DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for Correction of
the Coast Guard Record of:
BCMR Docket No. 2007-160
xxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxx
FINAL DECISION
This is a proceeding under the provisions of section 1552 of title 10 and section 425 of
title 14 of the United States Code. The Chair docketed the case on July 20, 2007, upon receipt of
the applicant’s 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 April 30, 2008, is approved and signed by the three duly
APPLICANT’S REQUEST
The applicant, who resigned his commission as a lieutenant junior grade (LTJG) in the
Coast Guard on August 1, 2004, asked the Board to correct his record by
(a) removing two officer evaluation reports (OERs) covering his service aboard a cutter as a deck
watch officer from October 1, 2002, to January 31, 2003, and from February 1, 2003, to July
13, 2003;
(b) removing all documentation of an investigation of his conduct aboard the cutter, as well as
any documents regarding and references to alleged offenses, such as having an inappropriate
relationship;
(c) removing all documentation of his non-judicial punishment (NJP) at mast aboard the cutter;
(d) invalidating and expunging any administrative actions taken in whole or in part because of
the NJP and disputed OERs;
(e) either removing an April 11, 2003, referral to a Naval hospital for alcohol screening or, in the
alternative, inserting the hospital’s response to the command, which states that he did not
have an alcohol problem and admonishes the command for wasting the hospital’s time;
(f) rescinding and removing his letter of resignation;
(g) removing all documentation of and references to administrative actions to revoke his commis-
sion or otherwise terminate his Coast Guard career;
(h) allowing him an opportunity “to return to active duty and rejoin his year group, without loss
of numbers or precedence” and, if he accepts the opportunity, to be awarded all back pay and
allowances from August 1, 2004, to the date of his return to active duty; and
In the alternative, the applicant asked the Board to correct his DD 214 to change his nar-
rative reason for separation from “Substandard Performance” to “Miscellaneous/General Rea-
sons” and his separation code from BHK, which means “resignation allowed in lieu of further
administrative separation proceedings or board actions when a member’s performance is below
acceptable standards,” to FND, which means that the resignation was allowed for “miscellane-
ous/general reasons.”
APPLICANT’S ALLEGATIONS
(i) removing his DD 214.
The applicant alleged that on January 3, 2003, while stationed aboard the cutter, he was
wrongly accused of having an inappropriate relationship with a female officer, LTJG X. The
applicant stated that the woman had been his classmate at the Coast Guard Academy and that
they had been friends for some time, which is not a violation of Coast Guard policy. After
accusing him, the commanding officer (CO) of the cutter illegally confined him to his stateroom
and deprived him of access to a telephone or email. The applicant submitted copies of the Rules
for Courts-Martial concerning pre-trial restraint and pre-trial confinement but failed to cite
exactly the rule that his CO violated. However, he alleged that he could only talk to personnel
sent by the CO and was not allowed to contact counsel. Although he repeatedly asked to speak
to counsel, he was repeatedly and illegally questioned by senior officers on the cutter, and he was
threatened with additional charges if he did not sign a false statement confessing to the alleged
offenses. The applicant alleged that his confinement constituted unlawful detention.
On January 7, 2003, the applicant alleged, the CO took him to mast but denied him legal
assistance or representation as well as the right to speak or present evidence and witnesses in his
own defense or in mitigation or extenuation. The CO imposed NJP under Article 15 of the Uni-
form Code of Military Justice (UCMJ), including thirty days of restriction to be served at the
nearby xxxxxxxxxxxxxxxx. The CO failed to inform him of his right to appeal, and when the
applicant asked about a right to appeal, the CO threatened him with additional punishment if he
exercised that right. The applicant alleged that the CO also forced him to sign an illegal docu-
ment waiving his right to appeal the NJP. Immediately after the mast, the CO had the applicant
removed from the cutter to the Xxxxx by helicopter, which the CO had arranged in advance of
the mast since the cutter was underway. While in restriction at the Xxxxx, the applicant alleged,
the XXX of the Xxxxx continued to deny him access to a telephone or email, so he could not
contact his family or an attorney.
The applicant stated that after his father, a retired Coast Guard captain, heard about what
was happening through a third party, his father threatened the officer who ultimately served as
the Reviewer for the first disputed OER with legal action and was allowed to telephone him at
the Xxxxx. After learning about his rights from his father, the applicant appealed the NJP on
January 27, 2003. When the CO received the appeal, he called the applicant and again threatened
him with additional punishment if he did not withdraw the appeal. The CO “tried to leverage a
retraction from [the applicant] by threatening to write an inaccurate and derogatory OER that was
due on his performance aboard the vessel.”
On February 2, 2003, the applicant submitted a request for his punishment to be sus-
pended, but the CO denied the request even though the law requires such requests to be approved
if an NJP appeal is not adjudicated within five days of filing. Therefore, the applicant remained
unlawfully incarcerated at the Xxxxx for thirty days. In fact, he was incarcerated for thirty-three
days because the CO failed to include transit time in the calculation of his thirty-day sentence, as
required by the Military Justice Manual. On March 24, 2003, the Area Commander, a vice
admiral, nullified the NJP, “rescinded the punishment, ordered all trace of the proceedings to be
removed from [his] record, and verbally reprimanded the CO.”
Allegations about the Page 7
On April 11, 2003, the CO of the cutter, which was still the applicant’s permanent duty
station, referred him to a Naval hospital for alcohol dependence screening. Hospital personnel
determined that he was not alcohol dependent and sent the CO a letter admonishing him for
wasting their time. The applicant stated that because the screening referral is in his record but
the hospital’s response is not, his record falsely indicates that he had an alcohol problem, which
is false. Therefore, he argued, either the referral should be removed from his record or the
hospital’s reply should be added to his record.
Allegations about the Disputed OERs
After his release from confinement, the applicant was assigned to the Xxxxx on a tem-
porary basis as a Planning Officer. Within days of his release, he learned that his rating chain
aboard the cutter—which included the Operations Officer, the Executive Officer (XO), and the
CO—was preparing a derogatory OER for him. The applicant concluded that this rating chain
was biased against him, and so on April 9, 2003, he asked that they be disqualified so that his
OER for the evaluation period October 1, 2002, through January 31, 2003, would be prepared by
other officers. The applicant alleged that although his request was granted, his substitute rating
chain prepared a derogatory OER based on information that the Area Commander had already
ordered stricken from his record. The applicant alleged that the substitute rating chain should
have marked all of the performance categories on the first disputed OER as “not observed”
because none of them observed his actual performance. Instead, they created a derogatory OER
based on information from the biased rating chain and from the NJP documents. The applicant
alleged that the Reporting Officer and Reviewer who prepared the first disputed OER were
biased against him because his father had threatened the Reviewer with legal action and had
reported both officers to Headquarters officials in 2001 for “manipulating Xxxxxx Area Cutter
Performance Records to show better performance than actual.” However, the Area Command
refused to remove the derogatory information from the first disputed OER, and the Coast Guard
Personnel Command (CGPC) refused to allow him to submit an effective response to the OER.
The applicant stated that upon receipt of the first disputed OER, he submitted an OER Reply to
respond to the OER. However, CGPC rejected it because of its content and he was required to
revise it twice and was not allowed to address the most important issues in his Reply.
Regarding the second disputed OER, the applicant stated that it was simply an attempt by
the substitute rating chain to insert negative information in his record. The applicant stated that
throughout the evaluation period from February 1 to July 13, 2003, he never worked aboard the
cutter. He stated that because his performance during that period is adequately described on the
concurrent OER prepared by his chain of command at his temporary duty station, the second dis-
puted OER “serves no useful purpose and should be removed.”
Allegations about the Proposed Revocation Board
The applicant stated that even though the Area Commander overturned his NJP and
ordered its removal from his records, CGPC added insult to injury by threatening to convene a
panel of senior officers under Article 12.A.11. of the Personnel Manual (hereinafter “Revocation
Board”) to determine whether his commission should be revoked. The applicant was informed
that he would not be granted a hearing or allowed to question his accusers. He would only be
allowed to submit a written statement on his own behalf. When he was provided a copy of the
documents to be considered by the Revocation Board, he discovered that the report of investiga-
tion was wrongfully included even though the Area Commander had already ordered the docu-
mentation of the NJP to be removed from his record. Although he asked for the report to be
removed from consideration by the Revocation Board, CGPC refused to do so, thereby violating
his right to due process. The applicant argued that the reporting of the investigation was part of
the mast proceedings and not a part of his record so the report should not have been among the
documents to be considered by the Revocation Board. He alleged that Coast Guard regulations
state that only an officer’s record can be considered by a Revocation Board. He noted that on the
letter forwarding him the documents to be reviewed by the board, his Headquarters Personal Data
Record (PDR) is listed separately from the report of the investigation and that Coast Guard’s
regulations prohibit filing such a report in a member’s PDR. Therefore, he argued, the report
was not a proper part of his record and should not have been included for consideration by the
Revocation Board. The applicant further argued that the report was part of the mast proceedings
and so should have been removed from his record as documentation of the mast pursuant to the
Area Commander’s order. He also argued that it was completely unjust for CGPC to include the
report of the investigation or parts thereof in the record before the Revocation Board without also
including the fact that his NJP had been overturned due to insufficient evidence.
The applicant stated that when CGPC illegally refused to remove the report of the inves-
tigation from the documents to be considered by the Revocation Board, he realized that the out-
come of the board was a “foregone conclusion.” He noted that LTJG X, with whom he was
wrongly accused of having an inappropriate relationship, ultimately had her commission revoked
pursuant to a Revocation Board, and therefore concluded that his assumption about the outcome
was correct. In addition, he realized that the board’s proceedings would become a part of his
record and therefore reintroduce into his record the negative information that the Area Com-
mander had ordered removed, which might adversely affect his ability to obtain highly skilled or
clearance-sensitive employment. Therefore, the Coast Guard’s illegal actions coerced him into
resigning his commission, which was the only way he could avoid the reintroduction of false,
negative information into his record via the proceedings of the Revocation Board.
Allegations about the DD 214
Regarding the separation code and narrative reason for separation on his DD 214, the
applicant stated that they were based on the erroneous information in the first disputed OER. All
his other OERs are excellent. Therefore, the notation “Substandard Performance” is clearly erro-
neous. The applicant also alleged that the DD 214 was based on an inaccurate database entry by
CGPC. He submitted a “Case Status” printout from a database concerning CGPC’s special
boards. The printout, dated May 20, 2004, shows as the status of the case that the applicant’s
resignation had been approved in lieu of board action. However, the database entry concerning
the issue that would have been before the Revocation Board is described as “8-H [which means
inappropriate relationship] with [LTJG X] at [name of applicant’s last duty station].” He sub-
mitted an affidavit from the CO of his last unit attesting to the fact that the applicant “was not
involved in any 8-H incident [inappropriate relationship], while under my command.” The
applicant further alleged that the DD 214 is unjust because it has caused him to be denied
employment by the Federal Bureau of Investigation.
Allegations about the DRB Testimony, Recommendation, and Decision
Finally, the applicant alleged that although the Discharge Review Board (DRB) found
that the Coast Guard had committed serious errors resulting in great injustice to him and recom-
mended the rescission of his resignation and restoration of his commission, the Commandant
disapproved the DRB’s recommendation without explanation.
The applicant alleged that during his DRB hearing, he and his father, who represented
him, persuasively argued that his command scrutinized his conduct and wrongly accused him of
having an inappropriate relationship after he “observed a situation during a migrant interdiction
which resulted in deaths” and subsequently reported it, which caused his chain of command to be
reprimanded by a three-star admiral. The applicant stated that in December 2002, the cutter was
preparing to unload Haitian immigrants from an overloaded sailboat when the sailboat capsized
and quite a few people drowned, but the CO reported that only three had drowned. Moreover, the
applicant alleged, he told the DRB that at the cutter’s next stop, he heard an investigator ask the
CO why the ship’s log did not show that they had searched the sea for survivors and searched the
sailboat for hideaways before sinking it. When the CO stated that they had not done either of
those things, the investigator advised him to change the log so that it would look as if they had or
they would be in a lot of trouble. The CO then changed the ship’s log accordingly. The alleged
that he told the DRB that he had informed his father of these events in an email and asked if he
should report the matter. He also told them that he believes his email may have been seen by the
CO because the XO and the Operations Officer periodically checked the crew’s outgoing emails
for security purposes. Within a week, he was unjustly accused of having an inappropriate rela-
tionship.
