ALCOAST 050/24 - FEB 2024 COAST GUARD SAFE TO REPORT POLICY

R 011639Z FEB 24 MID120000846204U
FM COMDT COGARD WASHINGTON DC
TO ALCOAST
BT
UNCLAS
ALCOAST 050/24
SSIC 5800
SUBJ: COAST GUARD SAFE TO REPORT POLICY
A. Sexual Assault Prevention, Response, and Recovery (SAPRR)
Program, COMDTINST 1754.10F
B. Military Justice Manual, COMDTINST M5810.1H
C. Section 539A of the William M. (Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021
D. 10 U.S.C. § 824a(c)
E. 14 U.S.C. § 502
F. Discipline and Conduct Manual, COMDTINST M1600.2
1. This ALCOAST establishes a Safe-to-Report policy that prescribes
the handling of minor collateral misconduct involving a service-
member who is the alleged victim of a sexual assault, including
reservists, recruits at Training Center Cape May, and cadets at the
Coast Guard Academy. Victims and Reporting Witnesses will not be
subject to discipline for minor collateral misconduct pursuant to
this policy. In the event of any conflicts between this ALCOAST and
provisions in REF (A) and REF (B), the directives in this ALCOAST
will take precedence.
2. REF (C) required the Department of Defense (DoD) and military
departments to create Safe-to-Report policies. This ALCOAST
establishes a policy for the Coast Guard adapted from the DoD
Safe-to-Report policy. It applies regardless of to whom the victim
makes the allegation of sexual assault, and regardless of whether
the investigation and/or prosecution is handled by military or
civilian authorities. This policy does not alter REF (A), Chapter
4.H.(4) which provides: "[i]f a victim discloses their sexual
assault to anyone other than a mandatory reporter (i.e., anyone
serving in a law enforcement billet or anyone in the victim’s direct
chain of command), the confidant is not required to report the
sexual assault.” This policy also does not preclude the Coast Guard
Investigative Service from continuing to investigate and document
in final reports incidents of alleged collateral misconduct revealed
during associated investigative processes, but it may impact the
commander’s action or response to such misconduct.
3. DEFINITIONS:
    a. "Authorized commander" refers to general court-martial
convening authorities, the Commander of Coast Guard Cyber Command,
training center commanding officers with an assigned Staff Judge
Advocate, the commanding officer of the Coast Guard Yard, and base
commanders in paygrade O6.
    b. "Collateral misconduct" refers to any misconduct that is
associated with the time, place, or circumstances surrounding a
sexual assault.
    c. "Deferral" has the same meaning as in Rule for Courts-Martial
(R.C.M.) 103(10) and refers to a special trial counsel declining to
prefer charges for an offense or declining to refer charges to a
courts-martial.
    d. "Discipline" includes an officially documented command action
that has been initiated against the victim in response to alleged
collateral misconduct, including: administrative letters of
censure, negative CG-3307s, or other written records of individual
counseling in official personnel files; imposition of nonjudicial
punishment; referral of charges; initiation of involuntary
administrative separation proceedings; or administrative demotion.
This also includes discipline under cadet regulations at the Coast
Guard Academy.
    e. "Sexual assault" refers to: alleged penetrative and non-
penetrative violations of the applicable version of Article 120,
Uniform Code of Military Justice (UCMJ); alleged violations of
Article 125, UCMJ for acts of forcible sodomy of a victim aged 16
years old or older occurring before January 1, 2019; and alleged
attempts and conspiracies to commit any of these offenses.
    f. "Special trial counsel" has the same meaning as in
R.C.M. 103(24) and refers to a judge advocate qualified, certified,
and assigned as such. Special trial counsel in the Coast Guard are
assigned to the Office of the Chief Prosecutor.
    g. "Reporting Witnesses" refers to a third party who reports a
sexual assault or a bystander who intervened to prevent a sexual
assault and cooperates with an investigation.
    h. "Victim" also refers to individuals who disclose or report a
sexual assault allegation. It is not intended to presume the guilt
or innocence of an accused.
