DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2011-201 
  
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FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section  425  of  title  14  of  the  United  States  Code.    The  Chair  docketed  the  application  upon 
receipt of the applicant’s completed application on June 28, 2011, and subsequently prepared the 
final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  7,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST  

 
 
 On November 9, 2009, the applicant’s name was removed from the promotion year (PY) 
2009 selection board list for promotion to lieutenant commander (LCDR), which was considered 
his first failure to be selected for  promotion to that grade.  After his  second non-selection for 
promotion  to  LCDR  before  the  PY  2011  selection  board,  he  retired  from  the  Coast  Guard  on 
December 31, 2010, by reason of sufficient service for retirement.  
 

The applicant asked the Board to correct his record by vacating “the rescission of [his] 
promotion, retroactively adjust [his] date of rank, effective date of pay and allowances and award 
all  accrued  back-pay.  [Footnote  omitted]  In  short,  [the  applicant]  should  be  again  rightfully 
recognized as a moral person, commensurate with the rank [LCDR].”  
 
 
Further in his brief, the applicant stated that he is not seeking to reenter the Service.  “He 
just wants to set the record straight, and indeed, believes that the stigma of his unceremonious 
discharge from the Service may continue, in the foreseeable future, to have negative impacts on 
his  ability  to  seek  gainful  employment  as  a  result  of  disclosure  and  routine  employment 
background  checks;  particularly  in  these  depressed  and  insecure  economic  times.”      The 
applicant also requested an oral hearing before the Board. 
 
 
 

BACKGROUND 

 
 
On July 25, 2008, the applicant reported to a Coast Guard Sector for duty as the Incident 
Management  Division  Chief.    During  that  summer  a  pregnant  enlisted  member  (Petty  Officer 
(PO)  W)  transferred  into  his  department,  but  she  was  medically  restricted  to  desk  work.  
According to the applicant, PO W did a good job in her office duties.  The applicant stated that 
on August 27, 2008, he told P O W a joke that he had used to tease his then-pregnant sister.  The 
applicant stated that the joke he told to PO W went something like this: 
 

 “I’d like to send you out on a spill response, but you are sitting there fat, dumb, 
and pregnant and there is nothing I can do.”  Petty Officer [W] responded “wow 
. . . really?”  Sensing she might play along, [the applicant], while recalling prior 
conversations with his pregnant sister, thereafter smiled, and delivered the punch 
line, “I guess I shouldn’t have said dumb.” (Emphasis in original.) 

Approximately one  week later PO W sent the  unit’s Equal Opportunity  Representative 

 

(EOR) an email that stated the following: 
 

 
I am currently assigned to [the Sector] IMD, TAD, since I am currently pregnant 
and my board is underway.  The following incident occurred last week and I feel 
as if I need to report this before it goes any further.  At the time of the incident I 
was really just in shock that an officer had said that.  It is still bothering me now 
to the point that I dread coming into work and second guess everything that he 
assigns me to do when 5 other petty officers are right there taking a break, while I 
am working on cases. 
 
[The applicant] approached me, 28 August 08 1310, to do a project and said “I 
figured since you are fat, dumb, and pregnant this would be a good job for you” I 
said, “wow, really” he said, I guess, I shouldn’t have said dumb.   

 
 
The  applicant’s  supervisor  counseled  him  on  a  page  7  about  the  “inappropriate, 
insensitive, and disrespectful” remark. The applicant stated that he was “required to apologize to 
PO  W  in  front  of  his  entire  department  staff  during  an  ‘all  hands’  meeting,”  which  was 
embarrassing  for  him,  even  though  he  had  already  apologized  to  the  PO  W.    The  applicant 
submitted  the  results  of  an  October  28,  2010  polygraph  examination  showing  that  in  the 
examiner’s  opinion  the  applicant  was  not  attempting  deception  in  his  “yes”  answers  to  the 
following questions: 
 

5.  Did you apologize to [PO W] within two minutes of making an offensive remark to 
her on August 28, 2008? 
 
7.  On August 28, 2008, did you apologize to [PO W] within two minutes of making an 
offensive remark to her.   

 
 
The applicant stated that on November 24, 2008, on his way to receive a tasking, he saw 
PO W and she sneered at him.  He was upset and angry.  So when he saw PO W again passing 

informal 

into 

 

outside  his  office,  overcome  with  frustrating  thoughts  due  to  the  command’s  hypocrisy  and 
maltreatment of him, the whispered words “white trash” slipped from his mouth.  He stated that 
the words were meant only for his ears and not directed at anyone.   Although PO W did not hear 
these words, other members of the department heard them and reported them to the applicant’s 
supervisor.   
 

investigation 

The  applicant’s  supervisor  ordered  an 

the  alleged 
inappropriate  comments.  The  applicant admitted to the investigating officer that he made the 
comments.    The  investigating  officer  recommended  the  following  actions  in  his  report  dated 
December  16,  2008:    that  the  applicant  be  removed  as  division  chief  and  assigned  to  a 
supervisory position with more oversight; that the command give the applicant an administrative 
letter of censure; that his conduct be included in his OER (special if removed from primary duty 
and  regular  if  not);  that  the  command  review  both  incidents  involving  the  applicant  with  the 
district’s civil rights officer (CRO); and that the command require the applicant to attend HRA 
training and/or counseling.   

Removal from Primary Duty, Delay of Promotion, and Removal from the Promotion list 

 
On January 9, 2009, the applicant was removed from his primary duty and assigned to the 
Sector’s  Waterways  Management  Division.    In  a  letter  notifying  the  applicant  of  his  removal 
from his primary duty, the CO directed that he  attend work life counseling and training to be 
completed by June 1, 2009.   
 

On  January  26,  2009,  the  CO  sent  a  memorandum  to  the  Commander,  Coast  Guard 
Personnel Command (CGPC), with the applicant listed as an addressee, recommending that the 
applicant’s  promotion  be  delayed  due  to  his  poor  judgment  in  making  inappropriate  and 
disrespectful  comments  toward  a  pregnant  enlisted  member  on  two  separate  occasions.1    The 
letter also noted that the applicant failed to complete human relations/sensitivity training despite 
                                                 
1    Article 5.A.13.f.1. of the  Personnel Manual states that  each officer  in the chain of command or Commander, 
(PSC-opm)  is  responsible  for  delaying  a  promotion  if  he  or  she  knows  the  appointee  has  disqualified  himself  or 
herself after being placed on a promotion list.  Disqualification means any circumstance which casts doubt on the 
moral or professional qualifications of the officer concerned, including pending action by a board of officers, courts-
martial, or investigative proceedings.  See 14 U.S.C. 271(f).   
 
