DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for Correction of
the Coast Guard Record of:
BCMR Docket No. 2005-166
Xxxxxxxxxxxxxxxxx
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FINAL DECISION
AUTHOR: Andrews, J.
This is a proceeding under the provisions of section 1552 of title 10 and section
425 of title 14 of the United States Code. The Chair received the application on July 5,
2005, and docketed the case on September 16, 2005, upon receipt of the applicant’s
military records.
members who were designated to serve as the Board in this case.
This final decision, dated July 13, 2006, is signed by the three duly appointed
APPLICANT’S REQUEST
The applicant asked the Board to correct his record by changing his retirement
date from July 31, 2003, to October 1, 2004, which, he alleged, was the date he originally
requested. He asked the Board to award him corresponding back pay and allowances.
In addition, he asked the Board to remove from his record all adverse Administrative
Remarks (“Page 7s”), which he alleged would be in accordance with findings by the
Inspector General (IG) of the Department of Transportation (DOT) in March 2003.
APPLICANT’S ALLEGATIONS
The applicant alleged that while on active duty at his last unit, Group Xxxxx, he
was “treated with cruelty, slander, harassment, [and] discrimination and coerced into
early retirement.” He alleged that this treatment resulted from his reporting certain
misconduct by his supervisor. After he filed a complaint of retaliation, he alleged, the
DOT IG made findings in his favor, but the Coast Guard failed to take appropriate
remedial action.
In support of his allegations, the applicant submitted copies of many of the docu-
ments summarized below. In addition, he submitted many letters of recommendation
from officers and enlisted members he had worked with at prior commands. A retired
captain who was the Executive Officer at Group Xxxxx when the applicant served there
in the early 1990s stated that the applicant’s “performance of all of his professional
duties was excellent in every respect. He was thorough, meticulous, and successful in
the management of the command’s communications activities and its classified materi-
als. He ran a ‘tight ship,’ insisted on adherence to procedures, and expected a lot from
himself and his crew.” The applicant’s supervisor at another command from September
1998 through May 2000 highly praised the applicant’s work and stated that the appli-
cant had “capably supervised the Comms Center and personally managed the classified
accounts for approximately four months while no TCC was assigned to the command.”
SUMMARY OF THE RECORD
On September 23, 1980, the applicant enlisted in the Coast Guard. After advanc-
ing to radioman, third class, he was discharged on March 19, 1987. He reenlisted on
February 1, 1988. By 1991, the applicant had advanced to radioman, second class. From
1991 through 1997, he was assigned to the Marine Safety Office (MSO) at Group Xxxxx,
where he served as the Telecommunications Specialist in Charge (TCIC). By 1997, the
applicant had advanced to telecommunications specialist, first class (TC1).
From 1997 through June 2001, the applicant served at an MSO in Xxxxxxx. On
his performance evaluation for the period ending November 30, 1997, the applicant was
assigned a mark of “progressing,” rather than being recommended for advancement, on
his performance evaluation. The Chief of Group Operations prepared a Page 7 (form
CG-3307) dated November 17, 1997, to document the mark. The Page 7 states that
before the applicant could be recommended for advancement to chief petty officer
(TCC), he needed to better prioritize his work, to “be a better role model by making
better decisions and recommendations to his supervisors,” and to exhibit more leader-
ship skills.
On January 21, 1998, the applicant’s supervisor, TCC P, counseled him on a page
7 about leaving open the door of a safe containing classified materials while he attended
a “mid-day function” in the conference room. The applicant was the alternate custo-
dian of classified materials. The applicant refused to sign the Page 7 in acknowledg-
ment.
On March 13, 1998, the Chief of Group Operations counseled the applicant on a
Page 7 about an incident that happened on January 16, 1998, when the applicant, who
was delivering documents to the commanding officer (CO), allegedly stood in the door
of his CO’s office while the CO was in a meeting, even though the CO told him and
signaled to him several times to leave and return later. The applicant refused to sign
the Page 7 in acknowledgment.
On his performance evaluation for the period ending May 31, 1998, the applicant
was again assigned a mark of “progressing,” rather than being recommended for
advancement. On the Page 7 documenting the mark, the applicant’s TCC P wrote that
in addition to the incidents on January 16 and 21, 1998, the applicant had inappropri-
ately sought letters of recommendation from subordinates and officers “after numerous
attempts through the chain of command to compete in the Servicewide examination for
E-7.” The Page 7 also stated the following:
[The applicant] has an overwhelming competitive attitude which leads to exaggerated
statements and reckless guesses which he exhibits in day-to-day situations at the unit.
[His] continued exaggeration has been so intense that his subordinates question his vera-
city in the most mundane issues. Such a reputation does not breed respect and diminish-
es his credibility. [He] does not always express his thoughts clearly and logically and this
has been evident through his dealings with his chain of command. [He] never takes any
responsibility for his actions and seems to have a hard time adjusting and supporting
decisions of his seniors. At times [he] demonstrates fine technical skills but has not
exhibited the leadership skills necessary for advancement to Chief Petty Officer.
On his performance evaluation for the period ending May 31, 1999, the applicant
received the highest possible mark (7) for “Stamina.” The Page 7 documenting the
mark notes that, after TCC P was transferred, the applicant took on the extra work and
“effectively managed his time and resources to enable him to complete all reports and
audits by the appropriate deadlines. He willingly worked overtime to assist depart-
ments with computer/phone problems when the previous ADPSSO retired without a
replacement. In addition, he never failed to maintain a positive attitude toward all
tasks.” While the applicant was stationed at this MSO, he also received marks of 7, with
supporting positive Page 7s, for the performance category “Health and Well-Being” on
five of his performance evaluations.
On July 16, 2001, the applicant transferred back to the Communications Center at
the MSO at Group Xxxxx. His original rating chain included CWO X, his supervisor;
LCDR X, the Group Operations Officer, who served as his marking official; and CAPT
Y, the Group Commander, who served as his approving official. On August 14, 2001,
the applicant was referred for a mental health evaluation (MHE) because a review of his
local personal data record, which was required before the command could grant him
access to classified material, showed that after a command-directed MHE in 1998, the
applicant did not return for a follow-up appointment as directed. During the MHE on
August 14, 2001, the applicant was found fit for full duty.
On January 17, 2002, the applicant was designated as the Telecommunications
Specialist in Charge (TCIC). On May 1, 2002, he advanced from TC1 to TCC. However,
on June 7, 2002, CAPT Y suspended the applicant’s access to classified materials. The
reason for the suspension was not documented at the time. As the applicant could not
work in the Communications Center without such access, he was transferred to the
Investigations Division.
No final E-6 performance evaluation was ever entered in the applicant’s official
record, although one was required and a subsequent investigation revealed that two
such forms were prepared. The first form was signed by CWO X, LCDR X, and CAPT
Y, prior to CAPT Y’s retirement on June 30, 2002. CWO X and LCDR X did not recom-
mend the applicant for advancement to E-7 although the issue was moot since the
applicant had already advanced. However, CAPT Y did recommend him for advance-
ment to E-7.
Following CAPT Y’s retirement, a second E-6 performance evaluation was pre-
pared and signed by CWO X and LCDR X and by the new Group Commander, CAPT
Z. On this form, all members of the rating chain marked the applicant as not recom-
mended for advancement. In addition, the applicant was assigned a low mark of 2 for
“Integrity,” several marks of 3, and a “satisfactory” conduct mark. The applicant was
shown and counseled about this evaluation on October 8, 2002, but it was apparently
never submitted to the Coast Guard Personnel Command (CGPC).
On July 24, 2002, the applicant was found fit for duty during another MHE. His
command apparently directed him to visit a doctor and that doctor, who was outside
the chain of command, referred him for the MHE. Although the psychiatrist’s report is
not in the record before the Board, the DOT IG later reported that the applicant had
protested the MHE and that the psychiatrist noted the following:
I would advise command that 3 referrals for the same problem in 5 years may seems
excessive to any outside review agency. The challenges posed by this service-member
are administrative in nature. Further referral for the same interpersonal difficulties are
not warranted.
On October 4, 2002, a lieutenant in the Investigations Division prepared a posi-
tive Page 7 complimenting the applicant’s willingness to assist the division’s work as an
Assistant Investigating Officer.
