DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for Correction of
the Coast Guard Record of:
BCMR Docket No. 2010-031
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FINAL DECISION ON RECONSIDERATION
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 November 3, 2009, 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).
the three duly appointed members who were designated to serve as the Board in this case.
This final decision on reconsideration, dated August 12, 2010, is approved and signed by
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 and relating to 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 investigation, the NJP, and the 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
(i) removing his DD 214 and DD 215.
In the alternative, the applicant asked the Board to correct his DD 214 to change his narr-
ative reason for separation from “Substandard Performance” to “Miscellaneous/General Rea-
sons”; 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”; and by removing the DD 215.
APPLICANT’S ALLEGATIONS
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, that they
had been friends for some time, which is not a violation of Coast Guard policy, and that they did
not have a romantic or inappropriate relationship.
Allegations of Bias
The applicant alleged that his command unjustly accused him and punished him in retali-
ation for an incident in which he “observed a situation during a migrant interdiction which
resulted in deaths” on December 20, 2002, and subsequently told his father what had happened
and asked his advice in an email on January 3, 2003. The applicant alleged that the incident
occurred when his cutter found a sailboat overloaded with Haitian refugees. While the crew was
preparing to unload the refugees, the sailboat partially capsized and approximately thirty of them
fell in the water. “We recovered most of them but were unable to account for at least three refu-
gees. We assumed they had drowned.”1 He alleged that the cutter “left the area without conduct-
ing a proper search for the missing refugees.” Moreover, the applicant alleged, at the cutter’s
next stop, he heard an investigator suggest to the CO that the ship’s log be changed to show that
a proper search was conducted and that no refugees were missing. He stated, “I observed the
entries in the vessel’s log and it appeared to me that the Captain and the Area staff officer were
concealing the drownings.”2
The applicant stated that because he was uncertain about what to do, he informed his
father, a retired Coast Guard officer, of these events in an email on January 3, 2003, and asked if
1 The Board notes that in his original application, the applicant stated that he believed that “quite a few people
drowned” but that the CO had reported that only three people had drowned.
2 The Board notes that the three drowning were reported by the cutter in the message traffic that day. In his original
application, the applicant stated that the investigator asked the CO why the log did not show that they had searched
the area and searched the sailboat for hideaways before sinking it. When the CO stated that they had not done 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, and the log was changed accordingly.
he should report the matter.3 Within hours of sending the email to his father, he was unjustly
charged with having an inappropriate relationship.
The applicant alleged that 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. He
alleged that this was one of their duties, which “would have made it a certainty that one of them
read [his] email and then decided on a course of action to silence or discredit [him] by bringing
him up on false charges.” He further alleged that because he told his father what had happened,
the CO was reprimanded by a three-star admiral and the CO fired the Operations Officer and the
XO.
In support of his allegations about the migrant interdiction incident,4 the applicant sub-
mitted a “Case Report”5 that was opened on the night of December 20, 2002, and shows the
message traffic resulting from the cutter’s interdiction of a migrant vessel. The report shows that
at 9:15 p.m., the cutter, which was not nearby, was diverted to intercept the vessel, which had
been spotted by U.S. Customs from the air. In addition, the Coast Guard launched aircraft from
two air stations. At 7:10 a.m. on December 21, 2002, the cutter came in “radar contact” with the
vessel and reported that they would “board it at first light.” At 7:22 a.m., the cutter reported that
the “migrants will not stop and will not take life vests. We see approximately 40 migrants. They
state that they are going to the Bahamas.” The Coast Guard contacted the Royal Bahamas
Defence Force (RBDF), which stated that it would interdict the vessel eventually and that the
migrants could be returned by the Coast Guard or the RBDF. At 7:40 a.m., the cutter was
advised that the RBDF authorized the Coast Guard to remove the migrants by force. At 7:49
a.m., CAMSLANT reported “5 migrants in the water. At 7:58 a.m., the cutter was advised that
the RBDF did not want the cutter to use force. The cutter was advised to continue to try to per-
suade the migrants to take the life vests. At 8:32 a.m., CAMSLANT reported “all PIWs [persons
in water] recovered. Now see at least 150 mig[rants].” At 9:26 a.m., CAMSLANT reported that
all 192 of the migrants were aboard the cutter and that their vessel would be destroyed because it
was hazardous to navigation. The aircraft left the area. The cutter was instructed to repatriate
the migrants in Haiti the next day. At 1:35 p.m., GANTSEC sent the following message:
[The cutter] reports that 5 migrants were initially in the water, then 15 more fell in. All 20 PIW
were recovered. Once all 192 were embarked on [the cutter], migrants stated all were accounted
for. Later, one migrant stated 3 were missing. No info on who was missing or when they were
lost. [The cutter’s] small boats searched area for 2 hours after all migrants were aboard. [The
migrants’ vessel] left Port de Paix, Haiti, on 19 Dec with a destination of Nassau. //FM D7CC
[District Command Center]: Request info from [the cutter] on when migrant says 3 were lost and
who they are.
At 1:41 p.m., more details were provided:
3 The applicant did not submit a copy of this email.
4 The applicant alleged that the December 20, 2002, migrant interdiction incident was investigated and submitted
copies of letters indicating that in 2008 he attempted to get a copy of the report of the investigation under the
Freedom of Information Act. The correspondence shows that his request was forwarded to the District Command in
Miami and the cutter itself. The applicant stated that although he received many pages of information, he had not
received a copy of the report of the investigation. He alleged that the fact that his request for a copy of the
investigation was forwarded to the District Command is evidence that the report exists but is being wrongfully
withheld.
