DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for Correction of
the Coast Guard Record of:
BCMR Docket No. 2009-249
xxxxxxxxxxxxx
xxxxxxxxxxxxx
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 September 8, 2009, following
receipt of the application and notification that the applicant had exhausted her administrative
remedies, 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 June 16, 2010, is approved and signed by the three duly
APPLICANT’S REQUEST AND ALLEGATIONS
The applicant, a lieutenant (LT) in the regular Coast Guard, asked the Board to remove a
written comment from her officer evaluation report (OER) for the period June 1, 2007, through
May 31, 2008, when she was assigned as the Operations Officer of a Vessel Traffic Service
(VTS) in Sector Xxxxxx. The comment states that she was “[c]ounselled this period concerning
an inappropriate relationship with another member of the VTS staff, otherwise abided by all CG
core values.” The applicant also asked the Board to remove from her record her failures of
selection for promotion to lieutenant commander (LCDR) and to remove her possible separation
and reinstate her on active duty if she has been separated from active duty for twice failing of
selection for promotion before the Board’s decision is issued.
The applicant alleged that during the evaluation period for the OER, she “engaged in a
brief personal romantic relationship” with a lieutenant junior grade (LTJG X) who was serving as
the Watch Supervisor for the VTS. She admitted that she felt affection for LTJG X and that
during a trip to Tennessee, he had “embraced her from behind in an affectionate and loving way.”
She also admitted that he had hugged and kissed her when he picked her up at the airport upon
her return from SAR School, which she had attended from October 15 to November 6, 2007, and
that they had exchanged emails in which they discussed their feelings for each other. The appli-
cant alleged that these incidents and a little “harmless flirting” were “the sum and substance of
the relationship between [her and LTJG X] while they were both assigned to Sector Xxxxxx.
The applicant alleged that the relationship did not last long and that they ended it while she was
away at SAR School because “the time was not right” since LTJG X was “going through a
divorce,” and she was “getting over her ex-boyfriend,” who had been her fiancé and who had
continued to live with her until October 2007. The applicant also stated that after she and LTJG
X were transferred to different offices within Coast Guard Headquarters and LTJG X’s advance-
ment and divorce came through, they resumed their romantic relationship and remain together.
The applicant alleged that while she was away at SAR School, her ex-fiancé, who had not
accepted her decision to end their relationship, somehow retrieved emails and photographs from
her computer and sent them to her command, which then conducted an investigation into her
relationship with LTJG X. As a result of the investigation, during which she freely admitted to
her romantic relationship with LTJG X, she received a letter from the Sector Commander stating
that he was disturbed about her “‘unacceptable relationship’ with [LTJG X] who you occa-
sional[ly] supervise and [who] is legally married.” The applicant alleged that this letter is erro-
neous because her relationship with LTJG X was not “unacceptable” under Coast Guard regula-
tions, because she did not supervise the applicant, even occasionally, and because LTJG X was
separated and only technically married. Nevertheless, the Sector Commander told her that her
conduct would also be reflected on her OER. When she was shown a draft copy of the OER, it
included the comment, “Counselled in this period concerning a potentially unacceptable romantic
relationship with another member of VTS staff, otherwise abided by all CG core values.” How-
ever, the OER was rejected by the Personnel Command because of the word “potentially,” and in
the final version of the OER, that word was removed from the comment and the adjective “unac-
ceptable” was changed to “inappropriate.”
The applicant argued that the disputed OER comment should be removed from her record
for several reasons. First, she argued that the written comment—“Counseled in this period con-
cerning an inappropriate romantic relationship with another member of VTS staff, otherwise
abided by all CG core values”—is legally and factually erroneous and renders the OER unjust.
The applicant alleged that the word “inappropriate” is erroneous because she never supervised
LTJG X, “not even occasionally,” so there was no question of jeopardized impartiality; because
neither was in a position to affect the other’s career, assignments, benefits, or privileges; because
LTJG X was separated from his wife and awaiting divorce; because they were of similar rank
(LTJG X had already been selected for promotion to LT) and position; because they were
assigned to a shore unit of more than 60 people, rather than a vessel or small unit; and because
their relationship did not disrupt their work environment. Therefore, the applicant argued, her
relationship with LTJG X was not unacceptable or inappropriate under the definitions and
descriptions of types of relationships in Article 8.H. of the Personnel Manual. Nor was it an
adulterous relationship under Article 134 of the UCMJ or a prohibited relationship under Article
92 of the UCMJ. In fact, she alleged, her relationship with LTJG X fell into a category of allow-
able romantic relationships under Article 8.H. of the Personnel Manual because they were of
similar rank and position, they worked at a large shore unit of more than 60 people, and she was
not his supervisor.
In support of her allegations, the applicant submitted a copy of the Sector’s published
rating chain, which shows that the Operations Director, Mr. X, was both her supervisor and
LTJG X’s supervisor. In addition, she alleged, when LTJG X specifically asked Mr. X if the
applicant was his supervisor, Mr. X said, “No.” She submitted a statement from LTJG X about
this conversation with Mr. X. The applicant alleged that she was not responsible for appraising
LTJG X’s performance, provided no input for his evaluations, and did not assign work to him or
oversee his work. She stated that as the VTS Operations Officer, she provided administrative
support to Mr. X and to the VTS watch, processed leave requests, and supervised civilian
employees and enlisted members. She denied supervising any junior officers or appraising their
performance for their OERs at the VTS. She alleged that a statement on her 2007 OER that she
supervised three junior officers “was corrected in the 2008 OER.” Likewise, the applicant
alleged that the statement in the OER that she oversaw the watchstanding & qualification of three
junior officers and 23 enlisted members was erroneous because “the only people I ever actually
supervised, even occasionally, were the [civilian employees].” She argued that “‘oversight’ is
not the same as ‘supervision.’” The applicant stated that as the Operations Officer, she was
responsible for ensuring that the watchstanders had the tools and training they required, but she
“did not, however, pass judgment on the qualify of their work or the adequacy of their training.”
Moreover, the applicant argued, the investigator concluded that she and LTJG X had a
supervisor/subordinate relationship without actually investigating that topic. Instead, the investi-
gator focused on whether they had committed adultery, which was not the case since LTJG X had
separated from his wife by moving out of their family home in October 2007. The applicant
alleged that the command’s conclusions about the appropriateness of their relationship were also
flawed because they relied on a rule that prohibits romantic relationships outside of marriage
between officers and enlisted members, which did not apply to two officers, and found that LTJG
X was married, even though he was separated, simply because the State of Texas does not recog-
nize legal marital separation. The applicant noted in this regard that even her rating chain did not
believe the relationship was unacceptable because they originally called it a “potentially unac-
ceptable” relationship.
Second, the applicant alleged that the OER is unjust because it is based on information
that was sent to the command by her ex-fiancé, who was stalking her, and who was able to learn
private information from the Coast Guard’s PeopleSoft database. The applicant explained that
her ex-fiancé, a civilian, did not like her decision to end of their relationship and began stalking
and threatening her. She complained to the local police and received legal advice through the
Coast Guard to obtain a restraining order. However, while she was away at SAR School, her ex-
fiancé retrieved photographs and emails from her personal computer and sent them to her com-
mand on December 17, 2007, to try to ruin her career. In addition, because the ex-fiancé told the
investigator that her “dream sheet” of desired future assignments matched that of LTJG X, it is
clear that someone at the Sector invaded her privacy by accessing the PeopleSoft database for an
authorized purpose and giving the information to her ex-fiancé. Therefore, she argued, it was
unjust for her command to use the information provided by her stalker against her in her OER.
She also complained that the command failed to initiate an investigation into this misuse of the
PeopleSoft database and invasion of her privacy or “to appropriately respond to incidents of
workplace violence.”1 Instead, the command referred her to the Employee Assistance Program.
Third, the applicant alleged that the OER comment is unjust because the Sector command
knew that she did not supervise LTJG X. She pointed to the published rating chain and to Mr.
X’s statement that she was not LTJG X’s supervisor as evidence of this error. She noted that
1 This is the only mention of alleged workplace violence in the application and it is not explained.
neither Mr. X, their supervisor, nor CDR X, their reporting officer, was interviewed by the inves-
tigator to determine whether the applicant supervised LTJG X.
Fourth, the applicant alleged, she and LTJG X were entitled to rely on Mr. X’s verbal
assertion that she was not LTJG X’s supervisor and on the published rating chain. She argued
that they should have been able to rely on Mr. X’s “advice” and should not have been punished
for engaging in a relationship that they could not know would be considered inappropriate.
Fifth, the applicant alleged that the OER was a result of gender-based discrimination
because while the command changed the comment about the relationship in her OER after the
Personnel Command rejected it, the command chose not to change the identical comment in
LTJG X’s OER because of the “wiggle room” provided by the word “potentially.” The applicant
alleged that if the relationship was unacceptable for her, it was also unacceptable for LTJG X.