Negative Page 7s
On October 7, 2002, LCDR X, the Group Operations Officer, prepared a negative
Page 7 concerning the applicant’s removal as TCIC on June 7, 2002. The applicant
refused to sign it in acknowledgment. This Page 7 was later removed from the appli-
cant’s record because of inaccuracies:
1. On 07 JUN02 your security clearance was administratively suspended and you were
relieved of duties as TCIC due to loss of confidence. Subsequent to your relief, it was
discovered you had been derelict in your duties as TCIC to wit:
a. The TCIC office was found in an extreme state of disarray.
b. Several personnel security packages were separated and scattered among
several different piles of unrelated paper as well as in the backs of desk
drawers.
c. A Central Facility Key Inventory letter postmarked 01MAR02 requiring a
response within 45 days of receipt was found in a stack of unrelated paper-
work.
d. Six months of unopened phone bills were located in various piles of unre-
lated material.
e. A series of superseded classified CD-ROMs that should have been shipped to
National Security Agency for Destruction were found in safe number 2.
f. TCIC CAMSPAC called to query why their e-mail requesting a listing of clas-
sified message delivery methods to outlying units was never responded to.
g. The 30-day classified message file had 45 days traffic posted.
h. Arrangements to return three RAS Tokens were made in April of 2002.
Inventory of safe 4 revealed you had not sent back the tokens as arranged,
which continued to incur costs of $125.00 per month to the unit.
2. In addition to the non-performance of TCIC duties, leadership deficiencies have con-
tributed to Command loss of confidence. Specifically, you have continually displayed a
self-serving leadership style marked by poor conduct towards department personnel
despite repeated counseling by the Assistant Surface Operations Officer. You have rou-
tinely used various excuses to leave early, or get out of work requiring you to stay
beyond normal working hours. Examples include:
a. When the classified message delivery system had been inoperative from the
night before you failed to get it back on-line. Instead you went home leaving
the communications watchstander to deal with [it]. In the middle of trouble
shooting the problem with CAMSPAC you handed the watchstander the
phone with no explanation and left. …
b. The reserve communications watchstanders consisting of two TC1s and two
TC3s approached the Assistant Operations Officer informing him they
intended to request transfer to the IRR. They cited that you were “manipu-
lating” their watch augmentation to your advantage so you would not have
to stand night or weekend duty. The reserve component is a valuable asset
to the TCOW watch and your actions jeopardized their continuing participa-
tion. Further, when reserves were scheduled to “cover” active duty person-
nel other than yourself, the active duty watchstander was not notified. This
became so routine the reserve assigned to drill would personally call the
active duty watchstander to inform them of the schedule change.
c. One active duty TC3 declined to re-enlist citing “he’d had enough” and did
not want to stay and finish out his Xxxxx tour. When pressed he stated your
selfishness, lying, and bragging made him not want to come to work.
d. Continued shortfalls in veracity and honesty. During a very busy [festifal]
event, you informed the Operations Officer that you were taking a compen-
satory day because you had worked eleven days straight. When the Opera-
tions Officer questioned [CWO X] as to why you were working so much, he
stated that you were not. In fact, you had taken the previous Friday off,
stood watch on Saturday, taken Sunday/Monday off, left early on Tuesday
and worked Wednesday.
e. Continued abuse of Command approved 90 minute sports lunch program.
[3]. A further distraction to your ability to fulfill your roll as TCIC manifested itself in
your constant need to embellish your accomplishments to your subordinates. Your per-
sistence in this has been so aggressive, that you choose to tell exaggerated stories about
yourself and family. Several examples follow:
a. Unsolicited, you engaged in a conversation of a sexually explicit nature with
a junior petty officer. This conversation concerned the sexual habits between
you and your wife. This constituted a violation of Commandant policy.
b. Frequently leaving copies of your personal positive page 7’s and other flatter-
ing documents where your subordinates would find them, occasionally with
paperwork required to be reviewed and shredded.
c. Claiming that you once sat down in a conversation with President Clinton.
The President was so impressed with your knowledge and abilities that he
asked your opinion on a speech he was going to give. You made what you
felt were appropriate changes and gave it back to him.
d. The local community contacted you before your household goods were
unpacked to “beg” you to coach soccer. This claim was further embellished
when you claimed that you couldn’t leave the state without notifying the
Olympic Committee because your daughter had been selected as an Olympic
hopeful.
e. After your dismissal from TCIC duties and assign[ment] to another branch,
you bragged to the local CGIC Agent that you had worked for a State
Agency on a sting operation involving an unlicensed charter vessel operator.
To complete the “sting,” you held up your uniform shirt as identification.
07JUN02 your security clearance was administratively suspended as described in a prior
CG-3307. As of today, your security clearance has been reinstated to allow you to work
in Group/MSO Xxxxx’s COMMCEN. Additionally, because of the items identified in
that CG-3307 you are being placed on a three-month performance probation period to
commence this date. During this period, you will perform the following steps:
1. You shall assist [QMC X] in the performance of his duties. You will not have supervi-
sory contact with COMMCEN personnel other than what is necessary in the performance
of your duties.
2. Carry out assigned tasks to the best of your ability … Any delegation of tasking to
subordinates will be accomplished by [QMC X].
4. Your propensity of inattention to duties, embellished bragging, and lack of personal
veracity has undermined your ability to lead as TCIC. Your behavior has had serious
negative impacts to unit morale and has led to a loss in confidence in your ability to hold
a position of leadership.
5. You have been medically evaluated to have no underlying physiological causes for
your behavior. You will be provided an opportunity to re-establish yourself within the
Group Operations Department. I encourage you to take advantage of this opportunity.
Also on October 7, 2002, LCDR prepared another Page 7 to document the com-
mand’s decision to return the applicant to the Communications Center, albeit with no
supervisory duties and on performance probation. The applicant signed in acknowl-
edgment on October 8, 2002. This Page 7 was also later removed from his record
because of inaccuracies:
3. You will stand a proper military communications watch when assigned and will also
be expected to complete your assigned tasks in a manner commensurate to your rank.
4. Any exchanged watches will be approved by [QMC X] …
5. You will be expected to arrive to work on time and depart only when authorized …
6. You may participate in a “Sports lunch” program only when not on scheduled watch.
The length of the activity is 90 minutes. You will be expected back on time and in proper
uniform of the day at the end of that period.
7. You will refrain from lying, fabricating or embellishing stories of any kind. You will
not engage any conversations of a sexual nature.
8. You will not depart from the COMMCEN without first checking out with [QMC X] …
9. You will at all times maintain a professional appearance and attitude and will not
engage in conversations which undermine the good order and discipline of the OPCEN/
COMMCEN.
10. You will observe the chain of command at all times.
11. You will demonstrate your knowledge and proficiency in your rate and rank by:
a. Resolving all outstanding items on your CG-3307 of 07 Oct 02.
b. Complete all work assigned to you … thoroughly and completely.
c. Demonstrate good leadership and show serious effort learning leadership
skills …
d. Display a professional attitude and behavior at all times.
e. Observe the chain of command at all times.
12. Once the above items have been successfully accomplished you will gradually be
given supervisory responsibilities.
13. You have been counseled on each one of these items. Failure to comply with any one
of the steps outlined here may lead to reduction proceedings and possible further admin-
istrative action.
Although the applicant was reassigned to the Communications Center following
this counseling, his access to classified material was withdrawn again a few weeks later
by CAPT Z.
Applicant’s Rebuttal of the Page 7s
On October 10 and November 6, 2002, the applicant submitted two letters to the
Group Commander to rebut the information in the Page 7s. He alleged that they had
been prepared in retaliation because in October 2001 he had reported LCDR X for com-
promising classified information. He alleged that LCDR X had given CWO X misin-
formation about the applicant leaving early on June 7, 2002. He alleged that both LCDR
X and CWO X could “not handle [his] personality style.” He alleged that there was
some resentment due to the fact that he was an overachiever who set high standards for
himself and did not smoke, drink, or use profane language. The applicant alleged that
he had not previously been counseled on any of the accusations in the Page 7s. He
pointed out that his security clearance had never been suspended—only his access. He
alleged that CWO X had told him that he wanted the applicant to be successful but then
said, “I hold the knife that can cut your throat.” (In an undated “timeline” describing
the same conversation, the applicant stated that QMC X, who was present when CWO
X counseled him on the Page 7s, accused him of smirking while he was listening to
CWO X and told him that he did not deserve his “anchors.”)
