DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-117 
 
Xxxxxxxxxxxxxx 
  xxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
This proceeding was conducted under the provisions of section 1552 of title 10 
and section 425 of title 14 of the United States Code.  The application was docketed on 
May  13,  2004,  upon  the  BCMR’s  receipt  of  the  applicant’s  completed  application  and 
military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  February  24,  2005,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 

The applicant asked the Board to correct his discharge form, DD 214, to reflect 
the  rate  and  grade  (aviation  electrician’s  mate,  second  class  (AE2);  E-5)  that  he  held 
prior to his court-martial in October 1996.  He was honorably discharged on September 
23, 1997, as a seaman (E-3), having completed more than 13 years of active service.  He 
asked the Board to award him the back pay and allowances he would be due from the 
date of his court-martial to the date of his discharge if his rate had not been reduced. He 
also asked to be reinstated on active duty at the rank of warrant officer with orders to 
serve on a particular cutter “as an assistant to the science officers and the administration 
officers.” 

 
The  applicant  alleged  that  the  proceedings  of  his  court-martial  contain  “over-
whelming evidence of unlawful command influence.”  He alleged that on May 29, 1996, 
CDR H, the Engineering Officer at his air station, ordered his supervisor, AM1 T, to sign 
a CG-4910 to charge him with unauthorized absence (UA).  The applicant alleged that 
CDR  H  lied  twice  under  oath  by  denying  that  he  did  so.    He  alleged  that  the  lie  is 

proved by the fact that AM1 T stated several times under oath that CDR H ordered him 
to charge the applicant with UA.   

 
The applicant also asked that all negative page 7s (CG-3307) entered in his record 
between February 6 and April 30, 1996, and his performance evaluation dated April 30, 
1996, be removed from his record.  He alleged that these page 7s were entered in his 
record by LT C, a pilot whom the applicant had reported for safety violations on Janu-
ary 16, 1996.  The applicant stated that PO S testified that LT C had generated the page 
7s and lowered the applicant’s evaluation marks by 19 points in retribution for being 
reported by the applicant and that CDR H later “tried to barter with me over the page 
7s  …  [but]  I  would  not  be  swayed  by  [him]  to  change  my  tone  about  the  safety  inci-
dents.” 
 
The applicant argued that it is in the interest of justice for the Board to waive the 
statute  of  limitations  because  he  did  not  know  about  the  BCMR  and  its  authority  to 
grant clemency and correct military records until recently.  He alleged that his attorney 
never  told  him  about  the  BCMR.    The  applicant  also  alleged  that  he  discovered  the 
errors in his record less than two years previously, when he found the conflicting testi-
mony by comparing his 1996 day-planner with Coast Guard documents. In support of 
his application, he submitted ten character references.  He also submitted handwritten 
notes,  which  he  alleged  were  his  attorney’s  notes  about  what  witnesses  said  during 
interviews prior to the court-martial. 

 

Applicant’s Letter to Commandant  

 
The applicant submitted a copy of a letter that he wrote to the Commandant on 
December 16, 2002.  In the letter, he alleged that on January 13, 1996, four crewmembers 
of C-130 aircraft smelled alcohol on the breath of LT C while it was on a search and res-
cue  (SAR)  mission.    He  alleged  that  LT  C  abusively  swore  at  the  crewmembers, 
slammed his headset into the instrument panel, and put the aircraft “into marginal stall 
conditions  …  while  the  aircrew  was  preparing  to  drop  a  flare  through  the  paratroop 
door.”  He also alleged that because of “long work/flight hours the day before,” several 
crewmembers refused to show up for the SAR mission, believing that it would violate 
regulations.  The applicant alleged that he reported the matter to the air station’s Safety 
Officer  on  January  16,  1996.    The  next  day,  a  superior  petty  officer  told  him  that  he 
should have “used the chain of command before going to safety,” and a chief warrant 
officer (CWO P) told him, “We could have kept this in house.”  The applicant alleged 
that he later heard that LT C already had one “alcohol incident” in his record, so a sec-
ond would have ended his career. 

 
On January 22, 1996, the applicant alleged, he was accused of having cut his hair 
in the bathroom sinks and ordered to clean the sinks even though the hair in the sinks 
was  not  his  color,  another  member  had  done  it,  and  an  outside  contractor  normally 

cleaned the bathroom.  The applicant stated that he was also ordered to get a haircut, 
which  he  did  at  the  station  barbershop,  and  the  next  day  was  ordered  to get  another 
haircut, which he did again. 

 
In the letter to the Commandant, the applicant alleged that on January 23, 1996, 
the Operations Officer informed a crewmate, AE3 G, that LT C had “had a few drinks 
with dinner the night before” the SAR flight and that the Operations Officer repeated 
this information to the applicant himself on January 25, 1996.  On February 5, 1996, he 
was ordered to get another haircut—his third within a two-week period.  The applicant 
stated that he began to feel harassed because he had never before been ordered to get a 
haircut, and his hair length was within regulations.   