Citing United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004)(cert. denied, 544 U.S. 923 (2005),
she argued that their slightly different ranks cannot explain or justify their unequal treatment in
their OERs because subordinates have the same liberty interests under the Constitution as super-
iors. She argued that the command knew that leaving the word “potentially” in LTJG X’s OER
would allow him to be promoted and to continue his career, whereas the revised comment in her
OER would cause her to fail of selection for promotion.
The applicant stated that when the Personnel Command rejected the original draft of the
OER because of the word “potentially,” her rating chain was entitled to change the wording of
both her and LTJG X’s OERs or to remove the comment from both OERs, but the rating chain
was not entitled to treat her differently because of her gender. The applicant further noted that
the evidence indicates that the Deputy Sector Commander, who was not a member of her rating
chain, had significant, if not improper, influence over the wording. She argued that there was no
gender-neutral reason for changing her OER but not LTJG X’s.
Sixth, the applicant alleged that any denials of gender discrimination or other claims by
her chain of command should be considered suspect because the command interfered with her
attempt to gather statements from witnesses. She submitted an email from her reporting officer,
CDR X, who refused to make a written statement for her but said he would do so in response to
an official request from the Personnel Records Review Board (PRRB), the BCMR, or the Per-
sonnel Command. However, before refusing to provide her with a written statement, he had told
her that the command told him that he had to change the comment containing the word “poten-
tially” and that if he did not do so, the reviewer would add a comment page to the OER, which
would likely be more detrimental to the applicant’s record. Therefore, he changed the comment.
The applicant’s attorney stated that she was told by the command that although CDR X could
speak to her, he did not want to speak to her. However, on November 3, 2008, CDR X advised
the Legal Office in an email to “contact [the applicant’s attorney], per above, so she understands
that my direct contact with her is not authorized.” Therefore, she argued, if he did not want to
talk to her, it was because he thought he was not authorized to do so.
The applicant alleged that although Mr. X provided her with a written statement, the next
day he sent her attorney an email telling her to direct any further inquiries through the District
Legal Office. She alleged that the Deputy Sector Commander sent Mr. X an email directing him
not to respond to her request for another statement because the District Legal Office “will do all
the talking for us.” Thus, she argued, the Deputy Sector Commander interfered in the applicant’s
attempt to gather witness statements and ensured that only the District Legal Office would
respond to her inquiries. The applicant’s attorney argued that such conduct is prohibited under
Article 134 of the UCMJ, which prohibits “wrongful interference with an adverse administrative
proceeding.” In this regard, she stated, while the BCMR application was initiated by the appli-
cant and cannot cause the applicant’s discharge, the failure of her BCMR application could result
in an administrative discharge for failure of selection for promotion. Citing United States v.
Denaro, 62 M.J. 663 (C.G.C.C.A. 2006), she argued that even though the administrative pro-
ceeding that could result in discharge was a possible “downstream effect” of the Deputy Sector
Commander’s interference with her investigation for her BCMR application, that downstream
administrative proceeding was still being interfered with upstream for the purposes of Article 134
of the UCMJ. The applicant’s attorney further argued that the Deputy Sector Commander’s
interference with her investigation may have violated 18 U.S.C. § 1512(b), which prohibits wit-
ness tampering, and 18 U.S.C. § 1505, which prohibits the obstruction of federal agency pro-
ceedings.
The applicant stated that under 33 C.F.R. § 52.24, she bears the burden of proving her
case, and to do so she must have access to the evidence free from the interference of the Deputy
Sector Commander or anyone else. Otherwise, the Deputy Sector Commander could “convert
the BCMR process into a sham proceeding by unilaterally deciding that [the applicant] has no
right to gather evidence from percipient witnesses who may be under his command, particularly
when it is his own actions that are the subject of the inquiry.” She stated that the Deputy Sector
Commander’s actions were the subject of her inquiry because he intentionally included an inac-
curate statement in the counseling letter, which provided an erroneous basis for the comment in
the OER, and he then interfered with her reporting officer’s preparation of the OER and dis-
criminated against her based on her gender.
The applicant alleged that in drafting the counseling letter and OER comment, her chain
of command judged her conduct by their own sense of morality and not by either the spirit or the
letter of Coast Guard policy and regulation. Even if the Board finds that the OER comment is
not erroneous, she argued that it should grant relief anyway as a matter of equity because by
using their information against her, the Coast Guard participated in her victimization by her
stalker ex-fiancé and whoever gave him information from the PeopleSoft database.
SUMMARY OF THE RECORD
On May 8, 1998, the applicant, who had about three years of enlisted service, was com-
missioned an ensign in the Coast Guard Reserve upon graduating from Officer Candidate School.
She was promoted to LTJG on November 8, 1999; integrated in the regular Coast Guard on April
22, 2002; and was promoted to LT on November 8, 2002. During these years, the applicant
served as a deck watch officer on a high endurance cutter, a special projects officer at an Inte-
grated Support Command, an intelligence watch officer on a joint interagency task force, an
administrative assistant and assistant future operations planner at a district office of law enforce-
ment, and an assistant in the international division of the district office of law enforcement. On
most of the ten OERs she received in her first five years as an officer, the applicant received good
marks and laudatory comments. However, her final OER as a deck watch officer, dated March
31, 1999, states that she had not developed competency in her primary duties, had “admitted dis-
dain for shipboard duty,” and had been temporarily assigned ashore due to unnamed “recent
events.” However, she was recommended for promotion because the reporting officer thought
she would succeed in a support or administrative specialty ashore.
On November 30, 2003, the applicant left active duty, presumably under the temporary
separation program. She received a master’s degree in accounting in May 2004.
On September 30, 2005, the applicant returned to active duty as the Operations Officer
for the VTS in Sector Xxxxxx. As the Operations Officer, she was “[r]esponsible for all aspects
of traffic management, … exercised VTS/COTP authority for 73 mi[le] AOR … Directly
supervised 2 JOs, 3 GS-12s, 14 GS-11s. Oversaw watchstanding & qualifications of [28 enlisted
members]. Collateral duties: … Command Security Officer.” On her first OER in this position,
she received very good marks and her reporting officer’s “[h]ighest recommendation for
continued promotion with peers.” The supporting comments included the following:
• “Exceptional training regime resulted in qualified watch that screened over 8400 …”
• “Extremely resourceful Ops Off/Watch Sup. Managed 16 groundings …”
• “Maintained continuous liaison between waterways management division & Situational
Controller during incident management efforts. Provided timely assistance & cogent rec-
ommendations & when needed, adjusted watch, net result – enhanced team cooperation.”
• “Directed watches during incident management activities, calm demeanor & clear direc-
tion facilitated effective initial response to 65 incidents in the port.”
• “Maintained solid presence with the night sections; this personal attention paid to night
watches has led to greater understanding of issues and concerns of overnight crews.”
• “Ensured VTS watch carried out in a professional manner through training & augmenta-
tion when necessary. Assigned personnel to hurricane watch bills. Did not hesitate in
making tough decisions regarding who would stay to close down the traffic center, who
would evacuate & who would re-man the watch after passage.
• “Excellent leadership of 50 member crew, management of 24x7 watches controlling over
260,000 vessel transits yearly.”
On her second OER in as the Operations Officer at the VTS, the applicant received
excellent marks and many laudatory comments, including the following:
• “During a nine-day period of near blackout fog, helped to facilitate over 450 ship arri-
vals.”
• “Provided assistance, advice and recommendations to enhance team cooperation within
maturing Sector Xxxxxx organization.”
• “Adjusted VTS watch-bills to balance team strengths and enhance teamwork. Resolved
several difficult conflicts, continues to build a solid, cohesive team. In short – the model
VTS Ops Officer.”
• “Expert coordination of very senior watch crews showcased both informal & formal
leadership in effective handling [of] issues/resolving problems.”
“Oriented towards a pro-active & preventive approach to traffic mgmnt, lead team during
16 vsl interventions, …”
•
• “Demonstrated significant expertise & capability in managing diverse crew during 24x7
by 365 day watch organization. Promote immediately.”
The disputed OER in this case is the third the applicant received as the VTS Operations
Officer. The description of duties in block 2 states that she was “[r]esponsible for all aspects of
traffic management, … exercises vessel traffic service (VTS) and COTP authority for 73 NM
AOR with 600+ daily vessel transits … daily interaction with regional CG commands, maritime
industry, and other fed/state/local agencies to ensure vessel/facility safety & security. Directly
supervises 3 GS-12s & 14 GS-11s. Oversees watchstanding & qualification of 3 JOs, [and 23
enlisted members]. Collateral duties: … Security Officer.” The applicant received excellent
marks in the disputed OER, which were supported by many laudatory comments, including the
following:
• “Thorough & significant prep sustained continued successful operation of VTS.”