As further evidence of bias, the applicant alleged, he told the DRB that in January 2003,
another female officer, LTJG Y, was caught sharing a hotel room with two enlisted men, but she
was never placed on report, reprimanded, or counseled on a Page 7. He argued that it was unfair
that he and his friend were “cashiered for doing nothing,” while an officer on the same cutter
who clearly violated the UCMJ by fraternizing with enlisted members was not punished at all.
The applicant alleged that he also argued at the hearing that his receipt of one poor OER,
written by officers who never observed his performance and got their information from biased
sources, was not an adequate basis for CGPC to threaten to revoke his commission and that
CGPC had acted arbitrarily and capriciously in initiating the board. In addition, the applicant
stated that his relationship with the LTJG X was not romantic and that even if it had been roman-
tic, it would not have been an “inappropriate relationship” under Article 8.H. because they were
both officers and they were of the same rank, seniority, and level within the cutter’s command
structure. He stated that if the CO had considered it an “unauthorized relationship,” he need only
have transferred one or both of them without prejudice. The applicant told the DRB that during
his pre-mast confinement, the command took away his cell phone and terminated his email
privilege. The XO told him that if he admitted to one count of violating Article 92 of the UCMJ,
he was get light punishment, such as a non-punitive letter. At the mast, he and LTJG X were not
allowed to speak in their own defense, and the CO refused to conduct the extenuation and miti-
gation phase because a helicopter that the CO has previously ordered to take them to confinement
at the Xxxxx had already arrived. Yet the CO gave them the maximum punishment. Instead of
informing them of their right to appeal, the CO “warned us that if we tried to appeal, it would not
be approved and we would only get more punishment.” The applicant further alleged that he told
the DRB that the many mistakes the CO made in conducting the mast should be considered signs
of bias because the CO was an experienced captain/O-6 who must have known how to conduct a
mast properly but may have thought he was untouchable and could get away with anything
because his own chain of command had reason to dislike the applicant’s father.
The applicant also told the DRB that after his appeal was upheld, the Area Commander
was “furious” with the CO and “gave him a major league dressing down.” The CO relieved the
XO and the OPS, who left the ship, and the CO himself was relieved of command shortly there-
after. The applicant’s father testified to the DRB that the officers who served on the applicant’s
substitute rating chain may also have been criticized because they presumably approved the mast.
The father stated that these officers had good reason to dislike him and that when they saw that
his son might get NJP, “their desire for some form of revenge overcame their common sense.”
He noted that the Area Commander also overturned LTJG X’s NJP and she did not even file an
appeal. Yet in planning the Revocation Board, CGPC intended to show the board the NJP pack-
age without his appeal or the Area Commander’s letter overturning the NJP.
SUMMARY OF THE RECORD
On May 8, 2001, the applicant was commissioned an ensign upon graduating from the
Coast Guard Academy. Thereafter, he was assigned to a cutter as a deck watch officer. On his
first OER, for the period May 21, 2001, to March 31, 2002, he received primarily marks of 4 (on
a scale of 1 to 7, with 7 being best) in the various performance categories and a mark in the
fourth spot on the comparison scale, denoting him as “one of the many competent professionals
who form the majority of this grade.” The XO of the cutter, who served as the Reporting Officer
for the OER, noted that the applicant was “on track” for promotion with his peers. On his second
OER, for the period April 1, 2002, to September 30, 2002, the applicant received marks of 4 and
5 in the various performance categories and a mark in the fourth spot on the comparison scale.
The Reporting Officer again recommended him for promotion. The applicant was promoted to
lieutenant junior grade on November 23, 2002.
Report of the Investigating Officer1
The record indicates that in late December 2002 or early January 2003, the CO of the
cutter appointed a lieutenant commander who was not a member of the applicant’s rating chain to
conduct an investigation of allegations that the applicant and a female LTJG were involved in an
unacceptable relationship. The CO’s letter and the written findings and recommendations of the
investigating officer (IO) are not in the record before the Board, but CGPC submitted copies of
many statements gathered by the IO and attached to his report with the advisory opinion.
The IO’s attachments show that on January 3, 2003, he informed the applicant in writing
that he was suspected of violating Article 92 of the UCMJ twice (failure to obey an order or
regulation) and Article 133 (conduct unbecoming an officer and gentleman). On the written
acknowledgement of his rights, the applicant acknowledged the right to remain silent and not to
answer questions; the right to consult with a lawyer before deciding whether to answer questions
or make a statement; and the right to stop answering questions at any time. He also acknowl-
edged that any statement he made could be used against him in any court-martial, NJP, or
administrative proceeding. The applicant checked boxes on this form indicating that he did not
desire to consult a lawyer but did desire to make a statement and to answer the IO’s questions.
LTJG X, who was also accused, signed the same acknowledgement and also indicated that she
did not desire to consult a lawyer but desired to make a statement and answer questions. The
applicant ultimately signed four statements for the IO:
1.
2.
On January 5, 2003, the applicant signed and submitted a statement for the
investigation “to give amplifying information to the questions answered for [the IO] on 3 JAN
03.” His statement began with the following claim: “With full understanding of my rights, I
make the following statement freely, voluntarily, and without any promises or threats made to
me.” He claimed that he had been friends with LTJG X for five years, “since being in the same
company together at the Academy” and he had grown very close to her while stationed on the
cutter. However, their kiss at the Xxx Bar had “caught [him] completely off guard.” He admit-
ted that he relished her attention and began “not to care how other people looked at it, and … to
pay more attention to her as well,” even though he “realized the perception was negative.”
On January 6, 2003, after answering more questions posed by the IO, the applicant
signed the IO’s summary of his answers as “true and accurate.” He admitted to having kissed
LTJG X and LTJG Y at the Xxx Bar on December 18, 2002, in the presence of many people,
including several petty officers. He admitted to drinking shots of tequila and becoming ill due to
his alcohol consumption. The next day, his Supervisor, LT L, who was the Operations Officer,
counseled him about the improper perceptions of their conduct. LT L told him that although the
kissing may have been done in jest, it was the perception that mattered, and that a rumor had
started. LT L told him that he did not care as long as it stayed off the boat. The applicant also
told the IO that on December 28, 2002, they rented a three-bedroom hotel suite. He and LTJG C
were to share one bedroom, LTJG X and LTJG Y the second bedroom, and the BMC and BM1
the third bedroom. When the applicant and LTJG X returned to the hotel after the wetting down
party, he could not find the key for his own room and LTJG C was not there. They found LTJG
Y asleep in the petty officers’ room and tried to wake her but were unsuccessful. The applicant
1 The documents summarized in this section were submitted by CGPC as attachments to the advisory opinion.
3.
4.
and LTJG X went to LTJG X’s room, chatted for a while, and then slept in the single beds that
were already arranged pushed together. The applicant had lost his shirt at the party but otherwise
did not disrobe. The applicant told the IO that he did not have sex with LTJG X and has never
had sex with her aboard the cutter. He knew she was married and denied having a romantic rela-
tionship with her.
Three hours later, the applicant went to the IO’s stateroom and said he thought he
could save LTJG X’s marriage but that, after learning what LTJG Y had related, he “needed to
come clean morally and professionally.” Although LTJG Y and LTJG X had been ordered not to
discuss any issue in the case with the applicant, LTJG Y had told him to “tell the truth and do the
right thing.” The applicant then told the IO that he and LTJG X had done “everything other than
vaginal intercourse,” including oral sex. He signed this addendum to his prior statements on
January 6, 2003, and agreed to sign a fourth, more formal statement.
On January 6, 2003, the applicant signed a fourth statement for the IO, beginning
with the following: “With full understanding of my rights, I make the following statement freely,
voluntarily, and without any promises or threats made to me.” He stated that after the wetting
down party, he and LTJG X found LTJG Y asleep in the petty officers’ room. She went with
them to her and LTJG X’s room but later insisted on going back to the petty officers’ room for
the night. Since he could not find the key to his own room, he “opted to stay with” LTJG X in
her room. They kissed and “performed oral sex on each other.”
LTJG X admitted to the IO that she kissed the applicant in front of several petty officers
after they drank shots of tequila at the Xxx Bar on December 18, 2002. The applicant got sick,
vomited, and had to be helped back to his rack. The next day, LT L counseled her about her
inappropriate conduct and the problem of perception. LT L said that they could be together as
long as they were in a group with other junior officers or petty officers. Then on December 28,
2002, they rented a hotel “villa,” including a “main house” with one main bedroom with a lock
and two other, separate bedrooms with locks. She and the applicant were the last to leave the
wetting down party and had been drinking most of the evening. At the villa, they found LTJG Y
asleep in the petty officers’ bedroom, woke her, and told her to come to her own room, but LTJG
Y would not leave. Because the applicant could not find the key to his room, they slept in the
adjoining beds in her room. She wore pajamas and the applicant wore gym shorts. LTJG X
stated that their relationship was “purely platonic” and denied ever having had oral or vaginal sex
with him. She also stated that she had never held hands with the applicant but that he sometimes
covered her hands with his to make her stop picking at her nails. She recalled that he did this on
December 29, 2002, as they returned to the cutter in the van.
LT L, the Operations Officer of the cutter and the applicant’s supervisor, told the IO that
he counseled the applicant after hearing that he and LTJG X had kissed in a bar in front of many
crewmates, some of whom believed they were involved in an inappropriate relationship. Since
the applicant and LTJG X were both in other long-term relationships, he thought they were
merely friends who had drunk too much alcohol and behaved improperly. He told the applicant
about the crew’s perception of impropriety and about how they could remain friends without cre-
ating the perception of an inappropriate relationship. LT L stated that had seen them holding
hands once before when the applicant got drunk and LTJG X helped him back to the cutter. On
that occasion, he had told them it was not a good idea to behave like that before him.
LTJG Y told the IO that at the Xxx Bar on December 18, 2002, she and LTJG X drank
shots of tequila and kissed each other. After they drank more shots, LTJG X grabbed the appli-
cant by the ears and kissed him. Later, the applicant got ill and vomited twice. Regarding the
incident on December 28, 2002, LTJG Y stated that she left the party with the BMC and BM1 to
show them the way to the villa. She waited in the petty officers’ room for LTJG X to return
because she did not have the key to the room she was sharing with LTJG X. The applicant and
LTJG X arrived shortly thereafter, and the three of them went to the women’s bedroom. As she
prepared for bed, the applicant and LTJG X went out onto the balcony and LTJG X put her head
on the applicant’s shoulder. LTJG Y “did not feel right” so she went back to the petty officers’
room. The applicant and LTJG X came looking for her, but she told them that she did not want
to go back to her own room with them. They left and she fell asleep in the petty officers’ room.
Early the next morning, LTJG X let her into their room when she knocked. LTJG X and the
applicant were both in pajamas. LTJG Y took a shower and was getting ready to leave when the
BMC walked “through the house to see the layout that was in it. As he walked thru the kitchen,
towards the bedroom, he noticed [the applicant and LTJG X] lying in bed. He decided not to go
any further.” Later, LTJG Y saw the applicant and LTJG X holding hands together in the van.
BMC M told the IO that at the wetting down party, the applicant and LTJG X danced
close together for most of the evening. BMC M stated that he is “not entirely sure why [LTJG Y]
stayed in the room he shared with the BM1 but “can only speculate that she felt a little uncom-
fortable given the obvious ‘couple nature’ of the two; ‘a third wheel.’” The next morning, he
walked around the villa with LTJG Y and heard her speaking with the applicant and LTJG X. As
he walked toward their bedroom, he saw a woman’s undergarment or bathing suit bottom on the
floor and so decided to leave. On his way back to his room, he noticed that no one had used the
bedroom that the applicant and LTJG C were supposed to share because the beds were still made.
BM1 B told the IO that he saw LTJG X kiss the applicant at the Xxx Bar when they were
all “impaired.” After the party on December 28, 2002, he walked to the hotel with LTJG Y and
BMC M. LTJG Y had the key to one of the three bedrooms so they waited there for the others.
All three of them “racked out and attempted to get some sleep.” He recalled speaking to the
applicant and LTJG X when they returned to the hotel but did not see them the next morning.
LTJG C told the IO that he did not witness the kiss in the Xxx Bar but found LTJG X sit-
ting on the edge of the applicant’s rack later that night when the applicant was lying in the rack.
On the night of the wetting down party, he left the party and went to a club. Later, instead of
going to the hotel room he was supposed to share with the applicant, he went back to his rack on
the cutter because it was closer. He never saw the hotel villa.
The IO also gathered signed statements from several other crewmembers and one contrac-
tor serving aboard the cutter. Some had witnessed or heard about the kissing incident at the Xxx
Bar; some reported having seen the applicant and LTJG X holding hands, dancing closely, and
acting like a couple; and some had heard that they had shared a hotel room. Other crewmembers
told the IO that they did not observe any inappropriate behavior between the applicant and LTJG
X but had heard rumors of such.