5 The Case Report was not in the record before the BCMR during the deliberations for the original decision.
[Briefed] OSR/SDO on the story: 5 PIW went into the water, then with the excitement, 15 more
people fell into the water. 20 PIW were recovered. 192 were accounted for. However later when
the interpreter was talking to all the mig[rants], one person said that 3 people were “lost during
their voyage.” Not sure where the people were lost. LPOK Port au Paix, Haiti, on 19 Dec.
[enroute to] Nassau. All mig[rants] say their family members are accounted for. Recommend
using the OPBAT HELO coming back from GTMO can fly a VS just to do the prudent thing//FM
OSR/SDO: RGR, Concur.
At 1:50 p.m., the helicopter flying from Gitmo back to Miami was asked to look for
people in the water. At 2:28 p.m., GANTSEC reported that “5 migrants are now saying that 3
personnel, by name, are missing. … All were seen on board the migrant vsl prior to the cutter
arrival.” At 3:00 p.m., the cutter reported the following:
FM [cutter] OPS: We departed scene about 1 hour ago and as we left a group of 5 people said that
3 were unaccounted for. One of our coxswain saw 01 [migrant] sink and did not surface. We are
not sure how many [personal flotation devices] were distributed. We arrived [on site] approx.
0743 and they refused life jackets originally and some took them later. Not sure who though.
There were 25 – 30 people in the water, but we recovered who we believe is everyone. We
departed because we as OSC felt 100% that the 02 mig[rants] sunk.
In response, the District Command Center sent a message saying, “Stay where you are
and do not move until I brief the chain of command.” The cutter acknowledged the message.
At 3:05 p.m., a request was made for a helicopter to return to the area of the interdiction
to search for PIWs. At 3:28 p.m., District Search and Rescue sent a message stating, “We have 3
unaccompanied so we would like to search some more.” The District Command Center replied,
“Concur. Let’s get searching.” At 3:50 p.m., GANTSET sent a message saying, “Pass to [the
cutter] to proceed back to last known position [of the migrant vessel].” There is no evidence in
the Case Report that the cutter received this message. At 4:32 p.m., GANTSEC reported the
following:
FM GANTSEC: The reason the [cutter] is not [on site] is when we told them to turn around they
did not and continued to the Winward//FM D7CC: You tell them turn around now and proceed at
best speed. We have a helo flying a search area!!!!!!!!!!!!!!!!! Find out what their ETA is//FM
GANTSEC: Will have to call back.
At 4:45 p.m., someone reported that “we passed approx. 1½ hours ago to GANTSEC to
pass to [the cutter] to proceed back to LKP [last known position] and the OPBAT helo sees the
[cutter] but heading the wrong way. We passed to them in the blind to proceed back to
LKP.//FM OSR: Write up an immediate msg fm OSR to the [cutter] with subject to remain [on
site] until further advised and call me back to read it to me.” At 4:49 p.m., GANTSEC reported
that the cutter’s ETA at the last known position of the vessel was in two hours.
At 5:00 p.m., the cutter reported that they had searched the site for four hours and that the
information about 2 people being unaccounted for came after they had departed the site, which
they reported, but they had not communicated with Search and Rescue because “it was strictly [a
law enforcement] case.” The OSR replied, “No it wasn’t because we had people in the water.
We are not exactly sure where the comms issue is but that’s neither here nor there. You are to
proceed back to the LKP.” However, at 10:24 p.m., the following exchange occurred between
the OSR and the cutter:
FM OSR: Understand your full story. We need to have a good SAR SITREP that documents
everything that happened and the issues with comms and any other pertinent info. //FM CO
[cutter]: It will be sent as we speak. Do you want us to return to the LKP? //FM OSR: No, based
on your full story, proceed back to the Windward.
At 10:54 p.m., the OSR stated that all of their communications equipment had been
checked but they “still couldn’t talk to the [cutter].” He concluded that the communications
problem must be with the cutter’s equipment. At 11:11 p.m., the cutter stated that its equipment
had been checked and was fine but they had had “bad comms w/ the 402 net and the footpattern
is bad and we barely can get IMMARSAT connection and we have to change courses to even get
a connection.”
At 11:17 p.m., a message was sent concerning whether an investigation was needed, but
the command stated that an investigation did not appear to be necessary because “we are not
responsible for the Haitians and we sound like we searched.”
At 6:28 a.m., on December 22, 2002, the cutter reported “comms check via 402 and
INMARSAT. No joy.” GANTSEC sent a message at 6:29 a.m., saying “request you try [the
cutter] and see if they sent their SITREP. RGR. Tried comms. No joy.” At 7:35, the cutter
reported that they still could not communicate with INMARSAT or the 402.
After the SITREP from the cutter was received, at 9:40 a.m., the OSR stated that “DCS
agreed the [search and rescue] response was adequate and we could suspend case after [the heli-
copter] searched.” At 10:45 a.m. the District Legal Office stated that they needed to arrange
“logistics for the CISD team, tech reps for comms gear (if needed), and the investigating officer.”