Subsection 2 stated that a complete report of the circumstances recommending removing the selectee from 
the promotion list under Article 5.A.4. shall be sent to Commander (PSC-opm). The selectee must be furnished a 
copy of the report and required to acknowledge receipt.  A signed copy of the acknowledgment is attached as an 
enclosure to the report.   
 
Subsection 3 states that the Commandant shall refer the case to a board of officers to recommend to the 
President whether to remove the selectee from the promotion list.  The selectee will be afforded 21 days notice of 
the proceedings, and may communicate directly by letter to the board, in care of Commander (PSC-opm), before the 
board  convenes.    Enclosures  or  attachments  are  limited  to  copies  of  official  records  and  materials  allowed  to  be 
submitted with OERs.  Letters from other officers shall not be solicited or submitted as enclosures.     
 
Subsection 5 states that the President of the Board will forward a report of the proceedings of the Board 
containing a recommendation to the Commandant as to whether the officer should be promoted, along with reasons 
for  the  recommendation.    If  the  Commandant  finds  removal  from  the  promotion  list  appropriate,  he  or  she  will 
forward  the  report  with  endorsements  to  the  Secretary  of  Homeland  Security  (acting  as  the  alter  ego  of  the 
President), who is the final reviewing authority.  If the Commandant determines that removal is inappropriate, the 
case is closed, and the delay of promotion is canceled.   

being  directed  twice  to  do  so  (after  the  first  comment).    The  memorandum  noted  that  a 
derogatory special officer evaluation report (SOER), the investigation into the comments, and the 
memorandum notifying the applicant of the delay of promotion were attached. 

 
On  January  27,  2009,  the  applicant  acknowledged  receiving  notification  that  his 

promotion would be delayed and the attachments to the January 26, 2009 memorandum.     

 
On February 9, 2009, a SOER was placed in the applicant’s record covering the period 
from June 1, 2008 to January 9, 2009, to document the applicant’s removal from his primary 
duty and to document performance notably different from the previous reporting period.   The 
SOER was signed by the supervisor on January 22, 2009, by the reporting officer on January 22, 
2009, and by the reviewer on February 5, 2009.  The supervisor assigned the applicant a below 
standard mark of 2 in “workplace climate” and wrote the following pertinent comments: 

 
Insensitive  towards  female  enlisted  member  with  special  situation;  made 
inappropriate/disrespectful  comment  to  IMD  enlisted  member  &  failed  to 
properly/promptly  acknowledge  error;  member  lost  support/respect  for  [the 
applicant] & asked to be removed from IMD due to poor workplace climate.  [The 
applicant’s]  comments  were  personal,  derogatory  &  demeaning  &  fostered  a 
disrespectful  and  unprofessional  workplace  climate.    Despite  counseling,  [the 
applicant’s] repeated insensitive actions by using derogatory language directed at 
same enlisted member while in front of IMD staff; second incident underscored 
[the  applicant’s]  poor  leadership  skills  &  failure  to  fully  understand/grasp 
poisonous/negative affect such comments have on IMD staff/workplace climate.   
 
In  his  portion  of  the  SOER,  the  reporting  office  assigned  the  applicant  marks  of  2  in 
“judgment” and “responsibility” and a mark of 3 in “professional presence.”  In the comment 
block for section 8, the reporting officer wrote the following: 

 
Recognized critical need for Federal On-Scene Coordinator . . . training in IMD 
after loss of experienced personnel due to 2008 summer transfer season: initiated 
effort  with  D13  to  host  &  help  develop  curriculum  for  FOSCR  workshop.  
Improved  safety  by  smartly  pursuing  use  of  GAR  Risk Assessment  Model  into 
IMD pollution response ops to help ID/mitigated risks.  Exercised extremely poor 
judgment  by  making  inappropriate/disrespectful  comments  towards  enlisted 
member on two separate occasions; actions clear indication of unconcern for crew 
& disregard for impact.  After first derogatory language incident, [the applicant] 
was directed by Sector Command on two separate occasions to schedule & attend 
human  relations/sensitivity  training  for  entire  IMD  staff  &  self  but  failed  to 
complete.   While  professional/respectful  to  external  agencies  &  senior  officers, 
lacked respect for certain subordinates & publicly professed it . . . .   

 

On the block 9 comparison scale of the SOER, the reporting officer rated the applicant in 
the lowest block, which described his performance as unsatisfactory for his grade or billet when 
compared with other LTs the reporting officer has known.  In describing the applicant’s potential 
for  assuming  greater  leadership  roles  and  responsibility,  the  reporting  officer  stated  that  the 

applicant had demonstrated poor judgment in making derogatory comments toward an enlisted 
member and that he lacked essential leadership skills, which led to his removal from his primary 
duty.    The  reporting  officer  recommended  a  special  board  to  consider  whether  the  applicant 
should  be  promoted  to  LCDR.    The  reporting  officer  did  not  recommend  the  applicant  for 
promotion.   
 

On May 1, 2009, Commander, Personnel Service Center  (PSC) informed the applicant 
that action had been initiated under Article 5.A.13.f. of the Personnel Manual to convene a board 
of officers to recommend whether or not his name should be removed from the promotion year 
(PY) 2009 LCDR selection board list.  The applicant was advised that the board would review 
his  imaged  personnel  data  record,  including  the  SOER  and  all  documents  related  to  the  CO’s 
basis for requesting his removal that were attached to  her January 26, 2009 memorandum.   The 
memo  informed  the  applicant  that  PSC  could  initiate  special  action  when  information  of  an 
adverse nature is discovered.  The memo informed the applicant that in his case, “this action was 
initiated  upon  receipt  of  [the  derogatory  SOER,  the  CO’s  January  26,  2009  memorandum  to 
PSC, and her January 27, 2009 memorandum to the applicant informing him of the delay in his 
promotion].”   
 

PSC  also  advised  the  applicant  that  a  separate  action  had  been  initiated  under Article 
12.A.12.  of  the  Personnel  Manual  to  decide  whether  the  applicant’s  commission  should  be 
vacated.    PSC  advised  the  applicant  that  he  could  submit  comments  to  the  special  board,  in 
which he could only discuss matters of record.   

 
On  May  20,  2009,  the  applicant  acknowledged  receipt  of  the  proposed  special  board 
action  and  stated  that  he  understood  its  contents  and  his  rights  and  protections.  He  also 
acknowledged his intention to submit a statement to the special board. 

 
On  May  27,  2009,  the  applicant  submitted  a  statement  to  the  special  board.    In  that 
statement he apologized for the comments and stated that he understands how inappropriate his 
comments were.  He asked that his name not be removed from the list and pointed to his more 
than 23 years of honorable, professional and exceptional service in the Coast Guard.   