3. DETERMINING WHETHER THE COLLATERAL MISCONDUCT IS “MINOR” OR
"NON-MINOR".
    a. The threshold issue for the applicability of the Safe-to-
Report Policy is determining whether the alleged collateral
misconduct in question is "minor" or "non-minor." Authorized
commanders must consult with the servicing Staff Judge Advocate
in reaching these determinations. An authorized commander is
responsible for this determination unless a special trial counsel
has elected to exercise authority over the alleged collateral
misconduct and has not deferred such misconduct to the command.
    b. The authorized commander must assess the alleged collateral
misconduct against aggravating and mitigating circumstances as noted
in Paragraph 4. If the alleged collateral misconduct is deemed
minor, then the Safe-to-Report policy applies, and the victim must
not be disciplined. If the alleged collateral misconduct is non-
minor, then the Safe-to-Report policy does not apply and the victim
could be subject to disciplinary action.
    c. For purposes of determining whether an offense is "minor"
under the Safe-to-Report policy, the criteria providing guidance
on the implementation of Article 15 of the UCMJ in Part V of the
Manual for Courts-Martial (MCM) generally apply. Commanders have
considerable discretion in deciding whether an offense is a minor
offense. The guidance related to nonjudicial punishment can be used
to cover a wide variety of offenses, ranging from an incidental
infraction during initial training to a significant dereliction.
Therefore, alleged minor collateral misconduct may in some instances
include UCMJ offenses that may be punishable by more than one year
of confinement if tried by general court-martial. The following are
examples of collateral misconduct that generally should be treated
as minor for purposes of the Safe-to-Report policy:
        (1) The victim was drinking underage at the time of the
assault;
        (2) The victim was engaged in an unacceptable or prohibited
relationship with the accused at the time of the sexual assault
as defined by REF (F); and
        (3) The victim was in violation of lawful orders or
regulations establishing curfews, off-limit locations, school
standards, barracks/dormitory/berthing policies, or similar matters
at the time of the alleged sexual assault.
4. MITIGATING AND AGGRAVATING CIRCUMSTANCES.
    a. Mitigating circumstances are those that decrease the gravity
of alleged collateral misconduct, its impact on good order and
discipline, and concern that it might be service discrediting.
Authorized commanders must take into account these factors in
determining whether the alleged collateral misconduct is minor.
Mitigating circumstances include, but are not limited to:
          (1) The victim’s age and military experience.
          (2) Whether the suspect was in a position of authority over
the victim or a higher grade than the victim.
          (3) Whether the suspect engaged in actions to stalk, harass,
haze, coerce, and/or otherwise influence the victim to engage in
sexual behavior.
          (4) Whether the alleged collateral misconduct was known to the
command prior to the report of sexual assault, and if not known,
the likelihood that the alleged collateral misconduct would have
otherwise been discovered, but for the victim disclosing or
reporting the sexual assault.
          (5) The victim engaged in misconduct after the sexual assault,
which is determined to be related to the symptoms of exposure to
trauma, e.g., the victim engaged in underage drinking as coping
mechanism to alleviate sexual assault trauma symptoms.
    b. Aggravating circumstances are those that increase the gravity
of alleged collateral misconduct or its impact on good order and
discipline. The existence of aggravating circumstances does not
automatically result in making the alleged collateral misconduct
non-minor. Authorized commanders retain the discretion, or not, to
take disciplinary action against a victim for alleged collateral
misconduct but shall take into account these factors in determining
where aggravating circumstances render the misconduct more serious.
Aggravating circumstances include, but are not limited to, whether
the alleged collateral misconduct intentionally or unintentionally:
          (1) Resulted or imminently threatened to result in the failure
of a specified military mission or objective;
          (2) Threatened the health or safety of any person, not
including acts of self-harm or acts of self-defense against the
alleged perpetrator(s) of an assault; or
          (3) Resulted in significant damage to government property, or
to the personal property of others, expects when such damage was the
collateral result of an assault or resulted from an act of
self-defense.
