DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-198 
 
Xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxx 
   

 

 
 

FINAL DECISION 

 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case after receiving the applicant’s 
application form on June 23, 2011, and assigned it to staff member J. Andrews to prepare the 
decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  March  28,  2012,  is  approved  and  signed  by  the  three  duly 

SUMMARY OF THE APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  a  lieutenant  (LT)  on  active  duty,  asked  the  Board  to  remove  from  his 
record  a  special  officer  evaluation  report  (SOER)  with  low  marks1  covering  his  service  from 
June 1 to October 13, 2009, when he was serving as Xxxxx xxxxx to a XXXXX; a memorandum 
documenting substance abuse screening, dated November 6, 2009; and a letter from the XXXXX 
(the applicant’s commanding officer (CO)) documenting counseling about a drug incident, dated 
October 13, 2009.  He also asked the Board to remove from his record his non-selections for 
promotion to lieutenant commander (LCDR) in 2010 and 2011 so that he will have two more 
chances to be selected for promotion.  In addition, if he is selected for promotion by the first 
LCDR selection board to review his record after it is corrected by the Board, he asked the Board 
to  backdate  his  LCDR  date  of  rank  to  what  it  would  have  been  had  he  been  selected  for 
promotion in 2010 and to award him corresponding back pay and allowances. 
 
 
The applicant explained that in 2009, he admitted that he had accidentally ingested mari-
juana in 2006 when he was introduced to a woman who was smoking a hand-rolled cigarette that 
smelled like tobacco and picked up a similar one to smoke only to discover that the one he took 
contained marijuana.  A Board of  Inquiry  (BOI) was held to determine  whether he should be 
retained on active duty.  The BOI concluded that he had not intentionally falsified a local records 
                                                 
1 On an OER form (CG-5310B), Coast Guard officers are rated in eighteen different performance categories, such as 
“Adaptability,” “Professional Competence,” “Teamwork,” and “Judgment” on a scale of 1 (worst) to 7 (best). 

check form in January 2009, that he did not have any intent to obtain or use illegal drugs, and 
that his actions in failing to report his accidental ingestion of marijuana until 2009 did not sup-
port separation from the Service. 
 
 
The applicant argued that the disputed documents should be removed because his inges-
tion of marijuana in 2006 was accidental and innocent and so did not meet the definition of a 
“drug incident,” as the BOI concluded.  He also argued that because under Article 20.C.3.e. of 
the Personnel Manual, an Administrative Discharge Board can make a finding of no drug inci-
dent, contrary to the finding of an enlisted member’s CO, the BOI’s findings should be deemed 
to  overrule  and  negate  his  own  CO’s  finding  that  he  had  been  involved  in  a  drug  incident.  
Therefore, the SOER should be expunged because it documents his CO’s overruled finding that a 
drug incident occurred without showing that the BOI found that no drug incident occurred and 
that he had not previously intentionally lied about his drug use.  The applicant argued that with-
out any information about the BOI, the SOER is misleading and unjustly prejudicial to his record 
when it is reviewed by a selection board. 
 
 
The applicant noted that Article 20.C.3.d. of the Personnel Manual states that a “com-
manding officer may delay final determination to pursue any of these options deemed appropri-
ate:  1. Ask the member to consent to a urinalysis test as outlined in Article 20.C.2.a.; 2. Direct 
the member to participate in a urinalysis evaluation program for a maximum of six months as 
outlined in Article 20.C.2.a.”  However, instead of following one of these courses of action, the 
XXXXX simply relied on the applicant’s admission. 
 
 
The  applicant  alleged  that  his  due  process  rights  were  violated  during  the  preliminary 
investigation that followed his admission.  He alleged that he had been designated a party to the 
investigation  but  was  not  allowed  to  cross-examine  witnesses  before  the  XXXXX  determined 
that  a  drug  incident  had  occurred,  as  required  by  Article  10.A.2.a.5.  of  the  Administrative 
Investigations Manual (AIM).  The applicant alleged that documents showing he was informed 
of  his  Article  31(B),  Miranda/Tempia  rights  because  he  was  suspected  of  having  committed 
offenses  under  the  Uniform  Code  of  Military  Justice  (UCMJ)  prove  that  he  was  designated  a 
party to the investigation.  However, he was only allowed to cross-examine witnesses during the 
BOI after the XXXXX had already entered the disputed documents in his record.  He argued that 
this  violation  of  due  process  justifies  expunging  the  disputed  documents  because  they  would 
never have been entered in his record if he been allowed to cross-examine witnesses during the 
preliminary investigation. 
 
The  applicant  argued  that  the  disputed  SOER  should  also  be  expunged  because  the 
 
XXXXX, who served as both Reporting Officer and Reviewer on his rating chain, should have 
been  disqualified  pursuant  to  Article  10.A.2.g.2.b.  of  the  Personnel  Manual.    The  applicant 
explained that the XXXXX received the preliminary investigator’s report and would have been 
the convening official for any mast or court-martial that might have been held, although none 
was.  Therefore, the applicant argued, the XXXXX was an interested party to the investigation 
and  should  have  been  disqualified  from  his  rating  chain.    The  applicant  also  argued  that  the 
XXXXX  should  have  been  disqualified  due  to  a  conflict  of  interest  because  the  applicant’s 
admission  of  drug  use  had  the  potential  to  reflect  negatively  on  him,  which  “created  a  direct 
personal conflict.” 

 
 
The applicant alleged that the dates of the SOER are erroneous because the conduct that 
triggered  the  SOER  occurred  in  2006,  but  the  reporting  period  for  the  SOER  is in  2009.   He 
alleged  that  because  Article  10A.4.f.11.  of  the  Personnel  Manual  states  that  an  OER  may  not 
mention conduct that occurred outside of the reporting period, his rating chain should have docu-
mented the alleged drug incident in a separate SOER appropriately backdated and documented 
his contemporary performance and conduct in 2009 in a regular OER. 
 
 
The applicant alleged that his Reporting Officer’s recommendation in the SOER that he 
“should  be  required  to  show  cause  for  retention  in  the  U.S.  Coast  Guard”  violates  Article 
10.A.4.f.1. of the Personnel Manual, which prohibits comments that “mention the officer’s con-
duct is the subject of a judicial, administrative, or investigative proceeding.”  He also argued that 
references to a completed investigation in the SOER violate this regulation. 
 
The applicant stated that the SOER should be removed in its entirety because his Report-
 
ing Officer assigned him three very low marks of 2 and included many negative comments.  The 
fact that his Reporting officer had given him much higher marks on his previous OER proves 
that the erroneous assumption that he had intentionally used illegal drugs negatively affected his 
marks in the SOER.  He also alleged that the SOER is inconsistent because his Reporting Officer 
assigned him a mark he received in the third spot on the comparison scale, which means “Fair 
performer, recommended for increased responsibility,” but included a comment that he “is not 
prepared to assume duties of increased responsibility.” 
 