Regarding the specific accusations in the first Page 7, the applicant alleged that
the TCIC office was not in an “extreme state of disarray” but that he was suddenly
removed without an opportunity to tie up loose ends or to inform anyone of the status
of various work. He stated that he was working on two security packages at the time of
his removal. He alleged that CWO X told him not to take any action on the key inven-
tory letter. He alleged that there were only three months’ worth of phone bills and that
it was a low priority compared to the Noble Eagle operations. He stated that returning
the CD-ROMs was the assigned duty of the Comtac Publications Officer, TC2 B, who
knew to ask the applicant if he needed help with anything. Regarding the CAMSPAC
email, the applicant stated, “I have responded to Camspac more than once with lists for
who we guard for on the SWS.” He further alleged that he “purged the 30 day classi-
fied board every day I was here, and made a note on any messages that were required
to be retained longer than 30 days. Every TCOW that was in the Commcen at the time
should be able to verify this.” He stated that only two old tokens were in the safe and
that he had deactivated them both on April 17, 2002, and so they were not costing the
command anything and just had to be mailed back.
Regarding his alleged “self-serving” leadership, the applicant recounted his con-
duct on one of his off days when he spent several hours making sure a watchstander
could get to the office despite heavy snow. The applicant alleged that the watchstander
to whom he handed over the CAMSPAC repairs was “the assistant administrator who
is equally responsible for the maintenance of the system. It was also good timing for
him to take a little more responsibility. I did not hand the problem over with no expla-
nation. I told the individual what the problem was and that I wanted him to work with
Camspac to resolve it.” He stated that once when the system failed, he had come to the
office at 1:00 a.m. to fix it and stayed through the workday.
Regarding the reservists, the applicant stated that one was under pressure to
resolve medical issues or transfer to the IRR, one had a new baby and a new job and
was considering transferring to the IRR to have more free time, and one worked for 911
emergency services so he could not work according to a planned schedule and “would
sometimes have to call the watchstanders to pass on when he could come in.” Further-
more, the applicant stated, when he first arrived at the office, both TC3s were already
planning to leave the Coast Guard.
Regarding his work schedule, the applicant stated that everyone at the Group,
including the CO, XO, and Group Operations Officer, had played Ultimate Frisbee on
their lunch hour and had exceeded the given 90 minutes. During [festival], he stated, he
had told the LCDR X, the Group Operations Officer the truth—that he had worked
eleven days with only one day off in the middle—but LCDR X intentionally misin-
formed CWO X that he had claimed to work eleven straight days. CWO X then called
him back to work, asked him “who do you think you are,” blamed him for a TC3’s
departure, accused him of regularly leaving work an hour or half-hour early, and told
him that he would be denied access to the Communications Center and sent for an
MHE.
The applicant alleged that the accusation about the sexually explicit conversation
is “just plain sick and ridiculous” as he had “continually asked some of the personnel
working within the Communications Center to abstain from sexual conversations and
to not cuss in front of [him].” He alleged that he had told someone that he had been
married for seventeen years and had “saved [him]self for the one [he] married.”
Regarding his personal documents, the applicant stated that he had left some in a
blue folder on the chart table and that, if anyone looked at them, his privacy was vio-
lated. The applicant further alleged that at a conference attended by the President, he
was actually asked his opinion and it was “one of the brightest spots of [his] career.”
The applicant alleged that statements he had made about coaching soccer and about his
daughter had been twisted around to make him look bad when he was really just a
proud father of a great soccer player. He denied ever claiming to have been part of a
“sting.”
Finally, the applicant alleged that he had only been brought back to the Commu-
nications Center because that was where his billet was and because they wanted him to
install the new SIPRNET system. He stated that after he did so, his chain of command
would try to force him out again “due to personal vendettas and personality conflicts.”
On October 17, 2002, the applicant met with CAPT Z, the Group Commander;
CDR Y, the Executive Officer; and the Command Enlisted Advisor to discuss his rebut-
tal of the Page 7s. The applicant later alleged that CAPT Z had prepared a written
response to his rebuttal but then withdrew it after the applicant gave him some further
documentation.
On October 23, 2002, the applicant submitted a letter requesting “retirement on 1
October 2004, or as soon thereafter as possible.”
On November 18, 2002, the applicant submitted a letter requesting retirement as
of June 1, 2003. He specified that he wanted to be retired as a TCC. CAPT Z forwarded
the letter recommending that CGPC retire the applicant as a TCC effective March 1,
is littered with negative entries; several of them dealing with issues indicating a defi-
ciency in leadership qualities and abilities. In regard to performance, [his] career has
been one marked with extreme peaks and valleys instead of one typical of the Coast
Guard’s more effective senior enlisted leaders. Unfortunately, [his] recent performance
has been such that I’ve felt it necessary to withdraw his access to classified information,
remove him from any space containing classified material, and remove him from any
position of leadership or bona fide responsibility.
Though [the applicant] has been counseled for reasons shown in the enclosed page sev-
ens and has been given the opportunity to correct the deficiencies noted, his actions con-
tinue to be a valid source of concern and his performance is below that expected of one of
the Coast Guard’s senior enlisted members. … I feel that it is in the Coast Guard’s best
interests that he retire as soon as possible. … A 1 March 2003 retirement date would
allow him to utilize the regular earned leave he had accumulated [and cannot sell].
On November 22, 2002, the applicant sent an email to a Work-Life counselor
complaining about his command’s actions. He stated that the recent Page 7s were
“based off of false accusations, conjecture, speculation, and [hearsay] and were based on
events that supposedly happened prior to 7 June 02. I was able to come up with
documented evidence to disprove some of the accusations contained within these page
7’s.” He also alleged that the Page 7 his prior command had prepared on March 3, 1998,
was also false as it was based on “an inaccurate perception.”
2003. The Group Commander stated that the requirement that a member serve two
years in grade before retiring should be waived because the applicant’s record
Also on November 22, 2002, CDR Y, the Group XO, sent an email to several
members of the command regarding the applicant’s retirement. He wrote, “Hopefully,
I will have [the applicant’s] marks & new pg 7’s to discuss with him early Monday.
EPM’s stance is that he’s being fired; that 1 Feb is the latest they will support. If he
doesn’t take the offer we’ve made, I plan to pursue reduction in grade action.”
On November 25, 2002, the applicant was shown his first E-7 performance eval-
uation, for the period ending September 30, 2002. He received many low marks of 2
and 3 and an “unsatisfactory” conduct mark. He was not recommended for advance-
ment to E-8. The written comments supporting the low marks all concerned his per-
formance of duty as TCIC rather than his performance in the Investigations Division.
Most of the criticisms in these comments were summarized on the Page 7 prepared by
the applicant’s chain of command at the Communications Center on October 7, 2002.
The comment on the applicant’s mark of 2 for “Integrity” stated that “[w]hen chal-
lenged on the truthfulness of these stories, he routinely would deflect responsibility by
claiming miscommunication, misunderstanding or claim the person doubting him to be
lying. This continued behavior has led to a total loss of confidence in his credibility and
resulted in an administrative suspension of his security clearance. There is no con-
vincing psychological cause for this behavior and many counseling sessions have been
conducted with [him] in an attempt to improve his performance.”
Also on November 25, 2002, the applicant submitted a letter requesting retire-
ment as of February 1, 2003, as a TCC.
On December 7, 2002, the applicant wrote to a U.S. Senator to complain about his
treatment by his command at MSO Xxxxx. He wrote that at his prior unit, he had held
several highly responsible positions and had received four personal awards. However,
on August 14, 2001, within a month of returning to MSO Xxxxx, he was referred for a
mental health evaluation even though he told his supervisor, CWO X, that it was
unnecessary and that he was a “God fearing Christian man, who does not need to drink
or cuss.” CWO X later told him that he did not “trust anyone who doesn’t drink or
cuss.” The applicant alleged that the command at MSO Xxxxx “have used my per-
sonality against me in an attempt to smear my character and undermine my abilities.”