On December 23, 2002, someone reported that they “have lots of questions about the
SITREP that [the cutter] sent out. Need to get the info in their SITREP confirmed cause none of
the voice reports we received match what was sent out in the SITREP.” Someone replied that the
District was going to convene an investigation. Another message states that there were “some
questions that the refugee section has on the [cutter’s] SITREP that need to be answered before
we can move forward,” and that if the refugee section was not satisfied, someone would be sent
down to interview everyone. The cutter replied that the crew knew one person had drowned
because the coxswain and rescue swimmer had seen one person go under and not resurface. In
addition, the Operations Officer reported the following:
[In reference to] your email of questions on mig[rants]: 1. 20 – 30 mig[rants] were on deck shout-
ing at same time and interpreter heard someone shout that they would rather die then return to
Haiti. But that was the only time that statement was overheard. 2. [In reference to] the interpre-
ter’s comment that they were the most hostile migrants he had ever seen, he said that [because]
they were so loud and were shouting and waving their arms when CG first came upon them. 3. No
statements have been made that they would rather die then return to Haiti since they’ve been w/ the
Coast Guard. Any issues they had with going back to Haiti were economically based. 4. No con-
cerns have been raised since they have been on board about going back to Haiti. They are all ask-
ing to go back and be home by Christmas or in time to enroll their kids back in school. 5. They are
not hostile, but completely compliant. … These mig[rants] are not unusual and definitely do not
see an asylum issue here.
At 3:33 p.m. on December 23, 2002, FLAGPOT noted that the repatriation had been
approved for the next day at Port au Prince. In addition, someone requested “a copy of the
administrative investigation when it is completed.” The cutter completed the repatriation of the
migrants on December 24, 2002.
The applicant submitted a copy of a press release about the migrant interdiction. He also
submitted a statement from his father, who stated that the applicant had sent him an email about
the migrant interdiction at the time it happened noting that some of the refugees had drowned.
The next time he heard from the applicant was on or about January 2, 2003, when the applicant
sent him an email alleging that his CO had made changes to the log to try to cover up the deaths
of the Haitian refugees. He stated that if a member of the command saw the applicant’s email
they would likely consider it disloyal and insubordinate. Then on January 8, 2003, a junior
officer advised him that the applicant had been punished at mast and removed from the cutter.
Allegations about the Investigation of the Charges Against the Applicant
The applicant alleged that the commanding officer (CO) of the cutter appointed a pre-
liminary investigating officer, who conducted a pre-disciplinary investigation of the charges
against him in accordance with the Military Justice Manual, although the Coast Guard called it
an administrative investigation as if it had been conducted under the Administrative Investiga-
tions Manual. He alleged that, as a pre-disciplinary investigation, the investigating officer’s
report was “an integral part of the NJP proceedings against [him], which were ordered to be
removed from his record by [the Area Commander].”
The applicant alleged that many of the statements obtained during the investigation were
made by “enlisted people, junior to and far less sophisticated than [him].” These enlisted mem-
bers made erroneous allegations that he had been involved in an inappropriate relationship with
LTJG X in violation of Article 8.H. of the Personnel Manual. Therefore, he argued, their “erro-
neous allegations taint the content of the witness statements.” The applicant stated that their
allegations were erroneous because LTJG X was a friend of equal rank, they did not have a
romantic relationship, and they were not in each other’s chain of command.
Moreover, the applicant alleged that at some point after he was charged, the CO illegally
confined him to his stateroom, deprived him of access to a telephone or email, and ordered him
not to communicate with anyone except senior officers about the charges against him. He was
also “ordered to have no communications with anyone off the ship, about anything.” He could
talk only 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 offic-
ers on the cutter, and he was threatened with additional charges if he did not sign a false state-
ment confessing to the alleged offenses. He submitted copies of the Rules for Courts-Martial
concerning pre-trial restraint and pre-trial confinement and alleged that his pre-trial confinement
was illegal because it was not imposed by a hearing officer. Therefore, he concluded, his con-
finement constituted unlawful detention.
The applicant stated that he was not released from confinement until January 7, 2003,
when the CO took him to mast but denied him legal assistance or representation as well as the
right to speak and to present evidence and witnesses in his own defense or in mitigation or
extenuation. The CO imposed NJP under Article 15 of the Uniform Code of Military Justice
(UCMJ), including thirty days of restriction to be served at the nearby Coast Guard Academy.
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 appli-
cant alleged that the CO also forced him to sign an illegal document waiving his right to appeal
the NJP. Immediately after the mast, the CO had the applicant removed from the cutter to the
Academy by helicopter, which the CO had arranged in advance of the mast since the cutter was
underway. While in restriction at the Academy, the applicant alleged, the Superintendent of the
Academy continued to deny him access to a telephone or email, so he could not contact his fam-
ily 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 Academy. When his father telephoned him on January 8, 2003, the applicant learned about
his right to appeal the NJP, and he did so on January 27, 2003, without the assistance of counsel.
When the CO received the appeal, he called the applicant and again threatened him with addi-
tional 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 per-
formance 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 Academy 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.”6
The applicant submitted a copy of his NJP appeal dated January 27, 2003, in support of
these allegations.7 In his appeal, he stated that he was not allowed to have a mast representative
even though he requested one and he was not allowed to seek advice or counsel. When the XO
told him on January 4, 2003, that he had been placed on report for violations of the UCMJ, the
XO also said that he did not think a mast representative would be available because everyone
senior to the applicant on the cutter was otherwise involved in the case. The applicant told the
XO that he wanted a mast representative, and the XO said they would name someone later.
However, no one was appointed before the mast on January 7, 2003, and when the CO asked him
if he had a representative, the applicant responded that he wanted one but no one was available.
The CO conducted the mast anyway.
6 The Area Commander’s March 24, 2003, memorandum nullifying the NJP was removed from his record pursuant
to the final decision in BCMR Docket No. 2007-160 because it mentioned his NJP.
7 The applicant’s NJP appeal was not in the record before the Board in the original case because it was removed
from his record pursuant to the Area Commander’s March 24, 2003, memorandum.
