
the SN “I can’t do this” and pushed him away.   The doctor’s portion contained a diagnosis of 
“stressful work schedule.”   
 

VIEWS OF THE COAST GUARD 

 
 
On December 21, 2006, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion recommending that the Board deny the applicant’s request based upon the 
memorandum from Commander, Coast Guard Personnel Command (CGPC).   CGPC offered the 
following in pertinent part: 
 

The [SOER] was submitted, validated and entered into the record in accordance 
with  policy  described  in  Chapter  10.A  of  the  Personnel  manual,  COMDTISNT 
M1000 .6A. . . . There is no error or injustice that requires relief concerning the 
[SOER]. 
 
Applicant took issue with an early draft of the  OER; however, the rating  chain 
worked with CGPC-opm-3 to ensure that the OER was prepared and processed in 
accordance with policy. . .    Only the validated OER, which included a two-page 
addendum  prepared  by  the  applicant,  was  entered  into  the  record  .  .  .  The 
applicant’s concern about a draft OER is a moot point. 
 
Applicant is primarily requesting relief based on the assertion that the non-judicial 
punishment  awarded,  as  documented  in  the  OER,  involved  error  and  injustice.  
Applicant  submitted  an  appeal  of  imposition  of  non-judicial  punishment  to  the 
Commander, Coast Guard District Eight   . . .  The appeal was denied; a detailed 
summary of proceedings addresses the District Commander’s position that there 
was “no basis to concluded that the mast proceedings conducted by Commanding 
Officer 
.  were  either  unjust  or  that  the  punishment  imposed  was 
disproportionate to the act of misconduct committed.” 
 
The  Coast  Guard  District  Eight  legal  staff  conducted  a  thorough  review  of  the 
process  and  concluded  that  the  non-judicial  punishment  imposed  was  neither 
unjust  nor  disproportionate.    Therefore,  the  [SOER]  accurately  documents  the 
non-judicial punishment awarded. 

. 

. 

 

The Coast Guard obtained statements from the applicant’s rating chain for the disputed 

 
GCPC concluded his comments by stating that the applicant has not provided evidence 
that overcomes the presumption of regularity with respect to the construction or submission of 
the disputed OER.   
 
Rating Chain Statements obtained by the Coast Guard 
 
 
SOER.   
 
 
1.    The  reviewer  stated  that  he  conducted  his  responsibilities  in  accordance  with  the 
Personnel Manual.  He stated that he discussed the matter with the applicant’s CO and that it was 
his  recollection  that  the  CO  believed  that  the  applicant  had  engaged  in  a  consensual  sexual 
encounter with the enlisted member and only after having discussions with others and possibly 
recognizing the magnitude of her offense did she alter her account.   The reviewer stated that he 
recalled that CGIS investigated the event and validated the CO’s position.   
 
 
 

2.  The reporting officer who was also the CO offered the following pertinent comments: 

In her declaration, [the applicant’s] attorney claims that the enlisted crewmember 
led  the  officer  to  the  locations  of  the  encounter  (flying  bridge).    However,  in 
statements  made  to  both  CGIS  investigators  and  to  the  ship’s  investigator  [the 
applicant] claimed to have initiated the move to the flying bridge and gave her 
verbal concurrence for the enlisted member to accompany her.   
 
The [applicant] did self report having engaged in an inappropriate encounter with 
a subordinate member of the crew.  She later recanted her story and claimed that 
she was a victim of sexual assault, at which time CGIS professionals were called 
in  to  conduct  a  thorough  investigation  into  the  allegations.    In  short,  their 
investigation revealed nothing to support those allegations and produced no signs 
of  struggle  (no  bruises,  abrasions,  or  tattered  clothing  despite  the  encounter 
having taken place on highly abrasive non-skid deck).  Circumstantial evidence 
supported the earlier claim of a consensual encounter.  Supported by the results of 
this  professional  investigation,  UMCJ  charges  were  preferred  and  NJP  was 
scheduled for both parties.   
 