 
On June 22, 2009, the applicant was informed that the special board would convene on 

June 24, 2009. 

 
On  June  24,  2009,  the  special  board  convened  to  consider  whether  to  recommend  the 
removal of the applicant’s name from the PY 2009 LCDR selection list.2  In a report dated June 
24, 2009, the special board recommended that the Secretary remove the applicant’s name from 
the  selection  board  list  for  promotion  to  LCDR.  The  special  board  offered  the  following 
reasoning: 

 
[T]he  board  determined  this  officer  demonstrated  extremely  poor  judgment  by 
making  inappropriate  and  disrespectful  comments  towards  a  pregnant  enlisted 
member on two separate occasions.  The officer acknowledges the use of highly 

                                                 
2 Selection list and promotion list may be used interchangeably in the decision. 

inappropriate  language  that  contributed  to  an  uncomfortable  work  environment.  
This officer failed to obey the command’s direction to attend sensitivity training 
in a timely manner.  These egregious lapses in judgment, as documented in the 
officer’s record, compromised the good order and discipline of the unit and were 
an affront to the integrity and authority of the officer corps.  In accordance with 
the  Coast  Guard  Personnel  Manual,  Article  5.A.13.f.  these  circumstances  cast 
doubt on the moral and professional qualifications for the officer and demonstrate 
a blatant disregard for the command’s expectations of an appropriate workplace 
climate.  Therefore, the officer damaged the ability to serve as an officer in the 
next higher grade and the Board recommends removal from the Promotion Year 
2009 lieutenant commander selection list.   

On October 29, 2009, the Secretary approved the special board’s recommendation that 

 
 
On  September  16,  2009,  PSC  informed  the  applicant  that  his  promotion  to  LCDR 
scheduled for October 1, 2009, was delayed in accordance with Article 5.A.13. of the Personnel 
Manual and his CO’s January 26, 2009 memorandum.    
 
 
On October 28, 2009, the Commandant forwarded the special board’s recommendation 
that the applicant’s name be removed from the PY 2009 selection board list to the Secretary for 
approval.   
 
 
the applicant’s name be removed from the selection board list. 
 
 
On November 9, 2009, PSC notified the applicant that his name had been removed from 
the selection list under 14 USC § 272.  The applicant was told that his permanent removal from 
the list was considered his first failure of selection for promotion to LCDR and that he would be 
considered by the PY 2011 LCDR selection board.  See Article 5.A.4.f. of the Personnel Manual, 
citing 14 U.S.C. § 262(a).   He was advised that his record would be considered by the PY 2011 
promotion  board  and  a  non-selection  by  the  board  would  constitute  his  second  failure  and  he 
would be discharged from the Coast Guard on June 30, 2011.  The applicant was advised that 
action to vacate his temporary officer commission had been cancelled.   
 
 
On September 30, 2010, the PY 2011 selection board list for promotion to LCDR was 
published and the applicant was not among those selected for promotion to LCDR.  This was his 
second non-selection for promotion to LCDR.  He retired on December 31, 2010.   
 

ALLEGATIONS 

 

The applicant argued that he was unfairly  and  prematurely  forced into  retirement  after 
faithfully  serving  his  country  for  24  years  for  making  two  comments  that  were  “aberrational, 
momentary lapses in judgment, and did not speak to the his true character.”    

 
In this regard, the applicant asserted that his first comment to PO W stating that she was 
fat,  pregnant,  and  dumb  was  a  joke  and  that  he  immediately  apologized  after  seeing  PO W’s 
displeasure with the comment. He claimed that PO W saw the joke as a valuable opportunity to 
transfer to a less stressful position.  Noting that PO W did not report the joke until a week later, 

the  applicant  stated  that  her  referral  of  the  matter  to  the  EOR  had  to  do  with  PO  W’s  job 
dissatisfaction  in  his  department  and  nothing  to  do  with  his  innocuous  joke.    He  stated  that 
although PO W wrote in a follow-up email to the EOR that she felt like a target for extra tasking 
since she could not respond to oil spills, she never received any extra tasking beyond her office 
related duties.  The applicant stated that PO W was the only one in the office full-time while the 
other  5  petty  officers  were  deployed  (24/7)  to  the  field  to  address  ongoing  and  potential 
environmental emergencies.  The applicant stated that PO W could not comprehend why other 
petty  officers,  who  worked  irregular  hours  could  be  allowed  to  take  differently  timed  breaks.  
The  applicant  stated  that  “[PO  W]  never  claimed  that  the  joke  was  offensive  because  it  was 
actually the high operational tempo [of the department] that she deemed oppressive.”     
 
 
 
The applicant stated that he was ridiculed by his chain of command after the incident and 
he felt overwhelmed by the position he was in from a leadership perspective.  In this regard, the 
applicant stated that “The IMD chief position was, by definition, a LCDR (O-4) position.  But, 
despite  [his]  protests,  he  was  never  allowed  to  develop  as  a  junior  officer  after  his  direct 
commission, as he went from MST1 (E-6) straight to LT (O-3) thereby skipping ensign (O-1) and 
lieutenant junior grade (O-2).”  He stated that he spent his first tour as an officer at Coast Guard 
Headquarters where he had no one to supervise or to model how to be a junior officer.  He stated 
that he did not receive any mentoring and training from his chain of command as IMD chief and 
was expected to learn on the job.   He stated that his captain’s failure to mentor her officers was 
one of the reasons she was relieved for cause.   
 
 
The applicant stated that while his “white trash” quip, borne of dismay, was clearly made, 
it  did  not  justify  the  unduly  harsh  punishment  that  swiftly  followed,  particularly  when  other 
senior officers engaged in far more troubling conduct against subordinates and were let off.  By 
way  of  example,  he  pointed  to  his  CO,  Capt  E,  who  took  command  in  June  2008,  was 
investigated and  in the  applicant’s words found to have mercilessly and belligerently verbally 
abuse  her  own  subordinates,  including  the  applicant.  According  to  an  internet  article  he 
submitted, in June 2010, Capt E was relieved of command due to her superior officer’s loss of 
confidence in her ability to effectively manage the unit due to an investigative finding that she 
fostered an “unacceptable command climate.”   In the internet report, a Coast Guard spokesman 
described a positive command climate as follows:  “open communication from subordinates to 
superiors, mentoring of junior personnel and a feeling of mutual professional respect among unit 
members.”    The  spokesman  stated  that  the  investigators  had  concerns  with  all  three  of  these 
factors when reviewing the complaint against Capt E.  The applicant alleged that Capt E wanted 
his promotion rescinded and she ultimately got her wish.   
 