 
On  February  6,  1996,  the  applicant  alleged,  he  was  called  to  a  meeting  with 
LCDR C, the assistant Engineering Officer, and three superior petty officers (ADCS D, 
ADC J, and ADCM C), and asked to sign a negative page 7 entry for his record.  The 
applicant stated that he disagreed with the content and refused to sign it as he believed 
it was prepared in retaliation for his report to the Safety Officer.  After the meeting, he 
felt very stressed, and CWO P granted him no-fly status.  He also asked to see the air 
station’s  Executive  Officer  (XO)  about  the  page  7.    He  later  saw  that  this  page  7  was 
signed by the CO and LCDR C and alleged that this was improper as neither witnessed 
the events of January 13, 1996. 
 

On  February  7,  1996,  the  applicant  alleged,  ADC  J,  his  shop  chief  and  direct 
supervisor, gave him another page 7 for having been told to get a haircut three times.  
He refused to sign it.  On February 9, 1996, the applicant alleged, he got a copy of the 
page 7 dated February 6, 1996, and spoke to the XO about it.  He had been told by the 
Safety Officer that the investigation of his report would be conducted by the Operations 
Officer  and  that  there  would  be  no  safety  investigation.    The  XO  told  him  that  he 
“shouldn’t pursue the safety incidents and destroy [his] career.” 

 
On February 14, 1996, the applicant alleged, he went to the Legal Office to com-
plain about the retaliation and was told to provide all possible documentation, but he 
did not do so for fear of further retaliation.  He alleged that a crewmate, AT3 H, also 
went  to  the  Legal  Office  to  make  a  statement  about  the  safety  incident  but  ran  into 
LCDR  B,  who  advised  him  not  to  make  any  statement  as  “it  would  black  mark  his 
career in the same manner [the applicant was] doing to his career” and that “it would 
follow  him  around  from  station  to  station.”    The  applicant  alleged  that  LCDR  B 
“quell[ed] other aircrew members from turning in statements about the pilot’s actions 
and  the  safety  incidents.”    AT3  H,  went  to his  shop  chief,  ATC  H,  who  met  with the 
commanding officer (CO) “to find out why aircrew members were being harassed for 
reporting safety incidents.” 

 

On February 15, 1996, the applicant alleged, CDR H called him into his office and 
accused  him  of  starting  his  own  investigation.    He  told  CDR  H  that  he  believed  the 
safety issues “were being swept under the carpet and the pilot is being protected” and 
that the page 7 of February 6, 1996, had been prepared to “cover” the incidents on Janu-
ary 13, 1996.  The applicant alleged that CDR H was trying “to keep [him] from attain-
ing further statements from valuable witnesses.” 

 
On February 23, 1996, the applicant alleged, CDR H told him that he was going 
to get another page 7.  On March 12, 1996, ADCM C gave him another page 7 about the 
incidents  on  January  13,  1996,  which  he  signed  “in  protest.”    He alleged  that  CDR  H 
prepared this page 7 to try to get him to keep his mouth shut.  He was later told that 
this page 7 was destroyed. 

 
At 8:00 on Saturday morning, May 25, 1996, the applicant alleged, after having 
just completed an overnight shift, he asked ADC L for time off on Monday night.  He 
had  tried  to  call  ADCS  D,  but  could  not  reach  him.    ADC  L  called  him  a  “mother 
f[*****]” and told him to ask AM1 T.  The applicant alleged that he spoke with AM1 T 
and  got  permission  to  take  Monday  night  off.    Therefore,  he  did  not  go  to  work  on 
Monday.  However, on Wednesday, May 29, 1996, CDR H gave AM1 T a form charging 
the applicant with UA and directed him to sign it.  The applicant noted that at his court-
martial, CDR H denied ordering AM1 T to charge him, but AM1 T said that CDR H did. 

 
On May 30, 1996, the applicant alleged, AMC J gave him his performance evalua-
tion, which was 19 points lower overall than his previous evaluation.  He alleged that 
he asked to speak to his entire rating chain about the evaluation, but was never allowed 
to  do  so.    Moreover,  he  alleged,  five  page  7s  were  with  the  performance  evaluation, 
including the one dated March 12, 1996, which was supposed to have been destroyed.  
He complained that it was also signed by the CO, who did not witness the incident on 
January 13, 1996. 

 
The applicant also complained that another page 7 in his record was dated Easter 
Sunday and that he was not at the air station on that day.  He alleged that it might have 
been  prepared  by  LT  C,  who  was  the  “ready  pilot”  that  day.    In  addition,  he  com-
plained that a page 7 dated April 15, 1996, noted that he had received a low mark of 2 
on his performance evaluation, even though he had not yet received the evaluation. 

 
On June 4, 1996, the applicant alleged, he was called to see the Legal Officer, LT 
A, to make a statement because he had been placed on report.  He saw that LT A had 
written “[Applicant] Mast” on his calendar on the block for June 18, 1996.  He asked LT 
A if he was going to mast, but LT A would not answer him.  The applicant stated that 
he gave LT A his statement on June 6, 1996, and was advised of his rights and signed a 
Miranda/Tempia  warning  on  June  7,  1996.    At  mast  on  June  18,  1996,  the  applicant 
alleged,  he  refused  the  mast  because  he  was  afraid  of  further  retaliation  by  his  com-

mand  and  felt  that  he  had  nothing  to  lose.    The  same  day,  he  asked  ADCS  D  for  a 
meeting with his rating chain, which also included LT C and CDR H, but he was never 
allowed this meeting. 