Non-Judicial Punishment
On January 7, 2003, the applicant was taken to mast and awarded NJP by his CO, which
included restriction for 30 days and a letter of reprimand. The Court Memorandum that would
have documented the mast and the letter of reprimand that he was awarded at mast are not in his
record because his appeal of the NJP was approved by the Area Commander. The Area Com-
mander’s letter dated March 24, 2003, upholding the appeal and overturning the NJP states the
following in pertinent part (the full text of letter was received from CGPC with the advisory
opinion after the applicant submitted a copy of it with his application but redacted the parts that
are shaded below):
1. … Your appeal is granted and the punishment accordingly overturned. …
3. On January 7, 2003, the Commanding Officer of the USCGC … conducted Captain’s Mast and
found that you violated UCMJ Article 92 (two counts), Article 125, Article 133 and Article 134.
Your commanding officer awarded a written reprimand and restriction to the Coast Guard Xxxxx
for 30 days. In your appeal, you assert that you were: denied a representative, coerced into
making a statement, not permitted to offer matters in extenuation or mitigation, and placed in con-
finement prior to mast. You also claim that the elements of Articles 92 (both counts), 133 and 134
were not met, and that the elements of Article 125 were not explained to you.
4. After a thorough review of the record, I find that there is insufficient evidence to establish the
reported misconduct for both the orders violations under Article 92 and the adultery charge in
Article 134. Therefore, I am dismissing those charges.
5. I am convinced from the record before me that you committed the misconduct as charged in
Article 133 and Article 125. However, I am deeply concerned about the way this matter was han-
dled by your command. Specifically, I am concerned about the restrictions that were place on you
before the mast, your inability to obtain a mast representative, and the circumstances that led to
you providing an incriminating statement to the investigating officer. As a result, I believe it
would at least appear to be unjust to let this mast stand. I am therefore dismissing the remaining
charges against you and your appeal is granted.
6. I am directing the withdrawal of the letter of reprimand and all references to the nonjudicial
punishment from your record. [The cutter’s command] shall take the administrative action neces-
sary to effect these changes.
7. Finally, I want you to understand clearly that my decision to grant your appeal does NOT mean
I believe you did not commit any offenses under the UCMJ. As I stated above, I am convinced
that you violated both Articles 125 and 133, UCMJ. I am deeply concerned about your actions and
expect your Officer Evaluation Report to document your misconduct.
Page 7 Regarding Alcohol-Related Situation
On April 11, 2003, the XO of the cutter entered a Page 7 in the applicant’s record stated
that he had been referred to a Naval hospital for alcohol screening. The Page 7 further states that
“[a]lthough no alcohol incident was documented, your behavior during the XXXXXXXX port
call in December 2002 indicated that you may have a problem with alcohol abuse. this is not
considered an alcohol incident, but is entered for documentation purposes only as an alcohol
situation as outlined in Chapter 20 of the Personnel Manual … any further alcohol incidents may
result in your separation from the U.S. Coast Guard.”
First Disputed OER
The applicant’s first disputed OER in this case covers his performance from October 1,
2002, through January 31, 2003. The rating chain included the Assistant Chief for Major Cutter
Forces as the Supervisor, the Chief for Major Cutter Forces as Reporting Officer, and the Chief
of Operational Forces as the Reviewer. The Supervisor marked most of the performance catego-
ries as “not observed,” rather than assigning a numerical mark. The “not observed” marks are
explained in block 3 with the following comment: “Not Observed marks reflect Reported On
Officer’s approved request to disqualify the regular shipboard rating chain.” However, the
Supervisor assigned the applicant one low mark of 2 for the category “Workplace Climate” and
supported the mark with the following comment: “Failed to support or enforce Coast Guard
human resources policies. Despite prior counseling about his conduct, [the applicant’s] actions
during two separate port calls created the perception of an inappropriate relationship and were
detrimental to unit good order and discipline.” Moreover, the Reporting Officer assigned the
applicant marks of 2 in four categories: “Judgment,” “Responsibility,” “Professional Presence,”
and “Health and Well-Being.” He supported these marks with the following comments:
Displayed flawed judgment during two separate port calls; misuse of alcohol contributed to par-
ticipation in an inappropriate relationship. Failed to heed command warnings/advice about per-
sonal conduct. Failed to hold self accountable for inappropriate conduct and failed to demonstrate
personal courage; submitted OSF [Officer Support Form] materials that did not discuss known port
call incidents or inappropriate relationship. Misuse of alcohol conveyed poor self image. Actions
served to undermine respect for officers and undercut wardroom cohesiveness.
The Reporting Officer did not assign the applicant a mark on the comparison scale in the
first disputed OER. He wrote that he was “[u]nable to comment on overall performance and
comparison to other officers due to majority of actions not being observed. However, the two
separate incidents of inappropriate conduct indicate a serious lapse in judgment and a complete
disregard for core values of honor, respect and devotion to duty.”
The first disputed OER was prepared in November 2003 and validated by CGPC in
December 2003. In February and March 2004, the applicant submitted two OER Replies that
were rejected by CGPC for not complying with the regulations for such replies. In letters dated
March 2 and April 28, 2004, CGPC informed the applicant that many of his comments in the
Reply were not authorized because they were not performance related and concerned his personal
opinions of the raters. (In particular, he accused the cutter’s command of having provided false
information to the substitute rating chain.) On May 7, 2004, he submitted a revised OER Reply
that was entered in his record. In this Reply, the applicant wrote that the OER was based on
incorrect information. He alleged that there was no “inappropriate relationship” between him
and another junior officer. He stated that the comments about alcohol abuse were improper since
he had never been counseled about alcohol abuse or charged with any violation of Coast Guard
policy regarding the use of alcohol. He stated that the comment about “counseling” was false
because what the Operations Officer said to him following their port call in Xxxxxxxx was, “my
policy is, and I realize this is not in line with Commandant, is to simply keep it off the ship.”
The applicant stated that there was not wrongdoing during the port call and he had no idea what
the Operations Officer was trying to tell him. The applicant also objected to the Reporting
Officer’s comment that he lacked personal courage for not discussing the port calls on his OSF.
He argued that he was not required to discuss port calls on his OSF. The Area Commander for-
warded the Reply to CGPC with an endorsement stating that the OER “is accurate as submitted.”
Second Disputed OER
The second disputed OER, covering the period February 1 to July 13, 2003, was also pre-
pared by the substitute rating chain. All the performance categories are marked “not observed”
and block 3 contains the following comment: “Not observed marks reflect Reported On Offi-
cer’s approved request to disqualify the regular shipboard rating chain. Mbr TAD to Coast
Guard Xxxxxxx for duration of period.”
The applicant’s record also contains a “concurrent OER” covering the period February 1
to June 30, 2003. This concurrent OER, which was prepared by his chain of command while
TAD at the Xxxxxxx, contains primarily marks of 5 in the various performance categories, a few
marks of “not observed,” and a mark in the fourth spot on the comparison scale. All of the writ-
ten comments are quite positive and the Reporting Officer recommended the applicant for pro-
motion with his peers.
The applicant received two more OERs based on his performance as the Officer in
Charge of a xxxxxxxxxxxxxxxxxxxxn with nine subordinates before he was separated from the
Coast Guard. On these OERs, he received primarily marks of 5 in the performance categories,
marks in the fifth spot on the comparison scale, and strong recommendations for promotion to
lieutenant.
Initiation of Revocation Board
On January 20, 2004, CGPC informed the applicant that it had initiated action under Arti-
cle 12.A.11. of the Personnel Manual “to convene a board to recommend whether or not [his]
commission should be revoked.” CGPC stated that it was authorized to “initiate such action
when information of an adverse nature is discovered.” CGPC cited the first disputed OER as the
adverse information that triggered the initiation of the board. CGPC informed the applicant that
he had a right to submit comments on his own behalf within twenty-one days.
stated that he would submit a statement on his own behalf.
On February 17, 2004, CGPC forwarded to the applicant the documents to be considered
by the proposed Revocation Board. CGPC stated that the board would review the applicant’s
PDR and the complete report of the POI dated January 6, 2003, with its enclosures.
On March 2, 2004, the applicant submitted an objection to the IO’s report being consid-
ered by the proposed Revocation Board. He claimed that in overturning the applicant’s NJP, the
Area Commander had ordered the removal of all paperwork associated with the NJP, which
included the IO’s report. On March 5, 2004, CGPC responded, stating that after reviewing the
Area Commander’s order overturning the NJP and consulting with legal counsel, CGPC would
remove from consideration by the Revocation Board the IO’s memorandum with its recommen-
dations, as well as enclosures 1, 2, 3, 4, and 35 of the IO’s report, but that enclosures 5 through
34 would be considered by the board. On March 18, 2004, the applicant objected again through
his counsel, stating that because the IO’s report could not be entered into the applicant’s PDR, it
could not be considered by the Revocation Board and that the IO’s report in its entirety was part
On January 29, 2004, the applicant acknowledged receipt of CGPC’s notification and
of the NJP proceedings and so were ordered removed from the applicant’s record by the Area
Commander. On March 30, 2004, CGPC responded, stating that upon further review, enclosures
1 and 2 as well as 5 through 34 would be submitted to the Revocation Board for consideration
because enclosures 1 and 2 were official records. On April 19, 2004, the applicant’s counsel
submitted a third objection to the enclosures to be reviewed by the board, emphasizing that under
Article 12.A.11.b.3. of the Personnel Manual, only the applicant’s record could be reviewed by
the Revocation Board and the IO’s report could not be entered in his PDR and so should not be
reviewed by that board. On May 6, 2004, Commander, CGPC responded to the third objection,
stating that Article 12.A.11. does not specify that only the documents in an officer’s PDR can be
considered by a Revocation Board. He stated that what is considered an officer’s “record” varies
depending upon the purpose for which it is being used. He noted that an officer’s “record” is
defined one way for the purposes of promotion boards but may include other documents and
information for the purposes of making billet assignments or separation decisions. He stated that
because “the purpose of a revocation panel is to determine whether one should continue to serve
as an officer, an officer’s record for this purpose may contain information relevant to that deci-
sion that does not appear in the PDR, provided the information is otherwise trustworthy and reli-
able.” He also noted that the Area Commander’s letter dated March 24, 2003, required the
removal of only the letter of reprimand and references to the NJP. Therefore, enclosures 1, 2,
and 5 through 34 to the IO’s report could properly be included as relevant information because
they did not mention the letter of reprimand or the NJP.
Resignation and DD 214
On May 18, 2004, the applicant submitted a “Request for Unqualified Resignation” to
resign his commission as of August 1, 2004, which would negate the need for the Revocation
Board, which was slated to convene on May 25, 2004. He wrote that the “difficulty in correcting
misinformation contained in an OER, and a disagreement over what material is appropriate to be
presented to the [Revocation Board] has prompted this request for resignation.” On May 19,
2004, CGPC approved his request as a resignation in lieu of special board action for reason of
substandard performance.
The applicant’s DD 214, dated August 1, 2004, indicates that he was honorably dis-
charged under Article 12.1.15. of the Personnel Manual. (There is no such article.) The separa-
tion code is BHK and the narrative reason for separation is “Substandard Performance.” On
August 22, 2006, the Coast Guard issued a DD 215 to correct the citation on the DD 214 to Arti-
cle 12.B.15. of the Personnel Manual. However, Article 12.B.15. concerns only the disability
discharges of enlisted members.2
Discharge Review Board
On June 26, 2006, the President of the DRB forwarded the recommendation of the DRB
to the Commandant. The DRB based its recommendation on the documents in an applicant’s
PDR, a letter from the applicant, the applicant’s testimony at a hearing, and documentation of his
2 It appears that the Coast Guard intended to correct the separation authority to Article 12.A.15., which concerns the
separation of officers “for cause.” However, because the applicant has not requested correction of the DD 215 or the
separation authority on the DD 214 and such a correction is not clearly in his interest, the Board will not address the
matter unless a correction of the separation authority is necessitated by other corrections to the DD 214.
dismissed mast and the disqualification of his rating chain, which he showed the DRB at the
hearing. Based on these records, the DRB found no basis for the negative OER in the case file
and concluded that the substitute rating chain must have based the disputed OER on information
from the disqualified rating chain, which was biased. The DRB found that the applicant’s
discharge was both improper and inequitable. It recommended that the separation code and
narrative reason for separation on the applicant’s DD 214 be changed to reflect a discharge for
“miscellaneous/general reasons.” The DRB also recommended that the disputed OER be
replaced with a continuity OER and that the applicant be offered reinstatement on active duty or
in the Reserve without loss of precedence. The DRB argued that “all actions were based on a
Captain’s Mast that was found to be improper and was eventually removed from the record, all
negative actions as a result of that improper action, including the OER mentioned above, should
be remedied.”