 
The  applicant  alleged  that  after  considering  the  joke,  knee  jerk  remark,  and  Capt  E’s 
sardonic condemnation of them, the special board recommended the removal of his name from 
the selection list on June 24, 2009.  The special board held: “these circumstances cast doubt on 
the moral and professional qualifications of the officer and demonstrate a blatant disregard for 
the Command’s expectation of an appropriate workplace  environment.”   The applicant argued 
that  this  condemnation  grossly  exaggerates  the  significance  of  his  error  in  judgment.    “Such 
language was not then,  nor is it now,  warranted by the facts in this case.”   In addition to the 
above allegations, the applicant offered several legal bases on which the Board could grant relief, 
as discussed below. 

1. The special board deprived the applicant of his due process rights to “fair notice” by 
failing to inform him that one of the bases for removing his name from the selection list was his 
failure to obey the command’s direction to attend sensitivity training in a timely manner.   The 
applicant stated that the Personnel Manual required that he receive notification of the basis on 
which his promotion would be rescinded.   In this regard, he stated that Article 5.A.13.f.2. states 
that  “a  complete  report  of  the  circumstances  recommending  removing  the  selectee  from  the 
promotion list . . .  shall be sent to Commander (CGPC-opm). . .  the selectee shall be furnished a 
copy  of  the  report  and  required  to  acknowledge  receipt.      Article  5.A.13.f.3.  states,  ‘If 
Commander  (CGPC-opm)  initiates  delaying  a  promotion,  he  or  she  shall  advise  the  officer 
concerned  in  writing  of  the    reasons  for  so  doing  and  require  acknowledgement  of  receipt.  
Finally, Article 5.A.13.f.4. states that the officer concerned will be  afforded 21 days’ notice of 
the proceedings and may communicate directly to the board.   

 
The applicant asserted that the special board never apprised him that it would consider 
the timeliness of his sensitivity training against him.  Therefore, he never rebutted the statement, 
which allowed the special board to  find the claim meritorious.    The applicant explained the 
situation this way:   
 

[The supervisor] ordered [the applicant] to attend sensitivity training on or about 
November 6, 2008.  [The applicant] did attend sensitivity training, and the delay 
was caused by two factors beyond his control.  First, [the applicant] repeatedly 
asked [his supervisor] for the memo from the first investigation with the list of the 
items that he was required to attend to, as required by law.  [The applicant] was 
CC’d  on  this  Memo  but  never  received  a  copy.    So  he  repeatedly  asked  [the 
supervisor for the  requested memo.  His  requests were always denied.   In fact, 
[the  applicant]  finally  received  it  from  [the  investigating  officer]  and  thereafter 
made the first available sensitivity training appointment.   

 

 

2.  The applicant argued that the Coast Guard was under a legal obligation to resolve the 
issues  of  equal  opportunity  complaints  within  the  EO  apparatus  at  the  lowest  level  possible, 
which was not done.  Instead of attempting to resolve the problem at the lowest level possible, 
the  command  immediately  initiated  a  formal  investigation  and  sought  draconian  measures 
founded upon an ambiguous definition of “morality” and political correctness.   
 
 
LT K, who served as the investigating officer after the second comment, wrote a letter on 
the applicant’s behalf.  In that letter he stated that issues involved in the applicant’s case were 
discussed with the District’s full time civil rights officer, “but were mishandled by the sector by a 
collateral-duty junior officer.”  The action violated a key element of the equal opportunity policy 
which is to handle things at the lowest level first.   LT  K stated that by  “failing to  follow the 
prescribed  guidelines,  the  allegations  were  not  properly  investigated  and  likely  escalated  into 
something far more significant than was warranted.”   
 
The  applicant  argued  that  the  special  board’s  finding  misconstrues  morality  and  was 
 
arbitrary and capricious.  In explaining this allegation, the applicant stated that he was advised by 
his friends to “fall on the proverbial sword” and seek forgiveness.  He argued that but for his 

willingness to accept responsibility, this case would never have proceeded.  In support, he points 
to LT K’s statement, “it should be noted that the allegations against [the applicant] were based on 
contradictory statements, which could have been grounds for dismissal of the allegations had it 
not  been  for  [the  applicant’s]  honesty,  integrity  and  remorseful  admission  of  fault.”    The 
applicant stated that by accepting fault he partially compromised the truth by admitting that he 
contributed  to  an  “uncomfortable  work  environment,”  which  the  special  board  seized  on  to 
support its adverse “morality” finding.   The applicant argued in reality the underlying facts do 
not support a finding that there was an intolerable work place environment at play.  “In fact, 
there is no personal statement, document, memorandum, note, email text message, or letter 
from  anyone  stating  that  they  felt  [the  applicant’s]  behavior  was  sexist,  immoral  or 
otherwise contributed to a hostile work environment within IMD.”  (Emphasis in original.)  
He asserted that his friend’s advice to accept blame and seek forgiveness proved to be wrong, as 
the  special  board  found  that  his  joke  and  whispered  comment  compromised  good  order  and 
discipline.  He argued that the special board failed to cite or offer a single example as to how that 
alleged negative impact manifested itself.  The applicant stated that neither formal investigation 
came to the conclusion that there was a hostile work environment.   
 

3.  The matters of equity compel favorable remedies in this special of case of justice.  The 
applicant  noted  his  numerous  years  of  Coast  Guard  service  and  the  numerous  awards  and 
citations  that  he  has  received  during  his  career.    He  noted  the  several  letters  of  support  he 
submitted attesting to his moral character and speak to the “absurdity of the Board’s immoral 
characterization of [his] aberrational actions.”   
 
 
In concluding his brief, the applicant restated the bases on which the Board could grant 
relief.  They are: 1) a due process claim associated with a lack of fair notice; 2) a due process 
claim  based  upon  the  lack  of  adherence  to  Coast  Guard  regulations;  and  3)  equitable  relief 
premised on the unduly harsh punishment he received.  He also stated the following: 
 

 

The  promotion  board  likewise  failed  to  consider  several  extenuating  and 
mitigating  factors,  such  as  the  commanders  that  subjected  [the  applicant]  to  a 
“hostile work environment” failed to invest in his mentorship, and unfairly held 
him  to  a  high  standard  despite  his  significant  lack  of  leadership  experience.   
[Footnote  omitted]    And  finally,  the  board  did  not  have  the  [email  evidence] 
attached to this appeal,  which unequivocally demonstrates that the joke did not 
create a “hostile work environment” but was rather, in Petty Officer [W’s] view, 
an afterthought that allowed her to move into a less strenuous job.  In essence, the 
IMD operational tempo was guilty and not its Chief—it was as simple as that.   