 
The applicant alleged that his command placed him on report and offered to take 
him to mast in retaliation for his decision to report the safety violations.  However, he 
was afraid of further retribution and therefore demanded a court-martial.  He alleged 
that CDR H had “spawned” the multiple negative page 7s for him after he reported the 
safety violations to try to shield LT C and that both CDR H and LT C had a hand in 
reducing his evaluation marks by 19 points. 

 
On June 20, 1996, the applicant alleged, he asked AM1 T for six days of annual 
leave, from July 3 to July 10, 1996.  AM1 T granted the leave, but was later told he had 
no authority to do so. 

 
On  July  17,  1996,  the  applicant  stated,  he  was  called  in  to  see  the  CO  and  the 
Legal Officer and was told that he would be taken to special court-martial.  In addition, 
he was told that there were two more charges against him.  He was assigned counsel. 

 
On August 20, 1996, the applicant alleged, he tore up a request chit in frustration 
while trying to find out if he had been administratively grounded or not, as CDR H had 
told  AM1  T.    AMCS  T  gave  him  a  counseling  sheet,  and  AMCM  K  asked  that  the 
applicant be referred to a psychiatrist.  The applicant alleged that on August 23, 1996, he 
asked to be reassigned to avoid further conflict with his superiors, but his request was 
denied. 
 
On  September  5,  1996,  the  applicant  alleged,  he  was  called  to the Legal  Office, 
where  LCDR  B  and  the  XO  gave  him  additional  charges,  which  were  for  “for  [his] 
actions when tearing up the request chit” on August 20, 1996.  He alleged that in Sep-
tember  1997,  just  before  his  discharge,  AMCS  T  apologized  to  him  about  these  extra 
charges  and  stated  that  CDR  H,  LCDR  B,  and  AMCM  K  “trumped  up  the  additional 
charges against [him].” 

 

 

SUMMARY OF THE RECORD 

On  January  18,  1987,  the  applicant  enlisted  in  the  Coast  Guard,  having  previ-
ously completed almost three years of active service in the Marine Corps.1  He attended 
boot  camp  and  aviation  electrician’s  mate  “A”  School  to  become  an  AE3  in  1988.    In 
1992, the applicant advanced to AE2. 

 

                                                 
1  A Statement of Creditable Service in the applicant’s record indicates that he was absent without leave 
(AWOL) for three days approximately half-way through his three-year tour of duty. 

On  his  semi-annual  performance  evaluation  for  the  period  ending  October  31, 
1995,  the  applicant  received  four  marks  of  6  (on  a  scale  of  1  to  7,  with  7  being  best); 
eleven marks of 5; and seven marks of 4; and he was recommended for advancement.  
On October 8, 1995, LCDR C entered a page 7 in his record commending him for his 
“professionalism  and  attention  to  detail”  on  October  5,  1995,  when  after  the  aircraft 
commander’s preflight check, the applicant had noticed blood on the engine inlet and 
discovered a bird in the engine that would have posed a significant hazard had the air-
craft taken off. 

 
The record contains a sworn affidavit by a crewmate, AE3 G, who wrote that on 
January 13, 1996, he smelled alcohol on the breath of LT C and reported it to the appli-
cant  before  the  flight.    AE3  G  stated  that  the  applicant  said  he  would  “check  it  out.”  
After the flight, the applicant confirmed that he had smelled alcohol on LT C’s breath 
and that he would take “appropriate measures.” 

 
On February 6, 1996, a negative page 7 was prepared for the applicant’s record 

with the following statement:2 

 
On Saturday, 13 January you were assigned to the duty section as the C-130 flight engi-
neer.  You were late arriving at the aircraft for a SAR launch.  After the flight, when the 
C-130 aircraft commander indicated to you that he intended to submit a counseling sheet 
to document this incident, you vigorously objected and made the statement “Oh, [Mr. C], 
is that alcohol I small on your breath?” 
 
On Tuesday, 16 January you informed the Safety Officer that you suspected the duty C-
130 aircraft commander on 13 January had alcohol on his breath prior to the SAR flight.  
You  then went on a SAR case with this aircraft commander.  Subsequent interviews  of 
the  other  crewmembers  proved  your  “suspicion”  to  be  unfounded.    Your  credibility  is 
seriously in question given the following:  you went flying with this aircraft commander 
even through you “suspected” he had consumed alcohol.  You did not inform anyone at 
the time of your “suspicions,” and that none of this came to light until after the aircraft 
commander indicated that he intended to document your late arrival. 
 
It  appears  that  your  actions  were  nothing  less  than  an  ill-advised  attempt  to  coerce  or 
intimidate the aircraft commander into withdrawing the counseling sheet.  This behavior 
cannot be tolerated.  The next such incident will be dealt with severely. 
 