He alleged that the command had “come up with false and twisted allegations to perse-
cute” him and had treated him “with personal bias, prejudice, and discrimination all
based on my personality and not my abilities.” He alleged that he was “set up for fail-
ure” during his first month at the unit and that his command was trying to force him
out of the Coast Guard. The applicant stated that under tremendous pressure from his
command, he had agreed to retire on June 1, 2003, but then the XO told him that if he
wanted to retire as an E-7, he had to retire on February 1, 2003, because otherwise the
command would seek to reduce his rate. The applicant stated that he had wanted to
continue working at the Investigations Division through October 1, 2004, but that the
command would not allow this because his billet was for Group Operations, rather than
the Investigations Division. The applicant asked that his retirement date as an E-7 be
extended to June 1, 2003, so that his family would not “end[] up on the street.” He also
asked that he receive a letter of apology from everyone in his command who had har-
assed him and tried to “assassinate [his] character.”
retire on February 1, 2003.
On December 30, 2002, the DOT IG initiated an investigation into the applicant’s
complaint that he was being forced to retire in reprisal because he was a whistleblower
and that his command had illegally referred him for MHEs. On January 17, 2003, CGPC
issued orders amending the applicant’s retirement date from February 1, 2003, to April
1, 2003, due to the pending investigation.
Report of the DOT IG
On December 10, 2002, CGPC issued orders approving the applicant’s request to
On March 14, 2003, the DOT IG forwarded to the Coast Guard a report of its
incomplete investigation into the applicant’s allegations with recommendations for fur-
ther investigation. The DOT IG denied further jurisdiction over the case because the
Coast Guard was transferred to the Department of Homeland Security (DHS) on March
1, 2003. The DOT IG reported that after conducting twenty-four interviews and
reviewing numerous documents from the applicant and his command,
although we did not find any substantiation that the command’s actions were in reprisal
for a protected communication by [the applicant], we did find there was a concerted
effort within the command—based solely on [the applicant’s] eccentricities—to prema-
turely force him into retirement from the Coast Guard. Further, we found that—in fur-
therance of this effort—the command violated administrative procedures and document-
ed adverse behavior—supported solely by rumor and innuendo—in [the applicant’s]
permanent record. Additionally, we found attempts by senior officers to cover up the
efforts to produce this documentation.
Specifically, we found that senior Coast Guard members of MSO/Group Xxxxx—
attempting to document [the applicant’s] alleged performance deficiencies—solicited and
subsequently cited unverified examples of [the applicant’s] “weird” behavior and poor
performance from junior Petty Officers. Moreover, we found that—five months after his
promotion to Chief—[the applicant’s] seniors attempted to produce and submit an E-6
performance evaluation that would remove a recommendation for advancement to Chief
Petty Officer made by the previous Commanding Officer.
Furthermore, we found numerous efforts by personnel at the command to negatively
impact the reputation of [the applicant] through MHEs [mental health evaluations],
derogatory statements made by supervisors to junior enlisted personnel, and his removal
from his position in the Operations Department.
While there are outstanding issues concerning the command’s treatment of [the appli-
cant], in our opinion the facts uncovered by this investigation to date suggest the need for
a strong response by Coast Guard Headquarters. Specifically, the Coast Guard should
consider appropriate disciplinary action against members of [the applicant’s] command
for their actions in attempting to cover-up the facts and circumstances surrounding the E-
6 evaluation, as well as their coercion of [the applicant] into early retirement.
Further, we feel that—in their zealousness to force [the applicant] from the Coast Guard
—responsible members of [the applicant’s] command engaged in a series of egregious
actions by making false adverse comments on [the applicant’s] page 7, subsequently
included pieces of this false information on his E-7 evaluation, and, after placing [him] on
performance probation status—through negative comments and instructions to junior
members of the command—ensured that [the applicant] would fail his probation.
Accordingly, we recommend that all negative page 7 entries issued by the command, and
the E-7 performance evaluation be removed from [the applicant’s] records. In addition,
we recommend that [he] be allowed to remain on active duty until October 2004, his
originally requested retirement date.
Regarding the applicant’s allegation that he had been removed as TCIC in June
2002 in reprisal for reporting in October 2001 that LCDR X had taken classified material
home to work on without proper authority, the DOT IG reported that “we did not find
a nexus between the adverse personnel action and the protected disclosure. Addition-
ally, information obtained from the interviews, the length of time between the protected
communication and the first adverse personnel action, and the fact that [the applicant]
was promoted during this time, resulted in our determination that his removal as TCIC
and the actions taken by the command to force him to request retirement were not in
reprisal for his involvement in reporting the security violation.”
Regarding the applicant’s complaint about being referred for mental health eval-
uations, the DOT IG wrote that “during the screening of [the applicant’s] local records
—required prior to issuing security access—it was noted that [he] had a MHE at his
previous command but had apparently failed to return for a directed follow-up visit.
Accordingly, [the applicant] was referred by the command for a MHE on August 14,
2001, and was found fit for full duty. … Pursuant to this evaluation he was granted his
security access which enabled him to work in the Operations Department.” Regarding
the second referral in July 2002, the DOT IG stated that following the applicant’s
removal as TCIC, someone at the command referred him to a physician, who recom-
mended that the applicant have an MHE. The DOT IG stated that the applicant was not
entitled to a written referral or rights statement prior to either of these MHEs because
the first was conducted in association with a security clearance and the second was by a
doctor who was not part of the applicant’s chain of command.
Regarding the applicant’s removal as TCIC and transfer from Operations to the
Investigations Division, the DOT IG stated that it occurred “after a confrontation
between him and [CWO X] over the number of days [the applicant] had worked with-
out a day off” and that there may have been “significant miscommunication surround-
ing the issue.” CWO X stated that the incident was “the straw that broke the camel’s
back” and “stressed that [he] had verbally counseled [the applicant] on numerous occa-
sions, but [he] could not provide any dates or the specific issues discussed with [the
applicant].” CAPT Y told the DOT IG that, after LCDR X, the Group Operations
Officer, told him that he could no longer deal with having the applicant serve in the
Communications Center as a supervisor, CAPT Y decided to transfer the applicant to
the Investigations Division “to give him a second chance.”
Regarding the first Page 7 dated October 7, 2002, the DOT IG stated that it was
based in part on input solicited from petty officers in the Communications Center about
the applicant’s performance prior to his removal as TCIC in June 2002. The DOT IG
stated that all of these junior petty officers either disliked or distrusted the applicant,
that the information was never verified, and that some of it was false or misleading. For
example, the DOT IG stated that an interview revealed that the accusation about the
applicant’s alleged sexual discussion was based on a comment by him that “he and his
wife did not have sex because she only wanted him for his paycheck.” Moreover, the
DOT IG stated, the applicant’s rebuttals, which appeared to fully explain many of the
issues on the Page 7, were never examined by his command.
Regarding the applicant’s two final E-6 evaluations, the DOT IG stated that
CAPT Z completed the form and marked the applicant as not recommended for
advancement without knowing about the first evaluation. CWO X claimed that the XO,
CDR Y, had told him to prepare the second form. However, CDR Y claimed not to have
told CWO X to redo the evaluation and contradicted himself several times. Ultimately,
neither evaluation form was submitted to CGPC. The DOT IG stated that both CAPT Y
and CAPT Z also made statements that contradicted those by CDR Y.
The DOT IG stated that another Page 7, which is not in the record, was prepared
after CWO X told a second class petty officer serving as an instructor at the firing range
that the applicant “was not capable of handling a weapon and should not be around
them” even though the applicant had recently scored 149 out of a possible 150 on the
pistol range. This finding was based in part on an undated letter from the applicant,
who alleged that on June 25, 2002, CWO X called the firing range and told the instructor
that he was “not stable enough to handle a weapon.” When the applicant asked the
instructor to sign a statement for him to document the tactics that were being used
against him, the applicant’s request was used as the basis for an adverse Page 7, which
was “then used to document his failure to perform while on performance probation.”
The DOT IG agreed with the applicant’s claim that he was “set up for failure”
upon his return to the Communications Center in October 2002 because he was denied
supervisory duties and his subordinates were told that they were not required to follow
any of his orders. One subordinate was told that “if [the applicant] tells you to empty
the trash, you don’t have to do it.” The DOT IG concluded that the solicitation of
adverse comments from subordinates and the failure to reassign the applicant to a sen-
ior enlisted billet “created an environment where it would be impossible for [him] to
successfully perform duties assigned to him. Accordingly we found that [his] return to
the Operations Office was an attempt to build more documentation to use against him
and not an opportunity for him to succeed.”