There  is  something  categorically  wrong  with  how  this  third  generation  Coast 
Guardsman  was  mistreated  for  simply  being  human,  particularly  after  he  had 
accomplished  so  much,  for  so  many  years,  from  mentoring  eager  minds,  to 
working long hours, to saving the environment, to spending precious time away 
from  his  family.    It  should  count.    Without  sounding  overwrought,  the  blood, 
sweat  and  tears  associated  with  24-years  of  impeccable  service  should  matter.  
How it could have all come down to one petty officer’s desire to work somewhere 

The applicant submitted several letters attesting to his character from active and retired 

 
 
officers who have known him during his career.  
 

else  and  a  barely  audible  expression  of  frustration  is  in  some  measure,  well 
disturbing.    
 
Thus,  contrary  to  the  promotion  board’s  prior  automated  conclusions,  [the 
applicant] is a man of integrity.  He is not immoral.  Indeed, there should be little 
doubt  that  in  judging  this  man,  and  his  many  years  of  faithful  service  that  his 
morality  was  never  lost,  it  was  rather  unfairly  taken  from  him—kindly  give  it 
back to this man and his equally deserving family.   

VIEWS OF THE COAST GUARD 

 
On December 14, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted 
 
an  advisory  opinion  recommending  that  the  Board  deny  relief.    The  JAG  stated  that  the 
applicant’s argument that he was not provided due process as to  “fair notice” of his command’s 
intention to delay his promotion are clearly without merit.  The JAG stated that the applicant 
knew the basis for the delay in his promotion through his CO’s memorandum to PSC requesting 
the  delay.    The  JAG  stated  that  the  applicant  was  also  aware  of  the  basis  for  the  delay  of 
promotion and the special board through the SOER. 
 
 
The JAG argued that the applicant’s allegation that the command committed an error by 
not resolving the matter at the lowest level possible is without merit.  In this regard, the JAG 
stated that the applicant’s CO was responsible for maintenance of discipline within her command 
and the exercise of that discretion is made on an individual basis.  In this case, the CO decided to 
address  the  first  comment  through  the  issuance  of  an  administrative  letter  of  caution  and  the 
second through a request for a delay in his promotion because the applicant’s action cast doubt 
on his moral and professional judgment.  
 
 
The JAG asserted that the special board did not abuse its discretion in characterizing the 
applicant’s  conduct  as  immoral  based  on  the  applicant’s  egregious  lapses  in  judgment,  his 
compromise of the command’s good order and discipline, and his highly inappropriate language 
that contributed to an uncomfortable work environment.    
 
 
The  JAG  also  argued  that  allegations  of  mitigation  based  on  his  command’s  failure  to 
train and mentor him are without merit.  The applicant’s contention that his CO was subsequently 
removed from her primary duties is non-dispositive of this particular case and has no relevance 
on the BCMR’s findings and conclusions.   The JAG stated that the applicant is fortunate that his 
CO  decided  to  forgo  UCMJ  actions  which  would  have  more  likely  than  not  resulted  in  a 
dismissal from service with no retirement and loss of VA benefits.   
 
PSC Memorandum   
  
 
 
In the PSC memorandum attached to the advisory opinion, PSC stated that the January 
26, 2009 memorandum from the CO to PSC requesting a delay in the applicant’s promotion did 

not  outline  a  failure  to  attend  sensitivity  training  as  a  reason  for  delaying  the  applicant’s 
promotion.3  PSC stated that the basis for the delay of promotion was the derogatory information 
outlined in the January 26, 2009 memorandum.  However, PSC noted that the SOER, which was 
attached to the memorandum, stated that the applicant failed to attend sensitivity training in a 
timely manner after being ordered to do so.   
 

PSC stated that the applicant was provided with the bases for delaying his promotion in 
the January 27, 2009 memorandum notifying him of the CO’s recommendation for a delay of his 
promotion through his receipt of the investigation into the alleged inappropriate comments.   
 

PSC also stated that in a May 9, 2009 memorandum to the applicant informing him of the 
proposed special board, PSC stated that that the special board would review his imaged record 
that included the SOER.  In the SOER, the reporting officer noted that the applicant failed to 
complete  required  sensitive  training  despite  being  ordered  to  do  so.      PSC  stated  that  the 
applicant had the opportunity to review his record and to submit comments to the special board.    
 
 
PSC stated that the special board reviewed four documents that were not authorized for 
the board’s review under COMDTNIST 1410.2, paragraph 7.g.1.   The documents that should 
not have been before the special board were:  the memorandum to CGPC requesting a delay of 
the  applicant’s  promotion  to  LCDR,  the  memorandum  to  the  applicant  notifying  him  of  the 
request to delay his promotion, the CGPC memorandum notifying the applicant that his record 
would appear before a special board, and the CGPC memorandum notifying the applicant of the 
date for the special board.  However, PSC argued that although these documents should not have 
been  before  the  special  board,  the  documents  did  not  contain  any  information  that  was  not 
available to the special board in other documents properly within the imaged record.   
 
 
PSC  noted  applicant’s  arguments  that  the  promotion  board  failed  to  consider  several 
extenuating factors, such as his command subjected him to a hostile work environment, that his 
command failed to invest in his leadership and mentorship, that his command held him to a high 
standard despite his significant lack of leadership experience, and that  the board did not have 
access to the emails from PO W.  In response to the allegations, PSC stated the following: 
 
“Promotion boards and boards to remove members from a selection list convened under  . . . the 
Personnel Manual . . . are governed by policy on the scope of information to be viewed by the 
board.  Non-matters of record such as the perception of a hostile work environment have no basis 
to be considered by  a  Board unless  entered into a matter of  record that  is permissible for the 
board to view . . .    
 
“Per  the  policy,  Documents  Viewed  by  Coast  Guard  Officer  Promotion  and  Special  Boards, 
COMDTINST  1401.2,  both  types  of  boards  would  not  be  permitted  to  view  evidence  of 
mitigating circumstances outlined in an email.  Only information made after the officer’s original 
commissioning date and those entries dealing with performance as an officer are permitted to be 
viewed . . . “ 
 
                                                 
3  However, paragraph 2 of that memorandum indicated one of the reasons the CO was requesting a delay in his 
promotion was his failure to complete sensitivity training despite being directed to do so on two occasions.   