The President of the DRB advised the Commandant that he agreed with the recommend-
ed changes to the separation code and narrative reason for separation on the applicant’s DD 214
but that he did not concur with the DRB’s conclusions about the propriety and equity of the
applicant’s discharge. He stated that the issues the DRB raised about the applicant’s OER “do
not mitigate the fact that [he] requested, and was subsequently granted, a voluntary resignation in
lieu of a Revocation Board. Since he received the separation he requested, I believe that the dis-
charge was both proper and equitable.”
On July 27, 2006, the Commandant disapproved the proceedings and recommendation of
On December 18, 2007, the Judge Advocate General (JAG) of the Coast Guard submitted
an advisory opinion in which he recommended that the Board deny the applicant’s requests. In
so doing, the JAG adopted the findings and analysis of the case provided in a memorandum pre-
pared by CGPC.
With respect to the first disputed OER, CGPC stated that it granted the applicant’s
request for a substitute rating chain after the applicant’s NJP was overturned due to procedural
defects. CGPC stated that although the substitute rating chain members did not directly observe
the applicant’s performance, they were able to evaluate aspects of his performance based on
“credible information from an administrative investigation … that showed [he] engaged in an
inappropriate relationship with a fellow officer.” CGPC stated that the substitute rating chain
was entitled to rely on the enclosures to the IO’s report as long as they did not rely on the flawed
NJP proceedings. CGPC noted that the Area Commander’s letter overturning the NJP showed
that he expected the applicant’s misconduct to be documented on an OER. CGPC stated that the
rating chain properly avoided any mention of the NJP in preparing the two disputed OERs “and
relied on the facts as supported by the enclosures.” CGPC concluded that the disputed OERs
were prepared in accordance with Coast Guard regulation and policy.
CGPC alleged that it acted reasonably, justifiably, and fairly in initiating action to con-
vene a Revocation Board based on the adverse information in enclosures 1, 2, and 5 through 34
to the IO’s report. CGPC stated that regulations do not restrict either CGPC or a Revocation
the DRB and ordered that his DD 214 and other records remain as they are.
VIEWS OF THE COAST GUARD
Board to only those documents filed in an officer’s PDR. CGPC stated that a Revocation Board
may review “available and factual matters of record, such as sworn statements in an administra-
tive investigation,” in addition to the records kept in a PDR. CGPC noted that in BCMR Docket
No. 1999-171, the BCMR upheld the use of material from an investigation by Coast Guard
Investigative Service by a special board “as long as the applicant was afforded the essential
requirements of due process.” CGPC stated that the applicant was afforded due process in that
he was allowed to view and comment on the evidence that would be considered by the Revoca-
tion Board.
CGPC concluded that the applicant was properly discharged based on his approved vol-
untary request and that the separation code BHK and narrative reason for separation are appro-
priate under the Separation Program Designator Handbook. In support of its findings, CGPC
submitted copies of some of the enclosures to the IO’s report, which are summarized above, and
affidavits from the substitute rating chain, as summarized below.
Declaration of the Supervisor for the Disputed OERs, Dated October 31, 2007
The Supervisor stated that as the Assistant Chief for Major Cutter Forces he routinely
spoke with the XO of the applicant’s cutter during the evaluation periods for both disputed
OERs. He stated that he assigned the applicant a mark of 2 for Workplace Climate in the Super-
visor’s section of the first disputed OER based on information in the IO’s report, which his office
received before the Area Commander overturned the NJP. He alleged that he completed the
OER “fairly, properly and without bias” based on the information in the IO’s report about the
applicant’s unacceptable relationship with a fellow officer aboard his cutter, which is a violation
of Coast Guard policy on interpersonal relationships. He noted that Article 8.H.2.d. of the Per-
sonnel Manual states that unacceptable relationships are “inappropriate and not allowed under
service policy.” The Supervisor further alleged that nothing prohibits the report of an investiga-
tion convened under the Military Justice Manual from being used for administrative purposes,
such as documenting an officer’s performance in an OER.
Declaration of the Reporting Officers for the Disputed OERs, Dated October 24, 2007
The Reporting Officer stated that as Chief of the Xxxxxx Area’s Major Cutter forces in
2002 and 2003, he was responsible for programmatic oversight and fleet management of the cut-
ters, including the applicant’s cutter. He was also the first-line supervisor of the CO of that cut-
ter and therefore had routine contact with him about shipboard matters, including personnel. The
Reporting Officer stated that his office became aware of the NJP proceedings during the legal
review after the mast. He stated that because of the number of NJP proceedings on the cutters,
his office only reviewed NJP cases that were appealed. During his office’s review of the appli-
cant’s NJP, he spoke with the CO of the cutter several times and the Supervisor spoke with the
XO several times to collect facts.
When CGPC informed him that he would have to serve as the applicant’s Reporting
Office because the applicant had requested a substitute rating chain, he queried the decision
because of his lack of observation of the applicant’s performance. Both CGPC and the Area’s
legal office told him that the administrative investigation and the evidence therein “would be
appropriate information for my consideration” in evaluating the applicant’s performance, but that
he could not mention the NJP or the appeal of the NJP. In addition, he was told that he could
mark “‘not observed’ in most categories while still commenting in those areas where I had suffi-
cient information to make an informed opinion.” Therefore, he based his marks in the disputed
OER on the statements in the IO’s report, the applicant’s OER input (the OSF), and his own per-
ception of the applicant’s behavior. The Reporting Officer stated that he “did not discuss the
OER with either the CO or XO of the [cutter].”
The Reporting Officer denied the applicant’s allegations that he was biased because of his
prior interaction with the applicant’s father. He stated that his office had no role in conducting
the investigation or the mast and only served as a conduit of information between the cutter’s
command and the Area Commander during the review upon appeal. The Reporting Officer
denied having ever been negatively counseled about the NJP or the appeal. He alleged that he
was actually “praised for [his] programmatic handling of this sensitive and complex matter.” He
stated that he had never met the applicant and had no reason to be biased against him. Moreover,
he can recall meeting the applicant’s father
only briefly at a meeting of several of his fellow contractors, representatives of xxxxxxxxxxx, and
members of the Operational Forces staff. … I do not recall any awkwardness at the meeting, which
I recall as cordially professional. [The applicant’s father] and his co-workers were contracted to
look at cutter casualty data and how to present it in terms of overall operational readiness. Their
work was neither controversial nor critical. If they ever filed a final report, I am not aware of it.
There was not resulting negative pressure or even follow-on discussions related to their particular
efforts. A single 1-2 hour meeting certainly did not form the basis for any personal bias.
The Reporting Officer stated that in preparing the first disputed OER, he “felt duty-bound
to comment on [the applicant’s] inappropriate behavior on two separate occasions, particularly
how those lapses, fueled by alcohol, reflected on his judgment, responsibility and general adher-
ence to CG core values. I stand by those original marks and comments.”
Declaration of the Reporting Officers for the Disputed OERs, Dated October 16, 2007
The Reviewer of the disputed OERs, who was the Chief of the Operational Forces Branch
for the Area, is now retired. He stated that as the CO’s reporting officer, he was the first person
to review the applicant’s mast appeal and he discovered “the fatal flaws in the NJP administra-
tive proceedings by the [cutter’s command]. I personally recommended to [the Area Command-
er] that the 5-day period for submission of the appeal be waived and that the mast be overturned.
This was done in consultation with [the Area legal advisor].” The Area Commander agreed with
his assessment and overturned the NJP based upon the procedural errors but directed that the
applicant’s underlying conduct be documented on his OER. The Reviewer alleged that but for
the procedural errors, which he listed as “no mast rep[resentative], circumstances leading [the
applicant] to [make] an incriminating statement, and pre-mast restrictions,” the NJP would not
have been overturned. The Reviewer stated that he personally reprimanded the CO of the cutter
for his performance with respect to the applicant’s mast.
The Reviewer stated that because the applicant decided to have his regular rating chain
disqualified, officers who did not personally observe his performance during the evaluation
period were required to prepare the OER. However, the Reviewer argued, “OERs are routinely
written by supervisors and reporting officers on personnel with whom they do not have routine
personal observation” when the facts are otherwise “well known and documented.” He alleged
that ignoring the applicant’s misconduct during the evaluation period “was not an option,”
especially given the Area Commander’s direction in the March 24, 2003, letter. He also alleged
that “[a]ll personnel in the rating chain for this OER had personal knowledge of the [applicant’s]
negative performance.”
Regarding the allegation that he was biased because of his prior interaction with the
applicant’s father, the Reviewer stated that he
always had the utmost respect [for the applicant’s father] while we served together as Officers in
the Coast Guard. Although he was always senior to me with respect to linear numbers, I have
never worked for, [or] worked with [him], nor did he work for me. We were simply members of
the same community, the Surface Operations community … a tight-knit group that always had
shown respect and admiration for each other. Although I am somewhat offended by these [allega-
tions of grudge and bias], I still have the utmost respect for [the applicant’s father], and will dis-
miss them as comments made by a concerned father wanting the best for their child.
2. [The applicant’s father] references a project that we worked together after his retirement that
may have led to this bias. To my recollection, he was working as a civilian contractor on a CG
funded project and he conducted one interview with myself and the Operational Forces Branch.
This survey was conducted in my office and as far as I remember ended amicably. I honestly can-
not even remember the subject of the study.
3. [The applicant’s father] also states that I purposely withheld information about his son, includ-
ing his whereabouts after the [cutter] issue. The only conversation I can recall was one in which I
told [him] that I was not at liberty to discuss his son’s case with respect to the incident, the NJP
case, and the subsequent performance evaluations. [The applicant] is an adult and information
concerning him, other then Health and Well being, is protected even from a parent under the Pri-
vacy Act. I informed [the applicant’s father] that any information concerning his son’s perform-
ance needed to be obtained directly from his son. I even referred him to xxxxxx legal if he had
additional questions.
4. … I believe the [disputed OER] was correct and administratively appropriate. The [Supervisor
and Reporting Officer] had personal knowledge/observation of the negative performance dimen-
sions outside of the NJP case. To my knowledge no mention of the NJP was included in [the
applicant’s] record by Xxxxxx Area, and there is no personal bias by me held against [him] or his
father and, in fact, I was first and his strongest advocate for granting his mast appeal.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On December 21, 2007, the Chair sent the applicant’s counsel a copy of the views of the
Coast Guard and invited him to respond within thirty days. The applicant was granted an exten-
sion and responded on February 29, 2008.
The applicant alleged that the JAG’s recommendation constitutes a reversal of its prior
recommendation that the Commandant approve the recommendation of the DRB to grant relief.
He argued that his resignation cannot be considered voluntary because CGPC refused to remove
all the enclosures to the IO’s report from consideration by the proposed Revocation Board.
Therefore, his resignation was coerced, not voluntary.
The applicant alleged that the investigation into his relationship with LTJG X was not an
informal administrative investigation but a pre-disciplinary investigation governed by the Mili-
tary Justice Manual. Therefore, the entire IO’s report with all of its enclosures is “an integral part
of the NJP proceedings,” which were ordered removed from his record by the Area Commander.
However, instead of fully removing them, CGPC threatened to use them for the Revocation
Board and is now submitting them for consideration by the BCMR. He argued that when the
Area Commander ordered the removal of the NJP proceedings, including the IO’s report, from
his record, CGPC should have destroyed them or, at least, made it impossible for them to be used
against him in any subsequent forum.
The applicant stated that the substitute rating chain must have relied on information from
the applicant’s XO and CO in preparing the OER and on information in the IO’s report, which
the Area Commander had ordered removed from his record, because they never personally
observed his performance and had no direct knowledge of it. The applicant further alleged that it
was unfair for the substitute rating chain to assign him so many marks of “not observed” and then
to assign him very low marks in certain categories based up “a single set of circumstances” rather
than his overall performance in those categories as documented in his OSF.
The applicant argued that Article 8.H. of the Personnel Manual does not prohibit the con-
duct of which he was accused. He also alleged that under Articles 8.H.6.c. and e., “allegations of
violations cannot be used against personnel in their formal evaluations (such as OERs), until they
are counseled and an administrative entry made in their personnel record,” which his command
failed to do.