Regarding the applicant’s E-7 performance evaluation for the period ending Sep-
tember 30, 2002, the DOT IG noted that the applicant had spent four of the five months
of the evaluation period working in the Investigations Division, and his supervisors in
that division provided laudatory comments on a Page 7. Therefore, the DOT IG con-
cluded that their input must not have been considered in the preparation for the per-
formance evaluation, which was instead based on performance that predated the eval-
uation period.
The DOT IG stated that although the applicant’s past performance evaluations
showed mostly average marks, he appeared to have poor leadership skills. However,
the command never offered to send the applicant to a leadership course. One com-
mander stated that the applicant’s prior command told him that the applicant “could
only focus on one task at a time and should not be given a long list of tasks to accom-
plish. [The commander] felt that [MSO Xxxxx] placed a lot of command and control
responsibilities on [the applicant] and expected the same results as achieved by the
former TCIC, who was an outstanding supervisor.”
The DOT IG stated that several interviewees claimed that the applicant’s prob-
lems were due to personality conflicts between him and his chain of command. The
applicant was noted as having eccentric mannerisms and methods of engaging people
in conversation. The DOT IG also stated that “[o]ne personality trait of [the applicant],
which was mentioned by every person interviewed, was his tendency to embellish sto-
ries, many of which were considered as lies by the people who heard them. … Some
people interviewed stated that they did not give much credence to [the applicant] when
he was telling his boastful stories. Other people told us that they were really bothered
by the stories and stated that—because of the stories—they considered [him] a liar and
untrustworthy.”
The DOT IG concluded that although they did not substantiate the applicant’s
original two allegations, the following issues were identified:
• continued efforts to have the applicant found mentally unfit for duty;
• unverified information on the Page 7s dated October 7, 2002;
• his removal as TCIC in June 2002 “with no documented counseling, no
attempts to assist him in his leadership deficiencies, and no Negative Page 7s or a
Performance Evaluation to document poor performance”;
• “The actions to set him up for failure when he was returned to the Operations
Center to ‘give him a chance to succeed’”;
• his rating chain’s failure to consider the positive input from the Investigations
Division in the preparation of his performance evaluation for the period ending on
September 30, 2002; and
the pressure placed upon him to request retirement.
•
The DOT IG noted that the Enlisted Personnel Management Division at CGPC
had not yet been interviewed. CDR Y had claimed that CGPC-epm told him that the
command had only two choices: to convince the applicant to request a retirement date
of February 1, 2003, or to “take appropriate actions to reduce him to E-6.”
The Coast Guard forwarded the DOT IG’s report to the Thirteenth District Com-
mander for further investigation.
On March 26, 2003, CGPC issued orders amending the applicant’s retirement
date from April 1, 2003, to June 1, 2003, due to the pending investigation. On May 23,
2003, the District command asked CGPC to extend the applicant’s retirement date again
to July 1, 2003, “to accommodate the resolution of a current IG investigation.” On May
27, 2003, CGPC issued orders amending the applicant’s retirement dated from June 1,
2003, to July 1, 2003.
On June 9, 2003, the District Commander appointed a captain to serve as the
Investigating Officer (IO) and complete the investigation into the applicant’s allega-
tions. On June 12, 2003, the District Commander asked CGPC to extend the applicant’s
On June 17, 2003, CGPC issued orders to retire the applicant on August 1, 2003,
scheduled retirement date from July 1, 2003, to August 1, 2003, because the investiga-
tion would not be complete before the end of June.
instead of July 1, 2003.
On June 23, 2003, the applicant asked that his retirement date be changed to
October 1, 2004. He stated that when he submitted his requests for an earlier retirement
date he “felt overt pressure and coerc[ion] from members in my command to ‘voluntar-
ily’ retire earlier than I had planned.” The Group Commander forwarded the request to
the District Commander with a note that the alleged coercion was still under investiga-
tion.
Report of the Coast Guard’s Administrative Investigation
On July 7, 2003, the IO completed his investigation and forwarded his report to
the District Commander for review. The IO noted that the DOT IG had “found no
validity to [the applicant’s] charge that his performance eval[uation]s were lowered
and/or retirement negotiated in retaliation for a whistle blowing incident. There was
no connection between his marks and [LCDR X’s] mishandling of classified material.”
In addition, the IO noted that the DOT IG found that the command’s decisions to refer
the applicant for mental health evaluations “were proper and followed USCG proce-
dures.” The IO also noted that the applicant had been diagnosed with narcissistic and
obsessive-compulsive personality traits.
Regarding the applicant’s final E-6 performance evaluation, the IO stated that
because the applicant advanced from TC1 to TCC on May 1, 2002, his command was
required to prepare a final E-6 performance evaluation. CAPT Y, the prior Group Com-
mander, signed one evaluation form on July 12, 2002, and marked the applicant as rec-
ommended for advancement. This evaluation was never shown to the applicant. The
Group’s Chief Yeoman and the Executive Officer, CDR Y, told the IO that they did not
believe that CGPC would accept the first evaluation and so had the rating chain prepare
a second form. CAPT Z signed the second form without knowing about the first. Ulti-
mately, neither final E-6 evaluation was submitted to CGPC or entered in the appli-
cant’s record. The IO noted, however, that missing evaluations “are common in the
USCG Enlisted record and rarely negatively impact the member” and that the Group’s
failure to submit the evaluation to CGPC benefited the applicant as it would have low-
ered his average marks. He also noted that the applicant had not appealed the second
evaluation form, which he was shown. The IO recommended that CGPC waive the
applicant’s final E-6 evaluation so that neither of the two prepared by the Group could
be submitted.
Regarding the applicant’s E-7 evaluation dated September 30, 2002, the IO stated
that its preparation was optional since the applicant had been evaluated less than 184
days before. He recommended that the applicant’s appeal of the low marks be denied.
Regarding the Page 7s dated October 7, 2002, the IO stated that the first, which docu-
mented the applicant’s removal as TCIC on June 7, 2002, was not invalid simply because
it was late. However, he stated that both Page 7s were “sloppy” and recommended that
the rating chain be required to prepare Page 7s that “are more precise and delineate the
negative impact of [the applicant’s] documented performance.” The IO noted several
problems with the Page 7 dated October 7, 2002, including the following:
• The phrase “’extreme state of disarray’ … is too vague/open to personal
interpretation … “
• Responsibility for the classified CD ROMs should be clarified as it was appar-
ently delegated to one of the applicant’s subordinates.
• The unit was not incurring debt for the RAS tokens.
• The dates that the applicant worked should be clarified or deleted as there
were conflicting accounts.
• The comment about the applicant’s extended lunches should be deleted or
expanded to show how they negatively affected his performance of duties as
“[m]any Group Xxxxx personnel extend the liberal sports lunch program
without impacting job performance.”
• Paragraph 3a., regarding an alleged sexually explicit conversation should be
deleted “due to conflicting statements and apparent minimal importance of com-
ments.”
The IO stated the second Page 7 dated October 7, 2002, regarding the applicant’s
performance probation, should be corrected and resubmitted to CGPC because the
opening paragraph was inaccurate since the Group Commander could only suspend
the applicant’s security access and could not suspend his actual security clearance.
Regarding the applicant’s retirement, the IO stated that the applicant initially
discussed retirement with his command in June 2002 and then submitted his first
request in October 2002. In response, CGPC authorized the Group to retire the appli-
cant as of February 1, 2003, as an E-7, thereby waiving the requirement that a member
serve in grade for two full years before being retired in that grade. The IO stated that
CGPC “was working with several retiring E-7’s during the late 2002 period; [the appli-
cant] received the exact same ‘negotiated settlement’ date as the other E-7’s.” He noted
that because of the “High-3” retirement program, additional months as an E-7 would
significantly raise the applicant’s retired pay.
The IO stated that “[e]very single member of [the applicant’s] Operations Divi-
sion chain of command stated that they no longer trusted [him] and he was not an effec-
tive leader.” In addition, “[a]ll interviewed junior TC’s stated that [the applicant] was
an ineffective leader, and some stated that he abused his TCIC role for personal advan-
tage.” The applicant’s supervisors in the Investigations Division, where he had been
transferred after being denied access to classified materials, stated that his work was
satisfactory but that he was not performing at an E-7 level.
