DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-162 
 
Xxxxxxxxxxxxxxxxx 
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FINAL DECISION 

This proceeding was conducted under the provisions of section 1552 of title 10 and sec-
tion 425 of title 14 of the United States Code.  The Chair docketed the case upon receiving the 
completed application on May 6, 2011, and assigned it to staff member J. Andrews to prepare the 
decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  February  9,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The  applicant  asked  the  Board  to  expunge  from  his  military  record  documentation  of 
non-judicial punishment (NJP) he received at a captain’s mast on May 15, 2008.  He stated that 
he was punished for an alleged violation of Article 117 of the Uniform Code of Military Justice 
(UCMJ)1 but  that he did  not  violate Article 117 because his  provoking words were not  spoken 
“in  the  presence  of  the  person  to  which  they  were  directed,”  who  was  BMC  A,  the  Executive 
Petty  Officer  (XPO)  of  his  surf  station.    The  applicant  argued  that  because  BMC  A  was  not 
present  during  the  incident,  his  NJP  for  an  alleged  violation  of  Article  117  of  erroneous  and 
unjust. 
 
 
The  applicant  explained  that  the  incident  occurred  while  he  was  having  a  one-on-one 
conversation  with  another  crewmate,  a  BM3,  while  they  were  in  a  park  conducting  a  physical 
fitness test.  Other crewmembers were present but not involved in their conversation.  When the 

                                                 
1  10  U.S.C.  §  917  (Article  117,  UCMJ,  stating  that  “[a]ny  person  subject  to  this  chapter  who  uses  provoking  or 
reproachful words or gestures towards any other person subject to this chapter shall be punished as a court-martial 
may direct.”).  Under the Manual for Courts-Martial, the elements of a violation of Article 117 include “(1) that the 
accused  wrongfully  used  words  or  gestures  toward  a  certain  person;  (2)  that  the  words  or  gestures  used  were 
provoking  or  reproachful;  and  (3)  that  the  person  toward  whom  the  words  or  gestures  were  used  was  a  person 
subject to the code.”  The explanation states the following in pertinent part:  “As used in this article, ‘provoking’ and 
‘reproachful’  describe  those  words  or  gestures  which  are  used  in  the  presence  of  the  person  to  whom  they  are 
directed  and  which  a  reasonable  person  would  expect  to  induce  a  breach  of  the  peace  under  the  circumstances.”  
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), p. IV-62 (hereinafter MCM). 

 

 

BM3 told him that BMC A might initiate his discharge if the BM3 could not pass the fitness test, 
the applicant replied, “Fuck Chief, he can’t do that.  Don’t worry about it, he will be gone in a 
month.”  His words were overheard by other crewmembers and reported back to BMC A, who 
had stayed at the station. 
 
 
At the time the applicant had been a BM1/E-6 for three years and was eligible to compete 
for advancement to BMC/E-7.  However, as a result of the NJP, the applicant was demoted one 
pay  grade  to  BM2/E-5.    The  applicant  alleged  that  he  failed  to  exercise  his  right  to  appeal  the 
NJP  at  the  time  because  he  was  frustrated  and  “mentally  and  emotionally  finished”  because 
before the mast he was required to undergo two psychiatric evaluations and counseling with the 
Group Command Master Chief and the District Command Master Chief. 
 

The  applicant  alleged  that  the  NJP  is  unfair  because  it  is  having  a  very  long-lasting 
detrimental effect on his career even though the incident was “not reflective of [his] overall per-
formance and professional demeanor.”  He noted that he received a Letter of Commendation at 
the end of his tour of duty at the station.  Besides resulting in his demotion and having to recom-
plete  for  promotion,  the  applicant  stated  that  he  has  not  been  able  to  follow  his  chosen  career 
path as a surfman or to apply for any special duty assignments.  Because of the NJP, he will not 
be eligible for special duty assignments until May 2012 and even after that he may not be chosen 
for certain select assignments, such as OIC of a station.   
 