• “Maintained near continuous liaison with industry stakeholders, …”
• “Oversaw VTS watch teams conduct 27 interventions …”
• “Demonstrated remarkable understanding of complex issues …”
• “Consistently led VTS team in facilitating safe & efficient movement of traffic during
195 waterway incidents.”
• “Highly effective communicator in highly visible position.”
• “Encouraged and achieved an excellent level of cross-training within VTS watch teams.”
• “[L]ed in fostering an environment of mutual trust and confidence both within VTS
watch organization and with our maritime users & stakeholders.”
• “Effectively directed and orchestrated the efforts of VTS watch personnel and sustained
the vital atmosphere of teamwork necessary to operations.”
• “Meticulously supervised VTS watch during normal & emergency operations; facilitated
600+ vsl transits/day, carefully implemented traffic measures to mitigate risk …”
• “Superb candidate for assignment to greater leadership roles …”
• “Recommended for promotion w/ peers.”
The reporting officer’s section of this OER also contains the disputed comment, “Coun-
selled this period concerning an inappropriate relationship with another member of the VTS staff,
otherwise abided by all CG core values.”
On June 2, 2008, Mr. X sent the part of the disputed OER that he prepared as supervisor
to CDR X, the reporting officer. He noted that he had “copied into your section the language we
used for the other party in the late unpleasantness. Propose to treat both parties equally as
regards documentation.” (The applicant submitted a copy of the reporting officer’s page of the
draft OER. Mr. X had entered recommended numerical marks, which were not the same marks
that CDR X ultimately assigned, but the only recommended comment Mr. X included on the
page stated, “Counselled this period concerning a potentially unacceptable romantic relationship
with another member of the VTS staff, otherwise abided by all CG core values.”
On July 17, 2008, the Personnel Command sent the applicant’s reporting officer and
reviewer an email stating that the disputed comment as originally written with the phrase “poten-
tially unacceptable” was too vague and had to be reworded or removed. On July 18, 2008, CDR
X sent an email to the Deputy Sector Commander asking if they should change LTJG X’s
January 2008 OER because it contained the same wording that the Personnel Command had
rejected in the applicant’s OER. The Deputy Sector Commander replied, “I actually prefer the
comment that we had originally. It says ‘potentially’ and that seems to give more wiggle room.
The comment on [the applicant’s] OER is very black and white.” The OER reviewer returned
the OER with the final, revised comment to the Personnel Command the same day.
The applicant was not selected for promotion by the LCDR selection boards that con-
vened in 2008 and 2009 and has not been offered continuation. Therefore, under 14 U.S.C. §
283, she will presumably be separated from active duty on June 30, 2010.
On August 7, 2009, the Personnel Records Review Board (PRRB) issued a decision
denying the applicant’s request to have the disputed comment removed from the OER. The
PRRB noted that CDR X had submitted a statement saying that “there are several presentations
of fact and conclusion within [the applicant’s] application that are not accurate, based on my
knowledge.” With respect to the applicant’s alleged supervisory relationship with LTJG X, the
PRRB wrote that as the Operations Officer, the applicant was the Watch Captain of the VTS and
noted the comment that she “‘oversaw the watch standing and qualifications of 3 JOs,’ one of
which was the other officer in the relationship.” The PRRB stated that while the applicant was
not a member of LTJG X’s rating chain, she had trained him and that a “romantic relationship
within this context could undermine the respect for authority or result in the relationship being
used for personal gain or favor,” which is an unacceptable relationship under Article 8.H.2.c. of
the Personnel Manual. The PRRB noted that several other comments show that the applicant
filled a position of authority over other the watch teams, LTJG X was a member of one of these
watch teams. The PRRB found that while the applicant was not on LTJG X’s rating chain, “she
did hold a position of authority which could be undermined or be used to influence personnel
decisions.” The PRRB disagreed with the applicant’s arguments that it was unjust for the com-
mand to use information that had been submitted by a stalker against her. With regard to her
allegations about a member of the VTS staff accessing the PeopleSoft database to gain informa-
tion about her, about the command’s alleged interference in her attempt to gather statements, and
about gender discrimination, the PRRB noted that if she felt her civil rights were being violated,
she could have filed a civil rights complaint, but she did not do so. The PRRB concluded that the
applicant’s rating chain had carried out its duties properly and that she had not overcome “the
presumption of regularity with respect to the construction or submission of the disputed OER.”
The PRRB included affidavits from the applicant’s rating chain, which are summarized below.
Statement of Mr. X, the Applicant’s Supervisor
Mr. X stated that “[n]o one shaped my response to any query in this matter, and no one
has imposed any language above my signature on any of the OERs I have signed.” He noted that
he was “a party to a post-investigation discussion with the Deputy Sector Commander [and CDR
X] during which ‘potentially inappropriate’ was proposed as mitigating language for both offi-
cers’ OERs in documenting the result of the by then concluded investigation. I recall being
uncomfortable with that process but did not push back very forcefully as the remark was not
made above my signature.” Mr. X also stated that his deflection of the request from the appli-
cant’s attorney to the District legal office pertained only to her request for the published rating
chain because he did not think he should provide her with a Sector-wide instruction. Mr. X
stated that he played no part in the IO’s investigation, was unaware of the allegations until the
investigation was completed, and cannot recall any behavior that was disruptive to the mission of
the VTS.
Statement of CDR X, the Applicant’s Reporting Officer
CDR X noted that he had submitted a statement to the applicant dated January 7, 2009,
about the revision of the disputed comment in her OER. CDR X stated that he had no knowledge
of the content of the counseling letter that the Sector Commander had given the applicant until he
reviewed the applicant’s PRRB application. CDR X stated that in drafting the OER he was
allowed to rely on other officers’ “reliable reports” and that he did so. In addition, he stated that
his queries to the Deputy Sector Command “were all initiated to ensure I fulfilled my responsi-
bilities within the officer evaluation system,” CDR X denied ever telling the applicant that he
was told that if he did not change the statement, the reviewer would add a comment page. CDR
X explained that what he told her was that if he removed the disputed comment, instead of
amending it, the command could discuss adding a reviewer comment with her reviewer. He also
told her that, in his opinion, it would have been more detrimental to her if the allegation of an
inappropriate relationship appeared on a separate reviewer comment page rather than amid the
reporting officer’s comments. CDR X also denied that the Deputy Sector Commander inappro-
priately influenced his affidavit. CDR X stated that he had asked the District legal office to
review his statement to ensure that it was responsive to the applicant’s questions and that neither
the legal office nor the Deputy Sector Commander proposed any changes to his affidavit.
Statement of the Reviewer
that might either support or refute [the applicant’s] allegations regarding the OER in question.”
The reviewer of the disputed OER stated that he has “no further information to provide
SUMMARY OF THE INVESTIGATION
The applicant submitted redacted copies of documents from the report of the investigation
into her conduct. The documents show that on December 27, 2007, the Sector command
appointed a lieutenant commander to serve as a preliminary inquiry officer (IO) to investigate
alleged violations that the applicant and LTJG X had violated Article 133 (conduct unbecoming
an officer and gentleman) and Article 134 (adultery) of the UCMJ. The investigation was initi-
ated upon receipt of an anonymous letter alleging that the applicant had knowingly violated every
core value of the Coast Guard by having a romantic relationship with an enlisted member on
active duty, lying to investigators about an inappropriate relationship between two operations
specialists, fraternizing with several enlisted members, and engaging in a relationship with a mar-
ried officer with three children. The anonymous letter states that the applicant had interfered in
the investigation of the relationship between the two enlisted members by covering up informa-
tion and informing them of how the command was handling the investigation. He alleged that
the applicant also attempted to blackmail the investigator into stopping the investigation in that
case.
The applicant and LTJG X were advised of their rights in writing and signed statements
showing that they did not desire to consult lawyers but did desire to submit statements and to
answer questions. The IO, a lieutenant commander, submitted a report on January 22, 2008,
finding that an “inappropriate relationship” had occurred between them. The IO noted that the
applicant had asked her fiancé to move out of their home when she returned from a trip to Ten-
nessee to visit LTJG X; that the applicant had filed a harassment complaint against her fiancé
with the police on November 11, 2007; and that in that complaint she identified him as her fiancé
and stated that she had “been with him for 5 years.” The IO stated that LTJG X “is separated and
no longer living with his wife” but that in the State of Texas, “a couple is either married or not”
and a married couple “remains married until the union is legally dissolved by divorce.”
