BCMR and the USCG

http://jpp.whs.mil/Public/docs/07-RFI/Set_3/Responses/Q80_Responses_20150513.pdf
NOTE: The following questions and ANSWERs apply only to the USCG. For the answers that apply to the USA, USAF, USN, and the USMC see the link above.
JUDICIAL PROCEEDINGS PANEL
REQUEST FOR INFORMATION SET # 3
47
80.
Board of Correction of Military Records (BCMRs)
–
a. How have BCMRs typically handled applications that specifically contain
requests for relief from retaliation for making a protected communication?
(Answer)The Chair of the BCMR has met with personnel in the Office of the Inspector
General to ensure they are aware of the BCMR as an avenue of redress, but the
BCMR has not received a whistleblower case from the Coast Guard in several years. The BCMR has specific regulations for handling such whistleblower cases at 33 CFR part 53.
b.Are there any additional considerations given if an applicant states or
provides evidence that he/she has been a victim of sexual assault in the
military?
(Answer)If the Board received such an application, it
would consider the recent Medical
Guidance about PTSD issued by DoD for the correction boards on September 3,
2014.
c.What considerations are given when applicants note they filed a sexual
assault report, admittedly engaged in collateral or subsequent misconduct, and the command’s adverse action was unfair or an injustice (i.e., a request
to change an involuntary administrative discharge to a medical discharge)?
If those cases are not treated as retaliatory claims, please explain how
BCMRs distinguish those record corrections requests which may imply a
causal connection to the sexual assault from those that specifically state the
action was in reprisal to filing a report.
(Answer)The BCMR does not receive enough sexual assault cases to generalize (fewer than one per year on average), but the Board normally treats an implication of reprisal the same as an outright allegation of reprisal.
d.What procedures have been developed with DOD IG and/or the Service IGs
to help expedited the procedures for victims whose retaliation claims have
been substantiated? How does the BCMR coordinate cases with the DOD
and Service IGs?
(Answer) The Chair of the BCMR has met with personnel in the Office of the Inspector General to ensure theyare aware of the BCMR as an avenue of redress, but the BCMR has not received such a whistleblower case in several years.
e.Have the Services’ BCMRs established a separate procedure for sexual
assault victims challenging their discharge as required by FY14NDAA section 547?
If so, please describe that confidential process.
(Answer) The BCMR has a staff of three, and all BCMR cases are handled confidentially and on a need-to-know basis. In light of section 547, BCMR decisions in sexual assault cases will no longer be posted online.
f.What steps are BCMRs taking to give due consideration to the psychological
and physical aspects of an individual’s experience in connection with the sex-related offense and determining what bearing such experience may have had
on the circumstances surrounding the individual’s discharge or separation
from the Armed Forces as required by FY15 NDAA 547?
(Answer) When the BCMR receives an application from a victim of sexual assault, it will take into consideration DoD’s new Medical Guidance about PTSD, and if the applicant received mental health treatment while in the Service, the Coast Guard’s advisory opinion for the case will contain the opinion of a psychologist or psychiatrist, in accordance with section 521 of the FY15 NDAA.

War On Whistleblowers: Coast Guard Refuses To Release Information Critical To Commander's Case

This Administration has been hard on "whistleblowers". It promised to be the most transparent. It has not been, and that includes the military services.
In the old days well-meaning Government employees would "leak" information to the Press so the public would know what goes on behind closed doors. Leakers today are known as whistleblowers.

CDR Ben Strickland is a whistleblower. He tried to help a young sailor who came to him for help. The woman had been sexually assaulted and he did what in his conscience was the right thing. He reported the incident instead of covering it up.

The Department of Homeland Security Office of the Inspector General (OIG) has opened an investigation into the retaliatory actions  taken against him by a few Coast Guard senior officers.
CDR Strickland was serving as the executive officer (XO) in USCGC MUNRO (WHEC-724) home-ported in Kodiak, Alaska, when a young sailor came to see him one day. She indicated she had been sexually assaulted and harassed on several occasions previously. The commander did what any good shipmate would do - he brought the victim to the local military Sexual Assault Response Coordinator who reported it to Fleet Commander, then-VADM Paul F. Zukunft at U.S. Coast Guard Pacific Area. This automatically triggered an investigation by CGIS into the allegations.

