DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2000-119 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This  proceeding  was  conducted  under  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  The application was 
received  on  March  27,  2000,  and  completed  upon  the  BCMR’s  receipt  of  the 
applicant’s military records on May 1, 2000. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  March  29,  2001,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The  applicant,  a  former  xxxxxxxx,  received  a  general  discharge  under 
honorable conditions from the Coast Guard on February 5, 1999, after his urine 
tested positive for cocaine use during a random urinalysis.  He asked the Board 
to correct his record by upgrading his discharge from general to honorable. 
 

The applicant alleged that his general discharge did not accurately reflect 
the quality of his work for the Coast Guard during his six years of active service.  
He  alleged  that  his  “evaluations  were  always  of  the  highest  standards.”    He 
stated that an upgraded discharge was very important for his family because it 
would enable him to pursue his career. 

 
In support of his allegation, the applicant submitted a statement by a chief 
warrant officer serving as a maintenance officer at xxxxxxxx, where the applicant 
worked  as  a  mechanic.    The  chief  warrant  officer  stated  that  the  applicant 
“demonstrated superior performance while serving aboard Coast Guard xxxxxx.  

He has consistently showed a high level of proficiency with his assigned duties.  
[He]  was  personally  responsible  for  maintaining  a  fleet  of  ground  support 
equipment required for responding to Aircraft launches and retrieval.” 
 

SUMMARY OF THE RECORD 

 

On xxxxxxx, the applicant enlisted in the Coast Guard for four years.  The 
same day, he signed two forms acknowledging that he had been advised about 
Coast Guard policies concerning illegal drug use.  

 
The applicant attended “A” School to become a machinery technician and 
extended his enlistment through June 1, 2000.  He received good evaluations, and 
his record contains no negative administrative or disciplinary entries. 

 
On  xxxxxxx,  1998,  the  applicant  participated  in  a  required  random 
urinalysis  test.    On  December  3,  1998,  the  testing  laboratory  reported  that  his 
urine had tested positive for cocaine metabolites and that the results of the initial 
test  had  been  confirmed  by  gas  chromatography  and  mass  spectrometry.    The 
report indicated that his urine contained the cocaine metabolite benzoylecgonine 
at a concentration of 906 nanograms per milliliter.  The Coast Guard’s minimum 
“cut-off” concentration for a “positive” test result is 100 nanograms per milliliter.  

 
On December 9, 1998, the applicant’s commanding officer (CO) initiated 
an  investigation  into  a  possible  “drug  incident,”  pursuant  to  Article  20  of  the 
Personnel Manual.  On December 12, 1998, the investigating officer reported that 
he  had  interviewed  the  persons  responsible  for  conducting  the  urinalysis  and 
determined that it had been properly conducted in accordance with the Urinaly-
sis Drug Testing Procedures Manual.  The applicant signed a “Miranda/ Tempia 
Warning,”  which  advised  him  of  the  reason  for  the  investigation  and  of  his 
rights,  including  his  right  to  remain  silent,  to  consult  a  lawyer,  and  to  have  a 
lawyer present at any questioning.  On the  same form, the applicant indicated 
that he did not wish to consult a lawyer but did wish to submit a statement, in 
which he wrote the following: 

 
My work performance clearly shows that I do not engage in such activi-
ties  as  drug  use.    I  am  a  responsible  person  to  which  [sic]  my  duties 
include: driving heavy equipment and in charge of all government vehi-
cles on base, among many other tasks.  I am a person that practices many 
sports like surfing, motocross, hiking and inter-island tourism with Coast 
Guard friends.  This kind of active life-style does not have any room for 
drug use. 
 
On  this  date  I  will  submit  a  nutritional  supplement  which  I  had  been 
using to which I suspect is the cause of the test results.  I will also submit 

the names of the establishments I went with my wife and [two friends] 
the night before testing as requested by the investigating officer. 
 
The  applicant  also  told  the  investigator  he  had  attended  sick  call  that 
morning and been given two over-the-counter cold medicines.  The investigating 
officer verified this fact and called a doctor of toxicology at the testing laboratory 
about the applicant’s hypotheses regarding the cause of the positive test result.  
The doctor stated that neither of the two over-the-counter cold medicines nor the 
nutritional supplement could have caused the positive result for cocaine meta-
bolites.    A  report  submitted  by  the  laboratory  states  that  "[c]ocaine  is  the  only 
substance known which metabolizes to benzoylecgonine.”  The doctor also stated 
that  there  was  no  reason  for  a  bartender  to  add  cocaine  to  a  drink  because 
although  “cocaine  ingested  by  mouth  could  trigger  a  positive  result,  …  when 
ingested orally [cocaine has] no psychological effect; the only sensation might be 
numbness  of  the  lips,  tongue,  or  other  mouth  parts,  since  cocaine  acts  as  an 
anesthetic on direct contact.”  The investigating officer also reported that a Coast 
Guard attorney told him that although members often claim their positive uri-
nalyses have resulted  from cocaine added to their drinks without their knowl-
edge, the explanation has little credibility because there is no reason for a “drink-
ing  establishment  [to]  incur  the  expense  and  risk  of  adding  a  controlled  sub-
stance to its mixed drinks.”   