The IO stated that the applicant and LTJG X had violated Article 8.H.2.g.2. of the
Personnel Manual and that the did not comprehend the seriousness of their actions and had also
violated Article 133 of the UCMJ. The IO recommended that the charge of adultery be
dismissed “due to lack of evidence” and that the applicant and LTJG X be formally counseled
and issued administrative letters of censure. The IO also noted that the applicant’s ex-fiancé and
an unknown person working at the VTS had “colluded” to make the command aware of the
relationship and that the unknown person had accessed their personal data in the Coast Guard’s
database.
The IO included in the report copies of emails between the applicant and LTJG X in her
report. In an email dated October 18, 2007, LTJG X wrote the following to the applicant:
I am in love with you. I don’t want anything to be a distraction or deterrent from that priority. I
feel like we need one of those hugs right now that regain both of our sanity.
It’s killing me to not have you here with me right now. I want to look into your eyes and tell you
that everything is going to be fine, because I know that it is. We are two very smart individuals
and we know how to handle our business accordingly. …
Now that other tune … that sounded like the music that is always played at weddings right before
the bride comes down the aisle … isn’t it? That’s what I think of. I can imagine you in a white
dress.
I can’t wait for this horrible separation to be over. I can’t wait to be side by side, together again.
The applicant responded with an email stating that she loved him, that she was not going
anywhere, and that her feelings for him were “much stronger than any anxiety” she felt.
The IO also included the following documents in the report of the investigation:
• A police report dated November 9, 2007, states that the applicant had lodged a complaint
of harassment against her ex-fiancé. She told the police that “she had been with her ex-
fiancé for approximately five years when they decided to break up” and that he “took
nearly all of his belongings and left before she went on a 3½ week training class.” How-
ever, when she returned home from the training on November 6, 2007, she found that all
of his belongings had been removed, “but there was a bullet that was left on the dresser in
the bedroom.” In addition, the ex-fiancé “had been calling her and emailing her.” The
police called the ex-fiancé, who stated that he had left a “large deer stand in the garage of
their home” and asked when he could retrieve it.
• A photograph of the ex-fiancé, identified as SK2 A, with his arm around the applicant.
• A photograph of the applicant and the ex-fiancé posed as a couple on one side of a fire-
place with the two operations specialists posed as a couple on the other side of the hearth.
• A photograph of the applicant and the female operations specialist wearing jeans and
revealing shirts posed on either side of a fireplace.
Summary of the IO’s Interview with LTJG X
On January 9, 2008, the IO advised the LTJG X of his rights in writing again and inter-
viewed him. The IO showed him a copy of the email dated October 18, 2007, and asked him to
describe his relationship with the applicant. LTJG denied having had an adulterous affair with
the applicant. He stated that initially they exercised together but realized that the relationship
could get complicated because they were attracted to each other and so they “made a decision to
end it” and were “proud that we made that decision.” LTJG X denied that the applicant had
caused his separation, which he blamed on his wife, but his statement to the IO about the timing
of his separation from his wife has been blacked out.
Summary of the IO’s Interview with the Applicant
On January 9, 2008, the IO advised the applicant of her rights in writing. She presented
the applicant with a copy of her email to LTJG X. The applicant stated that her ex-fiancé must
have guessed her password and sent it to the command. When the IO asked her what “separa-
tion” LTJG X referred to in his email to her, the applicant stated that it was a reference to her
being away on temporary duty. The applicant denied having an adulterous affair with LTJG X
and denied being the cause of his divorce. She stated that their relationship involved only activi-
ties such as biking and rollerblading but that they had started to feel affection for each other. The
applicant stated that their relationship had developed into an affectionate one in October and had
ended in December when she was away at SAR School. When asked why the relationship had
ended, the applicant replied, “We both agree that it was not right for now. Him going through his
divorce and me getting over my ex-boyfriend. Besides he was a married man.”
Summary of Interview with Ms. X
On January 11, 2008, the IO interviewed Ms. X, who was a secretary at the Sector com-
mand. Ms. X stated that the applicant had told her she was entering a romantic relationship with
LTJG X in October or November 2007. Ms. X stated that she had seen their relationship start
with “harmless flirting in the office.” Ms. X stated that she had seen LTJG X hug the applicant
from behind and that it was not just a friendly hug. Ms. X stated that the applicant had made a
point of saying “on more than [one] occasion that they [had] not had sex so their relationship
would not be a violation of [the] UCMJ.” LTJG X had told Ms. X that he wanted to get a
divorce before his 10th anniversary so that his wife would not get any of his retirement pay. Ms.
X further stated that the relationship between the applicant and LTJG X had cause his separation
from his wife. She stated that when the applicant’s ex-fiancé had found an email that LTJG X
had sent her, the ex-fiancé was upset and had contacted both LTJG X and LTJG X’s wife.
Thereafter, LTJG X’s wife had confronted LTJG X. Ms. X stated that she had gathered from the
applicant that these confrontations had happened “upon her return from SAR training. It’s my
understanding that [LTJG X] made plans to file for separation around the same time that [the ex-
fiancé] was informed that their relationship was over and to move out. I know [the applicant]
asked [the ex-fiancé] to move out but the first of November.” Ms. X stated that the applicant had
theretofore worn an engagement ring from the ex-fiancé. Ms. X stated that she had heard that the
ex-fiancé had done something inside the applicant’s house while she was away but that he had
acted out of anger. She stated she was concerned that the ex-fiancé “will be made to appear like
a stalker and [LTJG X] her protector.”
Summary of Interview with the Applicant’s Ex-Fiancé
On January 15, 2008, the IO interviewed the applicant’s ex-fiancé after he contacted the
IO by telephone to impart information for the investigation. The IO stated that his description of
events from September 2007 to the present aligned with those of Ms. X, the applicant, and LTJG
X. The ex-fiancé told the IO that he was engaged to the applicant but had seen the applicant
walking around a car wash holding hands with LTJG X; that LTJG X had greeted the applicant at
an airport with a hug and a romantic kiss; that LTJG X had visited the applicant’s house; that the
applicant had taken a trip to Tennessee with Ms. X; and that the IO should check the “dream
sheets” of the applicant and LTJG X because they had listed the same units. The ex-fiancé stated
that he had mailed the packages with evidence about the romantic relationship between the appli-
cant and LTJG X but that someone in the applicant’s “shop” had prepared the packages.
Summary of Re-Interview with LTJG X
On January 16, 2008, the IO re-interviewed LTJG X after reminding him of his rights.
The IO asked him when he had separated from his wife and family and when he had filed for
divorce. His responses to the questions have been blacked out. He stated that he could not recall
embracing the applicant from behind in Tennessee; after a hesitation he admitted to hugging the
applicant in the airport upon her return from SAR School but refused to say whether he had
kissed her; he denied having held hands with the applicant at a car wash. The IO advised LTJG
X that the car wash incident had occurred the day before the applicant left for SAR School, and
that before the incident, when the ex-fiancé had asked the applicant “if she wanted to do some-
thing or go out,” the applicant had told him that “she wanted time to herself.” Therefore, the ex-
fiancé was surprised to see them together.
Summary of Re-Interview with the Applicant
On January 16, 2008, the IO re-interviewed the applicant after reminding her of her
rights. In the interview, the applicant stated that she had traveled to Tennessee to be with Ms. X
and LTJG X and that LTJG X had embraced her from behind in a loving way during a trip to
Tennessee. In addition, she admitted that upon her return from SAR School, her ex-fiancé was
supposed to pick her up at the airport, but when he called her to remind her, she told him not to
come and that Ms. X would. However, LTJG X picked her up instead and hugged and kissed her
passionately. The applicant denied having been holding hands with LTJG X when they ran into
her ex-fiancé at a carwash. She denied that LTJG X had ever visited her house overnight.
With respect to her relationship with her ex-fiancé, the applicant stated that she had “been
with him” about 2.5 years and was engaged to him for “less than a year” beginning in 2006.
When the IO noted that a police officer’s report of the first complaint she had filed against her
SUMMARY OF DOCUMENTS SUBMITTED BY THE APPLICANT
ex-fiancé stated that the applicant had identified him as her fiancé and that they had been together
for five years, the applicant stated that she had asked the police to correct the report.
The applicant also admitted that she had shown her draft statement to LTJG X before
submitting it to the IO. The IO noted that the draft had contained a second paragraph, which did
not appear in the final version and “informed her that such act can be perceived as conspiracy to
interfere with the investigation or collusion.”
On January 24, 2008, the applicant sent the Sector Logistics Chief an email noting that
her ex-fiancé had information about her e-resume in PeopleSoft and asking about the possibility
of getting the assistance of the Coast Guard Investigative Service (CGIS). This email was for-
warded to the Deputy Sector Commander, who replied, “This is not a CGIS issue but of concern.