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On April 10, 2012, the Board received the applicant’s response to the views of the Coast 
Guard.  He argued that the rescission of his promotion constituted both legal error and injustice 
because PSC admitted that the “applicant’s failure to [timely] attend sensitivity training was not 
cited  as  a  basis  for  denying  the  member’s  promotion,”  which  was  a  violation  of  Article 
5.A.13.f(3) of the Personnel Manual.  The applicant stated that he was entitled to “fair notice” so 
that he could focus on everything that needed to be addressed with regard to the allegation and 
his  rehabilitation.    The  applicant  stated  that  Coast  Guard  rules  are  rules,  and  he  reasonably 
expected  to  be  provided  notice  in  writing.    He  stated  that  he  reasonably  expected  the  Coast 
Guard to strictly adhere to its own legal guidance.   
 
 
The applicant again complained that the adverse action was unjust because his supervisor 
failed to mentor him after his first slip-up and instead chose to ignore his repeated requests for 
“sensitivity  training”  documentation  and  fair  treatment,  culminating  in  incidents  of  personal 
ridicule.  The applicant stated that contrary to the advisory opinion’s assertions, “[the supervisor] 
failed to: (1) conduct a rehabilitative transfer of applicant after the first event; (2) timely provide 
written  documentation  concerning  sensitivity  training;  (3)  provide  applicant  with  a  letter  of 
censure;  and  (4)  mentor  applicant  (a  notably  inexperienced  officer)  under  exceedingly 
challenging circumstances.” 
 
 
The applicant stated that the latter deficiency is noteworthy because the advisory opinion 
claims  “discipline  rests  within  the  sound  discretion  of  applicant’s  then  [CO],”  when  Rear 
Admiral B on April 15, 2010, labeled that CO’s discretion to be unsound “due to an unacceptable 
command climate this commander no longer had my confidence to command an effective unit.  I 
firmly believe this decision was made in the best interest of the unit and the Service.”     The 
applicant  also  states  that  the  advisory  opinion  is  incorrect  that  the  CO  decided  to  address  the 
applicant’s first inappropriate comment by issuing the applicant a letter of censure because the 
letter of censure is unsigned and the applicant never received it.   
 
 
With regard to his alleged “failure to attend sensitivity training,” the applicant stated that 
it cannot be overemphasized that the applicant did attend training.  Apparently, he just did not do 
it  fast  enough,  which  he  attributed  to  his  supervisor’s  own  willful  failure,  despite  repeated 
requests  by  the  applicant,  to  provide  written  guidelines  for  training.    He  stated  that  it  is 
undisputed that the applicant’s then supervisor inexplicably failed to provide the applicant with 
the September written notice until December.    
 

The applicant again restated that he made a joke that was taken as an affront to a young 
restricted  woman’s  role  in  a  hectic  office.   With  regard  to  the  second  comment,  the  applicant 
stated  again  that  it  was  not  directed  toward  PO  W  because  she  was  outside  at  the  time.    He 
argued that even if taken together, his statements were not immoral.  
  
 
The applicant stated that the claim in the advisory that his conduct could have subjected 
him to prosecution for conduct unbecoming an officer is farfetched.  The applicant quoted United 
States v. Shober, 26 M.J. 501, 503 (A.F.C.M.R. 1986), that “not every deviation from the high 
standard  of  conduct  expected  of  an  officer  constitutes  conduct  unbecoming  an  officer.”    He 

further quoted, “Immoral conduct must impugn the honor or integrity of the officer or subject 
him  to  social  disgrace.”  Id.   The  applicant  argued  that  his  making  an  off  color  joke  and  later 
uttering  an inappropriate comment under his breath, barely  overheard by one person does not 
“impugn the honor or integrity” of this former officer.   The applicant also argued that there is 
absolutely no evidence of any uncomfortable work environment ever being created by his words, 
with the exception of his own admission made out of fear for his career.   
 
The  applicant  stated  that  the  advisory  opinion  ignores  issues  of  command  climate  that 
 
culminated in the firing of applicant’s then CO.  It likewise fails to address the compelling e-
mails from the petty officer, with the caveat that this board is simply told to ignore them.    
 

FINDINGS AND CONCLUSIONS 

 

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

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

military record and submissions, the Coast Guard's submission and applicable law: 
 
 
of the United States Code.   The application was timely. 
 
 
2.  The applicant requested an oral hearing before the Board.  The Chair, acting pursuant 
to  33  C.F.R.  § 52.51,  denied  the  request  and  recommended  disposition  of  the  case  without  a 
hearing.  The Board concurs in that recommendation.   
 

3.    The applicant alleged that his first comment to PO W describing her as fat, pregnant 
and dumb was an innocuous joke that she used as a means to obtain a transfer from a job in a 
high  tempo  environment  to  one  with  less  stress  in  another  department.    In  support  of  his 
contention  in  this  regard,  the  applicant  relied  on  the  fact  that  PO  W  did  not  report  the 
inappropriate  comment  until  a  week  later.    However,  the  applicant  admits  that  he  made  the 
comment and that it was inappropriate.  The fact that PO W waited approximately one week after 
the comment was made to report it to the EOR does not prove that that she was not offended by 
the comment at the time or that it did not have a negative impact on her work environment.    In 
addition, the applicant’s statement that he immediately apologized to PO W when he saw that she 
was displeased with the comment does not support his contention that she was not offended by 
the alleged joke.  The simple fact is that the applicant should not have made the inappropriate 
comment.  
 

4.    With  regard  to  the  second  comment,  the  applicant  stated  that  he  made  the  “white 
trash” quip out of dismay about the command’s treatment of him, but that the comment did not 
justify the unduly harsh punishment that followed, particularly when other senior officers at the 
unit engaged in far more troubling conduct against subordinates and were let off.  By way of 
example,  he  pointed  to  his  CO,  Capt  E,  who  was  investigated  and  relieved  of  command.    In 
regard  to  the  applicant’s  argument  that  his  “punishment”  for  the  inappropriate  comments  was 
unduly harsh, the Board notes that the decision on how to proceed in handling the matter was 
within the discretion of his command.  The matter was investigated, after which the CO made a 
recommendation  to  CGPC  that  the  applicant’s  promotion  be  delayed  and  that  his  record  be 
placed before a special board.    Article 5.A.13.f. of the Coast Guard Personnel Manual states that 

each  officer  in  the  chain  of  command  or  Commander,  CGPC  is  responsible  for  delaying  a 
promotion if he or she knows the appointee has disqualified him or herself after being placed on 
a promotion list.  All of the administrative processes that occurred in the applicant’s case were 
authorized in the Personnel Manual at the discretion of the CO or higher authority.  The Board 
will not substitute its judgment for that of the Coast Guard officers responsible for managing the 
Service  in  the  absence  of  legal  error.       The  applicant  has  not  shown  that  the  CO  abused  her 
discretion in this case. 