In  preparation  for  this  mast,  an  onboard  investigation  was  also  conducted  to 
ensure all appropriate documentation and evidence was obtained and available as 
required  by  [the  MJM].  A  Mast  representative  was  coordinated  for  the  officer.  
This  representative  was  selected  from  the  District  8  staff  based  on  her 
professionalism and prior operational experience.  [The applicant] expressed no 
reservations about her  mast representative.  There is no requirement for a mast 
representative to have legal training or certification.   
 
Mast  was  conducted  in  full  accordance  with  [the  MJM].    The  [applicant]  was 
advised of her rights of appeal, which she exercised.  The appeal was denied by 
the 8th District Commander following a thorough review and the findings of Mast, 

as well as the prescribe punishment.  The ensuing OER was in accordance with 
[the Personnel Manual].   
 
I  have  had  the  privilege  of  commanding  three  operational  cutters.    The  single 
largest burden of those commands, after the safety of my crews, was the weight 
associated with conducting NJP proceedings.  I stand by my decisions I made in 
this officer’s case.  The evidence at hand pointed to a severe lapse in judgment 
and a breach in conduct.  There were no signs of struggle or evidence of coercion.  
During questioning in the course of the CGIS investigation and at Mast the officer 
stated that at no time was she held against her will. 
 
There is no doubt that this officer regrets the actions in question and that alcohol 
was  a  major  causal  factor.    Regret,  however,  is  not  an  adequate  mitigation  to 
absolve  responsibility.    Officers  in  our  organization  are  held  to  the  highest 
standard of conduct and judgment of any personnel.  The removal of an officer 
from the chain of command of an operational cutter in the wake of such a breach 
of conduct is essential for the preservation of good order and discipline, as well as 
the assurance of safety for all onboard that serve in that chain.  If an officer cannot 
be relied on to exercise appropriate judgment in the consumption of alcohol and 
in  liaison  with  subordinate  personnel,  then  they  can  no  longer  be  relied  on  to 
fulfill their role in the chain of command.   

 
 
 

 
 
3.  The XO, who was the applicant’s supervisor, wrote in a declaration under penalty of 
perjury that on March 16, the HSC came to see him and told him that the applicant needed to 
speak with him.  The XO stated that he went to sickbay to see the applicant.  He stated that the 
applicant told him that instead of him finding out from rumors that she wanted to self report that 
she had had a sexual encounter with an SN on the flying bridge.  The XO further stated: 
 

[The applicant] . . . went on to describe how she didn’t enjoy her childhood, and 
that her father played the piano for her and that that was the only thing that she 
enjoyed as a little girl (it was quite strange).  The conversation transitioned into 
her concerns for her sister’s safety, as it related to the news on the custody hearing 
she  had  received  the  previous  day.    Her  mental  state  alarmed  me,  so  I  left  her 
ashore to see a psychologist and the chaplain.  The ship sailed shortly after and 
the  next time  I  saw  her  was  roughly  a  week  later  when  the  ship  returned  from 
GITMO.  She was waiting on the shore and asked to see the Captain.  I obliged 
and  went  in  with  her  where  she  stated  to  [the  captain]  that  in  retrospect  she 
thought she was sexually  assaulted  and feared for rape.   I immediately  notified 
CGIS . . . and they arrived sometime after that to conduct their investigation.  At 
that point I had sent [the applicant] back to Mobile, AL, while the ship completed 
our  “in  theater’  deployment.    Sometime  later,  the  CGIS  investigation  was 
complete and their findings of the facts supported absolutely no claims of sexual 
assault or rape.    