 
The applicant noted that he has not allowed the NJP and demotion to negatively affect his 
performance.    At  his  current  unit,  he  was  “fleeted  up”  (given  a  superior  assignment)  to  fill  a 
supervisory position in the Operations Department, qualified as an underway deck watch officer, 
and  was  appointed  Sailor  of  the  Quarter  in  October  2010,  which  was  documented  on  a  highly 
laudatory Page 7 by the commanding officer of the cutter.  He also regained his rank as a BM1. 
 
 
elements of Article 117 until recently and so did not know that his NJP had been erroneous.   
 

Regarding  the  delay  of  his  application,  the  applicant  stated  that  he  was  unaware  of  the 

SUMMARY OF THE EVIDENCE 

 
 
The applicant  enlisted in  1997.   His  early  record contains several  Page 7s documenting 
both positive and negative performance.  He incurred an “alcohol incident” in 2003 when he got 
drunk and intentionally burned another intoxicated crewmember with his cigar seven times.  He 
was awarded NJP on November 6, 2003, for violating UCMJ Articles 93 (Cruelty and Maltreat-
ment) and 134 (Disorderly conduct, drunkenness).  However, he earned advancement to BM1/E-
6 in 2005. 
 
 
The applicant transferred from a cutter to a surf station in 2006.  On February 5, 2007, the 
Officer in Charge (OIC) of the surf station reported the following on a Page 7 in the applicant’s 
record: 
 

[The applicant] has been counseled this date for inappropriate behavior physical contact and poor 
leadership characteristics demonstrated in several encounters with subordinate members. 
 

 

 

[Applicant],  you  have  been  verbally  counseled  on  several  occasions  by  senior  members  of  the 
Command regarding your lack of human relations and leadership skills.  Your continued deviation 
from  both  commonly  accepted  and  Commandant  mandated  conduct  has  negatively  impacted 
members of this Command. 
 
Your recent interaction with a Second Class Petty Officer is cause for alarm.  No matter how sub-
tle or non-threatening you intended your actions to be, striking another member, regardless of rate 
or rank, is never an appropriate form of counseling.  While your warrant for counseling may have 
been founded, your method was not in keeping with the Commandant expectation of performance.  
By  definition,  an  Effective  Leader  is  one  whose  followers  are  committed  to  and  achieve  desired 
results by having the right tools, information and working environment. 
 
You are reminded that as a First Class Petty Officer you are responsible and accountable for your 
actions.    As  a  Department  head,  your  conduct  is  highly  visible  and  sets  an  example  for  Junior 
members.  Violent, harassing, irrational and inappropriate behavior can have a detrimental effect 
on morale as well as personal growth by lowering readiness, productivity and the quality of life of 
members of this Command. 
 
Effective  this  date,  as  a  result  of  these  significant  Leadership  deficiencies,  you  are  not  Recom-
mended  for  Advancement.    That  status  will  continue  until  over  a  reasonable  period  of  time  you 
have  consistently  demonstrated  the  Leadership  Characteristics  of  your  current  pay  grade  and  the 
next higher. 
 
Any  further  incidents  of  this  nature  will  most  likely  result  in  serious  administrative  action  taken 
against you. 

 
 
On the applicant’s semiannual performance evaluation dated May 31, 2007, he received 
one “below-standard mark” of 3 (for the performance category Safety), one “standard” mark of 
4,  fourteen  “above-standard”  marks  of  5,  and  nine  “excellent”  marks  of  6,2  and  he  was  not 
recommended for advancement to BMC.3 
 
 
On  the  applicant’s  semiannual  performance  evaluation  dated  November  30,  2007,  he 
received three marks of 3 (for Evaluations, Setting an Example, and Loyalty), twelve marks of 4, 
and ten marks of 5, and was again not recommended for advancement to BMC. 
 
 
On March 13, 2008, the applicant’s command sent him to a certified physician’s assistant 
for a “mental health screening prior to a command referral for a military psych. eval. at [a Naval 
Hospital].  His command states that [the applicant] has a volatile disposition, difficulty working 
with other members at the station, difficulty qualifying, and has been removed from supervisory 
duties.  He has multiple negative Page 7 reports.”  The doctor reported that the applicant admits 
that “he does have a quick temper, but believes he gets over things quickly.  He states he is very 

                                                 
2  Enlisted  members  are  evaluated  in  a  variety  of  performance  categories  on  a  scale  from  1  (unsatisfactory)  to  7 
(superior). 
3 The evaluation form, CG-3788B, states the following regarding recommendations for or against advancement:  

 
NOT RECOMMENDED: Check this block if, in the view of the rating official, the individual is 
not capable of satisfactorily performing the duties and responsibilities of the next higher paygrade.  
RECOMMENDED: Check this block if, in the view of the rating official, the individual is fully 
capable  of  satisfactorily  performing  the  duties  and  responsibilities  of  the  next  higher  paygrade. 
This  block  may  be  checked  irrespective  of  the  individual’s  qualification  or  eligibility  for 
advancement.  