Somebody is feeding [the ex-fiancé] some info, might not be from this command if it is from
PeopleSoft. I need to know more about how we can determine ‘who accesses what’ in People-
Soft (if there is even a way to do that).” The Sector Logistics Chief replied that regular
“Employee Review” access to PeopleSoft would not reveal an officer’s e-resume and that the ex-
fiancé could have obtained the information from someone outside the command or by obtaining
the password from someone with higher authority access to PeopleSoft. The Personnel Service
Center had stated that PeopleSoft only tracks who makes a change in the database, not who views
what information, but that it was possible CGIS or CGHQ might be able to do so. The Sector
Commander responded that the applicant should be informed that “there is no way to determine
who accessed the info in PeopleSoft.”
On February 7, 2008, the Sector Commander gave the applicant a private letter (not to be
included in her military record) to document a counseling session. In the letter, he stated that he
was concerned about her unacceptable relationship with LTJG X, whom she occasionally super-
vised and who was legally married. He noted that they had exchanged romantic emails and
kissed passionately in an airport and that she had traveled to Tennessee to be with him. He fur-
ther noted that she had previously been engaged to an enlisted member while they were both on
active duty and that such a relationship between an officer and an enlisted member was prohib-
ited. The Sector Commander stated that the “[r]esolution of these matters can take many
courses,” but that he had chosen to counsel her instead of imposing non-judicial punishment. He
noted that her conduct would be reflected in her OER.
On February 14, 2008, a Coast Guard legal assistant attorney sent the applicant’s ex-
fiancé a letter demanding that he cease all contact with her. On February 16, 2008, the Deputy
Sector Commander asked if the applicant’s complaint about a stalker was a new case. He
received a reply indicating that there was only one alleged stalker, not two.
On October 6, 2008, the applicant emailed CDR X asking for a signed statement saying
that he had been told that if he did not change the original comment about a “potentially unac-
ceptable relationship,” the reviewer would add a comment page that would be more detrimental
to her career and saying that the IO had not interviewed him.
On October 21, 2008, CDR X sent LT C of the District legal office an email saying that
he had received a voicemail message from the applicant’s attorney. CDR X stated that he had
briefed the Deputy Sector Commander on her message “and told him I intended to contact [the
legal office] on this request. CDR X asked LT C to contact the applicant’s attorney for him.
On November 3, 2008, CDR X sent LT C another email stating that he had received
another email from the applicant’s attorney, who told him she had been expecting a telephone
call from either CDR X or LT C and had not received one. CDR X stated, “Per our conversation
on 10/22/08, you intended to make contact with [the attorney] to advise her that I would not be
returning the call. … Please contact [the attorney], per above, so she understands that my direct
contact with her is not authorized.” On November 4, 2008, LT C replied, stating that he had
informed the attorney “in no uncertain terms that any inquiries regarding this matter should be
coordinated through DX legal, specifically me. … Also, per your request from our previous con-
versation, [the attorney] and her client were made aware that it is not the intent of the command
to stonewall their efforts with respect to seeking information from the command that may be use-
ful to their cause, but that coordinating command inquiries/responses through DX legal is needed
given the nature of the BCMR process, particularly when attorneys are involved.”
On November 6, 2008, the applicant’s supervisor, Mr. X, signed a statement for her stat-
ing that the applicant “was not the supervisor of [LTJG X].” In addition, he stated that in late
2007 or early 2008, the Deputy Sector Commander had asked him “without any context” about
supervisor/subordinate relationships among the officers at the VTS and that he had told the Dep-
uty Sector Commander that he “was the supervisor for all officers assigned to [the] VTS.” Mr. X
also sent the Deputy Sector Commander an email about his contact with the applicant’s attorney.
Mr. X stated in his email that his “narrowly focused statement is not a problem” and asked
whether the Deputy Sector Commander had “any reservations” about providing the attorney with
a copy of the Sector rating chain without a FOIA request. The Deputy Sector Commander
responded stating, “Do not respond to the request from the lawyer. Please refer her to [LT C] at
DX legal. … DX legal has the lead and will do the talking for us.”
Also on November 6, 2008, the applicant’s attorney sent Mr. X a request seeking a copy
of the Sector’s published rating chain and a statement about whether the applicant had supervised
LTJG X and whether he had ever told anyone that the applicant was not LTJG X’s supervisor.
Mr. X replied the next day, telling the attorney to “refer further requests for information in this
matter to [LT C] of USCG District x legal.”
On December 10, 2008, the applicant’s attorney sent an email to LT C reminding him that
he had told her that CDR X was willing to provide a written statement. LT C forwarded the
email to CDR X. CDR X responded by emailing him a draft affidavit, noting that he had asked
the Deputy Sector Commander to review it and that he had concurred, and asking LT C to review
it as well.
On January 7, 2009, the applicant’s reporting officer, CDR X, signed a statement for the
applicant’s attorney. He stated that the Personnel Command had returned the disputed OER to
the command on July 17, 2008, because of the ambiguous word “potentially.” The Personnel
Command required that the comment be removed or reworded. Because the Deputy Sector
Commander had previously approved the wording of the comment, CDR X consulted him and,
with his concurrence, revised the comment and forwarded the revision to the OER reviewer
before further forwarding the revised version back to the Personnel Command the same day.
CDR X stated that he was not involved in the investigation and had not been questioned by the
IO but had reviewed the IO’s report. CDR X stated that no one ever told him that if he did not
change the comment in response to the Personnel Command’s request that the OER reviewer
would add a comment page.
On April 20, 2009, the applicant’s own attorney signed an affidavit stating that after she
left a message on CDR X’s voicemail on October 21, 2008, her call was returned not by CDR X
but by LT C of the District Legal Office. When the attorney complained that she was being
stonewalled, LT C told her that he would contact CDR X and that she would hear back either
from him or from CDR X. However, she did not hear back from CDR X, and so she called him
again and left another voicemail. CDR X again failed to return her call, but LT C called her on
November 4, 2008, and told her that CDR X did not wish to speak to her “because all official
command statements had to be coordinated with Legal” and that if she sent LT C her questions,
he would forward them to CDR X, who would provide a statement. The attorney told LT C that
she was not looking for an official statement and that she might have follow-up questions. How-
ever, LT C told her that all contact had to be through him “because [CDR X] did not ‘feel com-
fortable’ speaking with an attorney.” The applicant’s attorney stated that on November 4, 2007,
she also called Mr. X and asked him for a statement. He agreed to provide a statement and a
copy of the Sector’s published rating chain. Mr. X sent her a signed affidavit on November 6,
2008, but the next day sent her an email asking her to “refer further requests for information in
this matter to [LT C].” Therefore, she concluded that someone at the Sector was interfering with
the investigation and she never called the Sector again. However, she called the Legal Office on
November 19, 2008, and told CAPT T that someone at the Sector was interfering with her inves-
tigation. CAPT T told her that the Legal Office was not telling the witnesses that they could not
talk to her but that they did not want to speak with her and that if she persisted in trying to con-
tact them she might “draw a bar complaint” from one of the witnesses. On January 7, 2009,
CDR X responded to questions she had sent him through LT C after gaining the Deputy Sector
Commander’s concurrence. The attorney further complained that she believed that the ex-fiancé
had sent the Sector command two emails that were not included in the response to her request for
information about the investigation under the Freedom of Information Act (FOIA).
On April 21, 2009, LTJG X provided an affidavit for the applicant. He stated that he had
reported for duty to Sector Xxxxxx on December 15, 2005, and began working as a Watch
Supervisor at the VTS in April 2006. To clarify his chain of command, he asked Mr. X if the
applicant, as the Operations Officer, was his supervisor, and Mr. X said, “No.” Mr. X told him
that the Operations Officer “is there to coordinate the watch.” LTJG X was selected for
promotion to LT in September 2007. LTJG X stated that as a Watch Supervisor, he ensured that
watch operations were conducted in accordance with standard procedures, disseminated and
logged information as necessary, monitored the workloads of his staff to optimize operations,
supervised the qualification training for assigned personnel, and performed “overall supervision
and management of assigned section.” LTJG X stated that Mr. X was his supervisor and that Mr.
X “was the approving authority for all matters above the Watch Supervisor level.” LTJG X
stated that his duties included making reports to many Sector personnel, including the applicant,
but that the applicant did not have any input into his evaluations. LTJG X stated that he and the
applicant “were peers, especially with my selection for LT.”
LTJG X further stated that his marriage had begun dissolving in October 2005 because
his wife had had an affair. They had attended counseling “for the sake of the children,” but his
wife began another affair in February 2007. They discussed divorce “many times throughout the
year,” but it was unaffordable until October 2007, when he could move out to another residence
and they could both afford an attorney. LTJG X stated that the applicant “had absolutely nothing
to do with the dissolution” of his marriage, and his divorce was final in May 2008.