 
5.  The applicant also alleged that he was placed into a LCDR supervisory position for 
which  he  lacked  the  leadership  background  and  neither  the  CO  nor  others  in  his  chain  of 
command mentored or trained him in how to fulfill his duties in this regard.  He was expected to 
learn on the job.  In the Board’s experience, learning on the job is not a unique circumstance in 
the  Coast  Guard.    However,  even  if  the  applicant’s  contention  about  his  lack  of  leadership 
training is true, it fails to explain why he believed that making the inappropriate comments was 
acceptable in light of his approximately 20 years in the Service at that time.    
 

6.  Nor is the Board persuaded that the applicant suffered an error or injustice with regard 
to the administrative actions taken against him because his CO was relieved of command due to 
her superior officer’s loss of confidence in her ability to effectively manage the unit due to an 
investigative finding that she fostered an “unacceptable command climate.”   In a news report 
from the Internet, a Coast Guard spokesman described a positive command climate as follows:  
“open  communication  from  subordinates  to  superiors,  mentoring  of  junior  personnel  and  a 
feeling  of  mutual  professional  respect  among  unit  members.”   The  spokesman  stated  that  the 
investigators had concerns with all three of these factors when reviewing the complaint against 
Capt E.  Evidence shows that Capt E took command in June 2008 and she was relieved in June 
2010.  The applicant reported to the command on July 25, 2008 and was relieved of his duty in 
January 2009.  He was in the assignment as IMD chief for only approximately 6 months.  From 
the evidence of record, it is not possible to know when the complaint against the CO was first 
made  or  whether  she  exhibited  mal-treatment  toward  her  subordinates,  and  in  particular  the 
applicant, during the six months that the applicant was assigned to the unit.  The applicant even 
suggested that the CO wanted him removed from the selection board list for reasons other than 
the issue at hand.  However, he presented no evidence that would support this contention.  As 
stated above, after approximately 20 years of enlisted and officer service, the applicant should 
have  known  that  such  comments  were  inappropriate  and  disrespectful.    Neither  the  CO’s 
subsequent  removal  from  command  nor  the  alleged  lack  of  mentoring  or  training  excuses  the 
applicant’s behavior.   

  
7.  The applicant has failed to prove that he was not provided with notice of the basis for 
recommending a delay in his promotion.  Specifically, he has not proved that he was not notified 
that  his  failure  to  complete  sensitivity  training  in  a  timely  manner  would  be  considered  in 
deciding whether to delay of his promotion and whether his name should be removed from the 
selection  board  list.      In  the  memorandum  to  CGPC,  which  included  the  applicant  as  an 
addressee, the CO, in recommending a delay in the applicant’s promotion, noted the applicant’s 
poor judgment in making inappropriate and disrespectful comments towards a pregnant enlisted 
member and his failure to complete human relations/sensitivity training despite being directed 
twice to do so.  The memorandum noted that the derogatory SOER and the investigation were 

 
 In addition, PSC’s memorandum to the applicant notifying him of the proposed special 
board  to  consider  whether  his  name  should  be  removed  from  the  promotion  list  advised  the 
applicant that the special board would consider his imaged PDR, which included the SOER, and 
all documents related to the CO’s memorandum recommending his removal from the promotion 
list.  A reading of the documentation would have alerted the applicant to the bases for the delay 
in his promotion and the bases for the special board.  In light of the documentation provided to 
the  applicant,  the  Board  finds  that  he  was  fully  apprised  of  the  basis  for  the  administrative 
actions taken against him. 

 
8.  The applicant argued that under the EO Manual the command was obligated to resolve 
the  complaints  related  to  his  inappropriate  comments  at  the  lowest  level  possible.    The  first 
inappropriate comment was resolved at the lowest level under EO Manual through a settlement 
agreement according to  the  IO.  Although the  agreement reached between the parties was not 
provided  to  the  Board,  according  to  the  IO,  the  applicant  was  required  to  complete  several 
actions  that  included  apologizing  to  PO  W.    The  settlement  agreement  possibly  would  have 
ended the matter, if the applicant had not made the second inappropriate comment.  The second 
comment was not heard by PO W and no complaint was filed with the command’s EOR.  As no 
civil  rights  complaint  was  filed,  the  procedures  of  the  EO  Manual  did  not  apply.    The  CO 
apparently  felt  the  matter  needed  to  be  investigated.  She  ordered  an  investigation  under  the 
Administrative Investigation Manual (AIM), as it was her right to do.   In this regard, Article 
1.G.1. of the AIM, states that the officer in command has primary responsibility for initiating an 
investigation into an incident arising in the command and for deciding the type of investigation 
to convene.  Article 1.A.3.a. states that the primary function of all administrative investigations 
is  to  search  out,  develop,  assemble,  analyze,  and  record  available  information  relative  to  the 
matter under  investigation, and Article 1.C. states that the Coast Guard’s policy is that the least 
extensive investigation that meets all service needs shall be utilized.    

attached.  The SOER also noted that the applicant failed to attend sensitivity training as directed 
by the command on two separate occasions.  On January 27, 2009, the applicant acknowledged 
receiving  the  CO’s  January  26,  2009  memorandum  and  documentation  regarding  her 
recommendation that he be removed from the promotion list.   

 
According to the investigative report, the IO officer conducted a standard investigation 
(formerly  known  as  an  informal  investigation)  into  the  circumstances  of  the  applicant’s 
inappropriate comments.  The standard investigation is the lowest level of investigation under the 
AIM.    See  Article  1.D.  of  the  AIM.     Therefore,  it  appears  to  the  Board  that  the  applicant’s 
conduct  was  investigated  using  the  lowest  level  of  investigation  under  the  AIM.        The 
applicant’s CO is charged with making judgments about the type of investigation needed and the 
applicant has not shown that she abused her discretion in this regard.    In addition, the applicant 
has  not  shown  that  the  ultimate  outcome  in  his  case  would  have  been  different  had  an  EO 
complaint  been  filed  and  the  matter  investigated  under  the  EO  Manual.  The  applicant’s 
complaint in this regard is without merit.   