 

 

serious  about  his  job  and  is  intolerant  of  mistakes  by  other  members  of  the  station,  which  has 
given him a reputation of being difficult to work with. … He understands that he is not well liked 
by the other members of the station, and believes there is a personality conflict between him and 
his chief.”  The physician’s assistant referred the applicant for a psychiatric evaluation. 
 

On April 1, 2008, the applicant reported for a “command directed mental health evalua-
tion” at a Naval Hospital because of “anger issues, multiple negative reports, volatile temper, has 
been relieved of supervisory duties [due] to inability to work well with subordinates.”  The psy-
chiatrist  noted  that  the  command  had  failed  to  follow  numerous  procedures  and  conducted  the 
assessment but refused to file a substantive report because of the number of procedural errors. 
 
 
states the following: 
 

On  April  15,  2008,  the  applicant  was  evaluated  by  an  Army  psychiatrist.    The  report 

This  service  member  presented  now  for  initial  psychiatric  consultation.    He  is  here  now  for  a 
command-directed mental health assessment and reports frustration with his military unit, but no 
clinical  signs  or  symptoms  of  mental  illness.  …  This  duty  assignment  is  a  new  challenge;  he  is 
attempting to ‘break into’  the  motor surfman community,  which  has  not been  going  well for the 
past year.  He described an escalating series of interpersonal conflicts at work, starting with a neg-
ative page 7 entry into his service record last year when he and another BM had a conflict after a 
morning safety meeting.  Over time, he has grown increasingly frustrated with his chain of com-
mand, leading to the incident that led directly to this referral/assessment.  [He] acknowledges he 
was in the wrong when he “mouthed-off” in public at work, and has appropriate regret/remorse for 
doing so. … He quit using nicotine (he used to use dipping tobacco) two months ago. … he and 
his wife have been through about 8 sessions of marital counseling in recent months, his stress at 
work has been causing difficulty at home. 

The psychiatrist’s discussion  of the applicant  is  cut  off in  the report.  He  diagnosed the 

 
 
applicant with “occupational problem and family stress.” 
 
 
applicant on report for violating Article 117 of the UCMJ.  The charge reads as follows: 
 

The Report of Offense and Disposition shows that on April 28, 2008, BM1 S placed the 

Article 117  – Provoking Speeches or Gestures:   In that [the applicant] did, at Miller Park, on or 
about 06 March 2008, wrongfully use reproachful words while in the presence of Non-Rated and 
Petty  Officers  to  wit;  defamed  the  character  and  authority  of  the  of  the  Executive  Petty  Officer, 
Station …, towards BMC …, US Coast Guard, Executive Petty Officer.  
 
 
The witnesses listed include BM1 X; a machinery technician, third class; and a seaman.  
BM1 Y served as the applicant’s mast representative at his request.  The OIC appointed BMC Z 
to serve as a preliminary investigating officer. 
 
At mast on May 12, 2008, the applicant’s commanding officer—a captain (O-6) serving 
 
as the Group Commander—awarded him NJP by reducing his rate and pay grade from BM1/E-6 
to  BM2/E-5.    Pursuant  to  the  NJP,4  the  applicant  also  received  a  “disciplinary”  performance 
evaluation  dated  May  12,  2008,  on  which  he  received  five  marks  of  3  (for  Communicating, 

                                                 
4  Article  10.B.5.b.3.a.  of  the  Personnel  Manual  requires  a  command  to  prepare  a  “disciplinary”  performance 
evaluation whenever an enlisted member is awarded NJP. 