LTJG X stated that the applicant’s ex-fiancé had harassed him with threatening telephone
calls and emails and had driven by his house to watch him. LTJG X complained that when he
asked the Sector command to investigate how the ex-fiancé had obtained private information
about him, his request was denied. LTJG X stated that the ex-fiancé was a harasser with violent
tendencies and noted that the ex-fiancé had left a single bullet in the center of a dresser “after he
moved his stuff out” of the applicant’s residence.
VIEWS OF THE COAST GUARD
On March 12, 2010, the Judge Advocate General (JAG) of the Coast Guard submitted an
advisory opinion in which he recommended that the Board deny relief in this case.
The JAG argued that the applicant’s allegation that she did not have a supervisory role
with respect to LTJG X is meritless because as the VTS Operations Officer, she was “responsible
for all aspects of traffic management,” as the disputed OER states. The JAG stated that it is
“inherent in the applicant’s position as the VTS’s Ops Officer that some degree of supervision
and oversight must be maintained [with regard to] the daily watch sections and the watch section
supervisors. … To allege otherwise is farcical at best.” The JAG noted that the disputed OER is
“replete with examples of the applicant’s supervisory-duty connotations: …. In this instance, the
applicant knew or should have known that the very essence of her position as the ‘Operations
Officer’ preclude[d] her from any type of relationship other than a professional supervi-
sor/subordinate – working relationship with [LTJG X].” The JAG concluded that the applicant’s
romantic relationship with LTJG X was clearly in violation of Article 8.H.2.f. of the Personnel
Manual.
The JAG adopted the findings and analysis provided in a memorandum on the case pre-
pared by the Personnel Service Center (PSC, the successor to the Personnel Command). The
PSC submitted additional affidavits from the applicant’s rating chain. The PSC stated that the
rating chain fulfilled its duties in accordance with the Personnel Manual and that language in the
OER shows that as the Operations Officer and the senior watch officer, she was second in charge
at the VTS and had authority over LTJG X. The PSC stated that LTJG X was periodically under
the applicant’s direction, such as when Mr. X was absent, “and not just on matters concerning
watchstanding.” The PSC also denied that the applicant and LTJG X were “peers” because the
applicant “was nearly 5 years senior in rank, preparing for the LCDR Selection Board and [LTJG
X] was still a lieutenant junior grade, not having been promoted to full lieutenant until 14 July
2008.”
The PSC also noted that because Article 8.H.2.f. of the Personnel Manual uses the word
“inappropriate” to describe an unacceptable relationship, the rating chain’s use of the term was
valid. The PSC also noted that the command chose to issue the applicant an administrative letter
of censure, instead of punishing her at mast, due not to a lack of evidence but to how the rela-
tionship came to the attention of the command. The PSC stated that it was not unjust to mention
the relationship in the OER just because of her ex-fiancé’s involvement because the relationship
was properly investigated and the many of the allegations were found to be true.
The PSC also denied that the disputed comment was gender-biased and noted that she did
not file a civil rights complaint. The PSC stated that it does not compare officers’ OERs and
opined that the applicant was fortunate to have received good marks on the OER since the dis-
puted comment “justifies a below standard mark.”
The PSC noted that the applicant did not submit an OER Reply to rebut the disputed
comment in her OER and that she had the opportunity to submit a written communication to each
of the selection boards that reviewed her record for selection to LCDR, but chose not to. The
PSC further noted that in 2008, only 342 of 448 candidates were selected for promotion to LCDR
and in 2009, only 256 of 364 candidates were selected.
Statement of Mr. X, the Applicant’s Supervisor
Mr. X stated that he was the applicant’s and LTJG X’s direct supervisor at the VTS.
Therefore, he thought it was odd that he was never questioned by the IO. He stated that he par-
ticipated in a discussion with the Deputy Sector Commander and CDR X about how to describe
the relationship between the applicant and LTJG X in their OERs, and he was uncomfortable
with the involvement of the Deputy Sector Commander in the development of the OER. (He
also alleged that such involvement was an ongoing problem because the reviewer had made
“attempts to rewrite various OERs on [the] junior officers” at the VTS.) However, he did not
object to the Deputy Sector Commander’s involvement because the disputed comment would not
be in his section of the OER. Mr. X stated that he was unaware that the Personnel Command had
rejected the disputed comment as originally written until the applicant informed him of it. Mr. X
stated that nothing that had occurred left him particularly proud of any of the participants.
Statement of CDR X, the Applicant’s Reporting Officer
CDR X stated that LTJG X’s January 2008 semiannual OER with the comment about the
“potentially unacceptable relationship” was reviewed by the Deputy Sector Commander “to
ensure it as consistent with the command’s decision as a result of the investigation.” This OER
was cleared and validated by the Personnel Command. Therefore, he used the same comment in
drafting the applicant’s May 2008 annual OER, but it was rejected by the Personnel Command
and so he revised it as stated in his January 7, 2009, statement for the applicant. CDR X stated
that he did not abdicate his responsibility as a reporting officer to provide an independent review
of her conduct, but he did use the Sector Commander’s determination about the applicant’s con-
duct as a reliable report on which he could base an OER comment. CDR X also repeated state-
ments that appear in his other statements in the record.
Statement of the Applicant’s Reviewer
The reviewer stated that he is “convinced that an error or injustice did not occur” with
respect to the disputed OER. He noted that as the VTS Operations Officer, the applicant was
second-in-charge at the VTS and, “on occasion, acted as VTS Operations Director during her
supervisor’s abs[ences]. Consequently, she was in a supervisor-to-subordinate relationship with
[LTJG X] and others who worked within the VTS.”
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On June 2, 2010, the Board received the applicant’s response to the Coast Guard’s advi-
sory opinion. In addition, she stated that she did not submit an OER Reply because under the
regulations, an OER Reply cannot result in a correction of the OER and “would have served only
to invite additional erroneous and unjust negative comments” in her record. With regard to the
claim that she should have filed a civil rights complaint if she felt she had been the victim of
gender-based discrimination, the applicant stated that, although she was aware that the language
in her OER had been changed and that the language in LTJG X’s OER had not been changed, she
did not know that the command had made a conscious decision to treat her differently until she
received their emails in response to her FOIA request in April 2009. Moreover, she noted, a civil
rights complaint would not have resulted in the correction of the OER either as only the BCMR
has that authority.
The applicant argued that because the Sector Commander’s administrative letter of cen-
sure was based on an erroneous determination of LTJG X’s marital status and because CDR X
stated that he based the disputed OER comment on a “reliable report” from the Sector Com-
mander, “to the extent the comment in the OER was based on marital status it was erroneous.”
The applicant reiterated her allegation that she did not supervise the applicant and noted that the
reviewer’s comment that she was Acting Operations Director when Mr. X was absent does not
indicate that this ever occurred while the romantic relationship was occurring. The applicant
alleged that the Coast Guard did not submit any evidence that she ever supervised the applicant.
She alleged that if she did have a supervisory/subordinate relationship with LTJG X, she was
unaware of it and that they were entitled to rely on Mr. X’s statement to LTJG X that the appli-
cant was not his supervisor. She argued that it shocks the sense of justice for the command to
punish them for engaging in an “inappropriate relationship” after Mr. X told LTJG X that the
applicant was not his supervisor.
The applicant alleged that the statements of CDR X and Mr. X show that the Deputy
Sector Command exercised an undue influence over the disputed comment in her OER. The
applicant alleged that the evidence shows that the Deputy Sector Commander directed that the
inclusion of both the original comment and the revised comment in the OER and that CDR X
should not have consulted him when deciding what comments to make in the OER.
The applicant elaborated on many of the allegations made in her application and con-
cluded that she has proved that the disputed comment is erroneous and unjust and that because
the comment was in her record when it was reviewed by the LCDR selection boards in 2008 and
2009, her failures of selection should be removed from her record.
APPLICABLE REGULATIONS
Regulations about Relationships
Article 8.H.1.c. states that “[p]rofessional interpersonal relationships always acknowledge
military rank and reinforce respect for authority. Good leaders understand the privilege of hold-
ing rank requires exercising impartiality and objectivity. Interpersonal relationships which raise
even a perception of unfairness undermine good leadership and military discipline.”
Article 8.H.1.d. states that “[p]roper social interaction is encouraged to enhance unit
morale and esprit de corps. Proper behavior between seniors and juniors, particularly between
officers and enlisted personnel, enhances teamwork and strengthens respect for authority.”
Article 8.H.2.c. states that “[s]ervice custom recognizes that personal relationships,
regardless of gender, are acceptable provided they do not, either in actuality or in appearance:
“1. Jeopardize the members' impartiality,
“2. Undermine the respect for authority inherent in a member's rank or position,
“3. Result in members improperly using the relationship for personal gain or favor, or
“4. Violate a punitive article of the UCMJ.”
Article 8.H.2.d. states that the following:
The great variety of interpersonal relationships precludes listing every specific situation that mem-
bers and commands may encounter. While some situations are clearly discernible and appropriate
action is easily identified, others are more complex and do not lend themselves to simple solutions.