The IO stated that the Group had denied the applicant access to classified mate-
rials, as allowed by regulation, and that the applicant could not perform as a TCC at the
Group without such access. He stated that the applicant was “presently not supervising
any personnel, not filling an E-7 billet, nor performing at the expected level of an E-7.”
The IO also noted that the applicant “demonstrated excellent attention to detail and an
orientation towards task completion.”
Applicant’s Retirement
On July 9, 2003, the District Commander forwarded the applicant’s request
regarding a retirement date of October 1, 2004, to CGPC “for consideration based on
service needs.” He stated that the investigation had not substantiated the applicant’s
claim of coercion. He requested that, if CGPC decided to grant the applicant’s request,
the applicant be transferred because “he is out of billet. More importantly, his contin-
ued presence would not be conducive to MSO/Group Xxxxx’s unit effectiveness.”
On July 15, 2003, CGPC instructed the Group to inform the applicant that his
request to change his retirement date from August 1, 2003, to October 1, 2004, “has been
considered and must be disapp[roved] due to no Service needs.” (The applicant alleged
that there was Service need. He submitted a CGPC message dated May 2, 2003, show-
ing that there were thirty vacancies in his rating.)
On July 28, 2003, the new District Commander took final action on the adminis-
trative investigation triggered by the DOT IG’s report dated March 14, 2003. He noted
that due to the Coast Guard’s transfer from DOT to DHS in March 2003, the DOT IG
was unable to complete its investigation and had forwarded the case to Coast Guard
Investigative Services, which forwarded the case to the District for further investigation.
The District Commander stated the following:
a. Handling of E-6 Evaluations: It is my opinion that there were some anomalies in the
handling of [the applicant’s] E-6 evaluation by Group … in general and specifically by
[the XO, CDR Y]. However, I do not believe [CDR Y] or any other members of Group …
committed any criminal acts. … In addition, Group … shall request approval from
CGPC-epm to waive [the applicant’s] final E-6 evaluation. Upon receipt of approval by
CGPC-epm to waive this final evaluation, Group … shall destroy the “missing” E-6
evaluations and related page 7’s.
b. Voluntary or Coerced Retirement: CGPC-epm made the final decision regarding [the
applicant’s] retirement and waived the required two years in grade to allow [him] to
retire as an E-7. I concur with [the IO’s] conclusion that [the applicant’s] retirement was
voluntary and that no disciplinary or administrative action is necessary.
d. E-7 Marks Appeal: I concur with [the IO’s] conclusions that the page 7’s prepared to
support [the applicant’s] evaluation are inadequate and need to be corrected. Group …
• • •
shall correct these page 7’s and forward them to [a District office] for review. Upon
receipt of corrected page 7’s, [a District office] shall review [the applicant’s] marks appeal
and provide me with a recommendation regarding whether or not I should uphold the
appeal. I note that the unsatisfactory conduct mark is unsupported by the record.
Accordingly, I will change this mark to satisfactory and Group … shall take appropriate
action to determine whether [the applicant] is otherwise eligible for a Good Conduct
Medal. In addition, Group … shall also document with a page 7 the end of [the appli-
cant’s] probationary period following the recommendations made by [the IO].
e. Other Recommendations by the IO: [The IO] recommended negotiating a retirement
settlement for [the applicant] to take into account the loss of retired pay he will suffer as a
result of retiring before October 2004. Federal law establishes how retired pay is calcu-
lated. Retired pay cannot otherwise be negotiated by CGPC. Hence, action on this rec-
ommendation is not possible. CGPC-epm has directed a 1 August 2003 retirement date;
[the applicant] shall retire on this date.
On August 1, 2003, the applicant was retired from the Coast Guard.
with the District Commander’s memorandum dated July 28, 2003.
date be changed to October 1, 2004, based upon the following:
On August 7, 2003, the District directed the Group to take action in accordance
On August 8, 2003, the applicant submitted a letter requesting that his retirement
On August 14th 2001, I was forced against my will to go to … Army Behavioral Clinic
even after being found Fit for Full Duty by Naval Hospital … . I also believe that mem-
bers of my previous command prior to my forced retirement manipulated my medical
records. I was never given any referrals nor was I ever offered the opportunity to meet
with an attorney prior to any of the medical mental health evaluations.
On June 7th 2002, I was unjustly removed from the communications center and my local
security access withdrawn with no supporting documentation to justify my removal by
my previous command prior to my forced retirement.
On July 24th 2002, I was again forced against my will to go to … Army Behavioral Clinic
by my previous command even though I was found Fit for Full Duty previously by …
Army Behavioral Clinic. This took place while I was working in the Investigations
Department which did not require a security clearance in the performance of my duties.
Once again I did not receive any mental health referrals nor was I afforded the opportu-
nity to meet with an attorney.
Based on my treatment at my last command, I am requesting full restitution.
The Group Commander forwarded the applicant’s request to the District Com-
mander and recommended disapproval. He stated that, although he was not privy to
the results of the investigation, he understood that it was completed and that “no fur-
ther action is warranted.” He noted that the applicant’s letter of August 8, 2003, did not
present any new information. He stated that he did not understand how the applicant’s
medical records were relevant to the request since the applicant was fit for duty.
The District Commander forwarded the request to CGPC and recommended dis-
approval. He wrote that the “circumstances of [the applicant’s] retirement date were
investigated by both the DOT IG and by the … District and appropriate administrative
action was taken. The DOT IG investigated his allegations regarding the referrals to
[the Army Behavioral Clinic]. His letter raises no new issues.”
8, 2003, as follows:
On September 15, 2003, CGPC responded to the applicant’s letter dated August
… You base your request on the decision on July 28, 2003, by [the District Commander] to
change your enlisted employee review conduct mark for the period ending September 30,
2002, to “satisfactory.” You also assert you were coerced into requesting voluntary
retirement earlier than you desired. However, I note that your original retirement date
was delayed until August 1, 2003, so this allegation could be investigated. The investiga-
tion, completed prior to your retirement, did not substantiate your allegation. I also find
no basis to consider changing your retirement date based on the decision to change your
conduct mark to satisfactory. Your August 1, 2003, retirement date will remain
unchanged. … If you still feel that you have suffered an injustice or that there is an error
in your record, you may apply to the Board for Correction of Military Records. …
next time. Love, [applicant’s first name]”
• “I love you [officer’s first name] [heart] XXXOOO [applicant’s first name]”
Applicant’s Civil Rights Complaint
Following his retirement, the applicant filed a complaint with the DHS Office of
Civil Rights and Civil Liberties (CRCL) alleging that he had been discriminated against
sexually and because of his religion (Christianity). He raised the issues of coercion and
illegal MHEs. He stated that some people were jealous of him because of his athletic
success and his successful career, as he had worked “directly for the White House Staff
and a President.” He stated that some people discriminated against him because he did
not smoke, drink, or use profane language and because he did a lot of volunteer work.
He stated that some of his subordinates frequently questioned him and challenged him
about his religious beliefs. He complained that his command had solicited false com-
ments about his performance from his subordinates and then, when he returned to the
Communications Center, set him up to fail by instructing them not to listen to him. He
also complained that the Coast Guard tried to “connect him” to his stepfather, who was
not a blood relative and who was diagnosed with schizophrenia after he killed the
applicant’s mother in 1990.
The applicant alleged that LCDR X had told him he was “too nice,” which meant
homosexual. The applicant submitted photocopies of notes that he found on a male
officer’s desk in July 2003, which he believes were written by LCDR X. He alleged that
the notes, which were purportedly from the applicant himself to the male officer, consti-
tuted sexual harassment and discrimination. The handwritten notes read as follows:
• “[officer’s first name], I came by but you weren’t here. [frowning face] Maybe
• “I miss you. [heart] [applicant’s initials] XXXOOO”
On May 17, 2005, CRCL informed the applicant that the evidence was insufficient
to support his claim that he had been discriminated against on the basis of his religion
when he was offered early retirement or that he had been sexually harassed in July
2003. CRCL stated that the applicant “failed to provide any direct evidence or testi-
mony to prove that his religion or his sex were factors in any of management’s deci-
sions.” CRCL reported that both members involved with the forged “love notes” were
reprimanded. CRCL alleged that “the record indicated that Complainant had a history
of attitudinal and performance problems, which resulted in his being offered an oppor-
tunity to retire at a higher grade than normal, in order to avoid demotion.” CRCL
noted that CAPT Z, the second Group Commander, had reported the following:
• When CAPT Z met with the applicant, the applicant “brought a suitcase full of
documents and kept saying everyone was out to get him over the last ten years of his
career.”