 

 

Responsibility, Setting an Example, Loyalty, and Judgment), eight marks of 4, nine marks of 5, 
and two marks of 6.  He was not recommended for advancement and he also received an unsatis-
factory  conduct  mark,  terminating  his  eligibility  for  a  Good  Conduct  Medal,  as  a  result  of  the 
NJP.    This  disciplinary  performance  evaluation  substituted  for  the  regular,  semiannual  perfor-
mance evaluation that the applicant would otherwise have received on May 31, 2008.5  
 
 
On his October 31, 2008, performance evaluation as a BM2, the applicant received nine 
marks of 4, twelve marks of 5, and four marks of 6, and he was recommended for advancement 
to  BM1.    On  his  April  30,  2009,  evaluation,  the  applicant  received  eight  marks  of  4,  twelve 
marks  of  5,  two  marks  of  6,  and  three  “superior”  marks  of  7,  and  he  was  recommended  for 
advancement to BM1. 
 

In  June  2009,  the  applicant  transferred  to  a  cutter.    Upon  his  departure  from  the  surf 
station,  the  Group  Commander  gave  him  a  Letter  of  Commendation  for  his  service  at  the  surf 
station from May 2008 (the month he received NJP) through June 2009.   

 
On December 3, 2009, the applicant’s new commanding officer (CO) asked the Personnel 
Service Center to  restore the applicant’s rank as  a BM1/E-6.  The CO stated that the applicant 
had not demonstrated any of the deficiencies described by his former command during his five 
months  aboard  the  cutter  and  had  shown  a  cooperative  attitude,  sound  operational  decision-
making,  and  a  “rare  gift  for  marshalling  the  fullest  efforts  of  his  subordinates.”    The  CO  also 
reported that the applicant was fleeting up to take on the duties of the BM1 billet on the cutter 
and was training to qualify  as  a deck watch officer.   A Page 7  in  the applicant’s record  shows 
that he qualified as underway Officer of the Deck on January 5, 2011. 
 

On  February  19,  2010,  the  chief  of  the  Enlisted  Personnel  Management  branch  of  the 
Personnel Service Center disapproved the request of the applicant’s CO that his rank be restored 
to  BM1  without  having  to  re-compete  for  advancement.    However,  the  applicant  continued  to 
receive strong performance evaluations.  He competed for advancement and re-advanced to BM1 
on June 1, 2011.  
 

VIEWS OF THE COAST GUARD 

 
 
On August 25, 2011, the Judge Advocate General of the Coast Guard submitted an advi-
sory opinion in which he recommended that the Board grant relief.  In so doing, he adopted the 
findings and analysis in a memorandum provided by the Personnel Service Center (PSC). 
 
 
The PSC argued that the applicant’s NJP was erroneous because he did not violate Article 
117 of the UCMJ.  The  PSC stated that an offense under  Article 117  requires the target  of the 
provoking or reproachful words to be present and alleged that BMC A, who was the target of the 
applicant’s reproachful words, was not present when he spoke them.  As evidence that BMC A 
was  not  present  in  the  park,  the  PSC  pointed  out  that  the  charge  sheet  shows  that  the  incident 
occurred  “in  the presence of Non-Rated and Petty  Officers.”  The PSC stated that  “[d]efaming 

                                                 
5  Article  10.B.5.a.4.a.  of  the  Personnel  Manual  provides  that  for  members  in  pay  grades  E-6  and  below,  no  semi-
annual performance evaluation is prepared if an unscheduled evaluation, such as a disciplinary evaluation, has been 
prepared within the prior 92 days. 

 

 

the character and authority … of a member within one’s chain of command is not tantamount to 
inducing breaches of the peace toward that same member.”   The PSC stated that the command 
could have legitimately charged the applicant with a violation of Article 91 (Insubordinate con-
duct toward a warrant officer, non-commissioned officer, or petty officer), instead.6  
 
 
The  PSC  stated  that  even  though  the  applicant  did  not  appeal  his  NJP,  the  NJP  and  all 
documentation of it should be expunged from his record, and he should be restored in rate and 
“receive relief commensurate with a state he would be in today had he been found not in viola-
tion of Article 117.”  The JAG concluded that the applicant “should be entitled to all back pay 
and allowances to include an adjusted date of rate/rank, if applicable.”   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  September  12,  2011,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast 
Guard  and  invited  him  to  submit  a  response  within  thirty  days.    The  applicant  agreed  with  the 
recommendation of the Coast Guard and noted that he had advanced to BM1 on June 1, 2011. 
 