 
The  applicant’s  supervisor  at  xxxxxxxx  signed  a  statement  on  his  behalf 
for the investigation.  The supervisor stated that since the applicant’s marriage 
about seven months before, his job performance, which had been average, had 
shown steady improvement.  In addition, he stated that the applicant had taken 
on  new  responsibilities  and  that  his  performance  and  leadership  during  the 
aftermath of a hurricane had “far exceeded” the supervisor’s expectations. 

 
The  investigating  officer  concluded  that  the  applicant  knowingly  and 
intentionally used cocaine and that his illegal drug use constituted a “drug inci-
dent” as defined in Article 20.A.2.k. of the Personnel Manual.  He recommended 
that the applicant be evaluated for drug dependency and administratively sepa-
rated in accordance with Articles 20.C.4. and 12.B.18.e. of the Personnel Manual.  
He recommended that no criminal charges be made because the applicant had 
been performing well and had “not been a source of disciplinary problems for 
the command.” 
 

On December 18, 1998, the applicant’s CO notified him that he was rec-
ommending  that  the  applicant  be  discharged  for  misconduct  due  to  his  use  of 
illegal drugs.  The CO advised him that no criminal charges would be made and 
that  he  had  a  right  to  make  a  statement  and  consult  with  a  lawyer.    He  also 
ordered the applicant to undergo drug dependency screening.  In response, the 

applicant signed a statement indicating that he did desire to consult a lawyer but 
that he did not wish to submit a statement. 

 
On January 5, 1999, the applicant’s CO informed the Commander of the 
Coast Guard Personnel Command (CGPC) of his recommendation that the appli-
cant be awarded a general discharge by reason of misconduct.  He made the rec-
ommendation based on his finding that a “drug incident” had occurred since the 
applicant’s urine had tested positive for cocaine.  He also stated that the appli-
cant had refused to submit to drug dependency screening and had rejected coun-
seling. 
 
On January 7, 1999, CGPC ordered the CO to discharge the applicant by 
no later than xxxxxxx, with a general discharge by reason of misconduct due to 
involvement with drugs and with a JKK separation code. 

 
On February 5, 1999, the applicant was discharged by reason of miscon-
duct in accordance with Article 12.B.18. of the Personnel Manual.  His DD 214 
shows “under honorable conditions” as the character of discharge; “misconduct” 
as  the  narrative  reason  for  separation;  RE-4  (ineligible  for  reenlistment)  as  his 
reenlistment code; and JKK (involuntary discharge due to illegal drug abuse) as 
his separation code. 
 

VIEWS OF THE COAST GUARD 

On November 14, 2000, the Chief Counsel submitted an advisory opinion 

 
 
in which he recommended that the Board deny relief in this case. 
  

The  Chief  Counsel  argued  that  the  application  should  be  dismissed  for 
failure  to  exhaust  administrative  remedies  because  the  applicant  has  not  yet 
sought relief from the Discharge Review Board (DRB).  He argued that under 33 
C.F.R.  § 52.13(b),  “[n]o  application  shall  be  considered  by  the  Board  until  the 
applicant  has  exhausted  all  effective  administrative  remedies  afforded  under 
existing  law  or  regulations.”    Because  veterans  may  apply  to  the  DRB  for  an 
upgrade  of  their  discharge  anytime  within  15  years  of  being  discharged,  the 
Chief Counsel argued, the applicant’s case must be considered by the DRB before 
being reviewed by the BCMR.  

 
The Chief Counsel further argued that, if the Board should for some rea-
son decide not to dismiss this case for failure to exhaust administrative remedies, 
it  should  deny the  application  for  lack  of merit.    He  alleged  that  the  applicant 
received all due process with respect to his discharge.  As a member with less 
than eight years of active service, he argued, the applicant was not entitled to a 
hearing  before  an  Administrative  Discharge  Board  prior  to  being  discharged.  