 
9.    The  applicant  disagreed  with  the  special  board’s  finding  that  his  actions  under  the 
circumstances cast doubt on his moral and professional qualifications and demonstrated a blatant 
disregard for the command’s expectations of an appropriate workplace climate.  He argued that 

there is no personal statement, document, memorandum, note, email text message, or letter from 
anyone  stating  that  they  felt  the  applicant’s  behavior  was  sexist,  immoral,  or  otherwise 
contributed to a hostile work environment.4  First, the special board does not describe the work 
place as a hostile work environment, but rather, it states that the applicant’s actions contributed 
to  an  uncomfortable  work  environment  and  disregarded  the  command’s  expectations  of  an 
appropriate  workplace  climate.    The  evidence  supports  the  special  board’s  comments  in  this 
regard because PO W was upset enough to report the comments to the  EOR and chose to be 
transferred to another division and because the individuals who heard the second comment were 
concerned enough to report it to the applicant’s supervisor.  Therefore, the evidence supports a 
finding that the applicant’s comments had a negative impact on the workplace environment.   

 
10.  The applicant argued that the special board’s finding that his actions were immoral 
was arbitrary and capricious.  The Board notes that the special board did not make an absolute 
finding  that  the  applicant’s  actions  were  immoral,  but  rather  that  under  the  circumstances  he 
demonstrated  extremely  poor  judgment  by  making  inappropriate  and  disrespectful  comments 
toward a pregnant enlisted member on two separate occasions and by failing to attend sensitivity 
training in a timely manner that compromised good order and discipline of the command and 
cast doubt on his moral and professional qualifications. While the applicant may disagree that 
his behavior and poor judgment cast doubt on his moral and professional qualifications to serve 
in the next higher grade, that disagreement is not proof that the Coast Guard’s determination in 
that regard was erroneous.   

 
11.    The  applicant  argued  that  the  special  board  failed  to  consider  extenuating  and 
mitigating factors, such as his allegations that his commanders subjected him to a hostile work 
environment by failing to invest in his mentorship; his command unfairly held him up to a high 
standard despite his significant lack of leadership experience; and his special board did not have 
the PO W’s email which shows that she used the joke to obtain a less strenuous job assignment 
and not to escape a hostile work environment.  The Board understands that the applicant believes 
that the Coast Guard placed him in a job that he did not have the leadership experience for and 
once in the job failed to mentor and train him so that he could succeed in that job.  However, 
even if true, as stated  above, the lack of leadership experience, mentoring, or training fails to 
explain why the applicant, who had been in the Coast Guard for approximately 20 years at the 
time of the incident, felt that he could make such comments to and about a fellow Coast Guard 
member, let alone one of his subordinates.   

 
12.  With regard to the emails between PO W and the EOR, the Coast Guard stated that 
such emails were not appropriate for review by the special board unless they were a part of the 
applicant’s  record.    Article  14.A.4.d.  of  the  Personnel  Manual  describes  the  documents  that 
makeup  the  personnel  record  to  be  reviewed  by  a  officer  boards  as  “general  administrative 

                                                 
4    In  Harris  v.  Forklift  Systems,  Inc.,  510  U.S.  17  (Nov.  9,  1993),  the  Supreme  Court  stated  that  a  hostile  work 
environment exists where the offending conduct is so severe and pervasive that a reasonable person would view the 
environment  as  hostile,  offensive,  or  abusive.  Id.  at  21  All  circumstances  should  be  considered  in  making  a 
determination  as  to  the  creation  of  a  hostile  work  environment,  including  the  frequency  of  conduct,  its  severity, 
whether  the  conduct  is  physically  threatening  or  humiliating  or  merely  offensive,  and  whether  it  unreasonably 
interferes with the employee’s work performance. Id. at 23.   
 

paperwork  including  such  items  as  statements  of  service  and  sea  service,  the  record  of 
emergency data, page 7 entries, documentation of alcohol incidents, and reports of civil arrests, 
performance  evaluations,  education  information,  and  awards  and  discipline  documentation.”  
Emails are not listed as documents that makeup of an officer’s record, and therefore, they were 
properly not reviewed by the special board.    

 
However such evidence can be considered by this Board.  The applicant interpreted the 
email between PO W and the EOR as proof that she did not believe she was in a hostile work 
environment but instead saw his inappropriate comment an opportunity to get a less strenuous 
assignment.  The Board has reviewed the emails between PO W and the EOR and finds nothing 
in that exchange to convince us that PO W was using the inappropriate comments made to her by 
the applicant to get less strenuous duty.  Although she stated in the initial email that she dreaded 
coming into the office and second guessed everything she did after the comment was made, it 
was the investigating officer who asked her if she felt comfortable in her work space or wanted 
to  work  someplace  else.    The  fact  that  she  chose  to  remove  herself  from  an  uncomfortable 
situation does not prove that she was not genuinely upset by the comments or that she pretended 
to be offended merely to get a less strenuous assignment.   

 
13.    The  Board  notes  that  in  the  advisory  opinion  PSC  stated  that  the  special  board 
improperly considered certain documents.  They were: the memorandum to CGPC requesting a 
delay  of  the  applicant’s  promotion  to  LCDR,  the  memorandum  notifying  the  applicant  of  the 
delay in his promotion, the CGPC memorandum notifying the applicant that his record would 
appear before a special board, and the CGPC memorandum notifying the applicant of the date for 
the special board.  However, the Board agrees with PSC that the inclusion of these documents 
did not prejudice the applicant before the special board because the same information was in the 
SOER and other documents properly within the applicant’s record.   

 
14.  The applicant argued he should have been transferred after the first event.  However, 
the Board is aware of no regulation that requires a transfer in situations such as that faced by the 
applicant.  Therefore, the Board finds no error in this regard.   

 
15.   The applicant suggested in his brief that the CO was out to get him by delaying his 
promotion, but he provided no basis for that belief.  It is clear that the applicant believes that his 
comments should not have resulted in the loss of his promotion.  However, in the judgment of 
his  CO,  PSC,  the  special  board,  the  Commandant,  and  the  Secretary,  he  did  not  exhibit  the 
qualities  of  an  officer  who  should  have  been  promoted  to  LCDR.    Unless  the  applicant 
demonstrates a significant error in the processes that occurred in his case, the Board has no basis 
on  which  to  overturn  the  decision  of  those  charged  with  managing  the  Coast  Guard.    The 
applicant has not demonstrated a significant error in this case.  Nor is the Board persuaded that 
the applicant suffered an injustice.   

 
16.  The applicant made several other allegations that are not discussed in the findings 
and  conclusions  of  this  decision  because  the  Board  finds  that  they  are  not  dispositive  of  the 
issues in this application. 

 
 

 
17.  In light of the above findings, the application should be denied.   
 
 
 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 
 

  

 
 

The  application  of  XXXXXXXXXXXXXXXXXXXXXXX,  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Donna M. Bivona 

 

 

 
 Randall J. Kaplan 

 

 

 
 
 Paul B. Oman 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

military record is denied.