APPLICABLE REGULATIONS 

 

Article 5.C.4.b. of the Personnel Manual lists the following “eligibility requirements” for 

an enlisted member to advance to the next higher grade: 

 
1. Each active duty  member must complete and meet the eligibility  requirements listed below by 
01 February before the May SWE [service-wide examination] or 01 August before the November 
SWE. … 
 

a.  Complete required Enlisted Performance Qualifications (EPQ) and enlisted Pro-

fessional Military Education requirements (EPME). Article 5.C.7. 

b.  Complete  required  Performance  Qualification  Guide  (PQG)  rate  training 

courses. Article 5.C.8. 

c.  Successfully complete service course, if required, for particular pay grade or rat-

ing. Article 5.C.9. 

d.  Meet  citizenship  or  security  clearance  requirements  for  advancement  in  certain 

rates or ratings. Article 5.C.10. 

e.  Be in proper path of advancement. Article 5.C.11. 
f.  Fulfill special requirements for certain ratings. Article 5.C.12. 
g.  Not  be  involved  in  circumstances  which  render  him  or  her  ineligible  for 

advancement. Article 5.C.13. 

h.  Fulfill special requirements; time in service, time in pay grade in present rating, 

and sea duty. Article 5.C.14 and 5.C.15. 

i.  Fulfill additional eligibility requirements for personnel competing in the E- 7/8/9 

examination. Article 5.C.5. 

j.  Maintain  the  minimum  factor  average  on  his  or  her  last  evaluation.  Article 

5.C.6. 

                                                 
6 Actually, a violation under Article 91 also requires the target of the offensive language to be present.  Apparently, 
speech  that  is  merely  reproachful  and  disrespectful  (i.e.,  not  threatening,  indecent,  disloyal  to  the  nation,  inciting 
mutiny, or amounting to disorderly conduct)  and that is spoken not in the presence of the target is only prohibited 
under the UCMJ if the target is a superior commissioned officer—an offense charged under Article 89.  MCM, pp. 
IV-17, IV-21.  

 

 

 

k.  Be  a  graduate  of  a  military  recruit  training  center  for  advancement  to  E-2. 

Article 5.C.26. 

 
2.  Be  recommended  by  the  CO/OIC  (Article  5.C.4.e).  Commanding  officers  shall  ensure  an 
Enlisted Employee Review (EER) counseling sheet in Direct Access is prepared when a member 
otherwise eligible for advancement is assigned a mark of “Not Recommended” because of adverse 
circumstances. 
 
3.  Meet  time  in  service  and  time  in  pay  grade  in  present  rating  requirements  on  or  before  the 
terminal eligibility date of 01 January after the May SWE or 01 July after the November SWE. 

Article 5.C.4.e.4 of the Personnel Manual states that “[t]he CO/OICs recommendation for 
advancement is the most important eligibility requirement in the Coast Guard advancement sys-
tem. A recommendation for advancement shall be based on the individual’s qualities of leader-
ship, personal integrity, adherence to core values, and his or her potential to perform in the next 
higher  pay  grade.  Although  minimum  performance  factors  have  been  prescribed  to  maintain 
overall consistency for participation in SWE, the commanding officer shall be personally satis-
fied that the member’s overall performance in each factor has been sufficiently strong to earn the 
recommendation.  Note: The commanding officer’s recommendation for advancement or change 
in  rating  by  participation  in  the  SWE  is  valid  only  for  a  specific  competition  and  must  be 
renewed for each succeeding competition.” 
 
 
advancement to pay grade E-7:   
 

Article 5.C.5.b. provides the following specific eligibility requirements for competing for 

1.  Be  serving  in  enlisted  status  on  active  duty  in  pay  grade  E-6,  in  the  rating  for  which  recom-
mended for advancement. 
 
2. Have  served on continuous active duty  in the  Coast  Guard in pay  grade E-6 during the entire 
two years immediately preceding the terminal eligibility date. 
 