 
In support of his allegations, the applicant submitted copies of the disputed documents, 
other OERs, the Article 31(B), Miranda/Tempia Rights forms he signed on September 23 and 24, 
2009, before he was interviewed by the preliminary investigator. 
 

SUMMARY OF THE RECORD 

 

The applicant’s OER marks as a LT are shown in the chart below.  On January 28, 2009, 
he became the xxxxx xxxxx to a XXXXX.  On his first OER in this position (OER5 in the chart), 
the applicant received all marks of 5 and 6.  On his second and last OER in this position (the 
SOER,  which  is  shaded  in  the  chart),  the  applicant  received  slightly  higher  marks  in  some 
categories but three marks of 2 for “Judgment,” “Responsibility,” and “Health and Well-Being.”  
The XXXXX’s Executive Assistant, a commander, served in the role of Supervisor, preparing 
the first 13 marks (above the bar) in OER5 and the SOER.  The XXXXX served  as both the 
Reporting  Officer  and  Reviewer  for  the  applicant  and  so  assigned  the  last  five  marks,  the 
comparison scale mark, and the comments supporting those marks. 

 

MARKS IN NINE LT OERs FROM MARCH 2005 THROUGH MAY 2011 

PERFORMANCE CATEGORY 
Planning and Preparedness 
Using Resources 
Results/Effectiveness 
Adaptability 

OER1  OER2  OER3  OER4  OER5  SOER  OER7  OER8  OER9 

6 
6 
5 
6 

6 
5 
6 
6 

6 
5 
6 
6 

6 
6 
6 
6 

5 
6 
5 
6 

6 
6 
5 
6 

5 
6 
6 
6 

6 
6 
6 
6 

6 
6 
7 
6 

Professional Competence 
Speaking & Listening 
Writing 
Looking Out for Others 
Developing Others 
Directing Others 
Teamwork 
Workplace Climate 
Evaluations 

7 
7 
6 
6 
5 
4 
6 
6 
4 

5 
5 
6 
6 
6 
5 
6 
6 
5 

6 
6 
6 
6 
6 
5 
6 
6 
5 

6 
6 
6 
6 
6 
5 
6 
6 
5 

5 
5 
5 
5 
5 
6 
6 
5 
5 

5 
5 
5 
6 
6 
6 
6 
5 
5 

6 
6 
6 
6 
5 
6 
6 
6 
5 

6 
6 
6 
6 
6 
6 
6 
6 
5 

6 
6 
6 
5 
5 
7 
7 
6 
5 

Initiative 
Judgment 
Responsibility 
Professional Presence 
Health & Well-Being 
Average for OER 
Comparison Scale‡ 

6 
6 
5 
6 
6 
5.7 
5th 

5 
5 
6 
6 
6 
5.6 
5th 

5 
6 
6 
6 
6 
5.5 
5th 

6 
6 
6 
6 
6 
5.9 
5th 

5 
5 
6 
6 
5 
5.3 
5th 

5 
2 
2 
4 
2 
4.8 
3rd 

6 
5 
6 
6 
6 
5.8 
5th 

7 
6 
6 
6 
6 
6.0 
5th 

6 
6 
6 
6 
5 
5.9 
5th 

 
‡ The comparison scale on an OER is not numbered, but as with the performance categories, there are seven possi-
ble marks from a low of “Performance unsatisfactory for grade or billet” to a high of “Best officer of this grade.”  The 
Reporting Officer assigns the comparison scale mark by comparing the subordinate officer to all of the other officers 
of the same rank that the Reporting Officer has known throughout his career.  A mark in the 5th spot means that the 
applicant was rated as an “Excellent performer; give toughest, most challenging leadership assignments.”  A mark in 
the 3rd spot means “Fair performer; recommended for increased responsibility.”   
 

The Reporting  Officer  wrote  a few positive comments but also included the following 

negative comments in the SOER: 
 

REPORTING  OFFICER  COMMENTS:  …  While  updating  his  security  clearance,  ROO 
[Reported-on Officer] admitted to using an illegal substance in July 2006.  He also admitted this to 
his supervisor.  As a result of an investigation completed during this period, ROO was removed 
from his duties as xxxxx xxxxx and reassigned.  I believe ROO was involved in a drug incident.  
Though I commend [him] for his candor now, I cannot condone his lapse in judgment or behavior. 
 
COMMENTS:  … On 10 Sep 09, ROO completed a SF-86 (security questionnaire) during which 
he admitted to smoking marijuana in Jul 2006; also made verbal admission to EA & DOS, & sent 
e-mail to staff explaining the circumstances.   An  investigation  further revealed that  when ROO 
completed a local records check memo in Jan 2009, he was not truthful when responding to the 
question, ‘Have you ever used a controlled substance?’  ROO had not previously reported the drug 
incident. 
 
POTENTIAL:  [The applicant] improved  his preparation and performance during  this  marking 
period, anticipated challenges, and instituted measures to mitigate them.  He showed great promise 
and had a bright future ahead.  Regretfully, his admission to past drug use led to his relief as my 
aide.  Though his honesty during the security clearance interview is admirable, I am troubled that 
he not only engaged in illegal activity but did not reveal this information until now.  At this time, 
ROO  is  not  prepared  to  assume  duties  of  increased  responsibility  and  is  not  recommended  for 
promotion to Lieutenant Commander.  ROO should be required to show cause for retention in the 
U.S. Coast Guard. 

 

did so and stated the following: 
 

Because the SOER is derogatory, the applicant was entitled to file an addendum to it.  He 

I have made a costly mistake.  The effects of that mistake have been my relief from my assign-
ment  as  the  [xxxxxxxxxxxx]  Xxxxx  xxxxx  and  irreparable  damage  to  both  my  career  and  my 
reputation. 
 
While visiting an ex-girlfriend in July of 2006, we stopped at the apartment of one of her friends 
to  retrieve  laundry  (my  ex-girlfriend  did  not  have  a  washer/dryer  in  her  apartment).    When  we 
arrived, I  was introduced to two  women,  neither of  whom I had  met before, one of  which  was 
smoking  a  hand-rolled  cigarette.    I  could  smell  that  the  cigarette  that  she  was  smoking  was 
tobacco.  I asked if I could have one and picked up a cigarette that was outside of a cigarette case 
on  the  table.    I  lit  it  and  inhaled  and  recognized  immediately  that  it  was  not  tobacco.   Prior  to 
lighting and inhaling, I had no reason to believe that it was anything other than a hand-rolled ciga-
rette containing tobacco.  I asked, and one of the women confirmed that it was marijuana, at which 
point I handed it to one of the women, and they finished smoking it. 
 
There is no doubt that I should have self-reported my unintentional use of marijuana as soon as it 
happened.  While I understand that my reason for not reporting at that time does not excuse my 
actions,  my  explanation  is  simple—I  was  scared.    I  was  afraid  that  were  I  to  report  that  I  had 
smoked marijuana, even though it was unintentional, that I would not be believed and that I would 
end up where I am now, facing the possibility that my career will end much earlier than I ever 
thought it would. 
 