Statement from Applicant’s Mast Representative  
 
 
The  Coast  Guard  also  obtained  a  declaration  from  the  applicant’s  mast  representative.  
The  mast  representative  stated  that  CGIS  investigation  addressed  the  issue  of  whether  the 
enlisted member caused the applicant to engage in a sexual act by asking the applicant if she was 
ever restrained or threatened by the SN.  The applicant’s answer to this question was no.   The 
mast representative further stated that: 
 

I  specifically  remember  [the  applicant]  telling  me  that  they  were  discussing 
astronomy on the pier and that she was the one who recommended that they go up 
to the flying bridge to get a better look at the stars.  This made sense to me as the 
Operation Officers onboard a 225’ are also the navigators onboard and at that time 
were trained in celestial navigation.  Throughout [her brief], it mentions that [the 
applicant]  was  inebriated. While  the  applicant  was  drinking,  she  was  somehow 
able to make it up and down the vertical ladder leading to the flying bridge on a 
225’ buoy tender without incident. 

 
 
The  mast  representative  stated  that  she  recommended  that  the  applicant  admit  to  the 
allegations.  The mast representative stated that at that time, the applicant was not referring to 
what happened as ‘assault” and the CGIS investigation did not indicate that the encounter was 
not consensual.  The mast representative further stated: 
 

While [the applicant] was very distraught that the incident had occurred, she did 
not deny that it happened nor did she state that she was forced into engaging in 
this  sexual  act.    Therefore,  I  ultimately  recommended  that  she  admit  to  the 
allegations and then bring up her family problems and lack of good judgment due 
to inebriation during extenuation.  A mast representative does not fill the role of a 
lawyer.    My  recommendation  to  admit  the  allegations  was  simply  that,  a 
recommendation.  I made it perfectly clear to [the applicant] that it was ultimately 
her decision to admit or not admit the charges.   

 
 
The mast representative stated that the applicant was upset and distraught on the night 
before and day of the mast.  She stated however, that she did not consider this to be abnormal 
because  many  officers  under  similar  circumstances  have  been  kicked  out  of  the  Coast  Guard.  
The mast representative also stated: 
 

[The  applicant]  did  not  seem  to  understand  why  I  was  recommending  that  she 
admit the charges.  On the other hand, I did not understand how she could deny 
that they happened when she had admitted to me on several occasions that they 
had in fact occurred and she did not state that they were assault.  I also remember 
her being very upset after the outcome of the mast which also didn’t make sense 
to me as I was very happy that she was still in the Coast Guard.  The entire time 
that I spent with [the applicant] was very frustrating because she just didn’t seem 
to understand my reasoning based on the facts of the case. 
 

I did not find any problems with the mast proceedings and found the [CO] to be a 
very  fair  and  understanding  gentleman.    He  continually  treated  [the  applicant] 
with  respect  throughout  the  proceedings  and  seemed  genuinely  disappointed  in 
her when he rendered his decision.   

APPLICANT'S REPLY TO THE VIEWS OF THE COAST GUARD 

 
On November 21, 2007, the Board received the applicant’s response to the views of the 
Coast Guard.  She disagreed with them and offered the supplemental CGIS statement of HSC G 
and her declaration under penalty of perjury as proof that she described the violent nature of the 
alleged assault when she first spoke to the HSC and XO about it.  HSC G’s follow-up statement 
to CGIS was as follows: 

 
In  addition  to  my  provided  statement:    I  recall  [the  applicant]  showing  me  her 
elbow  –  once  during  our  conversation  the  day  she  left  [the  cutter]  &  once 
approx[imately] a week later when she came back on the ship for a short period.  
Both times, I recall her showing me an elbow & briefly stating that she had [a] 
mark of some sort.  Neither time did I pay such close attention that I noticed any 
type  of  marks.    Her  elbow  appeared  “normal”  to  me  for  the  length  of  time  I 
glanced at it.     

 

 

 
 
On  this  point,  the  applicant’s  declaration  is  to  the  same  effect.    She  argued  that  the 
command was so anxious to resolve the situation as quickly as possible that it did not take the 
time needed to pursue the proper course of action, which was to deal with it as an alcohol related 
situation.  The applicant continued to assert that she was not afforded an adequate amount of 
time to prepare for the mast. 
 