• When CAPT Z and others were at the Communications Center, the applicant
claimed to have heard a mayday call on the radio that no one else heard, and a careful
review of the tapes indicated there was no such call.
• The Investigations Division did not want to retain the applicant.
• When CAPT Z tried to move the applicant back to the Communications Center,
the applicant sat on the floor with his arms folded and refused to move.
• When CAPT Z later sent the applicant to work on a regional coalition, without
providing that command with any background, the command sent the applicant back
stating that they could not use him.
• CAPT Z stated that he had stopped trusting the applicant because of how much
the applicant “embellished everything.” The applicant “cited a variety of stories that
were so fantastic that it got to the point that [CAPT Z] did not believe virtually anything
[the applicant] said.” Therefore, he did not trust the applicant to work as the Commu-
nications Chief with classified materials, and the applicant “did not have the aptitude
for any other job he was given.”
• CAPT Z stated that because the applicant “did not want to work where he was
assigned and did not want to work anywhere else,” he thought the best solution was to
allow the applicant to retire as a chief without the required two years in grade, and that
he believed that the applicant took the offer willingly.
CRCL reported that LCDR X had stated that the applicant “was, in essence,
forced to retire” since his access to classified material had been withdrawn first by
CAPT Y and then by CAPT Z “because of performance problems, his inability to func-
tion as a Chief Petty Officer, and continued personality conflicts across the board with
the chain of command.” LCDR X reported that the applicant “was displaying inappro-
priate behavior for his position, and that he was not succeeding in any attempted re-
assignments.”
CRCL concluded that “[e]ven assuming the events took place as relayed by [the
applicant], they fail to rise to the level of hostile work environment” and that “a finding
of no discrimination has been rendered.” CRCL also concluded that the applicant had
not been constructively discharged. CRCL stated that under Fritsch v. United States
Postal Service, EEOC Appeal No. 01840292 (1985), a constructive discharge is determined
by “(1) whether a reasonable person in the complainant’s position would have found
the working conditions intolerable; (2) whether the alleged conduct against the com-
plainant created the intolerable working conditions; and (3) whether the complainant’s
resignation resulted from the intolerable working conditions.” CRCL further stated
that the applicant
failed to show that a reasonable person would have found his working conditions intol-
erable. Management’s actions were in response to Complainant’s performance difficul-
ties and inappropriate behavior as corroborated in the record. The Command’s offer to
Complainant to receive the benefit of a waiver of the two-year in grade retirement
requirement rather than face demotion for performance issues was an offer advantageous
to Complainant. The record indicates that Complainant understood the offer and that he
accepted this benefit by submitting his retirement request.
As a result of Complainant’s inappropriate behavior, i.e., fantastic stories, obsession with
documentation of past wrongs, unprofessional actions (sitting on the floor and refusing to
leave) and even dangerous actions (hearing a non-existent mayday call), both the pre-
vious command and the current command requested psychological evaluation. It was
appropriate, even incumbent upon Command Management, to remove security access to
such an individual.
Second, as discussed above, Complainant failed to show that the working conditions
were intolerable. He did not show that he was discriminated against or that he was sub-
jected to an environment that was so hostile that he had no choice but to resign; rather
Complainant took advantage of an offer to retire at a higher pension rather than be
demoted due to performance problems.
… Complainant’s retirement is considered to be voluntary, and he has not shown that he
was a victim of discrimination.
VIEWS OF THE COAST GUARD
On February 1, 2006, the Judge Advocate General of the Coast Guard submitted
an advisory opinion recommending that the Board deny the applicant’s request. In so
doing, he adopted the facts and analysis in a memorandum provided by CGPC.
CGPC alleged that three investigations have been conducted into the applicant’s
allegation that he was coerced into retirement and that all three concluded that there
was insufficient evidence to support his claim. CGPC noted that the applicant’s retire-
ment date was delayed from February 1 to August 1, 2003, while investigations were
conducted. CGPC also noted that to retire the applicant in paygrade E-7, the Coast
Guard waived the requirement that a member serve successfully in that paygrade for
two years.
Regarding the applicant’s request that the adverse Page 7s be removed from his
record, CGPC stated that checks of the applicant’s electronic and paper record
“revealed no negative CG-3307 entries during the time period in question” and that the
Personnel Service Center had no E-7 performance evaluations for the applicant showing
that he was not recommended for advancement. CGPC stated that the negative Page 7s
had already been removed from the applicant’s record and that the “unsatisfactory”
conduct mark on his performance evaluation had already been changed. CGPC con-
cluded that no further relief should be granted.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On February 9, 2006, the BCMR received the applicant’s response to the Coast
Guard’s advisory opinion. The applicant alleged that the absence of the Page 7s from
his record shows that the Coast Guard is “attempting to cover up the actions from my
last command.” He alleged that those Page 7s “were used as a weapon of coercion to
force me against my will” to alter his requested date of retirement.
The applicant alleged that the email by CDR Y dated November 22, 2002, is
“clear evidence of the coercion that took place based on false and misleading informa-
tion.” He alleged that CDR Y also verbally threatened him with reduction in rate based
on the false and misleading information in the Page 7s signed by LCDR X unless he
agreed to the February 1, 2003, retirement date.
The applicant stated that although he is thankful that the Page 7s are not now in
his record, their absence “does not change the actions that occurred at [his] last com-
mand and how the negative CG-3307’s were used against [him]. It also does not change
the severe impact of the command’s actions upon [his] family.”
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law:
The Board has jurisdiction over this matter pursuant to 10 U.S.C. § 1552.
The application was timely.
1.
2.
3.
The applicant asked the Board to correct his retirement date from August
1, 2003, to October 1, 2004; to award him back pay and allowances; and to remove all
negative Page 7s from his record. The applicant’s record does not contain any negative
Page 7s from his last unit, where he served from July 16, 2001, until his retirement on
August 1, 2003. Although his record does contain negative Page 7s from prior units, he
has not presented any evidence to prove that those older Page 7s are erroneous.
Therefore, the only issue before the Board is whether the applicant’s retirement date is
erroneous or unjust.
Absent evidence to the contrary, the Board presumes that government
officials, including members of the applicant’s chain of command, have carried out their
duties “correctly, lawfully, and in good faith.” Arens v. United States, 969 F.2d 1034,
1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979). To be
entitled to relief, the applicant must submit sufficient evidence to overcome this pre-
sumption and prove the alleged error or injustice in his record by a preponderance of
the evidence. 33 C.F.R. § 52.24(b).
On November 25, 2002, the applicant submitted a request for retirement as
a TCC/E-7 as of February 1, 2003. His request was approved by CGPC even though he
had not yet performed the required two years of service in grade. Previously, he had
requested retirement as of October 1, 2004, and then June 1, 2003, and his command had
recommended March 1, 2003. According to CGPC, however, it was at that time offering
several members the opportunity to be retired without two years of service in grade
and all were assigned a retirement date of February 1, 2003. Therefore, it appears that if
the applicant was to retire early as an E-7—i.e., without two years in grade—CGPC
would agree only to a retirement date of February 1, 2003, for administrative reasons
that had nothing to do with the applicant’s situation at Group Xxxxx.
On December 7, 2002, the applicant wrote to a U.S. Senator, asking that his
retirement date be extended to June 1, 2003. He alleged that he had wanted to retire on
October 1, 2004, but had been coerced into submitting a request to retire on February 1,
2003, because his command was threatening to seek a reduction in rate. As a result of
this letter, the DOT IG began an investigation into the applicant’s allegations, and the
applicant was not retired until August 1, 2003.
4.
5.
6.
Under Article 5.C.38.c.2. of the Personnel Manual, “[o]nly the Comman-
dant may reduce a chief petty officer in rate for incompetence and then only if a fact-
7.
9.