Moreover, the applicant alleged in his NJP appeal, that he had been held in pre-trial con-
finement for three days without the approval of a military judge or hearing officer. He was
working with LTJG P, when the Operations Officer told her to tell him that he was to remain in
his stateroom at all times except to retrieve his meals. His ability to communicate with people
not on the cutter was ended because his SWSIII account was suspended.
The applicant alleged in his NJP appeal that the statement he gave the investigator “was
obtained through use of mental coercion and the threat of far worse punishment than could be
imposed at captain’s mast.” He stated that during his first interview with the investigator, he
chose not to incriminate himself. However, three hours later, he spoke with LTJG P in his state-
room, and she said that the Operations Officer told her that LTJG X “was planning on writing in
her statement that she had blacked out and would claim that I had raped her on the night in ques-
tion” and that “unless I came forward and could prove that I did not rape [LTJG X] that I would
most likely be tried at a Courts Martial, and could be faced with a sentence in Federal Prison.”
LTJG P told him that these steps were being taken and that he needed to prove immediately that
he had not raped LTJG X. Therefore, he went to the investigator and volunteered more informa-
tion to try to show that he had not raped LTJG X. However, the night before the mast, he was
shown the statements gathered by the investigator, including LTJG X’s statement, and he
realized he had been deceived by the command. Therefore, he decided to admit to all charges at
the mast to try to keep the proceedings as short as possible.
The applicant further alleged in his NJP appeal that he was not allowed to introduce mat-
ters in extenuation or mitigation at the mast. He stated that had he been allowed to present such
evidence, he would have told the CO that he had broken up with his fiancé the night before the
alleged offenses because of her infidelity and that he had been depressed. He further alleged that
after the mast, he was required to sign a document waiving his right to representation at mast.
The applicant also alleged in his NJP appeal that the charges against him had not been
proved. He stated that everyone, even the command, had acknowledged that when he kissed
LTJG X in the Tiki Bar it was not romantic but just a humorous stunt to raise morale. He denied
ever having been counseled about a perception of an inappropriate relationship and alleged that
the Operations Officer merely told him “my policy is and I realize that this is not in line with
Commandant is to simply keep it off the ship.” He stated that he had slept in the same hotel
room with LTJG X only because he had lost the key to his own room. Moreover, he and LTJG X
“did not believe the perception would be negative given the circumstances of the situation and
the few people present.” He alleged that the rules had not been applied fairly because LTJG P
had not been charged even though she spent the night in another hotel room with two male petty
officers.
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 hos-
pital’s reply should be added to his record.
Allegations about the Disputed OERs
After his release from confinement, the applicant was assigned to the Academy 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 and he was given a draft copy of it, which he sent
to his father. He wanted his OER to be prepared by the officers who were supervising him at the
Academy. Therefore, on April 9, 2003, he asked that his rating chain be disqualified so that his
OER for the evaluation period October 1, 2002, through January 31, 2003, would be prepared by
other officers.8 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 he learned that the members of the substitute rating chain were close associates of
the CO of the cutter and “may have been involved in the effort to suppress information
concerning the [migrant interdiction] incident.” 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 Atlantic 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 Reply to the OER. He 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
8 The applicant’s memorandum requesting disqualification of his rating chain and the Area Commander’s memo-
randum disqualifying his rating chain were removed from his record pursuant to the final decision in BCMR Docket
No. 2007-160 because they mentioned his NJP.
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.
The applicant alleged that CGPC’s threat to convene a Revocation Board on May 25,
2004, was illegal and coercive because the Coast Guard could not legitimately have held a Revo-
cation Board on that date since he had more than three years of commissioned service. His third
anniversary in commissioned service was May 8, 2004. The applicant alleged that up until
March 8, 2005, the Personnel Manual authorized Revocation Boards only during officers’ first
three years of service, after which they were entitled to “show cause” boards, the procedures for
which include a hearing for the officer and the right to present evidence and examine witnesses.
The applicant noted that the BCMR quoted the version of Article 12.A.11. with the three-year
limitation in its original decision in his case. However, he alleged, when he was notified of the
pending Revocation Board, he was sent a copy of the rules—Article 12.A.11. of the Personnel
Manual—with “pen and ink” changes purporting to extend the period for holding such boards
from three years to five. The applicant alleged that the “attempted alteration was a violation of
the Coast Guard’s own regulations” and noted that the Coast Guard was legally bound to adhere
to its own regulations.
The applicant stated that under section 8.A.3. of COMDTINST M5215.5E, which was in
effect on May 25, 2004, pen and ink changes to the Personnel Manual and other Coast Guard
directives had been abolished. Previously, under COMDTINST M5215.5D, pen and ink changes
were allowed only if the changes were minor. The applicant argued that lengthening the juris-
dictional period for Revocation Boards from three years to five cannot be considered minor.
Therefore, because the five-year amendment did not become effective until Change 39 of the
Personnel Manual went into effect in 2005, the Coast Guard could not have legally held a Revo-
cation Board for him on May 25, 2004. Because of the illegality of the threat to hold a Revoca-
tion Board, the applicant argued, the BCMR should nullify all of the actions and consequences of
that threat. He argued that the illegal threat constituted fraud, which induced him to request res-
ignation and deprived him of his rights and privileges as an officer. He stated that if he had
known he was entitled to a show cause board, where he could present evidence and examine the
witnesses, he would not have resigned.