3. For 24 months prior to the terminal eligibility date (01 January following the May exam), and 
for the entire period from recommendation to advancement, have no unsatisfactory conduct mark, 
court martial (CM) or civil convictions, or nonjudicial punishments (NJP). … 

 

Under Article 5.C.3.b., the candidates for advancement to a particular rate, such as BMC, 
are  ranked  on  advancement  lists  according  to  a  calculation  that  assigns  points  for  each  candi-
date’s SWE score (up to 80 points), performance marks (up to 50 points), time in service (1 point 
per year for up to 20 years), time in present pay grade (2 points per year for up to 5 years), med-
als and awards (varying from 1 point per Good Conduct Medal or Letter of Commendation up to 
10 points for a Medal of Honor), and sea duty (1 point per month and a maximum of 2 points per 
year for up to 30 points), as shown on the PDE.  Advancements are made off of these lists when 
vacancies at the next higher rank occur. 

 
Article 5.A.2.a. of the Medals and Awards Manual states that a Good Conduct Medal is 
“[a]warded for satisfactory service which is defined as proficiency in rating, sobriety, obedience, 
industry, courage, and neatness throughout such period of service. As of 1 July 1983, an individ-
ual is required to perform three consecutive years of satisfactory service to earn this award.  Sub-
sequent  awards  are  authorized  for  each  additional  three  consecutive  years  of  satisfactory  ser-

 

 

vice.”    Under  Article  5.A.2.a.(2)(c),  the  eligibility  period  for  a  Good  Conduct  Medal  ends  and 
recommences when NJP is awarded. 
 

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 applicable law: 
 

1. 

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

The application was timely filed within three years of the NJP.  
 

2. 

The applicant requested an oral hearing before the Board.  The Chair, acting pur-
suant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case without 
a hearing.  The Board concurs in that recommendation.7 

 
3. 

The applicant asked the Board to remove the NJP dated May 15, 2008, from his 
record.  The Board begins its analysis in every case by presuming that the disputed information 
in the applicant’s military record is correct as it appears in his record, and the applicant bears the 
burden of proving by a preponderance of the evidence that the disputed information is erroneous 
or unjust.8  Absent evidence to the contrary, the Board presumes that Coast Guard officials and 
other  Government  employees  have  carried  out  their  duties  “correctly,  lawfully,  and  in  good 
faith.”9  
 
4. 

The  applicant  has  proved  by  a  preponderance  of  the  evidence  that  he  was  erro-
neously  awarded  NJP  on  May  12,  2008,  for  an  alleged  violation  of Article  117  of  the  UCMJ 
(Provoking  Speech  and  Gestures)  on  March  6,  2008.    One  element  of  an  offense  under Article 
117 is that the target of the provoking speech or gesture must be present  to witness it.10  How-
ever,  the  applicant’s  provoking  speech  was  apparently  not  made  in  the  presence  of  the 
BMC/XPO against whom  it was directed.  Although the  applicant  submitted no direct  proof of 
this allegation, the Board notes that the BMC is not listed as one of the witnesses on the Report 
of  Offense;  that  the  written  specification  of  the  charge  states  that  the  applicant  spoke  “in  the 
presence of Non-Rated and Petty Officers” but  merely  “towards” the  BMC;  and that the Coast 
Guard  has  averred  in  the  advisory  opinion  that  the  BMC  who  was  the  target  of  the  applicant’s 
speech on March 6, 2008, was not present to hear it.  Therefore, the Board finds that the appli-
cant’s NJP on May 12, 2008, was erroneous and should be removed from his record.  In addition, 
his reduction in rate to  BM2, his  disciplinary performance evaluation dated May 12, 2008, and 
any  Page  7s  or  other  documentation  of  or  references  to  the  NJP  should  be  removed  from  his 
record.  The applicant’s date of rank as a BM1 should be restored to what it was before his reduc-
tion in rate at mast. 

 

                                                 
7 See Steen v. United States, No. 436-74, 1977 U.S. Ct. Cl. LEXIS 585, at *21 (Dec. 7, 1977) (holding that “whether 
to grant such a hearing is a decision entirely within the discretion of the Board”). 
8 33 C.F.R. § 52.24(b). 
9 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
10 MCM, p. IV-62. 

 

 

5. 