 
The  applicant  argued  that  the  incident  should  have  been  handled  as  a  alcohol  related 
situation as her case was still pending when the revised COMDTINST 1754.10B issued on April 
2, 2004.  Article 7.f. of this regulation states:  
 

If  the  consumption  of  alcohol  by  the  victim  is  a  factor  in  the  assault,  the 
consumption  of  alcohol  will  be  handled  as  an  alcohol  related  situation  vice  an 
alcohol  incident  for  administrative  purposes  and  the  victim  will  be  referred  to 
screening  and  treatment.    If  the  screening  determines  alcohol  treatment  is 
necessary,  and  the  victim  refuses  or  fails  treatment,  the  use  of  alcohol  will  be 
considered an alcohol incident for administrative purposes. 

FINDINGS AND CONCLUSIONS 

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

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

1. The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

of the United States Code.   The application was timely. 

 

2.  The applicant requested an oral hearing before the Board.  The Chair, acting pursuant 
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.  NJP (also known as captain’s mast, mast, or non-judicial punishment) is provided by 
statute at Article 15 of the UCMJ.  COs are responsible for maintaining good order and discipline 
within their commands and Article 15 provides them with the authority to impose punishment on 
members  under  their  command  without  resort  to  court-martial.   As  such,  after  reviewing  and 
weighing  the  evidence  the  CO  alone  finds  whether  a  member  committed  a  particular  offense 
under the UCMJ.  Article 1.D.1.f. of the MJM states in pertinent part that “[t]he burden of proof 
required in order to award punishment at NJP is a preponderance of the evidence;” and Article 
1.D.15. states that “[I]f the [CO] determines, based on a preponderance of the evidence, that the 
member committed one or more offenses, the [CO] should announce, in layman’s terms, what 
offenses the member committed.”  
 

4.  On May 5, 2004, the applicant’s CO punished her at mast for a violation of Article 92 
(failure to obey a lawful order) of the UCMJ.  Specifically, he found that the applicant failed to 
obey  a  lawful  order  in  that  on  March  16,  2004  she  violated  the  Coast  Guard  Interpersonal 
Relationship  regulations  (section  8H  of  the  Personnel  Manual)  when  she  engaged  in  a  sexual 
encounter with SN J on the flying bridge of the cutter to which she was assigned.  The applicant 
appealed the NJP and her appeal was denied by the Commander, Eighth Coast Guard District on 
June  4,  2004.  The  Commander  found  that  the  mast  punishment  was  neither  unjust  nor 
disproportionate to the misconduct committed.4   
 

                                                 
4 Under Article 1.F. of the MJM, a member punished under Article 15 may appeal if he or she considers 
the punishment imposed “unjust” or “disproportionate” to the acts of misconduct for which punished.  
Article 1.F.1.a.(1) defines “unjust” as illegality:   
 

For  example,  the  act  of  misconduct  for  which  punishment  was  imposed  was  not  a 
punishable offense under the UCMJ; the member was not subject to the jurisdiction of the 
commanding  officer  who  imposed  punishment;  the  commanding  officer  who  imposed 
punishment  was  without  power  or  authority  to  act  in  the  member’s  case;  or,  the 
punishment exceeded legal limitation based upon the status of the member and/or the 
commanding  officer who imposed the  punishment.   Similarly,  the illegality  may result 
from the denial of a substantial right of the member at any stage of the proceedings, e.g., 
investigation,  preliminary  inquiry,  interrogation,  or  mast;  or  it  may  result  from  the 
failure  to  comply  with  procedural  provisions  applicable  to  the  mast  punishment;  or  it 
may result form a lack of sufficient evidence to establish that, more likely than not, the 
reported misconduct, the member’s involvement in the misconduct, or both occurred.  

 
Article  1.F.1.a.(2)  states  that  “’disproportionate’  indicates  that    although  the  punishment  imposed  was 
legal,  it  was  excessive  or  too  severe  considering  all  of  the  circumstances,  as,  e.g.,  the  nature  of  the 
misconduct involved; the absence of aggravating circumstances; the prior good record of the member; or, 
any other circumstances that tend to lessen the severity of the misconduct or explain it in a light more 
favorable to the member.  Adverse administrative consequences of NJP such as delay in advancement or 
inability to reenlist are not punishments and are not a proper basis for NJP appeal.”’   