In January of 2009, I completed a local records check memorandum with the … Command Secu-
rity Officer, and for a second time, I neglected to report that I had smoked marijuana in July of 
2006.  While I did not answer this question truthfully and I accept responsibility for my oversight, 
I did not answer this question with the intent to deceive.  The period during which I filled out the 
local records check memorandum was one of the busiest and most stressful periods of my life.  It 
was my first day at work after having PCS’ed to … only 14 days after receiving orders.  I was 
attempting to refinance my mortgage and rent out the house that I own in …, attempting to find a 
place to live here in …, taking three graduate school classes, completing outstanding administra-
tive  work  from  my  previous  duty  location  due  to  the  earlier  than  expected  departure,  and  also 
attempting to absorb as much information as I possibly could during the 1 – 2 days before the out-
going  Xxxxx  xxxxx  departed  for  [the  Arabian  Gulf].    My  mind  was  in  a  million  places  and  I 
simply  did  not  remember  the  unintentional  use  that  happened  three  years  earlier  when  I  was 
speeding through the paperwork. 
 
The difference between the period when I was filling out that local records check memorandum 
and  when I filled out  my SF-86 Security Questionnaire are tremendous.  My housing situation, 
both in … and in … had stabilized, and I had completed my Master’s program.  Most importantly, 
I  had  gained  a  level  of  understanding  and  comfort  with  the  pace  of  life  involved  with  being  a 
Xxxxx xxxxx.  As I went through the pages of the SF-86 Security Questionnaire, I remembered 
that night in 2006, and I listed it in my paperwork.  I believe that my admission via the SF-86 is 
proof that I did not intentionally falsify the local records check paperwork that I submitted to the 
… Command Security Officer. 
 
The ‘Comments’ block in Section 8 of my OER states that “On 10 Sep 09, ROO completed a SF-
86  (security  questionnaire)  during  which  he  admitted  to  smoking  marijuana  in  July  2006;  also 
made verbal admission to EA & DOS, & sent e-mail to staff explaining the circumstances.”  That 
statement is true, but because it is open to misinterpretation I would like to provide clarification. 
 
I  definitely  admitted  both  in  writing  (via  my  SF-86)  and  verbally  (to  both  the  [XXXXX’s] 
Executive  Assistant  and  Deputy  of  Staff)  that  I  had  ‘smoked’  marijuana.    In  my  view,  having 

inhaled from the cigarette meets the definition of the word ‘smoked,’ regardless of the fact that I 
did not know that it was marijuana when I inhaled, hence the use of that verbiage.  During those 
conversations, I also stated that I was out with an ex-girlfriend the night that it happened and that I 
fully expected that once investigated, the situation would be resolved favorably and my access to 
classified material (which was temporarily revoked pending an investigation) would be reinstated.  
No further details regarding what happened that night were discussed.  My email to the staff was 
an  explanation  of  why  I  was  relieved  of  my  duties  as  Xxxxx  xxxxx,  including  an  apology  for 
leaving them shorthanded and thanking them for the part they played in my personal and profes-
sional growth, but it did not address the details of what happened in 2006. 
 
Given the details above, I believe being assigned a mark of 2 in Sections 8.c. and 8.e. (Personal 
and Professional Qualities – Responsibility and Health/Well-being) is disproportionately harsh. 
 
With respect to Section 8.c. (Responsibility), with the exception of my oversight in completing the 
local records check memorandum, I believe that I would have met the criteria for a 5 or 6 in the 
category.    I  self-reported  an  issue  that  would  have  remained  unknown  were  it  not  for  my  own 
admission, displaying both the integrity and ethics that the Coast Guard desires of its personnel.  I 
held myself to the highest standards of accountability under the most difficult of circumstances.  
Lastly, my performance throughout the period would have warranted higher than average marks. 
 
Regarding Section 8.e. (Health and Well-being), my failure to meet the Coast Guard’s standards of 
sobriety were beyond my control.  While I admit that I smoked marijuana, it was unintentional. 
 
Finally, regarding Section 8.b. (Judgment), while I did self-report, I did so three years later than I 
should have, and I accept full responsibility for the gap in reporting and my lapse in Judgment.  I 
both deserve and acknowledge a mark of 2 in that category. 

 
 
The applicant’s SOER addendum was forwarded through his rating chain.  The Supervi-
sor stated that he believed that “this was an isolated incident and not a deeper character flaw” but 
recommended that the applicant be required to show cause for retention because of Coast Guard 
drug policy.  The XXXXX forwarded the addendum without comment. 
 
 
On October 13, 2009, the XXXXX entered in the applicant’s record a memorandum with 
the subject line “Letter of Counseling – Documented Drug Incident.”  The XXXXX wrote that 
he had “considered your statement with regard to the circumstances surrounding the use and the 
possible  defense  of  innocent  ingestion.    However,  considering  all  of  the  evidence,  I  have 
determined  that  the  use  was  a  drug  incident  as  defined  by  [the  Personnel  Manual].”    The 
XXXXX  noted  that  he  had  relieved  the  applicant  of  his  duties,  opted  not  to  take  disciplinary 
action against him, and initiated procedures for an involuntary discharge. 
 
On November 6, 2009, a memorandum with the subject line “Substance Abuse Screening 
 
Results,” noting that the applicant did not meet the criteria for drug abuse or dependence was 
entered in his record. 
 
Although  the  applicant  received  high  marks  and  was  recommended  for  promotion  in 
 
OER7,  he  was  not  selected  for  promotion  in  2010.    Likewise,  even  though  he  received  high 
marks and very strong recommendations for promotion in OER8 and OER9, he was not selected 
for promotion in 2011. 
 
 
On  October  21,  2010,  the  BOI  convened  requiring  the  applicant  to  “show  cause”  for 
retention on active duty.  The BOI was composed of three voting commanders, a legal advisor, 

and  a  recorder.    The  applicant  submitted  his  own  sworn  testimony,  “witness  testimony,”  and 
various character references.  The BOI concluded that he had “not intentionally falsif[ied] the 
local records check memorandum in an attempt to deceive” in January 2009 and that the appli-
cant had “not demonstrate[d] intent to obtain or use illegal drugs.”  The BOI acknowledged that 
the CO had found that a drug incident occurred but stated that it had reviewed the applicant’s 
statements, “witness testimony,” and “various character references,” which “placed the case in a 
broader  context.”    The  BOI  concluded  that  he  should  be  retained  on  active  duty  because  the 
applicant’s  conduct  “was  not  indicative  of  [his]  character”  and  because  of  his  performance 
record.  The BOI’s recommendation was approved on May 4, 2011, by Commander, Personnel 
Service Center. 
 

VIEWS OF THE COAST GUARD 

 
 
On October 28, 201, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory  opinion  in  which  he  recommended  that  the  Board  deny  the  requested  relief.    In  so 
doing, he adopted the findings and analysis provided in a memorandum on the case submitted by 
Commander, Personnel Service Center (PSC). 
 