The applicant again disputed CGPC’s decision to allow the Revocation Board to see any
record pertaining to the applicant except those filed in his PDR. He argued that the Coast Guard
is bound by its own regulations and that it should have written Article 12.A.11.b.3. differently if
documents outside the PDR were to be considered. The applicant argued that the “clear and
obvious meaning” of the phrase “officer’s record” in Article 12.A.11.b.3. is an officer’s PDR and
does not include any other documents, such as the report of an IO.
The applicant argued that the IO’s report should have been removed from consideration
by the Revocation Board because he was not provided due process. He alleged that he was
denied due process because his statements were coerced by threat, he was denied legal counsel,
and he was illegally detained. The applicant further argued that in the case cited by the Coast
Guard, BCMR Docket No. 1999-171, the investigation had not been ordered removed from that
applicant’s record.
APPLICABLE LAW
Regulations about Personal Relationships
Article 8.H. of the Personnel Manual in effect in 2002 concerns personal relationships
among Coast Guard personnel. Article 8.H.1.c. states that “interpersonal relationships which
raise even a perception of unfairness undermine good leadership and military discipline.” Article
8.H.2.d.3. provides the following descriptions of types of relationships:
a. Personal relationship: Non-intimate, non-romantic association between two or more people (of
the same gender or not), such as occasional attendance at recreational or entertainment events
(movies, ball games, concerts, etc.) or meals. (Does not involve conduct which violates the
UCMJ.)
b. Romantic relationship: Cross-gender sexual or amorous relationship. (Does not involve conduct
which violates the UCMJ.)
c. Unacceptable relationship: Inappropriate and not allowed under Service policy. Resolution
normally administrative. Relationship must be terminated or otherwise resolved once recognized.
d. Prohibited relationship: Violates the UCMJ. Resolution may be either administrative, punitive,
or both as circumstances warrant.
Article 8.H.2.e. states that a relationship does not violate Service policy unless “the rela-
tionship or the members' conduct fails to meet the standards set by this section, standards of con-
duct set by the Uniform Code of Military Justice (UCMJ), or other regulations.”
Article 8.H.2.f. states that a romantic relationship between any two members assigned to
the same cutter constitutes an “unacceptable romantic relationship” that violates Service policy.
The article explains that “[t]he nature of operations and personnel interactions on cutters and
small shore units makes romantic relationships between members assigned to such units the
equivalent of relationships in the chain of command and, therefore, unacceptable. This policy
applies regardless of rank, grade, or position.”
Article 8.H.6.c. states that when a command has “potential concerns about the character-
istics of a relationship,” the members may be informally or formally counseled and may be
ordered to terminate a relationship. Article 8.H.6.d. states that “[m]embers may request or a
command may recommend reassignment of a member involved in a questionable relationship.
However, reassignment is not a preferred option. The Coast Guard is not obligated to reassign
personnel due to members’ desires or based solely on a relationship. When reassignment is not
an option, members may be directed to end a relationship.” Article 8.H.6.e. states that “[w]hen
members do not respond favorably to counseling, comments and marks in officer and enlisted
evaluations may be appropriate.” Under Articles 8.H.6.f. and 8.H.6.g., commands may award
NJP, prefer charges for court-martial, or recommend separation.
Regulations about Investigations
Article 1.C.2.a. of the Administrative Investigations Manual (AIM) in effect in January
2003 states that “[i]f there is no basis for investigation other than prospective disciplinary action,
a preliminary inquiry under RCM 303, MCM, or a pretrial investigation under article 32, UCMJ
and RCM 405, MCM should be conducted without recourse to the proceedings of an administra-
tive investigation under this manual.”
Rule 303 of the Rules for Courts-Martial (RCM) in the Manual for Courts-Martial
(MCM) states that “[u]pon receipt of information that a member of the command is accused or
suspected of committing an offense or offenses triable by court-martial, the immediate comman-
der shall make or cause to be made a preliminary inquiry into the charges or suspected offenses.”
The discussion for this rule in the MCM states the following:
The preliminary inquiry is usually informal. It may be an examination of the charges and an
investigative report or other summary of expected evidence. In other cases a more extensive
investigation may be necessary. Although the commander may conduct the investigation person-
ally or with members of the command, in serious or complex cases the commander should consider
Article 1.B.1.a. and c. of the Coast Guard’s Military Justice Manual (MJM) provide that
any member who becomes aware of an offense under the UCMJ may complete and submit an
offense report, form CG-4910, to his or her command, and “[a]ny report of misconduct may
serve as the basis for initiating a preliminary inquiry.”
Article 1.B.3.a. of the MJM provides that when a member has been charged with viola-
tions of the UCMJ, a CG-4910 is normally completed, forwarded to, and “reviewed by the
executive officer. … If the executive officer determines that nonjudicial punishment may be
appropriate, he or she should advise the member of the general nature of the offense that he or
she is suspected of committing and that the command is considering imposition of nonjudicial
punishment. The executive officer should designate a preliminary inquiry officer [PIO] to con-
duct a preliminary inquiry. If appropriate, the executive officer may dismiss the matter, if dele-
gated this authority by the commanding officer.”
Article 1.B.3.c. of the MJM states that “[t]he executive officer normally designates a
member of the command to conduct a preliminary inquiry. The designation may be made orally
or in writing.” Article 1.B.4. states that the duties of a PIO include
whether to seek the assistance of law enforcement personnel in conducting any inquiry or further
investigation. The inquiry should gather all reasonably available evidence bearing on guilt or
innocence …
reviewing the description of each suspected offense in the Manual for Courts-Martial and
•
addressing each element of each offense during his inquiry;
• conducting a preliminary investigation either remotely or on-site;
• questioning witnesses who have information about an alleged offense and gathering written
statements from them;
• preparing summaries of interviews of witnesses who refuse to provide statements;
• collecting documents such as log entries and other evidence of suspected offenses;
• correcting the CG-4910 based on his findings if necessary; and
• completing a preliminary inquiry report, with a summary of events and supporting materials,
as well as the PIO’s own findings, opinions, and recommendations about whether should con-
vene a mast to dispose of the offenses, refer the charges for court-martial, and/or take adminis-
trative actions, such as preparing OERs or initiating separation.
Article 1.B.4.a.(4) of the MJM specifically states that it “is usually recommended that the
PIO not question the suspect until after collecting available evidence and questioning other wit-
nesses. By doing so, the PIO is better prepared to interview the suspect, formulate questions,
confront issues in contention and ascertain the suspect's credibility.”
Under Article 1.B.5. of the MJM, an XO shall review a PIO’s report as well as the CG-
4910, which the XO may amend as necessary. The XO has authority to dismiss the charges, if
such authority is delegated to the XO by the CO, or the XO may refer the matter to the CO with a
recommendation that the charges be disposed of at mast or referred for trial by court-martial. If
the XO decides that the charges should be disposed of at mast, the XO notifies the member.
Laws and Regulations about Restraints and Confinement
Chapter 1.B.2. of the MJM states that “[p]re-mast confinement or restriction is not
authorized. A member may be placed in pretrial restraint only if the command is considering
referring the charges against the member for trial by special or general court-martial. A command
may not automatically place a member in restraint solely because he or she has been placed on
report. Pretrial restraint, including pretrial restriction or confinement, may be imposed only in
very limited circumstances [see, RCM 304 and 305]. Generally, pretrial restraint may be imposed
only if necessary to ensure an accused's presence at trial or to prevent the commission of
additional serious offenses. The member must be immediately released from restraint if the
command decides to dispose of the offense(s) other than at court-martial.”
Under Rule 304 of the Rules for Courts-Martial, a CO may impose pre-trial restraints,
such as orders prohibiting communications with potential witnesses if there is probable cause to
do so, which requires a reasonable belief that (a) an offense triable by court-martial (against the
UCMJ) has been committed; (b) the person restrained committed it; and (c) the restraint ordered
is required by the circumstances. The discussion to the rule requires restraints to permit pretrial
preparations.
Under Rule 305 of the Rules for Courts-Martial, a CO may physically confine a member
if there is probable cause to do so, which requires a reasonable belief that (a) an offense triable by
court-martial (against the UCMJ) has been committed; (b) the person restrained committed it;
and (c) the confinement is required by the circumstances. However, a member so confined is
entitled to be informed of his rights and of the procedures by which his confinement will be
reviewed. Within 72 hours of the confinement order, the CO must release the member from con-
finement unless the CO also finds, in addition to the above criteria for probable cause, (d) that
the confinement is necessary either to ensure the member’s presence for a trial, pre-trial hearing,
or investigation or to prevent “serious criminal misconduct,” such as intimidation of witnesses
and obstruction of justice, and (e) that less severe forms of restraint are inadequate.
Laws and Regulations about the Applicant’s NJP
Article 92 of the UCMJ concerns a member’s failure to obey a lawful order or regulation.
Article 125 concerns sodomy, the definition of which includes oral sex. Article 133 concerns
conduct unbecoming an officer and gentleman. Article 134 concerns adultery, the definition of
which requires “sexual intercourse” between two people while at least one of them is married to
a third person.
Under Article 15 of the UCMJ, commanding officers, at their discretion, may impose NJP
for minor violations of the UCMJ to maintain good order and discipline when administrative cor-
rective measures seem inadequate and court-martial seems excessive. Manual for Courts-Martial
(MCM), Part V, Para. 1.d.(1). Only members who are not “attached to or embarked in a vessel”
may refuse NJP by demanding trial by court-martial. 10 U.S.C. § 815(a); MCM, Part V, Para. 3.
Under MCM, Part V, Para. 4.a., “[i]f, after a preliminary inquiry (see R.C.M. 303, the [NJP]
authority determines that disposition by [NJP] is appropriate …, the [NJP] authority” must pro-
vide the member with notification of the pending mast proceeding and the alleged offenses, a
brief summary of the information upon which the allegations are based, and a statement of his
rights at mast.” The member is entitled, inter alia, to appear before the officer imposing NJP; to
examine documents to be considered by the NJP authority; to be accompanied by a spokesperson
to speak on his behalf (but not to question witnesses) unless the punishment is significantly lim-
ited and unless the mast would have to be delayed to permit the presence of a selected spokesper-
son; to present matters in defense, extenuation, and mitigation orally, or in writing, or both; and
to present witnesses. MCM, Part V, Para. 4.c.
“Failure to comply with any of the procedural provisions of Part V of this Manual shall
not invalidate a punishment imposed under Article 15, unless the error materially prejudiced a
substantial right of the servicemember on whom the punishment was imposed.” MCM, Part V,
Para. 1.h.
Article 15 and Part V of the Manual for Courts-Martial “do not apply to include, or limit
use of administrative corrective measures that promote efficiency and good order and discipline.
… Administrative corrective measures are not punishment, and they may be used for acts or
omissions which are not offenses under the code or for acts or omissions which are offenses
under the code.” MCM, Part V, Para.1.g.
Chapter 1.C.2.b. of the MJM states that a “member attached to or embarked in a vessel
has 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.”
Under Chapters 1.C.3.a. and 1.B.3.b. of the MJM, the XO should appoint an officer of the
unit to serve as the “mast representative” for the accused. Chapter 1.C.1. states that because a
mast is not an adversarial proceeding, a member “has no right to be represented by an attorney at
mast.” However, “the member may obtain the services of an attorney or any other person, at no
expense to the government, to appear as his or her spokesperson.” Chapter 1.C.4.c. states that
the CO “may not exclude the spokesperson from the mast solely because he or she is an attor-
ney.”
Under Chapter 1.C.3.a., the role of the mast representative is to “assist the member in
preparing for and presenting his or her side of the matter and to speak for the member, if the
member desires. It is Coast Guard policy that the mast representative may question witnesses,
submit questions to be asked of witnesses, present evidence, and make statements inviting the
commanding officer’s attention to those matters he or she feels are important or essential to an
appropriate disposition of the matter.”
Chapter 1.C.4.b. states that the role of a spokesperson is to speak for the member “at
those times during the mast when the member’s responses are invited by the commanding offi-
cer. A spokesperson may be anyone, including an attorney retained by the member.” Chapter
1.C.4.e. provides that a “spokesperson is not permitted to examine or cross-examine witnesses,”
except at the discretion of the CO, but “is always permitted to speak for a member when the
member is otherwise entitled to speak.”
Chapter 1.E. provides that the maximum punishment a captain (O-6) may impose on a
subordinate officer at mast is an admonition or reprimand and 30 days of restriction. Chapter
1.F.1. provides that a member may appeal an NJP “if he or she considers the punishment
imposed ‘unjust’ or ‘disproportionate’ to the acts of misconduct for which punished … in writing
within 5 calendar days of the imposition of the punishment.” Chapter 1.F.1.a. defines “unjust” to
include various kinds of illegality and denial of rights.