Also  on  February  6,  1996,  AMC  J  prepared  a  counseling  sheet  noting  that  the 
applicant had been told three times in one  week to get a haircut.  AMC J  wrote that, 
after the first time, he “trim[med] the long hair around [his] ears”; that after the second 
time, his hair was cut but not in accordance with regulations; and that upon the third 
                                                 
2    Two  versions  of  this  page  7,  which  look  different  but  have  the  same  text,  were  submitted  by  the 
applicant.    Both  are  signed  by  the  CO,  but  the  first  bears  the  notation  by  LCDR  C  that  the  applicant 
refused to sign, whereas the second was signed by the applicant “in protest” on March 12, 1996.  Prior to 
this entry, the most recent adverse entry in the applicant’s record was a 1990 page 7 about his handling of 
his finances. 

occasion,  he  argued  with  his  supervisor  and  showed  a  lack  of  respect.    AMC  J  noted 
that the applicant’s behavior might be the result of stress and advised him to get coun-
seling. 
 
On  the  applicant’s  semi-annual  performance  evaluation  for  the  period  ending 
April 30, 1996, he received four marks of 5; twelve marks of 4; four marks of 3; and two 
marks of 2 for “Responsibility” and “Integrity”; and he was marked as “progressing” 
instead of being recommended for advancement.  The page 7 prepared to document the 
mark  of  “progressing,”  which  is  dated  April  15,  1996,  states  that  the  applicant  had 
“failed to exhibit the leadership and responsibility expected of a First Class Petty Offi-
cer” and notes that his performance was being monitored.  The page 7 that documents 
the mark of 2 for “Responsibility” is dated April 7, 1996, and notes that even after the 
applicant had been told to get his hair cut three times and then received a direct order 
to do so, he asked both the “leading chief” and the CO for their opinion as to whether 
he needed a haircut and each time was told that his hair was not in compliance with 
regulation.  The page 7 that documents the mark of 2 for “Integrity” is dated April 30, 
1996, and states that the applicant “[m]ade serious, unsubstantiated derogatory remark 
to Aircraft Commander when threatened with a counseling sheet for being late for SAR 
launch.”  The applicant refused to sign this page 7. 

 
On Wednesday, May 29, 1996, the applicant was charged with violating Article 
86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 11:00 p.m. on 
Monday, May 27th until 7:00 a.m. Tuesday, May 28th and from 1:00 a.m. until 7:00 a.m. 
on Wednesday, May 29th.  The witnesses to the first incident are listed as CWO P, ADCS 
D, ADC L, and AM1 T.  Only AM1 T is listed as a witness to the second incident.  A first 
class petty officer was appointed to represent the applicant at mast.  The Legal Officer, 
LT A, who conducted the investigation, interviewed CWO P, ADCS D, ADC L, AM1 T, 
AMC J, ATC S, and AE1 H and determined that the applicant had falsely told AM1 T on 
Sunday,  May  26th,  that  his  request  to  take  Monday  night  off  had  been  approved  by 
more senior supervisors.  He also determined that the applicant did not have AM1 T’s 
permission  not  to  return  to  work  at  1:00  a.m.  on  Wednesday,  May  29th.    He 
recommended that the case be disposed of at mast. 

 
CWO P, ADCS D, ADC L, and AM1 T provided written statements regarding the 
charges.    ADCS  D’s  statement  indicates  that  on  Friday,  May  24,  1996,  the  applicant 
asked  him  if  he  could  take  June  1st  off  to  attend  a  wedding.    ADCS  D  agreed  and 
reworked the schedule but told the applicant that he would have to work on Monday 
night, May 27, 1996, and the applicant agreed.  ADCS D stated that ADC L called him 
on Saturday morning to say that the applicant was asking for Monday night off.  ADCS 
D wrote that he believed that after a heated discussion, ADC L told the applicant that he 
had to work Monday night and made an entry in the log book to that effect.  ADCS D 
stated that on Tuesday morning, AM1 T reported that the applicant had told him that 
ADC L had said he could have Monday night off if AM1 T okayed it.  Therefore, AM1 T 

had allowed it.  When ADCS D called the applicant, he was told that the applicant had 
spoken with ADC L later on Saturday and that ADC L had told him to check with AM1 
T.    ADCS  D  asked  the  applicant  whether  he  remembered  their  own  conversation  on 
Friday  during  which  ADCS  D  had  told  the  applicant  he  had  to  work  Monday  night.  
The applicant told him that he did remember the conversation but that at the time he 
had forgotten that it was a holiday weekend. 