Memorandum of Commander, PSC 
 
 
In response to the applicant’s allegation that the XXXXX should have been disqualified 
from  serving  on  his  rating  chain,  PSC  stated  that  the  fact  that  the  XXXXX  reviewed  the 
investigation  into  the  applicant’s  admission  of  drug  ingestion  did  not  render  the  XXXXX  an 
“interested party” to the investigation or otherwise adversely affect his ability to fairly evaluate 
the  applicant’s  performance.    PSC  explained  that  an  “interested  party”  to  an  investigation  is 
someone who is also subject to the investigation.  
 
 
In response to the applicant’s allegation that the SOER should not have mentioned the 
investigation, PSC pointed out that the sentence prohibiting such comments in Article 10.A.4.f.1. 
of the Personnel Manual ends with the phrase “except as provided in Article 10.A.3.c.”  Article 
10.A.3.c. is the article governing SOERs.  PSC stated that the applicant’s SOER was authorized 
under Article 10.A.3.c.1.a., which requires an SOER when an officer is relieved of his primary 
duties.  PSC alleged that the prohibitions listed in Article 10.A.4.f.1. do not apply to SOERs and 
so “comments relating to the investigative and administrative proceedings in the disputed OER 
are not restricted in this case.” 
 
In response to the applicant’s allegation that the BOI overturned the XXXXX’s finding 
 
that a drug incident occurred, PSC noted that a BOI does not have the authority to overturn a 
CO’s determination of a drug incident and that the BOI did not actually issue a finding of no 
drug incident.  Instead, the BOI acknowledged the CO’s authority to make the determination and 
did not agree or disagree with that determination, but explained its recommendation for retention 
by  expressing  the  opinion  that  the  applicant  had  “not  demonstrate[d]  intent  to  obtain  or  use 
illegal drugs.” 
 
 
PSC concluded that the applicant’s rating chain properly carried out its responsibilities in 
preparing the disputed OER.  In support of these allegations, PSC submitted sworn declarations 

from  the  rating  chain  members.    The  Supervisor  for  the  SOER,  who  was  the  XXXXX’s 
Executive Assistant, noted that his portion of the SOER (the first 13 marks) is not in dispute and 
stated that he “stand[s] by my comments as written and marks as signed.”  The Reporting Officer 
and Reviewer for the SOER, who is now XXXXXXX, noted that the BOI made no finding of 
whether a drug incident occurred and stated that after reviewing the applicant’s submissions to 
the BCMR, he “stand[s] by the comments and marks” he assigned in the SOER, as well as the 
other documents related to the incident. 
 
Memorandum of the JAG 
 
 
The JAG alleged that the applicant’s rating chain properly prepared the SOER upon the 
applicant’s relief from his primary duties in accordance with the Personnel Manual.  The JAG 
alleged that the applicant “has not provided any creditable evidence to suggest his rating chain 
violated its duties with regard to the SOER.”  He argued that the applicant has submitted insuffi-
cient evidence to rebut the presumption of regularity accorded his rating chain and the disputed 
documents. 
 
 
The JAG noted that the PSC is correct in finding that the applicant is “uninformed as to 
the meaning of ‘interested party” since in this context, an “interested party” must be either the 
subject of or a person named witness in an investigation and is not the person who initiated the 
investigation. 
 
 
The  JAG  concurred  in  the  PSC’s  claim  that  a  BOI  has  no  authority  to  make  findings 
about whether or not a drug incident occurred.  Moreover, contrary to the applicant’s allegation, 
an Administrative Separation Board cannot overturn a CO’s determination that an enlisted mem-
ber was involved in a drug incident even though it can make a different, conflicting determina-
tion.  The JAG stated that the BOI is authorized only to make a recommendation for or against 
retention of an officer and may offer comments supporting the recommendation.  Therefore, the 
JAG argued, the BOI’s findings and opinions “are irrelevant as to all matters challenged by the 
applicant and non-dispositive as it applies to [the PSC’s and the JAG’s findings and analysis.” 
 
 
The JAG alleged that the applicant has not proved that the SOER contains any factual 
error or that it was prepared in violation of a regulation.  The JAG argued that because the appli-
cant has not proved that the SOER is erroneous or unjust, there is no basis for removing his non-
selections for promotion from his record.  Therefore, the JAG recommended that the Board deny 
the applicant’s requests for relief. 
 
 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

The applicant was granted an extension of the time to respond to the Coast Guard’s advi-

sory opinion and submitted his response on December 7, 2012. 

 
The applicant noted that the Coast Guard’s advisory opinion did not address his claim 
that his due process rights were violated because he was not allowed to “question the individ-
ual(s) listed as witnesses” or his complaint about the disputed OER containing comments about 
events that occurred outside of the reporting period.  The applicant argued that the Coast Guard’s 

failure to address these claims is sufficient for the Board “to infer that my assertions are based on 
irrefutable facts and proper interpretation of policy,” to find that his rating chain violated provi-
sions of the Personnel Manual, and to grant his requests for relief. 

 
The applicant repeated his claim that he was designated a party to the investigation and 
that he was erroneously denied the right of cross-examining the witnesses against him.  He noted 
that Article 1.D.8. of the AIM defines a party to an investigation as a “person who is required to 
be accorded specific  rights in connection with a Formal  Investigation or Court of  Inquiry.  A 
Party is usually designated because their conduct is subject to investigation.  A Party must be 
accorded  the  opportunity  to  participate  in  the  investigation  as  described  in  Chapter  10  of  this 
manual.”    The  applicant  argued  that  the  XXXXX’s  decision  not  to  impose  non-judicial 
punishment (NJP) at mast unjustly deprived him of the right to question the witnesses against 
him.  The applicant again argued that the fact that he was notified of his Miranda/Tempia rights 
proves that he was designated a party to the investigation and thus proves that it was a formal 
investigation, giving him the right to question witnesses. 

 
 
The applicant alleged that because he was not allowed to question the witnesses, he was 
unable “to clarify perceived inconsistencies between my statements to the investigating officer 
and statements of individuals listed as witnesses.” 
 
 
The applicant repeated his allegation that it was erroneous for the SOER to address con-
duct that occurred outside of the reporting period from June 1 to October 13, 2009.  He noted 
that both the date of the alleged drug incident in the summer of 2006 and the date he signed the 
local records check form in January 2009 fell outside of the reporting period for the SOER.  He 
alleged that the Personnel Manual required his rating chain to prepare, instead, both an SOER 
covering only the period of the alleged misconduct and addressing only that misconduct and a 
regular OER. 

 
The applicant alleged that the counseling letter in his record documenting the drug inci-
dent is actually a Letter of Censure, instead, and as such could only be issued pursuant to NJP.  
He argued that because the XXXXX did not take him to mast or award him NJP, the letter must 
be considered an Administrative Letter of Censure, instead of a punitive one, and so should not 
have been entered in his record. 