Regulations about OERs
Under Article 10.A.2. of the Personnel Manual, an officer’s rating chain usually consists
of his direct supervisor who observes and directs his work on a daily basis; his reporting officer,
who is usually the supervisor’s supervisor; and the reviewer, who is usually the reporting offi-
cer’s supervisor. Under Article 10.A.2.g., an officer may ask that one or more members of his
rating chain be “disqualified,” which includes “any situation in which a personal interest or con-
flict on the part of the Supervisor, Reporting Officer, or Reviewer raises a substantial question as
to whether the Reported-on Officer will receive a fair, accurate evaluation.” Rating chain offi-
cials may base their evaluations on direction observation of an officer’s performance, the offi-
cer’s own OER input, and other reliable records and reports about his performance.
Article 10.A.4.f.1. prohibits a rating chain from mentioning that an “officer’s conduct is
the subject of a judicial, administrative, or investigative proceeding, including criminal and non-
judicial punishment proceedings under the Uniform Code of Military Justice, … except as pro-
vided in Article 10.A.3.c. … These restrictions do not preclude comments on the conduct that is
the subject of the proceeding. They only prohibit reference to the proceeding itself.”
Article 10.A.3.c.2., which concerns “Concurrent OERs,” states that a “concurrent OER is
an OER submitted in addition to a regular or special OER. The permanent unit’s OER is never
considered a concurrent report and should not be so identified. A concurrent report is always in
addition to a regular or special OER, and thus does not count for continuity. The unit to which
the Reported-on Officer is permanently attached is always responsible for ensuring that continu-
ity is maintained with either regular or special OERs. Concurrent reports may be submitted only
when the officer is: … e. Performing temporary assigned duty (TAD) away from a permanent
station for a period of at least 60 consecutive days while being observed by a senior other than
the regular Reporting Officer.”
Under Article 10.A.4.g., an officer may submit a Reply to any OER for entry in his record
with the OER. Article 10.A.4.g.1. states that “[r]eplies provide an opportunity for the Reported-
on Officer to express a view of performance which may differ from that of a rating official. Arti-
cle 10.A.4.g.2. states that “[c]omments should be performance-oriented, either addressing per-
formance not contained in the OER or amplifying the reported performance. Restrictions outlined
in Article 10.A.4.f. apply. Comments pertaining strictly to interpersonal relations or a personal
opinion of the abilities or qualities of a rating chain member are not permitted.”
Regulations about the Documentation of Alcohol Abuse
Article 20.B.2.d. of the Personnel Manual states the following about “Alcohol-Related
Situations”:
An alcohol-related situation is defined as any situation in which alcohol was involved or present
but was not considered a causative factor for a member's undesirable behavior or performance. A
member does not have to consume alcohol to meet this criterion, e.g., purchasing alcohol for
minors. Commands shall not use the term “alcohol related situations” when a member's behavior
clearly meets the criteria of an “alcohol incident.” Members involved in alcohol related situations
shall be counseled on their use of alcohol and informed of the conduct expected of Coast Guard
members. Commanding officers are strongly encouraged to consider whether screening and/or
alcohol awareness training such as IMPACT is appropriate. Commanding officers shall document
such occurrences with an appropriate Administrative Remarks (CG-3307) entry in the member's
Personnel Data Record (PDR). Documentation of alcohol related situations provides commands
with significant background information for determining whether any administrative or medical
action is necessary.
Article 20.A.2.d.1. defines an “alcohol incident” as “[a]ny behavior, in which alcohol is
determined, by the commanding officer, to be a significant or causative factor, that results in the
member's loss of ability to perform assigned duties, brings discredit upon the Uniformed Ser-
vices, or is a violation of the Uniform Code of Military Justice, Federal, State, or local laws. The
member need not be found guilty at court-martial, in a civilian court, or be awarded non-judicial
punishment for the behavior to be considered an alcohol incident.” Article 20.B.2.h.1. states that
“[o]fficers will be processed for separation following a second alcohol incident.” There is no
corresponding regulation requiring the separation of officers involved in more than one “alcohol-
related situation.”
Regulations about Revoking a Commission
Article 12.A.11. of the Personnel Manual concerns “Revoking Officers’ Commissions in
Their First Three Years of Service.” Article 12.A.11.a.1. states the following:
The Service considers the first three years of an officer’s career a probationary period during
which he or she demonstrates ability to adapt to the requirements of Coast Guard life and shows
capability for future development. Some officers either are unable to adapt to service life or their
performance indicates it is doubtful whether the time and effort required will form them into effec-
tive officers.
Article 12.A.11.b. provides the following procedures for revocation:
1. A commanding officer or a superior in the chain of command may recommend revoking the
commission of an officer who has fewer than three years of continuous service as a Coast Guard
commissioned officer. Commander (CGPC-opm) also may initiate board action to revoke an offi-
cer’s regular commission based on knowledge of adverse information about the officer. A com-
manding officer or superior in the chain of command shall recommend revocation in the form of a
letter to Commander (CGPC-opm) containing the following information.
a. Officer’s name;
b. Length of service;
c. Period of time officer was observed;
d. Reason for recommendation;
e. Specific facts or circumstances relating to performance;
f. Medical reports or opinions, if applicable;
g. Nature of counseling and other steps taken to correct deficiencies;
h. Officer’s response to counseling;
i. Special Officer Evaluation Report, if applicable.
2. The recommending officer shall grant the officer concerned an opportunity to review the rec-
ommendation and permit him or her to comment as desired by letter endorsement.
3. A panel of senior officers, normally consisting of the Coast Guard Personnel Command’s Chief,
Administration Division; Chief, Officer Personnel Management Division; and a senior officer rep-
resentative from the Headquarters division … with cognizance of the officer’s specialty shall
review the recommendation. After thoroughly reviewing the officer’s record, the panel recom-
mends to the Commandant either executing the revocation proceedings under this Article or clos-
ing the case. …
4. Commander (CGPC-opm) sends the panel’s recommendations to the Commandant for approval,
modification, or disapproval (14 U.S.C. 281).
FINDINGS AND CONCLUSIONS
1.
2.
3.
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.
The Board makes the following findings and conclusions on the basis of the applicant's
military record and submissions, the Coast Guard's submission, and applicable law:
The application was timely.
The applicant requested an oral hearing before the Board. The Chair, acting
pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case with-
out a hearing. The Board concurs in that recommendation.
The applicant asked the Board to remove from his record (a) two OERs; (b) all
documents relating to an informal investigation, to an alleged inappropriate relationship, and to
his NJP on January 7, 2003; (c) a Page 7 dated April 11, 2003, concerning his referral for alcohol
screening; (d) any administrative action taken in whole or in part on the basis of the OERs and
NJP; and (e) the potential revocation of his commission, his resignation, and his discharge
papers. He also asked the Board to offer him the opportunity to return to active duty with back
pay and allowances. In the alternative, he asked the Board to correct his DD 214 to show that he
was discharged for “Miscellaneous/General Reasons” with separation code FND.
Regarding the first disputed OER, which covers his performance from October 1,
2002, to January 31, 2003, the applicant alleged that it is erroneous and unjust and asked the
Board to replace it with one prepared “for continuity purposes only” with all performance catego-
ries marked “not observed.” To establish that an OER is erroneous or unjust, an applicant must
prove that it was adversely affected by (a) a “misstatement of significant hard fact,” (b) a “clear
and prejudicial violation of a statute or regulation,” or (c) factors that “had no business being in
the rating process.”3 The Board begins its analysis in every case by presuming that the disputed
OER is correct as it appears in the record, and the applicant bears the burden of proving by a pre-
ponderance of the evidence that it is erroneous or unjust.4 Absent evidence to the contrary, the
4.
3 Germano v. United States, 26 Cl. Ct. 1446, 1460 (1992); Hary v. United States, 618 F.2d 704 (Ct. Cl. 1980);
CGBCMR Dkt. No. 86-96.
4 33 C.F.R. § 52.24(b).
5.
Board presumes that the applicant’s rating chain prepared the disputed OER “correctly, lawfully,
and in good faith.”5
The first disputed OER contains primarily marks of “not observed,” no positive
marks or comments, and several low marks supported by comments about his behavior during
two port calls in December 2002 “creat[ing] the perception of an inappropriate relationship” and
his misuse of alcohol causing him “to participat[e] in an inappropriate relationship.” The appli-
cant alleged that the OER should be removed (a) because he did not have an inappropriate rela-
tionship, misuse alcohol, or lack courage during the reporting period, (b) because the substitute
rating chain failed to include positive comments and marks based upon his OSF, and his OER
Reply was rejected twice, (c) because the substitute rating chain relied on information from
members of his original rating chain who were biased, (d) because the substitute rating chain was
biased against the applicant’s father and took revenge on him through his son’s OER, (e) because
the substitute rating chain relied on the IO’s report, which the Area Commander had ordered
removed from his record, and (f) because he did not receive due process during the investigation
and so his self-incriminating statements to the IO should not have been considered. The Board
will address these allegations in order:
The record before the Board shows that during one port call, the applicant
and a female crewmate—LTJG X—kissed after drinking one or more shots of tequila at the Xxx
Bar in the presence of several other crewmembers. The applicant drank alcohol to excess that
night and vomited in the bar twice. The record further shows that a day or two later the applicant
was counseled by his supervisor, the Operations Officer, about the kiss and the fact that he was
creating a perception of an “unacceptable relationship”6 with LTJG X as there was a rumor about
them among the crew. Despite this counseling, during another port call about ten days later, the
applicant was observed acting like a couple with LTJG X at a crew party and then slept alone in a
bedroom with her the rest of the night and much of the next morning when he could have slept
elsewhere in the “villa” they had rented, sought another key to his own room from a hotel
employee or caretaker, or gone back to the cutter like his roommate LTJG C did. Given these
facts, the Board finds that the applicant has not proved that the comments in the first disputed
OER about his misuse of alcohol and participation in an “inappropriate relationship”7 are errone-
ous or unjust. In addition, whether the applicant’s failure to address his conduct during the port
calls in his OSF shows a lack of courage is a matter of opinion that under these circumstances
cannot be considered a misstatement of hard fact. Nor has he proved that his decision not to
address these matters in his OSF was made after the reporting period ended.
(b) When the applicant decided to request disqualification of his entire rating
chain because he thought they would prepare a biased OER after his NJP was overturned, CGPC
granted his request and disqualified the Operations Officer, the XO, and CO the of the cutter,
5 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 Article 8.H.2.f. of the Personnel Manual states that a “romantic relationship” between any two members assigned to
the same cutter constitutes an “unacceptable romantic relationship” that violates Service policy. Article 8.H.2.d.3.b.
defines a “romantic relationship” as a “cross-gender sexual or amorous relationship.”
7 This phrase is not defined in the Personnel Manual, but Article 4.F.3.d. notes that “inappropriate relationships” that
“adversely affect a unit’s morale, good order and discipline, and its mission performance” may result in a CO’s relief
for cause.
(a)
(c)
who had observed his performance throughout the evaluation period. The applicant alleged that
his substitute rating chain should have assigned him positive performance marks and comments
in the OER based on his own input for the OER on an OSF. However, while an OSF should be
reviewed by the rating chain, an officer’s own claims about his performance should not be the
sole basis for evaluation marks as an officer is not entitled to write his own OER. The substitute
rating chain in this case could not seek opinions from the disqualified rating chain members, who
might have confirmed the applicant’s claims on his OSF. In the alternative, the applicant argued,
the substitute rating chain should have marked all performance categories as “not observed”
because they did not personally observe the conduct that was the basis for the negative marks and
comments in the OER. However, under Article 10.A.2. of the Personnel Manual, rating chain
members are allowed to rely on “reliable reports” in preparing OERs, and the substitute rating
chain has stated that they relied on information in the IO’s report. Therefore, the fact that no
member of the substitute rating chain had personally observed his performance during the
evaluation period does not render their marks and comments unjust or improper under the Per-
sonnel Manual. Moreover, the Board notes that when the Area Commander overturned the NJP,
he specifically stated that the applicant’s underlying conduct should be documented in his OER.
Regarding the applicant’s OER Reply, he has not shown that CGPC erred in requiring him to
remove comments that presumably failed to meet the requirements of Article 10.A.4.g. of the
Personnel Manual.
In light of the declarations of the substitute rating chain affirming that they
relied upon the evidence in the IO’s report to prepare the first disputed OER and given the lack of
any contrary evidence, the Board finds that the applicant has not proved that the substitute rating
chain based their marks and comments in the OER upon the opinions of the disqualified rating
chain.