Some where along the way, the Sexual Assault Investigation took a wrong turn. Rather than investigating a complaint of sexual assault, CGIS appeared to be conducting an investigation of the Officers and crew of the MUNRO.

 On Friday May 31 CAPT Greg Burg, the Personnel Investigative Officer from USCG Pacific Area arrived at the CGC MONRO. He had flown from Alameda, California to Kodiak, Alaska to conduct an administrative inquiry into the "Command Climate" onboard the ship. He began interviewing crew members on a not-to-interfere basis with the separate and continuing CGIS criminal investigation into the sexual assault complaint.
Now there were two separate investigations proceeding onboard the USCGC MUNRO (WHEC-724); there was a Command Climate Investigation and a sexual assault investigation.

Before CAPT Burg departed the ship, he briefed the CO and the XO concerning the Findings of his "Command Climate" Investigation. More than 40 witnesses had been interviewed. It was his conclusion that the CGC MUNRO had one of the better Command Climates he had seen for a Coast Guard High Endurance Cutter (WHEC).
CAPT Burg later told CDR Strickland that if Pacarea or CGIS later tried to come after him or tried to make him the fall guy for the sexual assault he had reported, then he should get a copy of his Command Climate Investigation Report.
CDR Strickland, through his attorney, has filed two FOIA requests for the Report. Both have been denied.  The latest denial was dated April 28, 2015.
CDR Strickland is convinced that the Report is a smoking gun which proves CGIS had no basis to be investigating the entire ship/crew/command and that they were indeed conducting a witch hunt in response to undue command influence from the CGIS Director and other senior officials.

Coast Guard officials, needing a scapegoat to deflect attention from all the bad publicity the services were receiving in the media and on Capital Hill, decided to make Strickland their scapegoat in the case.

In a blatant violation of military whistleblower protection laws, CAPT Jeffrey W. Thomas, perhaps at the request of VADM Zukunft, played the "loss of confidence" card and removed CDR Strickland from his role as XO and issued him a "substandard" officer evaluation report (OER).

 CDR Strickland received a Derogatory Officer Evaluation Report (OER) from CAPT Thomas. The Derogatory OER rated CDR Strickland in the Block 9 category as the worst Commander/O-5 he has ever known in the Coast Guard and in Block 10 specifically states that CDR Strickland needs to change his “personal views” to “align with CG direction and policy”.

 CAPT Thomas refused to allow CDR Strickland to view alleged “evidence” compiled against him that was used in the Adverse OER.

CDR Strickland received 97 pages of Microsoft OCS transcripts on March 21 in response to FOIA request of 06 Mar 2014. USCG Pacific Area claimed "these 97 pages are provided in their entirety without exceptions".

On March 25 CDR Strickland submited a two-page Addendum to the Derogatory OER dated 26 Feb 2014. The Addendum submitted by CDR Strickland pointed out that the 97 pages of IM transcripts did not substantiate all of CAPT Thomas’ allegations. CDR Strickland also pointed out that many of the conversations extracted and reviewed by CAPT Thomas and CGIS were protected communications to include the Base Kodiak work-life staff/Sexual Assault Response Coordinator, Chaplain’s Office as well as his complaints of internal corruption and mismanagement by CGIS. 97 pages of IM logs also show that CDR Strickland stated to another officer that he feared reprisals.

 CDR Strickland received another 40 pages of IM transcripts and was granted another two weeks to submit his two-page Addendum to the Derogatory OER dated 26 Feb 2014. After review, it became apparent that the 40 additional pages only contained 3-4 pages of new material. It was also clear that this 40 page transcript was cherry-picked from the original 97 pages, to include inflammatory language taken out of context of the original conversation as well as to delete specific instances where CGIS misconduct was mentioned. CDR Strickland was granted another two weeks to submit a revised OER Addendum.