 
ADC L provided a statement to the Legal Officer which indicates that on Satur-
day morning, May 25, 1996, the applicant told him that he felt he was entitled to take 
Monday night off to have three-day weekend because he had just ended his shift.  ADC 
L pointed out that the applicant would have all day Saturday, Sunday, and Monday off 
and did not have to report to work until 11:00 p.m. on Monday “but that if he felt he 
was owed time to call and work it out with [AM1 T].”  The applicant repeated his con-
cerns and request several times, and each time ADC L told him to work it out with AM1 
T.  Finally, ADC L took the applicant in to CWO P’s office to “show him on the calendar 
why I felt he did not deserve any more time off. … I succeeded in convincing him that 
he was only shorted 8 hours of liberty and he would have to work that out with [AM1 
T].”  However, the applicant again insisted that he should get Monday night off, said 
that  he  did  not  want  to  argue,  started  to  leave,  and  said  “this  conversation  is  over.”  
ADC L admitted that at this point he said, “This conversation is over and you can leave 
when I tell you you can, mother f[*****].”  ADC L then told the applicant to show up for 
work on Monday night and not to ask AM1 T about it.  ADC L told him that he would 
note it down for AM1 T.  ADC L stated that he called ADCS D and told him that the 
applicant had tried to intimidate him into giving him Monday night off.  ADC L stated 
that  on  Saturday  evening,  the  applicant  called  him  and  they  exchanged  apologies  for 
the conversation and that the applicant said that he would be at work on Monday night. 

 
The  applicant  submitted  a  written  statement  to  the  Legal  Officer  dated  June  6, 
1996.  He wrote that on Saturday morning, May 25, 1996, as he was coming off duty, he 
asked ADC L if he could be off Monday night so that he would have a three-day week-
end.    ADC  L  told  him  several  times  to  check  with  his  mid-shift  supervisor  but  then 
called him into CWO P’s office to look at a calendar and said that he did not have Mon-
day  night  off.    The  conversation  became  heated  and  ADC  L  called  him  a  “mother 
f[*****]” and accused the applicant of trying to twist his arm.  The applicant said that he 
would ask his mid-shift supervisor as ADC L had first suggested, but ADC L said that 
the applicant had better show up on Monday night.  The applicant wrote that he called 
ADC L on Saturday night and apologized.  ADC L apologized for his language and said 
that the applicant should speak to his mid-shift supervisor about getting Monday night 
off.  Therefore, the applicant stated, on Sunday afternoon, he spoke with AM1 T, who 
told  him  he  could  take  Monday  night  off.    However,  on  Tuesday  morning,  ADCS  D 
called and asked why he had not been at work on Monday night, since ADC L “had 
logged  a  statement  in  the  Mids-Pass-Down  Log  Book  for  [the  applicant]  to  report  to 
duty on Monday.”  The applicant told ADCS D what had transpired and that AM1 T 

had allowed him the night off.  ADCS D stated that ADC L had told him something dif-
ferent.  Soon after he reported for duty on Tuesday night, a crewmate, AD2 W, told the 
applicant that he had heard ADCS D tell AM1 T that the applicant was “not to be given 
any slack or favors.”  The applicant asked AM1 T for permission to make a brief trip 
home to retrieve papers and received it.  However, because the applicant believed his 
superiors’ attitudes and actions were retribution for the safety report he had made in 
January, he “allowed these thoughts to affect [his] attitude towards work” and called 
AM1 T to tell him that he would not be returning to work that night and would consult 
the chaplain in the morning.  The applicant stated that the next morning he consulted 
the chaplain. 

 
On June 7, 1996, the applicant consulted counsel and was advised of his rights.  
He opted to accept non-judicial punishment (NJP).  However, at mast on June 18, 1996, 
he rejected NJP.  The CO therefore referred the matter to a special court-martial. 

 
On June 11, 1996, a private clinical psychologist wrote on the applicant’s behalf 
that he had been treating him since April 16, 1996; that he had diagnosed the applicant 
with  an  adjustment  disorder  with  depressed  mood;  and  that  during  flare-ups  of  the 
applicant’s Epstein-Barr Syndrome, he suffered from severe fatigue, irritability, concen-
tration loss, edginess, and depression. 

 
On July 29, 1996, the applicant was evaluated by a psychologist, who diagnosed 
him with an adjustment disorder with depressed mood.  On August 12, 1996, a doctor 
noted  that  the  applicant  had  been  medically  grounded  for  25  days  due  to  fatigue 
because he had the Epstein-Barr Virus.  On August 14, 1996, the doctor noted that the 
applicant was fit for full duty. 

 
On August 20, 1996, ADCS T prepared a counseling sheet about the applicant’s 
failure to use the chain of command.  ADCS T stated that the applicant had completed 
and given him a chit to find out whether he was administratively grounded.  ADCS T 
told the applicant that he would take care of it.  Within thirty minutes, ADCS T discov-
ered that the applicant had prepared a duplicate chit and given it to AMCM K to proc-
ess.  When ADCS T asked the applicant about it, the applicant told him that he did not 
trust ADCS T to process requests for him.  The applicant refused to sign the counseling 
sheet.    AMCM  K  disapproved  the  applicant’s  chit  with  a  notation  indicating  that  the 
applicant had been medically grounded.  Apparently later that day, upon learning that 
the applicant was no longer medically grounded, AMCM K suspended the applicant’s 
flight status.  On August 22, 1996, the new CO signed a letter to inform the applicant 
that his flying status had been suspended indefinitely as of August 20, 1996. 