 
The applicant argued that because his XXXXX did not award NJP, he was deprived of 
the right to appeal the determination that he had incurred a drug incident.  He argued that the 
provision  in  Article  20.C.4.  of  the  Personnel  Manual  allowing  both  COs  and  Administrative 
Separation Boards to make drug incident determinations shows that “the intent of Coast guard 
policy was that a Commanding Officer’s determination should be reviewed by an Administrative 
Discharge Board (which for officers is referred to as a Board of Inquiry).”  The applicant alleged 
that the term “Administrative Discharge Board” as used in Article 20.C.3.d. is simply a generic 
term that encompasses officers’ Boards of Inquiry. 

 
The applicant alleged that although Article 20.C.3.d. of the Personnel Manual requires a 
CO  to  make  a  determination  about  a  drug  incident  after  considering  all  the  evidence,  the 
XXXXX  failed  to  do  so.    He  explained  that  because  he  was  not  allowed  to  question  the 

witnesses, he was prevented from clarifying the witnesses’ statements, and so the XXXXX did 
not consider the evidence that would have been produced had he been allowed to question the 
witnesses. 

 
The  applicant  argued  that  it  is  unfair  to  allow  a  BOI  to  make  recommendations  about 
retention but not to make decisions about other matters, such as drug incident determinations.  
He argued that if, as stated in Article 12.A.15.h.1. of the Personnel Manual, officers are allowed 
to  “refute  matters  of  record  against  them”  at  a  BOI,  the  BOI  should  be  able  to  address  those 
matters that have been refuted.  He argued that a BOI serves no purpose if an officer can suc-
cessfully refute an allegation of misconduct and yet not receive full relief.  He stated that if Coast 
Guard policy actually deprives an officer of appealing a CO’s determination of a drug incident, 
then the BCMR should recommend changes to that policy.  The applicant also disputed the Coast 
Guard’s claim that the BOI’s decision was not a determination that the finding of a drug incident 
was incorrect. 

 
The applicant argued that he has clearly shown that the SOER contains misstatements of 
fact,  since  the  BOI  overruled  the  XXXXX’s  finding  of  a  drug  incident,  and  violates  the  reg-
ulations for preparing OERs in many ways.  Therefore, the SOER is erroneous and unjust and 
should be expunged from his record.  Furthermore, he argued that because the SOER obviously 
prejudiced his record before the LCDR selection boards, his non-selections for promotion should 
be removed and he should receive the full relief he requested in his application. 

APPLICABLE LAW 

 

 
Drug Abuse Regulations 
 

Article 20.A.2.k.1. of the Personnel Manual in effect in 2009 states that the intentional 
use  of  drugs  constitutes  a  “drug  incident  as  determined  by  the  commanding  officer.”    Article 
20.A.2.k.2. states that a “member need not be found guilty at court-martial, in a civilian court, or 
be awarded NJP for the conduct to be considered a drug incident.” 

 
Article 20.C.3.a. provides that “[c]ommanding officers shall initiate an investigation into 
a possible drug incident, as defined in Article 20.A.2, following receipt of a positive confirmed 
urinalysis result or any other evidence of drug abuse. The absence of a positive confirmed uri-
nalysis result does not preclude taking action based on other evidence.”  Article 20.C.3.c. states 
that “[b]efore being questioned in relation to a drug incident, members are entitled to be advised 
of their rights under Article 31, UCMJ. This applies whether or not disciplinary action under the 
UCMJ is contemplated.” 
 

Article 20.C.3.d. states that “[i]n determining whether a drug incident occurred, a com-
manding officer should consider all the available evidence, including positive confirmed urinaly-
sis test results, …  Evidence relating to the member's performance of duty, conduct, and attitude 
should be considered only in measuring the credibility of a member’s statement(s).”  
 

Article 20.C.3.e. states that “[t]he findings of a drug incident shall be determined by the 
commanding officer and an Administrative Discharge Board, if the member is entitled to one, 

using the preponderance of evidence standard. … A preponderance of the evidence refers to its 
quality and persuasiveness, not the number of witnesses or documentation. A member’s admis-
sion of drug use or a positive confirmed test result, standing alone, may be sufficient to establish 
intentional use and thus suffice to meet this burden of proof.” 

 
Article  20.C.4.  states  that  “[i]f  after  completing  the  investigation  described  in  Article 
20.C.3, the commanding officer determines that a drug incident did occur, he or she will take 
these actions:” 

 
1. Administrative Action. Commands will process the member for separation by reason of miscon-
duct under Articles 12.A.11., 12.A.15., 12.A.21., or 12.B.18., as appropriate. … 
2.  Disciplinary  Action.  Members  who  commit  drug  offenses  are  subject  to  disciplinary  action 
under the UCMJ in addition to any required administrative discharge action. 

 
OER Regulations 
 
 
Article  10.A.1.b.1.  of  the  Personnel  Manual  in  effect  in  2009  states  that  COs  “must 
ensure  accurate,  fair,  and  objective  evaluations  are  provided  to  all  officers  under  their  com-
mand.”  Article 10.A.4.c.4. provides the following instructions for Supervisors completing the 
first 13 marks on an OER (similar instructions are provided for Reporting Officers for complet-
ing the last 5 marks in Article 10.A.4.c.7.): 
 

b. For each evaluation area, the Supervisor shall review the Reported-on Officer’s performance 
and qualities observed and noted during the reporting period. Then, for each of the performance 
dimensions, the Supervisor shall carefully read the standards and compare the Reported-on Offi-
cer’s  performance  to  the  level  of  performance  described  by  the  standards.  The  Supervisor  shall 
take care to compare the officer’s performance and qualities against the standards—not to other 
officers and not to the same officer in a previous reporting period. After determining which block 
best describes the Reported-on Officer’s performance and qualities during the marking period, the 
Supervisor fills in the appropriate circle on the form in ink.  

d. In the “comments” block following each evaluation area, the Supervisor shall include comments 
citing specific aspects of the Reported-on Officer’s performance and behavior for each mark that 
deviates from a four. The Supervisor shall draw on his or her observations, those of any secondary 
Supervisors, and other information accumulated during the reporting period.  
 
e. Comments should amplify and be consistent with the numerical evaluations. They should iden-
tify specific strengths and weaknesses in performance. … 

g. A mark of four represents the expected standard of performance. Additional specific perform-
ance observations  must be included  when an officer has been assigned a  mark of  five  or six to 
show how they exceeded this high level of performance. … 

●  ●  ● 

●  ●  ● 

 

Article 10.A.4.c.8.a. states that on the comparison scale in an OER, a Reporting Officer 
“shall fill in the circle that most closely reflects the Reporting Officer’s ranking of the Reported-
on Officer relative to all other officers of the same grade the Reporting Officer has known.” 
 

Article 10.A.2.g.2. of the Personnel Manual states that a rating chain member may be dis-
qualified from evaluating a subordinate if the rating chain member has been “relie[ved] for cause 
due to misconduct or unsatisfactory performance, [is] an interested party to an investigation or 
court of inquiry, or any other situation in which a personal interest or conflict on the part of the 

1.  Mention the officer’s conduct is the subject of a judicial, administrative, or investigative pro-
ceeding, including criminal and non-judicial punishment proceedings under the Uniform Code of 
Military  Justice,  civilian  criminal  proceedings,  PRRB,  CGBCMR,  or  any  other  investigation 
(including discrimination investigations) except as provided in Article 10.A.3.c.  Referring to the 
fact conduct was the subject of a proceeding of a type described above is also permissible when 
necessary to respond to issues regarding the proceeding first raised by an officer in a reply under 
Article 10.A.4.g.  These restrictions do not preclude comments on the conduct that is the subject 
of the proceeding.  The only prohibit reference to the proceeding itself. 