 There is a Coast Guard policy which mandates that members of the rating chain shall be removed from the evaluation process while they are parties to an investigation into their actions or conduct. This policy is formalizd in COMDTINST M1000. In the Case of CDR Strickland that would include CAPT Thomas and certain Pacific Area officers. At the time that there was an active DHS OIG investigation into the nature of CDR Strickland’s removal from primary duties, and in spite of  the whistleblower claims raised in CDR Strickland’s two-page Addendum to the Derogatory OER dated 26 Feb 2014,  CGPC-opm-3 (CAPT Kevin Gavin), ordered his staff  to validate the disputed OER and have it placed in CDR Strickland’s official record. This decision was contrary to and in violation of Coast Guard Officer Evaluation System (OES) policy as outlined in in COMDTINST M1000. 

 Coast Guard Personnel Command revoked CDR Strickland's follow-on orders to Italy as Coast Guard Liaison Officer (CGLO) to U.S. Navy Sixth Fleet in Naples Italy; instead, for he was demoted to a billet inferior to his rank at a desk in Coast Guard Headquarters.

On February 08, 2014 CDR Strickland sought assistance from the Project on Government Oversight (POGO). He intended to file a whistleblower reprisal complaint with the DHS Inspector General. Mr. Michael Smallberg was assigned as the POGO Lead Investigator to assist him. Mr. Smallberg interviewed several witnesses who corroborated CDR Strickland’s allegations of retaliation. On February 13 he wrote letters to Rep. Young and Sen. Murkowski (AK) outlining the retaliatory actions taken against him after he reported a sexual assault and requests assistance. 

 On February 25 CDR Strickland filed a complaint  with DOD OIG citing potential violations of 10 USC 1034, Military Whistleblower Protection Act (MWPA). VADM Zukunft, CAPT Bell and CAPT Thomas, et al, were all named as “accused”. DOD OIG commenced their preliminary inquiry into CDR Strickland’s claims. 
 On February 26 CDR Strickland filed  a separate compliant with DHS OIG citing potential violations of the MWPA.

CDR Strickland was notified by DOD OIG on March 10 that their preliminary inquiry into his complaint was complete. He had met DOD OIG standards for investigation and DOD OIG had corresponded with DHS OIG. DOD OIG was forwarding CDR Strickland’s compliant to DHS OIG for further action.On March 12 he was notified by DHS OIG that review of his complaint was being sent to the DHS Office of Counsel for approval.

  CDR Strickland received an email on April 04 from DHS OIG informing him that their Office of Counsel had approved his complaint for full investigation by the DHS OIG Office of Investigations.

 He had reported a sexual assault, as he was required to do; he had participated in the investigation as a witness; and he had raised concerns regarding waste, abuse of authority and gross mismanagement by CGIS and USCG Pacific Area. For this he was severely punished.  

On June 03, 2014 CDR Strickland was personally interviewed in Anchorage, Alaska by the DHS OIG. He verbally confirmed the allegations made in his complaint of 25 Feb 2014. He signed a sworn statement/affidavit subject to the penalty of perjury. 

On June 03, 2014 CDR Strickland was personally interviewed in Anchorage, Alaska by the DHS OIG. He verbally confirmed the allegations made in his complaint of 25 Feb 2014. He signed a sworn statement/affidavit subject to the penalty of perjury. 
On June 4 CDR Strickland submited a two-page reply to the validated Derogatory Officer Evaluation Report with Addendum filed by CAPT Thomas and approved by USCG Pacific Area (CAPT David S. Fielder). He referenced the MWPA complaint, and reiterated the rating chain's (CAPT Thomas and CAPT Fielder) refusal to abide by CG policy as well as their consciously ignoring and sidestepping his whistleblower claims. 

CDR Strickland also stated the rating chain's refusal to disqualify themselves as OER Supervisor/Reporting Officer and OER Reviewer while they were under DHS OIG investigation was a flagrant violation of Coast Guard Officer Evaluation System policies and that CGPC-opm-3’s decision to allow the OER to be validated, as written, constituted an administrative error.