 
On September 5, 1996, LCDR B completed the final charge sheet in preparation 
for the special court-martial.  The applicant was charged with two counts of violating 
Article  86  of  the  UCMJ  for  being  AWOL  from  11:00  p.m.  on  Monday,  May  27,  1996, 

until 7:00 a.m. the next morning and from 1:00 a.m. to 7:00 a.m. on Wednesday, May 29, 
1996.  He was also charged with four counts of violating Article 91 through insubordi-
nate  conduct  toward  a  petty  officer.    The  first  was  for  disobeying  ADC  L’s  order  on 
Saturday, May 25, 1996, not to call AM1 T about getting Monday night off.  The second 
was  for  disobeying  an  order  by  AM1  T  on  July  3,  1996,  to  perform  a  preflight  check.  
The third was for failing to return a chit to AMCS T’s in-box, as ordered, on August 20, 
1996.  The fourth was for being disrespectful to AMCS T by taking the chit out of his in-
box and tearing it to pieces after AMCS T had told him to return the chit to the in-box. 

 
The applicant’s attorney moved to dismiss the charges based on unlawful com-
mand influence.  The United States opposed the motion, arguing that there “is no alle-
gation by the accused that either officer preferring charges in this case was coerced into 
swearing to charges that they do not believe are true.  [Citation omitted.]  The govern-
ment proffers that both officers will testify that they were not coerced into preferring 
charges and that they believed  the charges to be true and supported by probable cause 
when they preferred them.”   

 
At trial on October 7 and 8, 1996, the trial judge denied the applicant’s motion to 
dismiss.  The applicant’s allegations about the command retaliating for the applicant’s 
report to the Safety Officer were not mentioned at trial.  The applicant submitted a copy 
of a motion in limine by the prosecution to exclude testimony regarding the safety inci-
dent, which motion was apparently granted. 

 
At trial, AM1 T testified that when the applicant called him on Sunday, May 26, 
1996, he gave AM1 T the impression that another supervisor had already authorized the 
applicant  to  take  Monday  night  off.    AM1  T  further  testified  that  after  the  applicant 
called him at about 1:00 a.m. on Wednesday, May 29, 1996, he did not order the appli-
cant  to  return  to  work.    He  also  testified  that  when  the  applicant  told  him  on  July  3, 
1996, that he was too stressed to perform a preflight check, AM1 T did not order him to 
do it.  AM1 T said that he did report the applicant’s actions on July 3, 1996, to his supe-
rior,  but  he  did  not  bring  the  charge  of  disobeying  an  order  of  his  own  volition, 
although he did sign the booking chit when it was given to him.  CDR H testified that 
although AM1 T may have been in the room when the charges were discussed, CDR H 
could not recall discussing with AM1 T whether to bring charges against the applicant. 

 
The  trial  judge  found  the  applicant  guilty  of  being  AWOL  on  Monday  night, 
May 27, 1996, but not guilty of being AWOL on Wednesday morning.  The trial judge 
also found the applicant guilty of having been disrespectful to AMCS T on August 20, 
1996, but not guilty of the other alleged violations under Article 91 of the UCMJ.  The 
trial judge sentenced the applicant to 100 days of confinement, reduction to pay grade 
E-2, and forfeiture of $500 per month for six months.  The applicant began serving his 
confinement on October 10, 1996.  On December 17, 1996, the Convening Authority (the 

applicant’s new CO) released the applicant from confinement as of December 20, 1996, 
in a sua sponte act of clemency. 

 
On  appeal  to  the  convening  authority,  the  applicant’s  counsel  argued  that  the 
evidence  was  insufficient  to  prove  beyond  a  reasonable  doubt  that  the  applicant  had 
been AWOL or disrespectful.  The applicant’s counsel also argued that the sentence was 
disproportionate  to  the  offenses  of  which  he  was  convicted.    However,  on  January  7, 
1996, the convening authority approved the trial judge’s sentence, with the exception of 
the grant of clemency for the remainder of the confinement.  Thereafter, the case was 
reviewed  by  a  judge  advocate  and  by  the  Chief  Judge  of  the  Coast  Guard  Court  of 
Criminal Appeals, who found no basis for modifying the findings or sentence. 

 
Following his release from confinement, the applicant continued to serve at the 
same air station.  On September 23, 1997, he was honorably discharged at pay grade E-3 
due  to  “maximum  service  or  time  in  grade.”    His  reentry  code  is  RE-3R  (eligible  to 
reenlist  except  for  the  disqualifying  factor  of  “unsuccessful  in  obtaining  professional 
growth objective”). 
 

VIEWS OF THE COAST GUARD 

On  September  24,  2004,  the  Judge  Advocate  General  (JAG)  submitted  an  advi-

 
 
sory opinion in which he recommended that the Board deny relief in this case. 
 
The JAG argued that the application should be denied for untimeliness because 
 
the applicant “has failed to show why it is in the interest of justice to excuse the delay.”  
The JAG alleged that the applicant’s statement that his attorney failed to tell him about 
the BCMR did not constitute “good cause for his failure to timely file” and that a cur-
sory  review  of  the  record  “reveals  that  Applicant  was  properly  convicted  by  a  court-
martial” and that he “is unlikely to prevail on the merits.”   
 