11.  Discuss Reported-on Officer’s performance or conduct which occurred outside the reporting 
period. 

●  ●  ● 

Supervisor,  Reporting  Officer,  or  Reviewer  raises  a  substantial  question  as  to  whether  the 
Reported-on Officer will receive a fair, accurate evaluation. … If not already determined by the 
commanding officer, it is incumbent on the Reported-on Officer to identify to the next senior 
officer in the chain-of-command that an exception to the designated rating chain may exist. This 
issue should be raised by the Reported-on Officer during the reporting period or within 30 days 
after the end of the reporting period.” 
 
  
 

Article 10.A.4.f. states that in an OER a member of an officer’s rating chain shall not: 

 
 
 

Article 10.A.3.c.1. states the following about SOERs: 

a.  A special  OER  may be completed to document performance notably different  from the pre-
vious reporting period if deferring the report of performance until the next regular report would 
preclude documentation to support adequate personnel management decisions, such as selection or 
reassignment.  This  report  should  not  normally  reflect  performance  reportable  under  Article 
10.A.3.c.1.b. [which requires preparation of an SOER follow NJP or a criminal conviction]. Nota-
bly changed performance is that which results in marks and comments substantially different from 
the previous reporting period and results in a change in the comparison or rating scale. If an indi-
vidual has been removed from primary duties (other than relief for cause as prescribed by Article 
4.F.6) and early transfer from unit is required, a special OER is required before the Reported-on 
Officer  receives  consideration  for  reassignment.  An  OER  documenting  removal  from  primary 
duties is derogatory and must be submitted in accordance with Article 10.A.4.h. In both cases, the 
OER counts for continuity. 

d.  Special OERs may be submitted to document significant historical performance or behavior of 
substance  and  consequence  which  was  unknown  when  the  regular  OER  was  prepared and  sub-
mitted. This report should not normally reflect performance reportable under Article 10.A.3.c.1.b. 
The OER should address only the performance dimensions relevant to the special OER since all 
other  performance  dimensions  will  have  been  addressed  in  the  regular  OER.  The  special  OER 
should be initiated by the original rating chain unless they are unavailable or disqualified. Article 
10.A.2.g. applies. The Reviewer must be a flag officer. This OER does not count for continuity. 
 

●  ●  ● 

Board of Inquiry Regulations 

 
Article  12.A.15.h.1  of  the  Personnel  Manual  states  that  the  purpose  of  a  BOI  is  to 
“afford[] officers a fair, impartial hearing at which they have an opportunity to establish their 
retention in the Coast Guard is warranted.  The officers concerned may present evidence to refute 
matters of record offered against them or otherwise establish they should be retained.  The board 
of inquiry will consider all relevant evidence presented at the hearing and make findings and a 
recommendation based on a preponderance of evidence. 

 
Article 12.A.15.h.4. of the Personnel Manual states that if an officer is required to show 
cause  for  retention  on  active  duty  before  a  BOI,  the  officer  may  be  represented  by  counsel, 
present witnesses, question witnesses, and must have  

 
full access to and furnishes copies of records relevant to the case at all stages of the proceedings, 
except a board shall withhold any records the Commandant determines should be withheld in the 
interests of national security. If any records are withheld under this clause, the officer whose case 
is under consideration shall, to the extent national security permits, be given the actual records or 
copies of them with the classified portions deleted. 

 
 
Article 12.A.15.h.6.b.(4) states that when deciding whether to recommend retaining  an 
officer,  the  BOI  “must  consider  an  officer’s  record  as  a  whole  and  make  its  recommendation 
based on a preponderance of evidence.  Refuting any single reason for removal does not neces-
sarily refute other documented reasons the board considers.” 
 

Article 12.A.15.h.8. provides that the BOI’s report with a recommendation to retain or 
separate an officer is forwarded to Commander, PSC who informs the applicant of his final deci-
sion.     
 

FINDINGS AND CONCLUSIONS 

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

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

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

The application was timely. 

1. 

 
2.  

 
3. 

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 the SOER covering his 
service from June 1 to October 13, 2009, as well as a letter documenting a drug incident and 
another documenting the results of substance abuse screening.  The Board begins its analysis by 
presuming that the disputed records in an applicant’s military record are correct and fair, and the 
applicant bears the burden of proving by a preponderance of the evidence that they are erroneous 

or unjust.2  Absent specific evidence to the contrary, the Board presumes that the members of an 
applicant’s  rating  chain  have  acted  “correctly,  lawfully,  and  in  good  faith”  in  preparing  their 
evaluations and other documents.3  To be entitled to removal of an OER, an applicant cannot 
“merely  allege  or  prove  that  an  [OER]  seems  inaccurate,  incomplete  or  subjective  in  some 
sense,” but must prove that the disputed OER was adversely affected by a “misstatement of sig-
nificant hard fact,” factors “which had no business being in the rating process,” or a prejudicial 
violation of a statute or regulation.4 
 
Findings about the SOER 
 

Applicant’s  Argument  about  the  BOI’s  Report.    The  applicant  alleged  that  the 
SOER should be removed because it was tainted by his CO’s erroneous belief that he had been 
involved  in  a  drug  incident,  as  shown  by  the  comments  supporting  the  low  marks  the  CO 
assigned.  The applicant alleged that the  BOI’s  finding that he  “did not demonstrate intent to 
obtain or use illegal drugs” proves that the CO’s determination that a drug incident occurred was 
overturned or at least erroneous.  The applicant alleged that the provision in Article 20.C.3.d. of 
the Personnel Manual allowing Administrative Discharge Boards (ADBs) to make drug incident 
determinations  also  applies  to  BOIs.    The  Board  disagrees  with  these  arguments  for  several 
reasons.  First, an ADB is not a generic term; it is a specific term for the forum in which an 
enlisted member must show cause for retention and the regulations for an ADB are in Article 
12.B. of the Personnel Manual, which applies only to enlisted members.  A BOI, as prescribed in 
Article  12.A.,  governing  officer  separations,  has  no  authority  to  make  any  findings  about 
whether a drug incident occurred; its authority is limited to recommending whether an officer 
should  be  retained  after  reviewing  the  officer’s  entire  record  and  any  evidence  and  character 
references the officer presents.5   

4. 