5.  The applicant argued that the mast was unjust because she was not the initiator of the 
encounter for which she was punished; that the enlisted member involved gave a statement of the 
events that was different from her own, but she was not allowed to cross-examine him on his 
statement;  and  that  the  enlisted  member’s  statement  was  not  a  sworn  one.   The  applicant  has 
failed to prove that the CO’s finding that she of her own volition left the fantail of the cutter and 
went  to  the  flying  bridge  with  the  SN  was  in  error  or  unjust.    She  alleged  that  the  enlisted 
member led her back aboard the cutter and up to the flying bridge.  However, she provided no 
corroborating evidence that she did not go up to the flying bridge of her own volition.  As the CO 
stated  in  his  comments  on  her  appeal,  he  had  before  him  the  command’s  preliminary 
investigation, the CG 4910, witnesses’ statements, and CGIS investigation, which the applicant 
had  an  opportunity  to  review.  The  CO  noted  that  in  statements  to  the  ship’s  investigator,  the 
applicant  said  that  she  initiated  the  move  to  the  flying  bridge.    Further,  the  applicant’s  mast 
representative stated that the applicant admitted that she and the SN were discussing astronomy 
and that she herself recommended that they go up to the flying bridge to get a better look at the 
stars.  Also, according to the CO and the applicant’s mast representative, the CGIS investigation 
did not find any evidence that the applicant’s participation in the encounter was nonconsensual or 
that she was coerced into it.  The applicant has not proved that the CO was in error or treated her 
unjustly in finding that she initiated her encounter with the SN.      

 
The  applicant’s  complaint  that  she  was  not  allowed  to  cross-examine  the  SN  on  his 
statement is without merit.  The applicant admitted committing the offense at mast and therefore, 
it was not necessary for the CO to examine other witnesses.  Article 1.D.7. of the MJM states that 
“[i]f the member admits committing the offenses, the [CO] does not need to examine witnesses 
or receive any additional evidence about the offenses.”  The applicant has presented no evidence 
that the SN testified at her mast.  Nor has she presented any evidence that she asked to call him 
as a witness.    The applicant was provided with all of the evidence to be considered at mast, 
presumably  including  the  SN’s  statement.  Therefore,  she  had  an  opportunity  to  rebut  any 
statement  that  she  thought  to  be  inaccurate.      The  applicant  has  failed  to  prove  that  she  was 
denied any right to cross-examine the SN. 

 
The applicant also alleged that the SN’s statement was not a sworn one.  Under Article 
1.D.1.g.  of  the  MJM,  the  CO  may  consider  a  non-sworn  statement  and  decide  how  much 
credibility to give such a statement.  The applicant has presented no evidence that any regulation 
required the SN’s statement to be sworn before it could be considered at mast.  The CO, as fact 
finder, had the responsibility to weigh all of the evidence and must have been persuaded by the 
evidence that the applicant committed the misconduct since he punished her, not to mention the 
fact that she admitted to the offense at the mast.  The applicant’s complaint in this regard has no 
merit.   
 
6.  The applicant next alleged that because she was intoxicated at the time of the event, 
her faculties were impaired and rendered her incapable of consenting to the sex act.  She argued 
that the matter should have been treated as an alcohol situation.  In this regard, she argued that 
the April 2, 2004 revised Commandant Instruction on Reporting Rapes and Assaults states that 
“if consumption of alcohol by the victim was a factor in the assault, the alcohol consumption 
would be treated as an alcohol situation vice an alcohol incident for administrative purposes.” 
The CO stated in the SOER and his recent statement that the applicant’s alcohol consumption 

was a significant causal factor in the incident.  However, the applicant has submitted insufficient 
evidence  to  prove  that  her  alcohol  consumption  rendered  her  incapable  of  consenting  to  the 
sexual  encounter.    HSC  G  indicated  in  the  statement  provided  by  the  applicant  that  she  was 
drinking on the night in question; however, he did not state that she was intoxicated; nor did he 
give the impression that the applicant’s mental and physical faculties were impaired.  The CO 
found that the applicant had been drinking alcoholic beverages on the evening of the incident, 
but drinking alcoholic beverages does not prove per se that the applicant was unable to consent.  