The JAG argued that in reviewing the evidence, the Board should “recognize that 
only  the  court-martial  had  the  opportunity  to  view  the  evidence,  including  the 
demeanor  of  the  Applicant  and  the  witnesses  against  him.”    The  JAG  alleged  that  at 
trial the applicant “was afforded all of his constitutional and statutory rights and was 
fully  and  aggressively  represented  throughout  the  proceedings  by  two  fully  qualified 
defense counsel, one military attorney provided by the government free of charge, and 
a  civilian  attorney  selected  and  paid  for  by  Applicant.”    The  JAG  argued  that  in  his 
application to the Board, the applicant “attempts to re-litigate claims he either raised or 
should have raised during his criminal trial.  He has failed to assert or prove any factual 
or legal error.”   

 
The JAG alleged that the applicant “has failed to present substantial reasons for 
granting clemency.”  Regarding the sentence, the JAG argued that the Board should be 

particularly deferential “to the broad discretion of military authorities, which are best 
able  to  assess  appropriate  punishments  in  light  of  unit  missions  and  the  concomitant 
needs of good order and discipline at their units.”  The JAG argued that the “power of 
clemency, like the power of pardon, is intended to address extraordinary circumstances 
that normal legislative and judicial processes cannot effectively address.”  The JAG also 
argued  that,  “because  of  the  appeal  procedures  established  by  statute  and  regulation 
within  the  military  system,  the  Board  should  deem  any  issue  not  raised  through  this 
process  to  be  waived,  absent  proof  of  compelling  circumstances  that  prevented  the 
Applicant from raising such issues within the military justice system.” 

  
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On September 28, 2004, the Chair sent the applicant a copy of the advisory opin-
ion and invited him to respond within 30 days.  On October 20, 2005, the Board received 
the applicant’s response. 
 
 
The  applicant  argued  that  his  application  is  not  based  solely  upon  the  court-
martial.    He  argued  that  it  is  also  based  on  the  reprisals  against  him,  the  “unlawful 
command influence,” and perjury committed by CDR H.  He argued that CDR H vio-
lated Article 37(a) of the UCMJ by using his “mantle of authority” to coerce AM1 T to 
bring charges against him. 
 

Moreover, he argued, he was not allowed to raise the issue of retaliation at the 
court-martial because the trial judge excluded it.  The applicant alleged that the record 
clearly  shows  that  his  career  was  not  threatened  until  he  reported  that  LT  C’s  breath 
smelled of alcohol after the aircraft “almost perished into the Gulf of Mexico on January 
13, 1996.”  He stated that the aircraft “almost cart-wheeled into the Gulf of Mexico … 
[and] would have done so had I not prevented a muscle movement by the pilot.  Four 
members smell[ed] alcohol on the pilot’s breath, two reportedly [sic].”  He alleged that 
he  should  have  been  protected  for  reporting  this  incident  by  the  Whistle-Blower  Act 
and the harassment policy of the Department.  
 
 
The  applicant  explained  that  at  mast  on  June  18,  1996,  he  refused  non-judicial 
punishment because his entire chain of command was present and he no longer trusted 
them to deal with the charges fairly because they had all shown bias against him since 
he had reported the smell of alcohol on LT C’s breath to the Safety Officer.  He stated 
that LT C, CDR H, and ADC L had all been stationed together in Hawaii prior to their 
assignment to the air station.  
 
 
The  applicant  argued  that  after  he  completed  his  sentence  and  probationary 
period, his rank should have been restored.  He alleged that the new CO told him that it 
was  in  his  best  interest  to  leave  the  Coast  Guard  because  he  had  “made  the  boys  in 
engineering  look  very  bad  when  they  took  the  stand  during  [his]  court-martial.”    He 

argued that the new CO, who served as the Convening Authority for the court-martial, 
was not at the air station when he reported LT C and so she did not witness or under-
stand the retaliation against him.  Therefore, the fact that she did not grant him more 
clemency should not prevent the Board from granting clemency. 
 
 
The  applicant  argued  that  his  punishment  was  disproportional  to  the  offenses.  
He alleged that an AE2 who missed the flight on January 13, 1996, was placed on report 
by LT C and received only an adverse page 7 in his record, whereas he merely reported 
a  safety  problem  and  got  harassment,  adverse  page  7s,  lowered  evaluation  marks, 
criminal charges, and punishment by court-martial. 
 
 
In  support  of  his  allegation  that  he  only  recently  learned  about  the  BCMR, the 
applicant submitted a letter from an Assistant Veteran Service Officer, who stated that 
in  2003  while  discussing  the  applicant’s  experience  in  the  Coast  Guard,  he  suggested 
that the applicant apply to the BCMR.  He stated that the applicant had never heard of 
the BCMR or the possibility of asking for relief. 
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submissions, and appli-
cable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.  The application was timely. 
 

2. 

The applicant requested an oral hearing before the Board and the presence 
of three admirals and CDR H (now CAPT H) at the hearing.  The Chair, acting pursuant 
to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case with-
out a hearing.  The Board concurs in that recommendation. 

 
3. 