Moreover, the applicant alleged, when he was provided a copy of the documents to be
considered by the Revocation Board, he discovered that the report of investigation was wrong-
fully included even though the Area Commander had already ordered the documentation of the
NJP to be removed from his record. Although he asked for the report to be removed from con-
sideration 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 pro-
ceedings and so the report should not have been among the documents to be considered by the
Revocation Board. He argued that under COMDTINST 1410.2 only witnesses’ statements
gathered during criminal, civil, or administrative investigations or those conducted by the Coast
Guard Investigative Service may be shown to a Revocation Board. Therefore, he alleged,
because his command conducted a pre-disciplinary investigation under the Military Justice Man-
ual that resulted in NJP, the witnesses’ statements could not legally have been shown to a
Revocation Board since they were “obtained during a pre-NJP investigation.” He also alleged
that COMDTINST 1410.2 “excludes the Investigating Officer’s statements, opinions, recom-
mendations, and conclusions.”
Furthermore, the applicant alleged that the witnesses’ statements were not part of his per-
sonnel record, and the Personnel Manual allows only an officer’s record to 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 of the investigation 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.
The applicant submitted a document titled “Draft Submission to Revocation Board,” in
which he asked the Revocation Board to disregard the first disputed OER, alleging that the state-
ments therein are false, that he never received formal counseling about the first incident at the
Tiki Bar, that statements that he had wanted to include in his OER Reply had been censored, and
that he had never been counseled about misusing alcohol. In addition, he asked the Revocation
Board to refuse to review the witnesses’ statements because they were not entered in his Personal
Data Record (PDR). He alleged that his own statement had been coerced with a threat of rape
and pointed out that many of the statements are not from people who witnessed what happened at
the hotel.
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. His
other OERs are excellent. Therefore, he alleged, the notation “Substandard Performance” is 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.” Moreover,
he argued that he was never accused of an 8-H offense. The applicant alleged that this erroneous
entry made it falsely appear as if he had engaged in two separate 8-H incidents and that he was
discharged for substandard performance because of an erroneous perception that he had been
involved in two 8-H incidents. 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.
Regarding the DD 215 issued on August 22, 2006, the applicant alleged that it changes
the authority for discharge in block 25 of his DD 214 from one erroneous citation to the Person-
nel Manual (Article 12-1-15, which does not exist) to another erroneous citation (Article 12-B-
15, which authorizes disability discharges for enlisted members). Therefore, he argued, the DD
215 must be removed from his record.
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 was biased against him and looking for a reason to
get of him after he sent his father the email about the cutter leaving the area where migrants had
fallen off a boat. 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 romantic, 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 mitigation phase because a helicopter that the CO has previously ordered to take them to
confinement at the Academy had already arrived. Yet the CO gave them the maximum punish-
ment. 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 fur-
ther 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.
Finally, the applicant stated that the DRB did not review the witnesses’ statements from
the investigation or accept them into evidence. He argued that under the Commandant’s eviden-
tiary standard in COMDTINST 1410.2, the BCMR should also reject the witnesses’ statements.
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 Officer9
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 reg-
ulation) 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
9 The documents summarized in this section were submitted by CGPC as attachments to the advisory opinion.
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.
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 Tiki 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.”
2.
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 P at the Tiki 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 P 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
P asleep in the petty officers’ room and tried to wake her but were unsuccessful. The applicant
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 P had related, he “needed to
come clean morally and professionally.” Although LTJG P and LTJG X had been ordered not to
discuss any issue in the case with the applicant, LTJG P 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.
3.
4.
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 P 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.”
LTGJ L admitted to the IO that she kissed the applicant in front of several petty officers
after they drank shots of tequila at the Tiki 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 P
asleep in the petty officers’ bedroom, woke her, and told her to come to her own room, but LTJG
P 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 P told the IO that at the Tiki 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 P 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 P “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 P 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 P 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 P]
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 P 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 Tiki Bar when they were
all “impaired.” After the party on December 28, 2002, he walked to the hotel with LTJG P and
BMC M. LTJG P 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 Tiki 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 Tiki
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 opi-
nion after the applicant submitted a copy of it with his original 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 Acad-
emy 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 Port Antonio, Jamaica
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.”10
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:
10 Pursuant to the decision in BCMR Docket No. 2007-160, this Page 7 was corrected by removing the phrase “any
further alcohol incidents may result in your separation from the U.S. Coast Guard” because the statement would only
be accurate under the Coast Guard’s alcohol abuse policy in Chapter 20 of the Personnel Manual if he already had an
alcohol incident documented in his record, which he did not.
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 Guantanamo Bay
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 Academy 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 Academy, 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.
On January 29, 2004, the applicant acknowledged receipt of CGPC’s notification and
The applicant received two more OERs based on his performance as the Officer in
Charge of a Law Enforcement Detachment with nine subordinates before he was separated from
the Coast Guard. On these OERs, he received primarily marks of 5 in the performance catego-
ries, 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
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.11
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
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 dis-
charge was both improper and inequitable. It recommended that the separation code and narra-
tive reason for separation on the applicant’s DD 214 be changed to reflect a discharge for “mis-
cellaneous/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 reme-
died.”
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
11 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.”
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
the DRB and ordered that his DD 214 and other records remain as they are.
VIEWS OF THE COAST GUARD
The Judge Advocate General (JAG) of the Coast Guard submitted the original advisory
opinion for this case on December 18, 2007. He recommended that the Board deny the appli-
cant’s requests. In so doing, the JAG adopted the findings and analysis of the case provided in a
memorandum prepared 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
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 Atlantic 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 MLCLANT(v), 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,” espe-
cially 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 MCLANT 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 Atlantic 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.