Evaluating interpersonal relationships requires sound judgment by all personnel. Factors to con-
sider in assessing the propriety of a relationship include:
1. The organizational relationship between the individuals: whether one member can
influence another's personnel or disciplinary actions, assignments, benefits or privileges;
2. The relative rank and status of the individuals: peers, officer and enlisted, CPO and
junior enlisted, supervisor and subordinate, military and civilian, instructor and student; and
3. The character of the relationship; e.g., personal, romantic, marital.
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 pol-
icy. Resolution normally administrative. Relationship must be terminated or otherwise
resolved once recognized.
d. Prohibited relationship: Violates the UCMJ. Resolution may be either admin-
istrative, punitive, or both as circumstances warrant.
Article 8.H.2.f. states the following:
Romantic relationships between members are unacceptable when:
1. Members have a supervisor and subordinate relationship (including periodic supervi-
sion of duty section or watchstanding personnel), or
2. Members are assigned to the same small shore unit (less than 60 members), or
3. Members are assigned to the same cutter, or
4. The relationship is between chief petty officers (E-7/8/9) and junior enlisted personnel
(E-4 and below), or
5. The relationship is manifested in the work environment in a way which disrupts the
effective conduct of daily business.
The nature of operations and personnel interactions on cutters and small shore units makes roman-
tic 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. This policy applies to Reservists in an active status, whether or not on duty.
Article 8.H.3.b. cites as examples of unacceptable relationships supervisors and subordi-
nates being in private business together and supervisors and subordinates in a romantic relation-
ship.
Regulations about OERs
Article 10.A. of the Personnel Manual governs the preparation of OERs. Article
10.A.1.b.1. provides that “Commanding officers must ensure accurate, fair, and objective
evaluations are provided to all officers under their command.” Every officer normally has a “rat-
ing chain” of three senior personnel, including a Supervisor, the Reporting Officer, and the
Reviewer. Personnel Manual, Article 10.A.2.e.1.e. Article 10.A.1.c.4. states that the Supervisor
is “[n]ormally, the individual to whom the Reported-on Officer answers on a daily or frequent
basis and from whom the Reported-on Officer receives the majority of direction and require-
ments.” The Reporting Officer is normally the Supervisor’s supervisor, and the Reviewer is
normally the Reporting Officer’s supervisor.
Article 10.A.2.d.2.a. states that it is the responsibility of the Supervisor to evaluate the
reported-on officer in the execution of her duties and to prepare the Supervisor’s portion of the
OER form.
Article 10.A.2.e.2.a. states that it is the responsibility of the Reporting Officer to evaluate
the reported-on officer based on direct observation, reports of the Supervisor, and other “reliable
reports” and to prepare the reporting officer’s portion of the OER form. Article 10.A.2.e.2.c.
states that an RO
[e]nsures the Supervisor fully meets responsibilities for administration of the OES. Reporting Offi-
cers are expected to hold designated Supervisors accountable for timely and accurate evaluations.
The Reporting Officer shall return a report for correction or reconsideration, if the Supervisor’s
submission is found inconsistent with actual performance or unsubstantiated by narrative com-
ments. The Reporting Officer may not direct that an evaluation mark or comment be changed.
Article 10.A.2.f.2.a. states that the Reviewer “[e]nsures the OER reflects a reasonably
consistent picture of the Reported-on Officer’s performance and potential.” Article 10.A.2.f.2.b.
states that the Reviewer “[a]dds comments as necessary, using form CG-5315 (series), that fur-
ther address the performance and/or potential of the Reported-on Officer not otherwise provided
by the Supervisor or Reporting Officer.” Article 10.A.2.f.2.c. states that the Reviewer “[e]nsures
the Supervisor and the Reporting Officer have adequately executed their responsibilities under
the OES. The Reviewer shall return an OER to the Reporting Officer to correct errors, omissions,
or inconsistencies between the numerical evaluation and written comments. However, the
Reviewer shall not direct in what manner an evaluation mark or comment be changed.”
Article 10.A.2.i. states that the Personnel Command “[p]rovides final quality control
review of OERs containing substantive errors, including “restricted” remarks as outlined in Arti-
cle 10.A.4.f. Normally, the appropriate member of the original rating chain will return these
OERs to the Reviewer for correction or redaction.”
Article 10.A.4.c.7. instructs Reporting Officers to write comments on the third page of an
OER as follows:
d. In the "comments" block following each evaluation area, the Reporting Officer shall include
comments citing specific aspects of the Reported-on Officer's performance and behavior for each
mark that deviates from a four. The Reporting Officer shall draw on his or her observations,
information provided by the Supervisor, and other information accumulated during the reporting
period.
e. Comments should amplify and be consistent with the numerical evaluations. They should
identify specific strengths and weaknesses in performance. Comments must be sufficiently specific
to paint a succinct picture of the officer's performance and qualities which compares reasonably
with the picture defined by the standards marked on the performance dimensions in the evaluation
area. Mere repetition or paraphrasing of the standards is not sufficient narrative justification for
below or above standard marks.
Under Article 10.A.4.g., an officer may submit a Reply to any OER for entry in his record
with the OER within 21 days of receiving the final OER. An OER Reply is forwarded up the
rating chain, whose members may attach endorsements with written comments. An OER Reply
does not constitute a request to correct the OER.
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the applicant's
military record and submissions, the Coast Guard's submission, and applicable law:
The application was timely filed.
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.
1.
3.
2.
The applicant requested an oral hearing before the Board. The Chair, acting
pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case with-
out a hearing. The Board concurs in that recommendation.2
The applicant alleged that the disputed comment in her OER is erroneous and
unjust and that the comment and her subsequent failures of selection for promotion to LCDR
should be removed from her record. The Board begins its analysis by presuming that the dis-
2 See Steen v. United States, No. 436-74, 1977 U.S. Ct. Cl. LEXIS 585, at *21 (Dec. 7, 1977) (holding that “whether
to grant such a hearing is a decision entirely within the discretion of the Board”); Flute v. United States, 210 Ct. Cl.
34, 40 (1976) (“The denial of a hearing before the BCMR does not per se deprive plaintiff of due process.”); Arm-
strong v. United States, 205 Ct. Cl. 754, 764 (1974) (stating that a hearing is not required because BCMR proceed-
ings are non-adversarial and 10 U.S.C. § 1552 does not require them).
4.
puted OER in an applicant’s military record is correct and fair, and the applicant bears the burden
of proving by a preponderance of the evidence that the OER is erroneous or unjust.3 Absent spe-
cific evidence to the contrary, the Board presumes that the members of an applicant’s rating
chain have acted “correctly, lawfully, and in good faith” in preparing their evaluations.4 To be
entitled to relief, the applicant cannot “merely allege or prove that an [OER] seems inaccurate,
incomplete or subjective in some sense,” but must prove that the disputed OER was adversely
affected by a “misstatement of significant hard fact,” factors “which had no business being in the
rating process,” or a prejudicial violation of a statute or regulation.5
The applicant alleged that the disputed comment is factually erroneous and unjust
because her romantic relationship with LTJG X was not an “inappropriate” relationship under
Article 8.H. of the Personnel Manual. The Board finds that the preponderance of the evidence
indicates that the applicant did engage in an unacceptable and hence inappropriate relationship
with LTJG X under Article 8.H.2.f.1. of the Personnel Manual. Numerous comments in not only
the disputed OER (which covers the period LTJG X was assigned to the VTS) but the applicant’s
two prior OERs as the VTS Operations Officer, as quoted on pages 6 and 7 of this final decision,
show that as the VTS Operations Officer, the applicant had significant control and influence over
the VTS watch and hence over the work schedule and workload of LTJG X and the other Watch
Supervisors. As the reviewer stated, she was second-in-charge at the VTS and would have been
in charge in Mr. X’s absence. Whether Mr. X was ever absent during the duration of the appli-
cant’s romantic relationship with LTJG X or whether the applicant ever made a formal or even
informal appraisal of the applicant’s performance are not dispositive. Likewise the fact that the
applicant was not LTJG X’s supervisor for the purpose of his OER preparation is not dispositive.
Her duties as the Operations Officer, senior watch officer, and overseer of the watchstanding and
qualification of watchstanders clearly placed her in a supervisory position to LTJG X in numer-
ous respects. The applicant’s and LTJG X’s denials in the regard are not persuasive. Nor does
the fact that the IO did not focus his report on whether the applicant supervised LTJG X render
the conclusion about their work relationship uncertain given the ample documentation of the
applicant’s control over and duties with respect to the watch in her OERs.