8.
finding board finds the member unqualified.” Therefore, the command at Group Xxxxx
could not have unilaterally reduced the applicant’s rate without due process but could
only have asked CGPC to consider convening a fact-finding board to determine
whether the applicant was unqualified to serve as a TCC.
The DOT IG concluded that the applicant was “coerced” into requesting a
retirement date prior to October 1, 2004, not because he had reported that LCDR X was
taking home classified materials to work on, but because the applicant’s command was
entering negative information about his performance in his record and threatened to
seek a reduction in grade. “Coercion” is being constrained or compelled to do some-
thing one would not otherwise do, and is not the same thing as “duress,” which is
illegal constraint. Black’s Law Dictionary, Rev. 4th Ed., pp. 324 and 594. The Board agrees
with the DOT IG that there is insufficient evidence in the record to prove a nexus
between the applicant’s “whistleblowing” in October 2001 and his allegedly “coerced”
retirement.
The DOT IG recommended that the Coast Guard retain the applicant on
active duty until October 1, 2004. The DOT IG appears to have based this recommen-
dation on a conclusion that the applicant’s chain of command was not fairly and reason-
ably assessing the quality of his work and aptitude for leadership. The DOT IG found
that the command had negligently failed to document the applicant’s alleged poor per-
formance until October 7, 2002, and then prepared Page 7s with inaccuracies. The DOT
IG also found that the applicant’s command bungled their efforts to document the
applicant’s poor performance and leadership and employed dubious tactics, such as
preparing a second final E-6 performance evaluation, soliciting negative input from the
applicant’s subordinates, basing his E-7 evaluation on conduct that presumably
occurred at least in part during the prior evaluation period, and preparing Page 7s
based on “unverified” information. The DOT IG also suggested that the command
should have sent the applicant to a leadership course before removing him from the
Communications Center and negatively evaluating his performance.
The record before the Board indicates that the command’s primary com-
plaint about the applicant’s performance—and the cause for the removal of his access to
classified material first on June 7, 2002, by CAPT Y and later by CAPT Z—was a lack of
credibility on the part of the applicant. The applicant apparently told many “tall tales”
about himself that caused both superiors and subordinates to distrust him and to doubt
his veracity. Moreover, the alleged lack of veracity carried over into the applicant’s
communications about official work matters. On June 7, 2002, CWO X stated, the
“straw that broke the camel’s back” was an inaccurate claim by the applicant to LCDR X
that he had worked eleven days in a row and so deserved a day off. The applicant later
denied having made this claim and accused LCDR X of deliberately misinforming CWO
X. The DOT IG did not support the applicant’s allegation that LCDR X had lied but
noted that there could have been some miscommunication about what the applicant
claimed. However, in supporting a mark of 2 for the performance category “Integrity”
10.
on the applicant’s E-7 performance evaluation, CWO X wrote that when the applicant
was challenged on the truthfulness of his claims, “he routinely would deflect responsi-
bility by claiming miscommunication, misunderstanding or claim the person doubting
him to be lying. This continued behavior has led to a total loss of confidence in his
credibility and resulted in an administrative suspension of his security clearance.”
The DOT IG unaccountably dismissed the applicant’s “tendency to embel-
lish stories,” which “was mentioned by every person interviewed,” as an “eccentricity”
of his personality and “method[] of engaging people in conversation.” Therefore, the
DOT IG essentially ignored claims by the applicant’s chain of command that this
“tendency” carried over into the applicant’s communications about official work mat-
ters and concluded that the command’s actions against the applicant were due primar-
ily to “personality conflicts” rather than to a critical lack of credibility on the part of the
applicant. Although the applicant’s command negligently delayed documenting the
applicant’s “tendency” in his record and later, as the DOT IG and the Coast Guard’s IO
found, employed some dubious tactics to document his performance, the delay and the
tactics do not actually disprove the command’s claims about the applicant’s lack of
veracity, integrity, and leadership in the performance of his duties. CAPT Z stated to
CRCL that the applicant once falsely reported having heard a “mayday” call on the
radio. The Board notes that Group Xxxxx’s problems with the applicant’s lack of trust-
worthiness echoed the complaints of the applicant’s prior command in Xxxxxxx, which
entered a Page 7 in his record with the following assessment:
[The applicant] has an overwhelming competitive attitude which leads to exaggerated
statements and reckless guesses which he exhibits in day-to-day situations at the unit.
[His] continued exaggeration has been so intense that his subordinates question his vera-
city in the most mundane issues. Such a reputation does not breed respect and diminish-
es his credibility. [He] does not always express his thoughts clearly and logically and this
has been evident through his dealings with his chain of command. [He] never takes any
responsibility for his actions and seems to have a hard time adjusting and supporting
decisions of his seniors. At times [he] demonstrates fine technical skills but has not
exhibited the leadership skills necessary for advancement to Chief Petty Officer.
11.
Therefore, the Board finds that although the applicant’s command
delayed documentation of his deficiencies and may have employed dubious tactics
when finally preparing such documentation, the preponderance of the evidence in the
record strongly supports the command’s assessment of the applicant’s credibility and
CAPT Y’s and CAPT Z’s separate decisions to remove his access to classified materials.
12. Without access to classified materials and the trust of his chain of com-
mand, the applicant could not perform the duties of a TCC and TCIC. Therefore, the
Board finds that it was not unreasonable for the command to inform the applicant in the
second Page 7 dated October 7, 2002, that they might seek a reduction in rate if he
remained on active duty without improving. Although the DOT IG opined that leader-
ship training might have helped the applicant, this possibility does not persuade the
13.
Board that the command committed an error or injustice in denying the applicant access
to classified materials.
The DOT IG found that when the applicant was returned to the Com-
munications Center for a few weeks in October 2002, he was “set up to fail” because his
subordinates were told they did not have to follow his orders. However, the second
Page 7 dated October 7, 2002, states that the applicant was not being returned to the
Communications Center in a supervisory position. In that Page 7, the applicant was
told that he would not have “supervisory contact” with subordinates in the Communi-
cations Center and that he would be assessed on his performance of assigned tasks,
veracity, and professionalism. Therefore, since the applicant was not supposed to be
exercising authority over any staff members at the Communications Center, the Board
does not agree that, by informing that staff of this fact, the chain of command was
setting him up to fail while on probation. The Page 7 advised the applicant that if he
properly performed his assigned tasks and displayed veracity and professionalism
while on probation, he would later be given supervisory responsibilities. Informing the
staff of his status while on probation could not and should not have stopped the appli-
cant from properly performing his assigned tasks and displaying veracity and profes-
sionalism. Therefore, the Board disagrees with the DOT IG’s assessment that in October
2002 the applicant was “set up to fail” his probation.
The applicant made numerous allegations with respect to the actions and
attitudes of various members of his chain of command. Those allegations not speci-
fically addressed above are considered to be not dispositive of the case.
14.
15. Given the possibility that his command might decide to seek a reduction
in rate, the applicant may certainly have felt coerced to submit his requests for earlier
retirement dates. However, he has not shown that the command committed any error
or injustice by informing him of the likelihood of such an event. The record before the
Board indicates that his command had very sound reasons for doing so even though the
documentation of those reasons was not entirely accurate or properly prepared.
The Board notes that the DHS Office of Civil Rights and Civil Liberties
concluded that the command did not create a “hostile work environment” for him; that
the command’s actions were not the result of unlawful discrimination; and that the
applicant was not constructively involuntarily discharged. The Board also notes that
CGPC delayed the applicant’s retirement date from February 1, 2003, until August 1,
2003, so that the investigation of his allegations could be completed.
16.
17.
The Board finds that the applicant has not proved by a preponderance of
the evidence that his retirement on August 1, 2003, was an error or injustice. Although
the investigations revealed a few inaccuracies in the Page 7s dated October 7, 2002, the
great preponderance of the negative information in those Page 7s has not been dis-
proved. The applicant has not proved that his command’s decisions to remove his
access to classified material and to inform him of the likelihood that they would seek a
reduction in rate if he did not retire were unreasonable, unfounded, or unfair.
18. Accordingly, the applicant’s request should be denied.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
ORDER
military record is denied.
Philip B. Busch
Dorothy J. Ulmer
Richard Walter
The application of xxxxxxxxxxxxxxxxxxxxx, USCG (Retired), for correction of his
No copy of this decision shall be retained in his personal data records.
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