On March 12, 2010, the JAG submitted an advisory opinion in response to the applicant’s
request for reconsideration and addressed only the allegation of bias because the Chair granted
reconsideration on the basis of the new evidence submitted by the applicant about the incident—
i.e., the message traffic. The JAG argued that the new evidence is immaterial and does not
“overcome the good faith presumption afforded to military officers” and that the applicant “has
failed to articulate a causal connection regarding the alleged Command bias and the submission
of the [migrant incident] report.” Moreover, the JAG argued, any bias on the part of the com-
mand was cured when the Area Commander overturned the applicant’s NJP.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
In response to the original advisory opinion, the applicant alleged that the JAG’s recom-
mendation 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 considera-
tion 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.
In response to the JAG’s advisory opinion for his reconsideration request, the applicant
alleged that the cutter’s claims of broken communications equipment were false. He submitted a
CASEREP report of equipment repairs dated December 20, 2002—the day before the cutter
came upon the migrant vessel at issue—which shows the following equipment in need of repair:
Radar Cab. UD403 Pan D, Hydraulic Oil Purifier, VIGC ON-143(V6) (JOTS Computer), and
#1SSDG Prelube Pump.
The applicant reported that the current XO of the cutter had advised him that there was no
copy of any investigation into the migrant interdiction aboard the cutter. He submitted a copy of
an email from the XO confirming this allegation. The applicant stated that the Deputy Chief of
the Atlantic Area Legal office told him that an investigation “had been started” but that she found
no Class A Mishap report when she checked the file on the migrant interdiction. The applicant
alleged that an investigation was required under the Administrative Investigations Manual and
that the Board should presume that an alleged investigation occurred and that the disappearance
of the report allows a negative inference that the report revealed wrongdoing on the part of the
command. Therefore, the applicant argued, the disappearance of the alleged report is strong evi-
dence supporting the command’s bias against him. In addition, he argued, the bias cannot be
considered to have been “cured” by the removal of the NJP from his record because he subse-
quently received negative OERs and was threatened with an illegal Revocation Board and thus
coerced to resign.
The applicant also submitted a statement from his father, a retired Coast Guard captain
who has been involved in more than 50 migrant interdictions and who alleged that the CO of the
cutter erred by (1) not having control over the migrant vessel before beginning the transfer of the
migrants, (2) not putting life jackets on all migrants before beginning the transfer, (3) not sus-
pending the law enforcement operation and switch to a search and rescue operation until every
migrant was accounted for, (4) leaving the area without permission from the search and rescue
operations center, and (5) sinking the vessel with gunfire while there were still unaccounted for
migrants in the water.
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 nor-
mally 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
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 …
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
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 autho-
rized. 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 [pen and ink change to “five”] 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 effective 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 [pen and ink change to “five”] years of conti-
nuous service as a Coast Guard commissioned officer. Commander (CGPC-opm) also may initiate
board action to revoke an officer’s regular commission based on knowledge of adverse information
about the officer. A commanding officer or superior in the chain of command shall recommend
revocation in the form of a letter to Commander (CGPC-opm) containing the following informa-
tion.
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).
COMDTINST 1410.2 is entitled “Documents Viewed by Coast Guard Officer Promotion
and Special Boards” and states the following in paragraph 5.a.:
The purpose of a special board governs the scope of information to be provided to the board. The
board is provided records relevant to the intended purpose of the board. The opinions of criminal
investigators are not usually provided to a special board, but the statement of witnesses upon which
those opinions are based should be provided to the board if relevant to the purpose for which the
board is convened.
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.
1.
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.
3.
4.
2.
The applicant requested an oral hearing before the Board. The Chair, acting pur-
suant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case without
a hearing. The Board concurs in that recommendation.
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 and to remove
the DD 215 from his record.
The applicant alleged that the charges against him, his punishment at mast, and all
of the subsequent negative events were a product of bias because the command knew that he had
sent his father an email accusing the CO of having tried to cover up migrant deaths and wrong-
doing regarding a migrant interdiction on December 21, 2002. The applicant did not submit a
copies of the alleged emails, which (assuming arguendo they were sent) may or may not have
been seen by the command. Moreover, the message traffic that he has submitted shows no
intentional wrongdoing by his command and that the migrant deaths were promptly reported.
The message traffic shows that although the command’s decision to leave the area at about 2:00
p.m. on January 21, 2002—approximately 4.5 hours after the crew finished bringing the 192
migrants aboard the cutter—was originally questioned, the command did not learn of the three
missing migrants until after the cutter departed the area following its search and that communi-
cations from the CO later that day, which are not in the message traffic but were apparently about
the cutter’s search for migrants, satisfied the District that the cutter had done what was required
to try to find any remaining migrants. The allegations of error in how the interdiction was con-
ducted by the applicant’s father may be true, but he was not aboard the cutter and so cannot know
for certain what happened or what the crew did or did not do.
The message traffic also shows that faulty communications equipment caused the com-
mand not to receive an order to return to the last known position of the migrant vessel. Although
the applicant alleged that the CASEREP repair list for December 20, 2002—the day before the
cutter encountered the migrant vessel—proves that the claims of faulty equipment are false, the
Board disagrees. In this regard, the Board notes that the equipment may not have malfunctioned
badly enough to be reported prior to December 21, 2002. In addition, in the message traffic, the
command reported that although the cutter’s equipment appeared to work fine, they still could
not communicate with GANTSEC, and this lack of communication is confirmed in GANTSEC’s
own messages about trying to fix the problem.