5. DETERMINING THAT THE COLLATERAL MISCONDUCT IS NON-MINOR.
    a. If the victim's alleged collateral misconduct is determined to
be non-minor, the authorized commander still retains discretion on
whether to discipline and when to discipline, including whether to
forward the matter to a subordinate authority for disciplinary
action as permitted by R.C.M. 306(c)(5).
    b. However, should a special trial counsel exercise authority
over a victim's alleged collateral misconduct, the commander is
precluded from taking disciplinary action against the victim, unless
the special trial counsel defers at a later point. In cases in which
a special trial counsel is prosecuting a sexual assault offense, the
authorized commander, through their Staff Judge Advocate, should
consult with the special trial counsel prior to taking disciplinary
action regarding the alleged collateral misconduct over which the
special trial counsel has not exercised authority or has deferred.
    c. Authorized commanders shall have discretion to postpone action
on alleged non-minor collateral misconduct by the sexual assault
victims, until final disposition of the sexual assault case. Under
this policy, commanders may take into account the trauma to the
victim and respond appropriately so as to encourage reporting of
sexual assault and continued victim cooperation, while also bearing
in mind any potential speedy trial and statute of limitations
concerns. If a commander believes that it would be appropriate to
document or otherwise take disciplinary action for alleged non-minor
collateral misconduct in the interest of rehabilitation, he or she
should consider actions that minimize or eliminate impacts on the
victim's career.
6. DETERMINATION THAT THE COLLATERAL MISCONDUCT IS MINOR-Triggering
of the Safe-to-Report Protections.
    a. Once the final determination is made that the alleged
collateral misconduct is minor, the individual shall not be
disciplined for the alleged minor collateral misconduct pursuant
to this Safe-to-Report policy. However, this policy does not
preclude commanders from fulfilling certain administrative
requirements, for example: referral to substance abuse screening
if the minor collateral misconduct involves any kind of substance
abuse, referral to behavioral health or medical providers for a
fitness for duty determination, or temporarily suspending access
to critical positions, such as those requiring a Top Secret/
Sensitive Compartmented Information clearance. It may be appropriate
to temporarily decertify the victim from critical positions until
appropriate evaluations can be conducted.
7. ROLE OF THE SPECIAL TRIAL COUNSEL.
    a. This paragraph is established pursuant to the prescribed
duties applicable to special trial counsel by regulation as
recognized by REF (D) and as delegated to the Commandant pursuant
to REF (E).
    b. Special trial counsel may exercise authority over "covered
offenses" which are defined at 10 U.S.C. 801(17). Special trial
counsel may also exercise authority over other "related offenses,"
including collateral misconduct committed by the victim of an
alleged sexual assault offense. Once a special trial counsel
exercises authority over an offense, only a special trial counsel
may dispose of that offense, unless special trial counsel defers
authority over that offense to the command per R.C.M. 306A(a).
    c. When special trial counsel exercise authority over victim
collateral misconduct, the special trial counsel must determine
that such collateral misconduct is non-minor before court-martial
charges alleging collateral misconduct by a victim are preferred or
referred. Special trial counsel will use the analytical framework,
criteria, and standards established in this policy. Additionally,
when a special trial counsel determines that collateral misconduct
is non-minor, the special trial counsel will communicate such to the
commander via their Staff Judge Advocate.
    d. When special trial counsel do not exercise authority over
collateral misconduct or when they defer, the commander will
determine whether victim collateral misconduct is minor or non-minor
utilizing the analytical framework, criteria, and standards set out
in this policy.
8. Additional guidance will be promulgated in the next updates of
REFs (A) and (B), which will be released within the next year.
9. This message will be cancelled on 31 MAR 2025.
10. My points of contact for the Safe-to-Report Policy are the SAPRR
Program Manager COMDT (CG-1K4), Michelle Underwood
(Michelle.A.Underwood@uscg.mil) and the Office of Military Justice
(CG-LMJ), CAPT Anita Scott (Anita.Scott@uscg.mil). This Policy will
allow us to build on the support we strive to provide to victims of
sexual assault while ensuring due process for the accused and good
order and discipline for the Coast Guard.
11. ADM S. D. Poulin, Vice Commandant (VCG), sends.
12. Internet release is authorized.