The applicant asked only that the NJP be removed, but he also complained about 
the long-term detrimental effect the NJP has had on his career and argued that his offense did not 
warrant the consequences he has suffered.   In the advisory opinion, the Coast Guard somewhat 
vaguely recommended that the applicant “receive relief commensurate with a state he would be 
in today had he been found not in violation of Article 117” and that he “should be entitled to all 
back pay and allowances to include an adjusted date of rate/rank, if applicable.”  Thus, the Board 
must consider whether the applicant is entitled to relief in addition to the removal of the NJP and 
related documentation.  In this regard, the Board notes that the applicant’s NJP is not erroneous 
merely because of a mislaid charge—i.e., his command did not simply mistake which article of 
the UCMJ to cite.  The NJP is erroneous because the UCMJ does not criminalize using provok-
ing,  reproachful,  defamatory,  or  disrespectful  words  against  someone  not  present  to  hear  them 
unless the target of those words is a superior commissioned officer,11 which the BMC/XPO was 
not.  There is  no evidence in  the record that the applicant  violated any article of the UCMJ on 
March  6,  2008.    Therefore,  it  appears  that  the  command’s  decision  to  take  disciplinary  action 
against the applicant was improper.  However, the applicant has not proved that the allegations 
concerning  his  conduct  on  March  6,  2008,  were  erroneous  even  though  his  conduct  did  not 
violate Article 117.  The preponderance of the evidence shows that he spoke very disrespectfully 
about the XPO of his unit to a subordinate during a unit exercise and in the presence of several 
subordinates.   

 
6. 

The applicant alleged that but for the NJP he would have been allowed to take the 
SWE and compete  for  advancement to BMC in  2008.  However,  a member who is  not  recom-
mended for advancement may not take the SWE to compete for advancement.12  The applicant 
was not recommended for advancement on either of his prior two performance evaluations, dated 
May 31, 2007, and November 30, 2007, and in light of his conduct on March 6, 2008, he clearly 
would  not  have  been  recommended  for  advancement  in  May  2008  even  if  the  mast  had  not 
occurred.    In  this  regard,  the  Board  notes  that  Article  5.C.4.e.4  of  the  Personnel  Manual  states 
that “[t]he CO/OICs recommendation for advancement is the most important eligibility require-
ment  in  the  Coast  Guard  advancement  system.  A  recommendation  for  advancement  shall  be 
based on the individual’s qualities of leadership, personal integrity, adherence to core values, and 
his or her potential to perform in the next higher pay grade.”  A first class petty officer who uses 
reproachful  and  defamatory  language  toward  an  XPO  when  speaking  to  a  subordinate  petty 
officer in  the hearing of  other  subordinates is  clearly  lacking  in  leadership, not  adhering to  the 
Coast Guard’s core values of “honor, respect, and devotion to duty,” and not ready for advance-
ment to chief petty officer.   

 
7. 

The  record  shows  that  the  applicant’s  conduct  improved  significantly  after  the 
mast.  He received the command’s recommendation for advancement to BM1 on his October 31, 
2008, and April 30, 2009, performance evaluations and received a Letter of Commendation for 
his post-mast performance at the surf station.  Therefore, if he had not been reduced to BM2 at 
mast  in  May  2008,  he  might  have  been  recommended  for  and  eligible  to  take  the  SWE  for 
advancement to BMC in May 2009.  Whether the applicant would have advanced to BMC had 

                                                 
11 See footnote 6, above. 
12 Personnel Manual, Article 5.C.4.b.2.  

 

 

he been eligible to take the SWE in 2009, 2010, or 2011 is unknowable.13  Once a member takes 
the SWE, his placement on the advancement list depends upon many factors, and a major one is 
the  member’s  performance  marks.14    The  applicant  received  many  low  and  mediocre  marks  in 
2007  and  2008.    However,  the  Board  finds  that  because  the  applicant  might  have  been  errone-
ously deprived of the opportunity to compete for advancement to BMC in 2009, 2010, and 2011, 
if  he  is  eligible  and  recommended  for  advancement  to  BMC  this  spring,  takes  the  SWE,  and 
places above the cut and/or advances to BMC off the advancement list resulting from the SWE, 
his  date  of  advancement  should  be  backdated  to  what  it  would  have  been  had  he  been  the  last 
person  to  advance  to  BMC  from  the  advancement  list  resulting  from  the  2009  SWE,  and  he 
should receive corresponding back pay and allowances. 