 
In addition, the BOI’s statement that the applicant “did not demonstrate intent to obtain 
or use illegal drugs” is insufficiently specific as to time and place to show that the BOI actually 
thought  no  drug  incident  occurred.    The  BOI  did  not  state  that  in  2006  the  applicant  did  not 
knowingly  or  intentionally  smoke  marijuana.    The  BOI’s  statement  could  mean  that  the  BOI 
believed that the applicant had shown he had no intent to obtain or use drugs in the present or 
future.    Moreover,  the  BOI’s  decision  to  recommend  retention  was  based  on  the  applicant’s 
entire record, not on whether or not a drug incident occurred.6  The BOI’s recommendation for 
retention  does  not  show  that  the  BOI  thought  no  drug  incident  had  occurred.    Therefore,  this 
Board finds that the applicant has not proved by a preponderance of the evidence that his CO 
erred  in  finding  that  a  drug  incident  had  occurred.    In  this  regard,  the  Board  notes  that  the 
applicant failed to submit a copy of the investigation or the transcript of the BOI to support his 
allegations. 
                                                 
2 33 C.F.R. § 52.24(b).   
3 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
4 Hary v. United States, 618 F.2d 704, 708 (Ct. Cl. 1980), cited in Lindsay v. United States, 295 F.3d 1252, 1259 
(Fed. Cir. 2002). 
5 Personnel Manual, Article 10.A.15.h. 
6 Personnel Manual, Article 12.A.15.h.6.b.(4). 

Applicant’s  Argument  about  Other  Possible  Courses  of  Action.    The  applicant 
argued that before determining that he had been involved in a drug incident, his CO should have 
delayed and had him undergo urinalysis pursuant to Article 20.C.3.d. of the Personnel Manual.  
However, that article states that a CO may pursue such options.  Such actions are not required, 
and there is no reason to think that the CO suspected the applicant of being a regular drug user 
since the applicant had only admitted to past drug use on the security form. 

Applicant’s Argument about Due Process.  The applicant argued that the CO vio-
lated his due process rights by designating him a party but not allowing him to question the wit-
nesses against him.  However, there is no evidence in the record that the applicant was desig-
nated a party to the investigation.  The fact that he was advised of his Article 31(b), Miranda/ 
Tempia  rights  does  not  make  him  a  party  to  an  investigation.    Under  the  AIM,  parties  to  an 
investigation are only designated for a formal investigation or court of inquiry,7 which are both 
extremely rare.  Although the applicant did not submit a copy of the investigation, he referred to 
the investigator as a preliminary investigator, and in the Board’s experience, most drug incidents 
receive only a preliminary investigation.  Parties are not designated pursuant to informal, pre-
liminary drug incident investigations.  Therefore, the Board finds that the CO did not violate the 
applicant’s rights by not providing him a forum for cross-examining witnesses before determin-
ing that he had been involved in a drug incident.  In this regard, the Board notes that COs are 
allowed  to  make  drug  incident  determinations  without  taking  any  disciplinary  action  through 
NJP or court-martial.8 

Applicant’s Argument about Disqualification.  The applicant alleged that his CO 
should have been disqualified from his rating chain under Article 10.A.2.g.2.b. because the CO 
was an “interested party” to the investigation, since he convened it and reviewed the report, and 
had a conflict of interest since the applicant’s conduct was potentially embarrassing.  Pursuant to 
this  argument,  all  COs  who  ever  had  to  convene  an  investigation  of  a  subordinate’s  conduct 
would be disqualified from serving on their rating chains since COs normally review the reports 
of investigations they have convened and could, at least theoretically, be embarrassed by mis-
conduct  committed  under  their  command.    The  Board  agrees  with  PSC  and  the  JAG  that  the 
applicant  has  misconstrued  the  meaning  of  the  term  “interested  party.”    A  person  is  only  an 
“interested party” to an investigation if the outcome of the investigation could somehow affect 
them either by implicating them or exonerating them.  The CO, a XXXXX, could not have been 
implicated or exonerated in any way by the investigation of the applicant’s past drug use and so 
was  not  an  interested  party  to  the  investigation.    The  Board  also  disagrees  that  a  theoretical 
potential for embarrassment on the part of a CO constitutes a conflict of interest and finds that it 
is very unlikely that a XXXXX would feel embarrassed by misconduct the applicant committed 
long before he became the CO’s Xxxxx xxxxx.  Therefore, the Board finds that the CO was not 
disqualified from serving on the applicant’s rating chain because he was not an interested party 
to  the  investigation  and  did  not  have  a  conflict  of  interest.    There  is  no  evidence  that  the 
applicant’s rating chain had any reason not to prepare a fair and accurate SOER. 

 
5. 

 
6. 

 
7. 

 

                                                 
7 AIM, Chapter 1.D.1.b. 
8 Personnel Manual, Article 20.A.2.k.2. 

8. 

Applicant’s Argument about SOER Inconsistency.  The applicant complained that 
the SOER is inconsistent because his CO included a comment that he was not ready for increased 
responsibilities but also assigned him a mark in the third spot on the comparison scale, which 
denotes a “fair performer; recommended for increased responsibility.”  Comments in an OER are 
supposed to be consistent with the numerical marks.9  However, the options on a comparison 
scale are quite limited.  The CO had to choose a mark denoting the applicant as (1) an unsatis-
factory performer, (2) a marginal performer with limited potential, (3) a fair performer recom-
mended for increased responsibility, (4) a good performer ready for tough, challenging assign-
ments,  (5)  an  excellent  performer  ready  for  the  most  challenging  assignments,  (6)  an  officer 
strongly recommended for accelerated promotion, or (7) the best officer of this grade that the CO 
had ever known.  The CO’s choice and comment together show that the CO, in comparing the 
applicant  to  the  other  lieutenants  he  had  known,  found  the  applicant  to  be  a  fair  performer—
rather  than  a  marginal  performer  or  an  good  performer  who  should  be  given  a  challenging 
assignment during his next tour of duty—but could not recommend that the applicant be given 
increased responsibility.  In light of both the applicant’s performance record and the drug inci-
dent, the Board understands why the CO opted not to describe the applicant as a “marginal per-
former” but also could not recommend him for increased responsibilities, much less challenging 
assignments, since the applicant would have to show cause for retention.  The Board finds that 
the CO reasonably qualified the comparison scale mark by noting that he could not actually rec-
ommend  the  applicant  for  reassignment  to  a  position  of  increased  responsibility.    The  Board 
finds that the CO’s mark and comment in this regard were not erroneous or unjust. 

Applicant’s  Argument  about  References  to  Proceedings.    The  applicant  alleged 
that his CO commented on two proceedings in the SOER contrary to Article 10.A.4.f.1. of the 
Personnel Manual, which states that a rating chain member shall not  
 

[m]ention  the  officer’s  conduct  is  the  subject  of  a  judicial,  administrative,  or  investigative  pro-
ceeding, including criminal and non-judicial punishment proceedings under the Uniform Code of 
Military  Justice,  civilian  criminal  proceedings,  PRRB,  CGBCMR,  or  any  other  investigation 
(including discrimination investigations) except as provided in Article 10.A.3.c.  Referring to the 
fact conduct was the subject of a proceeding of a type described above is also permissible when 
necessary to respond to issues regarding the proceeding first raised by an officer in a reply under 
Article 10.A.4.g.  These restrictions do not preclude comments on the conduct that is the subject 
of the proceeding.  The only prohibit reference to the proceeding itself. 