 
Moreover,  the  applicant’s  assertion  that  her  mental  and  physical  faculties  were  so 
impaired due to intoxication that she was unable to consent to a sex act is inconsistent with the 
clarity in which she recalled allegedly expressing her verbal disapproval of the act, saying “No, I 
can’t do this,”  feeling scared, attempting to halt the situation, and running away.  At the mast, 
the CO was privy to the command and CGIS investigations and the applicant’s admission, and he 
was satisfied that the applicant consented to the sex act.  The applicant has failed to prove that 
the  CO  committed  an  error  or  injustice  in  finding  that  she  “engaged  in  an  inappropriate 
consensual sexual encounter with [the SN].”  
 

The applicant’s argument that the matter should have been treated as an alcohol situation 
under Article 7.f. of COMDTINST 1754.10B, revised on the April 2, 2004, is flawed.  For this 
provision to apply to the applicant, she must be the victim of an assault.  The applicant has not 
established by a preponderance of the evidence that she was the victim of an assault by the SN.  
CGIS investigated the applicant’s assault allegation that was made approximately one week after 
first reporting that she had had a sexual encounter with the SN.  CGIS found no evidence of a 
sexual assault; neither did the Commander, Eighth Coast Guard District.  The applicant’s delayed 
and unsupported allegation that she was the victim of an assault is insufficient to prove that the 
sexual encounter was not consensual.   

 
7.  The applicant also alleges in her brief without supporting evidence that the SN was 
not as intoxicated as she was and that he “caused” her to engage in the sex act.  She does not 
explain what she means by “caused,” but described the event thusly: “A giant-sized enlisted man 
takes  advantage  of  a  pint-sized  junior  officer  whom  he  knows  to  be  impaired.”    There  is  no 
evidence except the applicant’s own late statement that the SN “caused” her to engage in a sex 
act with him.   At her invitation, the applicant and the SN were the only two individuals on the 
flying bridge.  After her subsequent allegation of assault, CGIS conducted an investigation, and 
according  to  the  CO’s  statement  obtained  by  the  Coast  Guard,  found  “nothing  to  support  the 
applicant’s allegations [of an assault] and produced no signs of a struggle (no bruises, abrasions, 
or tattered clothing despite the encounter having taken place on highly abrasive non-skid deck).” 
HSC G wrote in a statement to CGIS (provided by the applicant) that during their conversation 
of March 16 and a week later when she came back onboard the ship, the applicant showed him 
her elbow and stated that she had a mark of some sort.   The HSC further stated that “neither 
time  did  I  pay  such  close  attention  that  I  noticed  any  type  of  marks.    Her  elbow  appeared 
‘normal’ to me for the length of time I glanced at it.”  The HSC’s statement does not persuade the 
Board that the applicant’s encounter with the SN was non-consensual.  Neither does the fact that 
she  may  have  become  emotional  when  talking  with  the  XO  after  the  HSC  fetched  him.   The 
applicant could have become emotional for any number of reasons and, even if she did become 

emotional when talking to the XO, it certainly would not prove that she did not consent to the 
sexual encounter with the SN. 