The allegations of the applicant and his father about bias on the part of the
substitute rating chain because of their prior interactions with his father are strongly contradicted
in the declarations of the substitute rating chain. The applicant has failed to overcome the pre-
sumption that they prepared the OER in good faith8 or to prove by a preponderance of the evi-
dence that any of the members of the substitute rating chain were biased against him or his father.
The applicant alleged that the substitute rating chain’s reliance on informa-
tion in the IO’s report was improper because the Area Commander had ordered all references to
his NJP to be removed from his record. However, in the same letter that the Area Commander
ordered all “references to the nonjudicial punishment” to be removed from the applicant’s record,
he also stated that the applicant’s misconduct, which was revealed in the IO’s report, should be
documented in applicant’s OER. In addition, the Area Commander did not order the expunge-
ment of the investigation. Therefore, it is clear that the intention and action of the Area Com-
mander was not to remove all evidence of the applicant’s misconduct from his records, and the
only documentary evidence of his misconduct other than the NJP itself was the information in the
IO’s report.
(d)
(e)
8 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl.
1979).
Moreover, while the Coast Guard may have responded to the Area Commander’s
order by removing all references to NJP from the applicant’s record—even the IO’s recommen-
dation about NJP—rather than just the documentation of the NJP (the Court Memorandum and
the letter of reprimand), the Board disagrees with the applicant’s claim that the Area Com-
mander’s language required the IO’s report to be thrown out in its entirety as if it were only a part
of the NJP. The applicant argued that the purpose of the investigation was purely disciplinary
and so the IO’s report should not exist apart from the NJP and must be thrown out with the NJP.
However, there is insufficient evidence in the record to show exactly what kind of investigation
was ordered and what sort of report the IO submitted. Coast Guard regulations permit COs to
convene informal investigations, which may ultimately result in no action at all; any number of
purely administrative actions, such as transfers, bad OERs, “alcohol incident” documentation, or
psychiatric screening; mast/NJP; court-martial; or various combinations thereof. The fact that
one result of the investigation convened by the CO of the cutter was a mast proceeding for the
applicant does not mean that the investigation ceased to exist apart from the mast, had to be
thrown out in its entirety as part of the NJP, and could not be used as a basis for administrative
actions. The Area Commander’s letter required the Coast Guard to remove “all references to the
nonjudicial punishment from your [the applicant’s] record,” and the applicant has not proved that
the substitute rating chain relied on the NJP in preparing the OER.
(f)
Article 10.A.4.f.1. prohibits a rating chain from mentioning that an “officer’s con-
duct is the subject of a judicial, administrative, or investigative proceeding, including criminal
and non-judicial punishment proceedings under the Uniform Code of Military Justice, … except
as provided in Article 10.A.3.c. … These restrictions do not preclude comments on the conduct
that is the subject of the proceeding. They only prohibit reference to the proceeding itself.” The
applicant has not proved that the comments in the first disputed OER concerning his conduct that
was the subject of the IO’s investigation are erroneous or unfair or contrary to any law, regula-
tion, or order of the Area Commander. The substitute rating chain was entitled to base marks
and comments in the OER on the information discovered in the investigation whether or not the
NJP occurred or was overturned.9
The applicant alleged that the substitute rating chain’s reliance on informa-
tion in the IO’s report was improper because his self-incriminating statement to the IO was
coerced through threats and illegal confinement. The applicant was very vague about the timing
and duration of the confinement and the nature of the alleged threats. Was he confined from the
onset of the investigation, was he confined for more than 72 hours without a review while his CO
considered court-martial, or was he confined the day before the mast when the command dis-
covered that he and LTJG Y had communicated about the case in violation of the CO’s order, as
indicated in his third statement to the IO? Was he threatened with ridiculous charges and pun-
ishment, or did someone simply remind him that signing a sworn, false statement for an investi-
gation and violating an order not to communicate with LTJG Y about the case were also punish-
able offenses? The Area Commander wrote in his letter overturning the NJP that he was “con-
cerned about the restrictions that were place on you [the applicant] before the mast, … and the
circumstances that led to you providing an incriminating statement to the investigating officer.”
On the other hand, the applicant, a well educated officer, was advised of his rights on January 3,
2003, including his right to remain silent, and indicated by his signature that he did not desire to
9 Coast Guard Personnel Manual (COMDTINST M1000.6A), Arts. 10.A.4.c.4.d., 10.A.4.c.7.d., 10.A.4.f.1.
consult an attorney and wanted to answer questions and make a statement. He began each of his
formal statements for the IO with the following sentence: “With full understanding of my rights,
I make the following statement freely, voluntarily, and without any promises or threats made to
me.” Moreover, three hours after signing a summary of his answers to some of the IO’s ques-
tions, the applicant went to the IO’s stateroom and said he thought he could save LTJG X’s mar-
riage but that, after learning what LTJG Y had related, he “needed to come clean morally and
professionally.” This addendum, which the applicant also signed, shows that his confession of
January 6, 2003, was motivated not by illegal threats but by his realization that LTJG Y had told
the IO a much more complete story of his behavior with LTJG X than he had confessed to; by his
desire to save LTJG X’s marriage; and by his desire “to come clean.” It also indicates that the
applicant was not confined for much of the duration of the investigation because he was able to
talk to LTJG Y about the case, contrary to orders, and to visit the IO’s room to make his third
statement. In light of these facts, the Board finds that the applicant has failed to prove by a pre-
ponderance of the evidence that his confession to the IO was coerced or that it should be consid-
ered unreliable or improper as a source of information for the substitute rating chain. However,
even if one assumes that his self-incriminating statements to the IO were coerced and so ignores
them, the other witnesses’ statements to the IO provided a sufficient basis for the substitute rating
chain to conclude that the applicant had misused alcohol and had an inappropriate relationship
with LTJG X.
6.
The Board finds that the applicant has failed to prove by a preponderance of the evidence
that the first disputed OER was adversely affected by a “misstatement of significant hard fact,” a
“clear and prejudicial violation of a statute or regulation,” or factors that “had no business being
in the rating process.”10
Regarding the second disputed OER, which covers the period February 1 to July
13, 2003, the applicant argued that it should be removed because he was assigned on temporary
orders to another unit throughout the evaluation period, and the command at his temporary unit
provided a substantive concurrent OER for his record. The regular OER is signed by the substi-
tute rating chain and appears much the same as a continuity OER, with all performance catego-
ries marked “not observed,” except that block 3 contains the following explanation for the sub-
stitute rating chain and the marks of “not observed”: “Not observed marks reflect Reported On
Officer’s approved request to disqualify the regular shipboard rating chain. Mbr TAD to Coast
Guard Xxxxxxx for duration of period.” The regular and concurrent OERs in the applicant’s
record for this period conform to the applicable requirements of the Personnel Manual. Article
10.A.3.c.2. provides that a concurrent OER may be prepared by a different command when an
officer is temporarily assigned away from his permanent duty station for at least sixty days, but a
regular (or special) OER must still be prepared by the rating chain at the permanent duty station.
Since the applicant’s rating chain at his permanent duty station (the cutter) had been disqualified,
the substitute rating chain prepared the regular OER. While the applicant’s record might appear
better if he had been issued permanent transfer orders upon his release from restriction at the
Xxxxx so that he would have one regular substantive OER for the evaluation period instead of a
non-substantive regular OER and a substantive concurrent OER, the fact is that, February being
off-season for assignments, he was issued temporary rather than permanent transfer orders and so
10 Germano v. United States, 26 Cl. Ct. 1446, 1460 (1992); Hary v. United States, 618 F .2d 704 (Ct. Cl. 1980);
CGBCMR Dkt. No. 86-96.
7.
the combination of regular and concurrent OERs in his record is correct under the Personnel
Manual. Nor is the Board persuaded that the combination is unjust simply because it explains
the signatures of the form by stating that the regular rating chain was disqualified.11 Therefore,
the applicant has failed to prove by a preponderance of the evidence that either disputed OER
was adversely affected by a “misstatement of significant hard fact,” a “clear and prejudicial vio-
lation of a statute or regulation,” or factors that “had no business being in the rating process.”12
The applicant asked the Board to remove all documentation of his NJP from his
record. The Area Commander ordered that all references to the NJP be removed from his record.
The Coast Guard appears to have followed this instruction by removing not only the usual docu-
mentation of the NJP itself—the Court Memorandum and letter of reprimand—but also the parts
of the IO’s report that mentioned NJP. Although the applicant argues that the NJP proceedings
include the IO’s investigation in its entirety so that the entire investigation should be thrown
away, the Board disagrees. While the IO’s report certainly resulted in the NJP and was presuma-
bly used as evidence at the mast, as stated in Finding 5(e) above, the investigation was a pro-
ceeding unto itself with due process rights and procedures very different from those at mast. As
the applicant himself pointed out, investigative reports are not even filed in an officer’s PDR
with the Court Memorandum of an NJP.
Although the electronic copy of the applicant’s PDR received by the Board contains no
references to his mast or NJP, the paper copy contains his memorandum requesting disqualifi-
cation of his rating chain as well as the Area Commander’s memorandum in response disquali-
fying his rating chain. Both of these documents contain references to the applicant’s mast of
January 7, 2003. Since on March 24, 2003, the Area Commander ordered the removal of all
references to the mast/NJP from the applicant’s records, the Board finds that these two memoran-
dum should be removed from his record even though they post-date the Area Commander’s
order.
The Board notes that the record before the Board also contains the Area Commander’s
letter overturning the NJP. This letter does not appear in either the imaged electronic or hard
copies of the PDR received by the Board. However, since CGPC was able to submit an unre-
dacted version of the letter in response to the applicant’s submission of a redacted version, the
Coast Guard or perhaps the Area Commander himself clearly retains a copy of the letter. The
applicant has not proved that the letter is filed in any part of his own records, but CGPC did not
state where the letter is now filed. The Board, therefore, will remind the Coast Guard that the
Area Commander’s order requiring the removal of references to the NJP from the applicant’s
records clearly pertains to his letter containing the order, which therefore may not be retained in
any part of the applicant’s military records—records filed under or accessible by his name. In
addition, the Board will order the Coast Guard not to enter a copy of this decision in the appli-
cant’s military record.
11 See 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) (finding that for purposes of the BCMRs under 10 U.S.C. § 1552,
“injustice” is treatment by military authorities that “shocks the sense of justice”).
12 Germano v. United States, 26 Cl. Ct. 1446, 1460 (1992); Hary v. United States, 618 F .2d 704 (Ct. Cl. 1980);
CGBCMR Dkt. No. 86-96.
8.
9.
The applicant asked the Board either to remove from his record the Page 7 dated
April 11, 2003, concerning his referral to a Naval hospital for alcohol screening or to add the
hospital’s written response to his record because he alleged that it states that he does not have a
problem and indicates that the screening was a waste of time. The applicant did not submit a
copy of this letter, however, and there is none in the record so its suitability for inclusion in his
record cannot be determined. He alleged that the Page 7, standing by itself, falsely indicates that
he has an “alcohol problem.” However, the record shows that the applicant got sufficiently
intoxicated on tequila during one port call to vomit twice in a public bar and risk his career by
kissing a married female LTJG in front of several other crewmembers and then ten days later,
despite counseling, risked his career again after drinking alcohol by unnecessarily sharing a bed-
room alone with the same married LTJG. Therefore, the Board is not persuaded that the com-
mand erred or acted out of bias when it referred him for alcohol screening on April 11, 2003.
Either incident could have been documented as an “alcohol incident” by his command under
Article 20.A.2.d.1. of the Personnel Manual, and any two such incidents in an officer’s record
result in administrative separation from the Coast Guard under Article 20.B.2.h.1. Instead, the
command documented his misconduct as merely an “alcohol-related situation” under Article
20.B.2.d. of the Personnel Manual, wisely referred him for alcohol abuse screening (the Board
doubts that the hospital staff knew the full story of his alcohol abuse if, as he alleged, they con-
cluded that his screening was a waste of time), and prepared the required Page 7. The only error
the Board finds with respect to the Page 7 in the applicant’s record is that it incorrectly indicates
that a subsequent alcohol incident might result in his separation, which would only be the case if
he already had one alcohol incident in his record. Since he did not, the Board finds that the text
of the Page 7 should be corrected by removing the phrase “any further alcohol incidents may
result in your separation from the U.S. Coast Guard.”