 
8. 

The removal of the applicant’s NJP dated May 12, 2008, also removes the termi-
nation of the applicant’s three-year eligibility period for a Good Conduct Medal that presumably 
commenced in November 2006 and would otherwise have ended in November 2009.15  With the 
NJP in his record restarting his eligibility period on May 13, 2008, he would not have received 
another Good Conduct  Medal  until  May  13, 2011.  Therefore,  assuming the applicant  earned a 
Good Conduct Medal in 2011, the Coast Guard should correct the date of the medal to the date 
he would have received one had he not received NJP on May 12, 2008.  

 
9. 

The Board concludes that relief should be  granted by  expunging  from  the appli-
cant’s record the NJP dated May 12, 2008, and all other documentation of and references to that 
NJP, including the associated Enlisted Employee Review and the termination of his eligibility for 
a Good Conduct Medal on that date.  The date of any Good Conduct Medal he has received since 
the mast on May 12, 2008, should be backdated to  the date he would have received the medal 
had no NJP been awarded on May 12, 2008.  His reduction in rate as a result of the NJP should 
also  be  expunged  so  that  his  date  of  rank  as  a  BM1  will  be  the  date  he  originally  advanced  to 
BM1 in 2005, and he should receive the back pay and allowances he would have received from 
May 12, 2008, to  June 1, 2011, as if his  rate had remained BM1.  These  corrections should be 
made promptly so that he may take the May 2012 SWE for advancement to BMC if he is recom-
mended  for  advancement  and  otherwise  eligible  to  compete  for  advancement  to  BMC.    If  he 
takes the May 2012 SWE for advancement and places above the cut for advancement  and/or is 
advanced  to  BMC  off  the  advancement  list  resulting  from  the  May  2012  SWE,  his  date  of 
advancement  should  be  backdated  to  what  it  would  have  been  had  he  been  the  last  person  to 
advance to  BMC from  the advancement list  resulting from  the May  2009 SWE, and he should 
receive corresponding back pay and allowances.   

 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

                                                 
13 For example, upon inquiry by the BCMR staff, the PSC stated that following the May 2009 SWE, there were 608 
candidates for advancement on the BMC advancement list and only 107 advancements were made off the list while 
it remained in effect from January 1, 2010, to December 1, 2010. 
14 Personnel Manual, Article 5.C.3.b. 
15 Because of the applicant’s November 2003 NJP, a 3-year eligibility period would have commenced in November 
2003 and presumably ended in November 2006, when the next period would have commenced. 

 

 

ORDER 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

military record is granted as follows: 

 
The  Coast  Guard  shall  expunge  from  his  record  the  NJP  dated  May  12,  2008;  his 
reduction in rate to BM2; and all other documentation of and references to the NJP, including the 
Enlisted Employee Review dated May 12, 2008, and the termination of his eligibility for a Good 
Conduct Medal.  His date of rank as a BM1 shall be the date in 2005 that he originally advanced 
to  BM1,  and  he  shall  receive  the  back  pay  and  allowances  he  is  due  as  a  result  of  these 
corrections.  The date of any Good Conduct Medal he has received since May 12, 2008, shall be 
backdated to the date he would have received it had no NJP been awarded on May 12, 2008. 

  
The  Coast  Guard  shall  make  the  above  corrections  to  his  record  and  personnel  data 
extract  in  time  for  him  to  take  the  May  2012  SWE  for  advancement  to  BMC  if  he  is 
recommended for advancement and otherwise eligible to compete for advancement to BMC. 

 
 
If  he  takes  the  May  2012  SWE  for  advancement  to  BMC  and  places  above  the  cut  for 
advancement or is advanced off the May 2012 SWE BMC advancement list, his date of rank as a 
BMC shall be backdated to what it would have been had he been the last person to advance from 
the  May  2009  SWE  BMC  advancement  list,  and  he  shall  receive  corresponding  back  pay  and 
allowances. 
 
 
 
 
 
 
 

  

 

 

 

 

 
 
 

 
 

 
 

 
 

 
 

 
 

 
 
 Troy D. Byers 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Dana Ledger 

 

 

 
 Donna A. Lewis