 
8.   The applicant has not proven that her Article 31(b) rights were violated when the XO 
obtained a written statement from her.  The evidence of record is that the applicant went to see 
the HSC, who subsequently told the XO that the applicant needed to see him.  The HSC brought 
the XO to the applicant.  The applicant has presented no evidence that the HSC informed the XO 
of the subject matter for the meeting; nor has she shown that the XO at that point suspected the 
applicant  of  an  offense.   As  the  Commander  told  the  applicant  in  denying  her  appeal, Article 
31(b) warnings did not apply to her conversation with the XO because her statements at that time 
were spontaneous and voluntary.  Analysis of the Military Rule of evidence 305 in Appendix 22 
of  the  Manual  for  Courts-Martial  states  that  spontaneous  or  volunteered  statements  do  not 
require warnings under Rule 305 of the Military Rules of Evidence.  The Commander noted that 
the  XO  did  not  seek  the  applicant  out  to  ask  questions  about  any  suspected  offense,  and  the 
applicant has not established that, at the time he spoke to her on March 16, he was even aware 
that she had had a sexual encounter with the SN.  After the applicant made her oral statement to 
the XO, he asked the applicant to put it in writing.   The applicant alleges that the CO improperly 
relied on this statement at mast.  The Board finds that the applicant’s statement to the XO did not 
violate Article 31(b) of the UCMJ.  Even if an argument can be made that Article 31(b) warnings 
should have been given to the applicant before she put her oral statement in writing, the Board 
notes that the XO, who was present at the mast, could have testified that the applicant voluntarily 
orally admitted to him in a conversation on March 16, 2004 that she had had a sexual encounter 
with the SN.   

 
The  District  Commander,  in  denying  the  applicant’s  appeal,  further  addressed  her 
allegation that her Article 31(b) rights were violated.  The Commander told the applicant that the 
rules of evidence do no apply at a mast. On this issue, Article 1.D.1.g. of the MJM states that 
“judicial exclusionary rules involving rights warnings and search and seizure do not apply at a 
mast,  and  the  [CO]  may  consider  evidence  that  would  be  inadmissible  at  court-marital.”   
(Emphasis added.)  Article 31(d) of the UCMJ states “No statement obtained from any person in 
violation of the article, or through coercion, unlawful influence or unlawful inducement may be 
received in evidence against him at trial by court-martial. (Emphasis added.)  Further contrary to 
the applicant’s contention, the Commander did not state that there was a violation of her rights 
with respect to any statement she made to the XO on March 16.  The Commander actually stated 
that an argument could be made that the applicant should have been given Article 31(b) rights 
during  the  CGIS  investigation  of  her  claim  of  a  sexual  assault.    Even  so,  he  noted  that  even 
without the applicant’s statement in the CGIS investigation, there was sufficient evidence for the 
CO to find that the applicant had engaged in a consensual sexual act on board the cutter with the 
SN.  In light of the above, the applicant has not shown that her Article 31 (b) rights were violated 
or that the CO was prohibited from using the information at mast even if such warnings were not 
properly given.   

 
Moreover, the applicant has not proven that her admission at the mast was infected by her 
written statement to the XO.  As the Commander stated in denying the applicant’s mast appeal, 
her rights were given to her the night before the mast and read to her again at the mast.  She had 
sufficient opportunity to change her statement prior to and at the mast.  She did not have to admit 

to the offense if she believed that she had not committed it.  The applicant alleged that her mast 
representative gave her erroneous legal advice.  Apparently, the applicant is referring to the fact 
that the mast representative recommended that she admit to the offenses.  However, the decision 
of  whether  to  admit  or  not  admit  to  the  offense  rested  with  the  applicant  after  discussing  the 
matter with her mast representative.  She certainly could have chosen not to admit to the offense 
at  mast.    To  classify  the  mast  representative’s  recommendation  as  legal  advice  is  misleading.  
Mast  representatives  are  not  attorneys  but  rather  officers  and  petty  officers  assigned  by  the 
command “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.”   See Article 1.C.3.c. of the MJM.  The decision 
to admit to the offense was the applicant’s, and she has not persuaded the Board that her mast 
representative coerced her into admitting to it.   