The applicant also argued that the Board should draw a negative inference from the
alleged disappearance of a report of an investigation, which he argued must have occurred under
the rules in the Administrative Investigations Manual. However, he did not cite a particular para-
graph in that manual that would require an investigation of every migrant interdiction or sus-
pected migrant drowning case, and the Board knows of none. The Case Report shows only that
whether there should be an investigation was under discussion. Assuming arguendo that the
incident was investigated in 2002, the fact that it was not found during a FOIA search six years
later in 2008 does not prove that there was a cover-up or conspiracy.
5.
The applicant’s allegations about the CO modifying the log to cover up negligence with
regard to the search are not supported by any evidence. Moreover, even if the applicant proved
wrongdoing on the part of the CO with respect to the migrant interdiction, he has not proved that
he sent emails to his father accusing his CO of wrongdoing or that the command read the alleged
emails. Aside from the allegations of the applicant’s own father, nothing in the record supports
the applicant’s claim that his chain of command retaliated against him by charging him with
offenses under the UCMJ or that the evidence against him gathered by the IO was false and
fabricated in retaliation for the alleged emails. The Board finds that the applicant has not
overcome the presumption of regularity12 or proved by a preponderance of the evidence that the
command had any reason to be biased against him because of alleged emails to his father or that
the charges against him were inspired by the alleged emails.
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.”13 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.14 Absent evidence to the contrary, the
Board presumes that the applicant’s rating chain prepared the disputed OER “correctly, lawfully,
and in good faith.”15
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 because of a close association with his CO and their possible involvement in the alleged
cover up of alleged misdeeds by the CO regarding the migrant interdiction and because of their
bias against the applicant’s father, (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
6.
12 33 C.F.R. § 52.24(b).
13 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.
14 33 C.F.R. § 52.24(b).
15 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl.
1979).
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:
(a)
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 Tiki
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”16 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. Although
the applicant alleged that the Operations Officer did not counsel him about the kiss and that the
witnesses’ statements from the investigation should be considered unreliable,17 the Board finds
that he has not proved that the witnesses’ statements are unreliable or that the comments in the
first disputed OER about his misuse of alcohol and participation in an “inappropriate relation-
ship”18 are erroneous or unjust. In addition, whether the applicant’s failure to address his con-
duct 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
alleged lack of courage was not perceived or manifested before the end of the reporting period.
(b) When the applicant decided to request disqualification of his entire rating
chain because he thought they were preparing a biased OER after his NJP was overturned, CGPC
granted his request and disqualified the Operations Officer, the XO, and the CO of the cutter,
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 because 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,
16 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.”
17 The Board notes that the applicant argued that it should not consider the witnesses’ statements because of the Area
Commander’s memorandum dated March 24, 2003, and the Commandant’s instruction for boards, COMDTINST
1410.2, but this Board is not a part of or governed by the Coast Guard.
18 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.
(c)
(d)
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 Personnel 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 claims about his draft OER Reply, he has not shown that
CGPC erred in requiring him to remove comments that presumably failed to meet the require-
ments 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. His allegations that members of the substitute
rating chain were close associates of the CO and may have been involved in the alleged cover-up
of the migrant interdiction incident are unsupported. The applicant has failed to overcome the
presumption that the substitute rating chain prepared the OER in good faith19 or to prove by a
preponderance of the evidence 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 obliterate all evidence of the applicant’s misconduct, and the only documen-
tary evidence of his misconduct other than the NJP itself was the information in the IO’s report.
(e)
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—
that it was a “pre-disciplinary investigation”—and so the IO’s report should not exist apart from
the NJP and must be thrown out with the NJP. However, the applicant has not shown that the
investigation was anything other than a normal informal administrative investigation of an inap-
propriate relationship among crewmembers. Coast Guard regulations permit COs to convene
informal investigations, which may ultimately result in no action at all; any number of purely
19 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl.
1979).
administrative actions, such as transfers, bad OERs, “alcohol incident” documentation, or psy-
chiatric 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 appli-
cant 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 nonjudi-
cial 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 first disputed OER.
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.20
(f)
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 illegal confinement and threats of being charged with rape. The applicant has
not stated when his confinement began or how long it lasted. Under Rule 305 of the Rules for
Courts-Martial, a CO may confine a member for up to 72 hours if he is considering convening a
court-martial and if he believes that a triable offense has been committed by the person to be con-
fined and that confinement is necessary under the circumstances. The applicant alleged in his
appeal of the NJP that LTJG P told him at the instigation of the Operations Officer that LTJG X
might accuse him of rape. He submitted nothing to support this allegation. The Area Com-
mander wrote in his letter overturning the NJP that he was “concerned about the restrictions that
were place on you [the applicant] before the mast, … and the circumstances that led to you pro-
viding 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 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 questions, 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 P had related, he “needed to come clean morally and professionally.” This adden-
dum, which the applicant also signed, shows that his confession of January 6, 2003, was moti-
vated not by threats of rape charges but by his realization that LTJG P 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
able to talk to LTJG P about the case, contrary to orders, and to visit the IO’s room to make his
20 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.
third statement. In light of these facts, the Board finds that the applicant has failed to prove by a
preponderance of the evidence that his confession to the IO was coerced or that it should be con-
sidered unreliable or improper as a source of information for the substitute rating chain. How-
ever, 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 substi-
tute rating chain to conclude that the applicant had misused alcohol and had an inappropriate
relationship with LTJG X.
7.
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.”21
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 Academy 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
Academy 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
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 on the form by stating that the regular rating chain was disqualified.22 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.”23
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.