The applicant argued that she was unfairly surprised by the command’s determina-
tion that her relationship with LTJG X would be deemed unacceptable because they were “peers”
and that she should have been able to rely on Mr. X’s statement to LTJG X that the applicant was
not his supervisor. The record indicates that when LTJG X was assigned to the VTS, he wanted
to clarify his rating chain and so asked Mr. X whether the applicant was his supervisor, and Mr.
X said “No” because the applicant was not on LTJG X’s rating chain. However, as Article
8.H.2.f.1. of the Personnel Manual makes clear, whether an officer is a member of your rating
chain is not determinative of whether a romantic relationship would be deemed unacceptable
because even temporary oversight while one is on watch can make a romantic relationship
5.
3 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast
Guard and adopting the “preponderance of the evidence” standard for all cases prior to the promulgation of the latter
standard in 2003 in 33 C.F.R.§ 52.24(b)).
4 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl.
1979).
5 Hary v. United States, 618 F.2d 704, 708 (Ct. Cl. 1980), cited in Lindsay v. United States, 295 F.3d 1252, 1259
(Fed. Cir. 2002).
7.
between the officers unacceptable. The Board believes that given the duties of the applicant and
LTJG X within the VTS, they either knew or should have known that a romantic relationship
between them was not acceptable under Article 8.H. Nor is the Board persuaded that they were
“peers” since the applicant was a senior LT up for selection for promotion to LCDR and LTJG X
had just been selected for promotion to LT.
The applicant alleged that the OER comment is unjust because it was based on
information provided to her command by a “stalker” who conspired with someone within the
command who misused the database to gain access to her e-resume. The Board does not agree
that the source of the report that triggered the investigation renders the disputed OER comment,
which was based on the report of the investigation, unfair. While the applicant’s ex-fiancé sug-
gested to the IO that his source of information was someone at the VTS, the record shows that he
was former enlisted member of the Coast Guard who would have known many people through-
out the Service. The Board does not believe that the fact that a small part of the information and
evidence the ex-fiancé provided to the command was possibly obtained through a Privacy Act
violation renders the disputed OER comment unjust.
The applicant alleged that the disputed comment is a manifestation of gender-
based discrimination because LTJG X’s OER contained the comment with the phrase “poten-
tially unacceptable,” which provides more “wiggle room.” The record shows that the inappropri-
ate relationship was documented in LTJG X’s OER for the period ending January 31, 2008. This
OER for LTJG X would have been prepared and validated by the Personnel Command months
before the rating chain prepared the disputed OER for the applicant in June 2008. The record
further shows that the reporting officer attempted to use the same language in the applicant’s
OER that it had used in LTJG X’s OER, but the phrase “potentially unacceptable” was rejected
by the Personnel Command. Under Article 10.A.4.c.7. of the Personnel Manual, a comment
must be “sufficiently specific to paint a succinct picture of the officer’s performance and quali-
ties,” and under Article 10.A.2.1., the Personnel Command was responsible for “final quality
control” of OERs. Therefore, the Board does not believe that the Personnel Command erred by
rejecting the vague comment about a “potentially unacceptable relationship.” Following this
rejection, the command considered whether they should alert the Personnel Command to the fact
that the rejected language was already in LTJG X’s record and opted not to do so because they
preferred the vaguer language. Thus, the record clearly shows that the comment about the inap-
propriate relationship in the applicant’s OER differs from that in LTJG X’s OER only because
the Personnel Command noticed and objected to the vagueness when it reviewed her OER and
required the rating chain to revise her OER but did not when LTJG X’s OER was reviewed sev-
eral months earlier. The Board finds that the applicant has not proved by a preponderance of the
evidence that the comment about the inappropriate relationship in her OER differs from the one
in LTJG X’s OER because of gender-based discrimination. Nor is the Board persuaded that the
applicant was entitled to an identical comment to the one in LTJG X’s OER since, as the senior
officer, she was more responsible for refraining from engaging in the inappropriate relationship.
The applicant alleged that the emails she submitted and the statements of Mr. X
and CDR X show that the Sector Commander and Deputy Sector Commander used undue influ-
ence to ensure that the inappropriate relationship was documented in her OER and to control the
wording of the comment. Mr. X’s statement implies that he felt it was improper for the Deputy
Sector Commander to discuss the comment with the members of the rating chain and that he felt
6.
8.
9.
uncomfortable during their meeting. However, Mr. X was not responsible for the disputed com-
ment since it was in the reporting officer’s portion of the OER. Therefore, how Mr. X personally
felt about the Deputy Sector Commander’s input is not germane. Mr. X did not say that the Dep-
uty Sector Commander directed the preparation of the OER comment over CDR X’s objection,
and there is no evidence that CDR X did not write the final version of the disputed comment
himself as he thought it should be written after the Personnel Command rejected the first version.
Moreover, as CDR X stated, under Article 10.A.2.e.2. of the Personnel Manual, he was free to
seek input from other officers, and there is no evidence in the record that CDR X did not volun-
tarily seek the advice of the Deputy Sector Commander. The Board notes in this regard that the
Personnel Command sent the objection to the OER comment by email to CDR X and the
reviewer, not to the Deputy Sector Commander. The Board finds that the applicant has not
proved by a preponderance of the evidence that the Sector Commander or Deputy Sector Com-
mand exercised improper influence in the preparation of her OER.
The applicant alleged that the claims of her command and rating chain members
should all be considered suspect because the command and the District legal office interfered
with her attorney’s attempt to gather evidence. The record shows that CDR X did not want to
communicate with the applicant’s attorney directly, chose to communicate in writing through the
District legal office, and consulted the Deputy Sector Commander and the legal office before
finalizing his responses to the attorney’s written questions. Such conduct was certainly within
his prerogative as nothing in the BCMR statute or regulations requires officers to communicate
with applicants or their attorneys. The record also shows that the Deputy Sector Commander told
Mr. X on November 6, 2008, “Do not respond to the request from the lawyer. Please refer her to
[LT C] at DX legal. … DX legal has the lead and will do the talking for us.” However, Mr. X
statements show that he deflected the request from the applicant’s attorney only with regard to
her request for the published rating chain because he did not think he should provide her with it
without a FOIA request. Mr. X further stated that “[n]o one shaped my response to any query in
this matter,” and the critical comments in his statements support his contention. The applicant’s
rating chain members have submitted several affidavits in this matter, and the Board is not per-
suaded that they were silenced by the command or otherwise prevented by the command or the
District legal office from revealing any evidence or information that could affect the outcome of
this case.
10.
11.
The applicant made numerous allegations with respect to the actions and attitudes
of various officers in her rating chain and chain of command. Those allegations not specifically
addressed above are considered to be not dispositive of the case.6
The record contains ample evidence supporting the conclusion of the IO, the Sec-
tor command, and the applicant’s rating chain that she engaged in an inappropriate and unaccept-
able relationship with another member of the VTS staff during the reporting period for the dis-
puted OER. She has not proved by a preponderance of the evidence that the disputed OER was
adversely affected by a “misstatement of significant hard fact,” factors “which had no business
being in the rating process,” or a prejudicial violation of a statute or regulation.7 Therefore, in
6 See Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997) (noting that the Board need not address arguments that
“appear frivolous on their face and could [not] affect the Board's ultimate disposition”).
7 Hary v. United States, 618 F.2d 704, 708 (Ct. Cl. 1980), cited in Lindsay v. United States, 295 F.3d 1252, 1259
(Fed. Cir. 2002).
the absence of prejudicial error in her record, the Board finds no grounds for removing her fail-
ures of selection for promotion to LCDR from her record.8
Therefore, the applicant’s requests should be denied.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
12.
8 When an applicant proves that her military record contained a prejudicial error or injustice when it was reviewed by
a selection board, this Board must determine whether the applicant’s failure of selection should be removed by
answering two questions: “First, was [the applicant’s] record prejudiced by the errors in the sense that the record
appears worse than it would in the absence of the errors? Second, even if there was some such prejudice, is it
unlikely that [the applicant] would have been promoted in any event?” Engels v. United States, 678 F.2d 173, 176
(Ct. Cl. 1982). When an officer shows that her record was prejudiced before a selection board by error, “the end-
burden of persuasion falls to the Government to show harmlessness—that, despite the plaintiff’s prima facie case,
there was no substantial nexus or connection” between the prejudicial error and the failure of selection. Christian v.
United States, 337 F.3d 1338, 1343 (Fed. Cir. 2003), citing Engels, 678 F.2d at 175; Quinton v. United States, 64
Fed. Cl. 118, 125 (2005). To void a failure of selection, the Board “need not find that the officer would in fact have
actually been promoted in the absence of the error, but merely that promotion was not definitely unlikely or
excluded.” Engels, 678 F.2d at 175.
The application of xxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of her military
ORDER
Philip B. Busch
record is denied. No copy of this decision shall be entered in her military record.
Kathryn Sinniger
Vicki J. Ray
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