 
The applicant also argued that her acknowledgement of guilt at the mast was the product 
of continuing emotional trauma.  The problem with the applicant’s argument here is that, except 
for her statement, she presented no evidence that she was suffering from continuing emotional 
trauma at the time of the mast.  She submitted evidence that on March 22, 2004, she was advised 
to  seek  counseling  to  address  family  problems  at  her  next  assignment,  but  she  submitted  no 
medical  reports  to  corroborate  her  allegation  that  on  May  5,  2004  she  was  suffering  from 
emotional trauma. 
 

9.  The applicant also argued that her punishment was irregular because the CO combined 
a  non-punitive  letter,  which  is  not  a  mast  punishment,  with  restriction,  which  is  a  mast 
punishment.  However, the Board is not aware of any regulation that prohibits an NJP authority 
from awarding a non-punitive letter along with other punishment.  As long as the CO honors the 
regulations  with  respect  to  a  non-punitive  letter,  i.e.  not  placing  it  in  the  military  record,  the 
Board finds no problem with the punishment imposed by the CO.  The applicant’s record does 
not contain the non-punitive letter; nor is it mentioned in the SOER.   Accordingly, no error or 
injustice exists in this regard. 

 
10.    The  applicant  also  argued  that  the  CO’s  position  that  “in  every  case  I  have 
permanently  removed  the  senior  member  from  my  command  .  .  .  and  given  both  parties  a 
minimum  of  30  days  restriction  and  other  punishments”  was  an  abandonment  of  his  quasi-
judicial role.  Again, the CO is responsible for maintaining good order and discipline within his 
command  and  his  decision  to  remove  the  senior  member  for  violations  such  as  is  under 
discussion  in  this  case  must  be  respected.    In  this  regard,  the  CO  stated  that  the  applicant’s 
actions  on  the  night/morning  of  March  16,  2004,  negatively  impacted  the  chain  of  command, 
operational  efficiency,  and  morale  aboard  the  cutter.   Additionally,  the  CO  stated  that  it  was 
command policy to permanently remove the senior member from the unit in situations involving 
inappropriate  or  prohibited  relationships.   Article  8.H.5.a.  of  the  Personnel  Manual  states  that 
“All personnel  are responsible for avoiding unacceptable or prohibited  relationships.  Primary 
responsibility rests with the senior member.” 

 
11.  In addition to her major arguments discussed above, the applicant again made the 
assertion that she was not allowed adequate time to review the documents to be considered at 
mast.  She was given the documents the night before.  However, the Board agrees with the CO 
that  under  the  law  and  regulation,  there  is  no  set  amount  of  time  that  must  be  given  to  the 

applicant  to  review  mast  documents.    Article  1.B.4.i.  of  the  MJM  only  requires  that  the 
opportunity to review the documents be provided prior to or during the NJP hearing.  In this case, 
the applicant received the documents the night before.  Additionally, the CO stated the applicant 
did not complain about a lack of time to review documents at the mast, but only did so for the 
first time on appeal.  The applicant has not shown any error in this regard.   

 
12. Although the applicant argued in her mast appeal that she did not waive her right to 
consult with counsel, she did not make that argument in her brief to the Board.  The Board notes 
that the Commander thoroughly discussed this issue in denying the applicant’s appeal and the 
Board agrees with his determination.    

 
 13.  The applicant has failed to prove that the CO committed an error or injustice when 
he punished her at mast on May 5, 2004.  Therefore, there is no basis to remove the documents 
of  the  NJP  or  the  SOER.    Article  10.A.3.c.(1)(1)  of  the  Personnel  Manual  required  the 
submission of a special OER because of the NJP. 

16.  Accordingly, the applicant’s request should be denied.   

 
14.    All  of  the  applicant’s  contentions  have  been  considered  by  the  Board.    Those 
allegations not specifically discussed in the Findings and Conclusions are considered not to be 
dispositive of this case.  
 
 
 
 
 
 
 
 
 
 

 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

The application of LT XXXXXXXXXXXX, USCG, for correction of her military record 

ORDER 

 

 
 

 
 

is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

        

 
 
 Philip B. Busch 

 

 
 
 Adrian Sevier 

 

 
 George A. Weller