The applicant asked the Board to expunge any administrative actions taken in
whole or in part because of the NJP and the disputed OERs, such as the planned Revocation
Board; to rescind his resignation; and to offer him reinstatement on active duty. He alleged that
he is entitled to the rescission of his resignation and reinstatement on active duty because his
resignation was coerced and involuntary since CGPC illegally intended to show several enclo-
sures to the IO’s report to the Revocation Board. He argued that CGPC’s intention in this regard
violated the Area Commander’s order to expunge the NJP from his records and Article
12.A.11.b. of the Personnel Manual, which (he alleged) limits the documents to be considered by
a Revocation Board to the officer’s PDR. The applicant has not proved that the Coast Guard
intended to provide the Revocation Board with any documents noting that he had been taken to
mast and awarded NJP by his CO. For the reasons stated in Findings 5 and 7, above, the Board
finds that CGPC’s stated intention to reveal to the Revocation Board the disputed OERs and
parts of the IO’s report that did not mention that the applicant was taken to mast or awarded NJP
did not violate the Area Commander’s order overturning the NJP and expunging all references to
the NJP from his records.
In addition, the Board strongly disagrees with the applicant’s argument that Arti-
cle 12.A.11.b. of the Personnel Manual limits the documents that a Revocation Board may
review to the officer’s PDR. That Article does not specify the “PDR,” as many other provisions
in the Personnel Manual do. A search of the Personnel Manual reveals many specific references
to an officer’s PDR and many other references referring more generally to an “officer’s record.”
In particular, the Board notes that under regulations for “show cause” proceedings for officers
10.
more senior than the applicant, Article 12.A.15.f. states that “[a]t any time and place Com-
mander, (CGPC) may convene a board of officers to review any Regular Coast Guard officer’s
record to decide whether the officer should be required to show cause for retention on active
duty. Article 12.A.15.f.2. states that “[a] board of officers convened to review an officer’s
records (a “determination board”) shall consist of at least three officers … .” Then Article
12.A.15.f.3. more explicitly states that such a board will review “the officer’s PDR, the initiating
officer’s recommendation, and all other available information relevant to the reasons for separa-
tion to determine whether it should require the officer to show cause for retention.” When the
Determination Board decides that the officer must “show cause” for retention, the case is for-
warded to a Board of Inquiry, which is required, under Article 12.A.15.h.6.b.(4), to “consider an
officer’s record as a whole and make its recommendation based on a preponderance of evi-
dence.” Therefore, the Board is not persuaded that whenever the Personnel Manual refers to an
“officer’s record,” it means only the officer’s PDR, or that such a limiting interpretation of Arti-
cle 12.A.11.b.3. is reasonable.
Moreover, the Board notes that Article 12.A.11.b.1. requires the authority recommending
the revocation to prepare and submit to CGPC a recommendation containing a variety of infor-
mation, including the reason for the recommendation and specific facts or circumstances relating
to the officer’s performance. Nothing prohibits the recommending authority from including
investigations or witnesses’ statements as part of his recommendation package, which is also
reviewed by the Revocation Board.
Finally, the Coast Guard files a wide variety of significant documents about its members
in a variety of files and databases for a variety of purposes. To suggest that Revocation Boards
cannot consider evidence from reports of investigations into officers’ misconduct because the
Coast Guard has decided that it is not appropriate to retain such evidence (e.g., witnesses’ state-
ments) in officers’ PDRs and instead retains these reports in other filing systems is absurd. The
Board concludes that CGPC did not err or commit injustice when it advised the applicant that the
Revocation Board would be entitled to see certain enclosures to the IO’s report. He has not
shown that he was subject to any illegal coercion by CGPC when he submitted his request to
resign.13
Even assuming arguendo that CGPC’s intention to submit the applicant’s and/or
other witnesses’ statements to the Revocation Board was erroneous, the applicant’s resignation
would not be rendered involuntary even though he resigned to avoid the Revocation Board and
its possible consequences. In Wright v. United States, 2008 U.S. Claims LEXIS 96 *1 (April 7,
2008), the plaintiff had appealed his NJP for sending pornography in emails from his Coast
Guard computer on the basis that his punishment was too harsh. While awaiting a delayed reso-
lution of his appeal, Wright submitted a request to retire because his enlistment was ending and if
his appeal were resolved unfavorably he might not have been allowed to reenlist or extend his
enlistment for the four more months of service he needed to attain a twenty-year retirement.14
The applicant’s request to retire was approved, and he was retired about one month after his NJP
11.
13 See Christie v. United States, 207 Ct. Cl. 333, 337-8 (1975) (holding that a request to resign is not involuntary
unless it is shown “(1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no
other alternative; and (3) that said circumstances were the results of coercive acts of the opposite party”).
14 See Final Decision in BCMR Docket No. 2007-050.
● ● ●
This court has enunciated a principle, now firmly established, for determining whether a resigna-
tion is voluntarily tendered. The element of voluntariness is vitiated only when the resignation is
submitted under duress brought on by Government action. … The tripart test for such duress is:
“(1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no
other alternative; and (3) that said circumstances were the results of coercive acts of the opposite
party.” [Citations and indentation omitted.]
… Duress is not measured by the employee’s subjective evaluation of a situation. Rather, the test
is an objective one. … While it is possible plaintiff, herself, perceived no viable alternative but to
tender her resignation, the record evidence supports CSC’s finding that plaintiff chose to resign
and accept discontinued service retirement rather than challenge the validity of her proposed dis-
charge for cause. The fact remains, plaintiff had a choice. She could stand pat and fight. She
chose not to. Merely because plaintiff was faced with an inherently unpleasant situation in that her
choice was arguably limited to two unpleasant alternatives does not obviate the voluntariness of
her resignation. [Citations omitted.]
This court has repeatedly upheld the voluntariness of resignations where they were submitted to
avoid threatened termination for cause. … Of course, the threatened termination must be for good
cause in order to precipitate a binding, voluntary resignation. … But this “good cause” requirement
is met as long as plaintiff fails to show that the agency knew or believed that the proposed termi-
nation could not be substantiated. [Citations omitted.]
was overturned. The BCMR had denied Wright’s request for constructive service credit because
his “choice to request retirement rather than to wait for the outcome of his NJP appeal does not
render his retirement involuntary.”15 In upholding the BCMR’s decision, the U.S. Court of Fed-
eral Claims stated, “a decision to retire is not rendered involuntary merely because the service-
member is faced with an undesirable choice.”16 In Christie v. United States, 207 Ct. Cl. 333,
337-8 (1975), the court held the following:
The “tripart test” in Christie for an involuntary resignation is still used,17 and the applicant has
not shown that he had no alternative but to resign or that CGPC’s intention to convene a Revo-
cation Board was a coercive act without “good cause.” In Tippett v. United States, 185 F.3d
1250, 1255 (Fed. Cir. 1999), the court held that “[a]n otherwise voluntary resignation or request
for discharge is rendered involuntary if it is submitted under duress or coercion, or results from
misrepresentation or deception on the part of government officers.” The Board finds that the
applicant has not shown that his resignation was submitted under duress or coercion or that it
resulted from misrepresentation or deception on the part of the Coast Guard. Therefore, he has
not proved by a preponderance of the evidence that his resignation was involuntary and so he is
not entitled to have his discharge voided or to be offered reinstatement on active duty.
As alternative relief, the applicant asked the Board to correct his DD 214 to show
that he was separated for “Miscellaneous/General Reasons” with separation code FND rather
than for “Substandard Performance” with separation code BHK. He argued that he is entitled to
this relief because the Commandant overturned the recommendation of the DRB on this issue
15 Id.
16 Wright v. United States, 2008 U.S. Claims LEXIS 96 *19 (April 7, 2008), citing Cruz v. Dep't of Navy, 934 F.2d
1240, 1245 (Fed. Cir. 1991) (“This court has repeatedly held that the imminence of a less desirable alternative does
not render involuntary the choice made.”). See also Scarseth v. United States, 52 Fed. Cl. 458, 468 (2002) (citing
Christie v. United States, 207 Ct. Cl. 333, 338 (1975), for its determination that “the exercise of an option to retire is
not rendered involuntary by the impending prospect of a less desirable alternative”).
17 See Scarseth v. United States, 52 Fed. Cl. 458, 468 (2002).
12.
without explanation. However, the DRB panel apparently did not see any of the evidence gath-
ered by the IO. Moreover, the BCMR is not an appellate board above the DRB and does not
overturn DRB decisions based upon whether the DRB provided or denied due process. Instead,
the BCMR conducts de novo reviews of the record and issues its own independent decisions.
The applicant argued that his narrative reason for separation is erroneous and unjust because
most of the OERs in his record contain excellent performance marks and comments. The Board
notes that CGPC could have chosen other notations, such as “Unacceptable Conduct” (BNC),
when he resigned in lieu of further administrative separation proceedings. The BHK denotes a
resignation in lieu of further proceedings “when a member’s performance is below accepted
standards.” To find that the entries on the applicant’s DD 214 are erroneous or unjust, the Board
would have to determine that the applicant’s performance as an officer met the Coast Guard’s
accepted standards of performance for an officer. Given the applicant’s behavior as revealed by
the investigation, the Board will not do so.
The Board has considered all of the applicant’s requests for relief and found that
he is entitled only to the limited relief described in Findings 7 and 8 above. The applicant made
numerous allegations with respect to the actions of various Coast Guard officers. Those allega-
tions not specifically addressed above are considered to be not dispositive of the case. While the
CO apparently conducted the mast improperly by not providing the applicant with a mast repre-
sentative and by not conducting the mitigation and extenuation phase of the mast, these errors
were cured when the Area Commander overturned the NJP.
Accordingly, most of the applicant’s requests should be denied but partial relief
should be granted by removing the phrase “any further alcohol incidents may result in your sepa-
ration from the U.S. Coast Guard” from the Page 7 in his record dated April 11, 2003. The
Coast Guard should also remove from his record his memorandum requesting disqualification of
his rating chain and the xxxxxxxxxx Commander’s memorandum dated April 29, 2003, dis-
qualifying his rating chain because both contain references to his mast. In addition, the Board
should remind the Coast Guard that the Area Commander’s letter with the order to remove all
references to the NJP from the applicant’s record clearly pertains to the letter itself, which there-
fore may not be retained in any part of the applicant’s military records—i.e., records filed under
or accessible by his name, employee identification number, or social security number.
13.
14.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for
correction of his military record is granted in part as follows:
ORDER
The Coast Guard shall correct the Page 7 (CG-3307) dated April 11, 2003, in his record
by removing the phrase “any further alcohol incidents may result in your separation from the U.S.
Coast Guard.”
The Coast Guard shall remove from his record his memorandum requesting
disqualification of his rating chain and the xxxxxxx Commander’s memorandum dated April 29,
2003, disqualifying his rating chain because both contain references to his mast.
No copy of this decision shall be placed in his record.
The Board also reminds the Coast Guard that the Area Commander’s letter dated March
24, 2003, overturning the applicant’s NJP also orders the removal of “all references to the NJP
from [the applicant’s] record” and so clearly requires the removal of the letter itself from his
military records—i.e., records filed under or accessible by his name, employee identification
number, or social security number. The Board orders the Coast Guard to remove the Area Com-
mander’s March 24, 2003, letter from the applicant’s military records if it has not already done
so.
James E. McLeod
Randall J. Kaplan
Bruce D. Burkley
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When questioned about your personal relationship with the petty officer, you initially deceived the command by denying the relationship, when you were actually involved in a prohibited romantic relationship with that service member. The XO stated that such counseling was done completely outside the chain of command and no one in PO-2's chain of command was aware that the applicant was providing counseling to this enlisted member. With respect to the disputed semi-annual OER, the Coast...
CG | BCMR | Advancement and Promotion | 2007-195
However, Sector Xxxxxxx’s published rating chain, which was issued on February 8, 2006, shows that the designated rating chain of the CO of the XXXX was the Chief of the Response Department as Supervisor; the Sector Commander (rather than the Deputy Sector Commander) as Reporting Officer; and the xxxxxx District Chief of Response (rather than the Sector Com- mander) as Reviewer. shall be sent to Commander (CGPC-opm). In addition, the delay of promotion notification dated May 2, 2007, cited...
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The applicant asked the Board to remove his 2005 failure of selection for promotion to LTJG because when that selection board reviewed his record, it contained the erroneous OER ordered removed by the BCMR. Therefore, the Board finds that although the applicant performed some of his assigned duties satisfactorily, his documented poor judgment and behavior that brought discredit upon the Coast Guard, his loss of his security clearance and access to weapons, his lack of a recommendation for...
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The applicant denied that she had consensual sexual relations on board a Coast Guard unit with an enlisted member. 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. 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...
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