8.
21 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.
22 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”).
23 Germano, at 1460.
9.
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 6(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. The Board ordered the Coast Guard to remove a few
documents from his record that contained references to the mast, such as his request to disqualify
his rating chain, in its final decision in the applicant’s original case. He has not shown that there
are any additional references to the NJP in his record. Nor should any copy of this decision be
entered in the applicant’s military record.
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 applicant alleged that he was improperly threatened with a Revocation Board
that would have been illegal because on the proposed date of the Board, May 25, 2004, he had
more than three years of commissioned service. He alleged that prior to the proposed Revocation
Board, he was provided with a copy of Article 12.A.11. of the Personnel Manual with “pen and
ink” changes purporting to change the time limitation for Revocation Boards from three years to
five. He noted that the Board relied on the original Article 12.A.11. limiting Revocation Boards
to the first three years of commissioned service.24 In support of his allegation that the proposed
Revocation Board would have been illegal, the applicant submitted a copy of the notice he
received on January 29, 2004, with the pen and ink changes shown on a copy of Article 12.A.11.
He also submitted a copy of Chapter 8.A.3. of COMDTINST M5215.6E, which states that when
10.
24 The BCMR was unaware of the pen and ink changes made to Article 12.A.11. of the Personnel Manual during its
first deliberations of the applicant’s case.
11.
amending Coast Guard directives, “Pen and ink changes are no longer permitted.” However,
COMDTINST M5215.6E was published on May 20, 2004, long after the pen and ink changes
had been made to Article 12.A.11., and it did not invalidate any previous pen and ink changes—
only future ones. The pen and ink change to Article 12.A.11. was apparently made in response to
Congress’s amendment of 14 U.S.C. § 281 on November 25, 2002, extending the Secretary’s
authority to revoke commissions from three years to five. Although the applicant argued that
extending the period for Revocation Boards from three years to five cannot be considered the sort
of minor pen and ink change that was allowed under COMDTINST M5215.6D, the Board finds
that changing the word “three” to “five” is exactly the sort of minor pen and ink change that was
allowed prior to the issuance of COMDTINST M5215.6E. Therefore, the Board finds that the
Coast Guard could legally have held a Revocation Board on May 25, 2004. He has not proved by
a preponderance of the evidence that his resignation was coerced in this regard.
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 hold a Revocation
Board and to show several enclosures to the IO’s report to the Revocation Board. He argued that
CGPC’s intentions 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. The applicant has not proved that
the Coast Guard could not legally have held a Revocation Board on May 25, 2004, or 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 6, 7, and 8,
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. Although the applicant alleged that showing the witnesses’ state-
ments to the Revocation Board was improper, paragraph 5.2. of COMDTINST 1410.2 states that
while, “[t]he opinions of criminal investigators are not usually provided to a special board, … the
statement of witnesses upon which those opinions are based should be provided to the board if
relevant to the purpose for which the board is convened.” The applicant’s involvement in an
inappropriate relationship clearly would have been relevant to the Revocation Board’s rec-
ommendation regarding his retention as an officer. Moreover, Article 12.A.11.b. does not spe-
cify 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 more senior than the applicant, Article 12.A.15.f. states
that “[a]t any time and place Commander, (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
12.
officer’s PDR, the initiating officer’s recommendation, and all other available information rele-
vant to the reasons for separation 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 forwarded 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 evidence.” 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 Article 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.
13.
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.25
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.26
The applicant’s request to retire was approved, and he was retired about one month after his NJP
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.”27 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-
25 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”).
26 See Final Decision in BCMR Docket No. 2007-050.
27 Id.
member is faced with an undesirable choice.”28 In Christie v. United States, 207 Ct. Cl. 333,
337-8 (1975), the court held the following:
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.]
The “tripart test” in Christie for an involuntary resignation is still used,29 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.
14.
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
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
28 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”).
29 See Scarseth v. United States, 52 Fed. Cl. 458, 468 (2002).
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.
15.
The applicant asked the Board to remove the DD 215 from his record. The DD
215 is clearly erroneous as it appears to change the discharge authority cited on his DD 214 from
a nonexistent article of the Personnel Manual—Article 12.1.15.—to one that concerns only the
disability discharges of enlisted members—Article 12.B.15. The correct discharge authority is
Article 12.A.15. Therefore, the Board finds that the DD 215 should be removed from his record,
and the Coast Guard should correct his DD 214 to show that he was discharged pursuant to
Article 12.A.15.
16.
The applicant made numerous allegations with respect to the actions of various
Coast Guard officers. Those allegations not specifically addressed above are considered to be
not dispositive of the case. While the CO apparently conducted the mast improperly by not pro-
viding the applicant with a mast representative and by not conducting the mitigation and extenu-
ation phase of the mast, these errors were cured when the Area Commander overturned the NJP
and removed not only the documentation of it but all references to it from his record.
17.
Accordingly, most of the applicant’s requests should be denied but partial relief
should be granted by removing the erroneous DD 215 from his record and correcting his DD 214
to show that he was discharged pursuant to Article 12.A.15.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
ORDER
No copy of this decision shall be placed in his record.
The application of former LTJG xxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction
of his military record is denied except that the Coast Guard shall remove the DD 215 dated
August 22, 2006, from his record and correct block 25 of his DD 214 to show that he was
discharged pursuant to Article 12.A.15. of the Personnel Manual.
George A. Weller
Thomas H. Van Horn
Darren S. Wall
CG | BCMR | OER and or Failure of Selection | 2007-160
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