 
9. 

 

One of the CO’s comments states that “ROO should be required to show cause for reten-
tion  in  the  U.S.  Coast  Guard.”    The  Board  finds  that  this  recommendation  does  not  violate 
Article 10.A.4.f.1. because it is a recommendation that the applicant be subject to an administra-
tive proceeding in the future, not a reference to an existing proceeding.  Because the comment is 
a recommendation only and is in the block for making comments about an officer’s potential and 
recommendations about future service, the Board finds that it is not impermissible. 
 

Two  of  the  CO’s  comments  mention  the  completed  investigation:  “As  a  result  of  an 
investigation completed during this period, ROO was removed from his duties as xxxxx xxxxx 
and  reassigned”  and  “An  investigation  further  revealed  that  when  ROO  completed  a  local 
records check memo in Jan 2009, he was not truthful when responding to the question, ‘Have 
                                                 
9 Personnel Manual, Article 10.A.4.c.7.e. 

you ever used a controlled substance?’”  Whether these references to the completed investigation 
are prohibited under Article 10.A.4.f.1. is unclear because that article prohibits mentioning that 
the officer’s conduct is the subject of an investigative proceeding, not that it was the subject of 
an investigative proceeding.  On the other hand, the next sentence of Article 10.A.4.f.1. does use 
the past tense:  “Referring to the fact conduct was the subject of a proceeding of a type described 
above  is  also  permissible  when  necessary  to  respond  to  issues  regarding  the  proceeding  first 
raised by an officer in a reply under Article 10.A.4.g.”  The use of the past tense and the word 
“also” in the second sentence could mean two very different things:  It could mean that the first 
sentence  is  intended  to  prohibit  references  to  both  pending  and  completed  proceedings,  or  it 
could mean that mentioning a past proceeding is permissible and that mentioning a proceeding in 
response to an OER reply that mentions a proceeding is also permissible.  

 
Prohibiting references to an unfinished proceeding is clearly warranted because as long as 
the  proceeding  is  unfinished,  the  outcome  is  unknown.    The  mere  mention  of  the  proceeding 
might  cause  inaccurate  speculation  and  unwarranted  prejudice  if  the  proceeding  ultimately 
exonerates the officer.  However, mentioning a proceeding that has already been completed and 
resulted in a finding of misconduct does not cause inaccurate speculation or prejudice about the 
officer’s misconduct because the outcome is already known.  The regulation clearly states that 
the misconduct that is the subject of a proceeding may be discussed in an OER.  In this case in 
particular, because all drug incidents must be investigated10 and the drug incident may be men-
tioned in the SOER as underlying conduct, any knowledgeable reader would know in any case 
that there had been an investigation, so mentioning an investigation is not prejudicial.  Given the 
ambiguity of the prohibition in Article 10.A.4.f.1. of the Personnel Manual, the Board finds that 
the SOER’s reference to the completed investigation does not clearly violate the policy. 

 
10. 

Applicant’s Arguments about the Reporting Period.  The applicant alleged that the 
SOER must be expunged because it mentions and evaluates him based on conduct that occurred 
outside the reporting period, in violation of 10.A.4.f.11. of the Personnel Manual.  His SOER 
was  prepared  in  response  to  his  relief  from  his  primary  duties,  in  accordance  with  Article 
10.A.3.c.1.a.  Because officers are normally relieved from their primary duties because of con-
duct committed during the normal reporting period, this article makes no provision for changing 
the dates of the SOER.  Under Article 10.A.3.c.1.b., which requires SOERs when a member has 
received  NJP  or  criminal  conviction,  the  reporting  period  for  the  SOER  and  the  performance 
categories  evaluated  in  the  OER  are  supposed  to  address  only  the  period  of  the  misconduct.  
Article  10.A.3.c.1.d.,  which  requires  SOERS  when  previously  unknown  past  performance 
requires documentation, is silent on the reporting period of the SOER but states that the SOER 
should only evaluate the performance categories relating to the past performance.   

 
The  applicant’s  situation  does  not  perfectly  fit  any  of  these  situations  because  he  was 
relieved for caused based on past performance, but that does not mean that his conduct cannot be 
addressed in an SOER.  Encompassing all of his past performance in one SOER would require 
changing the start date to July 2006 because that is when he smoked marijuana and began not 
disclosing it.  However, stretching the reporting period of the SOER back to July 2006 would not 
help him even though it would make the SOER conform to Article 10.A.4.f.11.  The Board will 

                                                 
10 Personnel Manual, Article 20.C.3.a. 

11. 

not remove an otherwise valid SOER simply because the circumstances of the applicant’s case 
do not fall perfectly within any one category of SOER but instead fall within two, both Article 
10.A.3.c.1.a. and Article 10.A.3.c.1.d., which have slightly different requirements.  Because the 
only way to make the SOER conform to every provision of the Personnel Manual would be to 
stretch the starting date back to July 2006, which would not be in the applicant’s interest, the 
Board finds that it is not in the interest of justice to amend the SOER. 
 
Finding about Other Documentation 
 

The  applicant  asked  the  Board  to  remove  from  his  record  the  memoranda  con-
cerning  the  drug  incident  and  the  results  of  his drug  screening.    Although  he  alleged  that  the 
memorandum  documenting  the  drug  incident  should  actually  be  considered  an  Administrative 
Letter of Censure and so should not be in his record, the Board finds that it is not a letter of cen-
sure; it is the documentation of his CO’s finding of a drug incident.  Pursuant to Enclosure 6 to 
the Personnel and Pay Procedures Manual, both drug incidents and substance abuse screening 
results are to be documented in a member’s record.  Although the manual provides the wording 
for documenting these matters on a Page 7 record entry, instead of in a letter or memorandum, 
Page 7s are normally used for counseling enlisted members and letters or memoranda are nor-
mally used for counseling officers.  Because the applicant is an officer, the Board finds that the 
CO’s use of a memorandum/letter format for documenting these matters was appropriate.  There-
fore, and because the applicant has not proved by a preponderance of the evidence that his CO 
erred in finding that he incurred a drug incident, the Board finds no grounds for removing these 
documents from the applicant’s record. 

Conclusion 
 

12. 

The Board finds that the applicant has not proved by a preponderance of the evi-
dence  that  the  SOER  and  other  disputed  documents  in  his  record  are  erroneous  or  unjust.  
Because the applicant’s record was correct when it was reviewed by the LCDR selection boards, 
there is no basis for removing his non-selections for promotion from his record.  
 

13.  Accordingly, the applicant’s requests should be denied. However, the Board notes 
that the applicant failed to submit the report of the investigation into his admission of past drug 
use and the transcript of his BOI, which might include significant evidence of these matters.  If 
within six months of the date of this decision, the applicant submits the transcript of the BOI and 
the complete report of the investigation, the Board will grant further consideration of this case. 

 

 
 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

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

ORDER 

 

 
 

record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Nancy L. Friedman 

 

 

 
 James H. Martin 

 

 

 
 Rebecca D. Orban