An  application  to  the  Board  must  be  filed  within  three  years  after  the 
applicant  discovers  the  alleged  error  in  his  record.  10  U.S.C.  §  1552.    The  applicant 
argued that he did not know about the BCMR until 2003.  However, he clearly knew 
about the alleged errors in his record upon his discharge in 1997.  Therefore, his appli-
cation was untimely. 

 
4. 

Pursuant to 10 U.S.C. § 1552(b), the Board may waive the three-year stat-
ute of limitations if it is in the interest of justice to do so.  To determine whether it is in 
the interest of justice to waive the statute of limitations, the Board should conduct a cur-
sory review of the merits of the case and consider the reasons for the delay. Dickson v. 
Sec’y of Defense, 68 F.3d 1396 (D.D.C. 1995); Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 
1992).  The applicant explained that the delay was caused by the fact that he had never 

heard about the Board even though he was represented by two attorneys at the time of 
his court-martial.  The Board does not find the applicant’s reason for delay to be com-
pelling. 
 
5. 

A cursory review of the merits of this case  indicates that the applicant’s 
discharge as an E-3 resulted from his having been  sentenced to a reduction to E-2 by 
special court-martial on October 8, 1996.  The applicant alleged that the charges were 
brought against him in retaliation for a report to a Safety Officer he made in January 
1996  and  that  the  trial  judge  unjustly  prevented  him  from  presenting  evidence  of  the 
retaliation.    However,  the  record  indicates  that  the  charges  were  brought  against  the 
applicant several months after his report to the Safety Officer.  Moreover, except for the 
bare fact that LT C—the subject of his report—was in his chain of command, the appli-
cant submitted no evidence to support his allegation that the charges were a matter of 
retaliation.  The record contains substantial evidence that supports the charges.  The fact 
that the applicant fell increasingly at odds with his chain of command after he made a 
report  to  the  Safety  Officer  in  January  1996  does  not  prove  that  he  was  the  target  of 
retaliation.  The preponderance of the evidence in the record indicates that the appli-
cant’s  own  conduct  caused  the  increasing  disapproval  of  his  chain  of  command  and, 
ultimately, the charges against him.  The Board notes that the applicant’s counsel did 
not appeal the trial judge’s decision to exclude the applicant’s arguments about retalia-
tion. 

 
6. 

The applicant noted that CDR H testified at trial that he could not recall 
discussing  whether  to  bring  charges  against  the  applicant  with  AM1  T,  though  he 
admitted AM1 T may have been in the room, whereas AM1 T indicated that he did not 
bring  the  charge  of  his  own  volition.    However,  the record  indicates  that the  issue  of 
unlawful command influence was raised by the applicant’s attorneys prior to trial and 
that their motion to dismiss the charges on that basis was denied. 

 
7. 

The  applicant  alleged  that  the  adverse  page  7s  entered  in  his  record  in 
1996 and the poor performance evaluation he received for the period ending April 30, 
1996, were prepared in retaliation for his report to the Safety Officer.  He submitted no 
evidence to support this allegation.  The low marks in the poor performance evaluation 
are adequately supported by the page 7s.  The applicant submitted no evidence to con-
tradict the page 7 about his failure to maintain a haircut that complied with regulation, 
contrary to repeated orders, or the page 7 about the mark of 2 he received for “Respon-
sibility.”  The only evidence in the record that can be considered to contradict the page 7 
about his report to the Safety Officer and the page 7 about the mark of 2 for “Integrity” 
is an affidavit by AE3 G stating that he smelled alcohol on LT C’s breath prior to the 
flight on January 13, 1996, and mentioned it to the applicant.  The Board finds that AE3 
G’s statement is insufficient to prove that the page 7s, which were signed by the XO and 
CO, were erroneous or unjust. 

 

8. 

The applicant alleged that his sentence was disproportionate to the offens-
es  of  which  he  was  convicted.    Apart  from  noting  that  a  fellow  aircrew  member 
received only a page 7 for oversleeping and missing a flight, he submitted no evidence 
to support this allegation.  The maximum sentence for violating Article 91 of the UCMJ 
by  showing  contempt  or  disrespect  for  a  superior  petty  officer  is  a  bad  conduct 
discharge, forfeiture of all pay and allowances, and confinement  for six months.  The 
maximum sentence for violating Article 86 by being absent from one’s place of duty for 
not more than three days is confinement for one month and forfeiture of two-thirds pay 
per month for one month.  The applicant has not proved that the trial judge abused her 
discretion in awarding the applicant the sentence he received. 

 
9. 

The  Board’s  cursory  review  of  the  merits  of  the  case  indicates  that  the 
applicant  has  submitted  almost  no  evidence  that  supports  his  many  allegations  and 
nothing  that  would  justify  a  grant  of  clemency  by  this  Board.    Because  the  Board’s 
review indicates that the applicant will not prevail on the merits, the Board finds that it 
is not in the interest of justice to waive the statute of limitations in this case. 

 
10.  Accordingly, the applicant’s request should be denied. 
 
 
 

 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

ORDER 

 

The  application  of  former  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for 

 
 

 
 

 

 
 Harold C. Davis, MD 

 

 

 
 

correction of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Audrey Roh 

 

 

 

 
 
 Marc J. Weinberger