Under Article 12.B.18.e., members with less than eight years of service are enti-
tled only to (1) notice of the reason for discharge, (2) an opportunity to consult 
counsel if they are being considered for a general discharge, and (3) an opportu-
nity  to  make  a  statement.    Therefore,  the  Chief  Counsel  argued,  the  applicant 
received all the process he was due during the processing of his discharge. 

 
The Chief Counsel also argued that “[a]bsent strong evidence to the con-
trary,  government  officials  are  presumed  to  have  carried  out  their  duties  cor-
rectly, 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).  More-
over, he argued, the applicant has neither disputed the results of the urinalysis 
nor provided any evidence of error or injustice regarding the urinalysis and his 
discharge. 

 
Finally, the Chief Counsel stated that, because of the Coast Guard’s role in 
enforcing drug laws, the application involves a significant issue of Coast Guard 
policy and would be subject to review by the Secretary under 33 C.F.R. § 52.64(b). 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  November  20,  2000,  the  Chairman  sent  the  applicant  a  copy  of  the 
advisory opinion and invited him to respond within 15 days.  The applicant did 
not respond.  
 

APPLICABLE REGULATIONS 

 

Article 20.C.2.a.1. of the Coast Guard Personnel Manual states that mem-
bers may be required to undergo periodic random urinalysis for illegal drug use.  
Article 20.C.3.a. states that a commanding officer shall initiate an investigation of 
a possible “drug incident” following the receipt of a positive confirmed urinaly-
sis.    Article  20.A.2.k.  defines  “drug  incident”  as  “[i]ntentional  drug  abuse, 
wrongful  possession  of,  or  trafficking  in  drugs.  …    The  member  need  not  be 
found  guilty  at  court-martial,  in  a  civilian  court,  or  be  awarded  NJP  for  the 
behavior to be considered a drug incident.”  Article 20.C.3.b. states that members 
must be advised of their rights under the Uniform Code of Military Justice before 
being questioned about possible drug incidents.   

 
Article  20.C.3.c.  states  that  a  commanding  officer  should  determine 
whether a “drug incident” has occurred, warranting further action, based on the 
preponderance  of  all  available  evidence,  including  urinalysis  results  and  state-
ments.  Article 20.C.3.d. states that a “member’s admission of drug use or a posi-
tive  confirmed  test  result,  standing  alone,  may  be  sufficient  to  establish  inten-
tional use and thus suffice to meet this burden of proof.” 

 
Article 20.C.4. states that, if a commanding officer determines that a drug 
incident has occurred, he or she “will process the member for separation by rea-
son  of  misconduct  under  Articles  12.A.11.,  12.A.15.,  12.A.21.,  or  12.B.18.,  as 
appropriate.    Cases  requiring  Administrative  Discharge  Boards  because  of  the 
character of discharge contemplated or because the member has served a total of 
eight  or  more  years,  will  be  processed  under  Articles  12.B.31.  and  12.B.32.,  as 
appropriate.” 
 

Article 12.B.18.b.4. provides that the Commander of the Military Person-
nel Command shall discharge an enlisted member involved in a “drug incident,” 
as defined in Article 20, with no higher than a general discharge.  Article 12-B-
2.c.(2) states that a “general discharge” is a separation “under honorable condi-
tions.” 
 
Article 12.B.18.e. states that members with less than eight years of service 
 
who are being recommended for an honorable or general discharge by reason of 
misconduct must (a) be informed in writing of the reason they are being consid-

ered for discharge, (b) be afforded an opportunity to make a statement in writ-
ing, and (c) “[i]f a general discharge is contemplated, be afforded an opportunity 
to consult with a lawyer.” 
 
 
The Separation Program Designator (SPD) Handbook states that persons 
involuntarily  discharged  for  illegal  drug  use,  without  being  tried  by  court-
martial, shall be assigned a JKK separation code, an RE-4 reenlistment code, and 
“misconduct” as the narrative reason for separation shown on their DD 214s.   

FINDINGS AND CONCLUSIONS 

 

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

1. 

The Board has jurisdiction concerning this matter pursuant to sec-

tion 1552 of title 10 of the United States Code.  The application was timely. 
 

2. 

The Chief Counsel argued that, under 33 C.F.R. § 52.13(b), the case 
should be dismissed for failure to exhaust administrative remedies because the 
applicant has not yet applied to the DRB for relief.  The Board agrees that this 
case should have been dismissed upon receipt for this reason, and the applicant 
should  have  been  directed  to  apply  to  the  DRB  before  applying  to  this  Board.  
However, because the Board failed to notice that the applicant had not exhausted 
his administrative remedies, ten months have passed without action.  Therefore, 
the  Board  concludes  that  it  would  be  unfair  for  it  to  dismiss  this  case  without 
ruling on the merits.  Moreover, the Board notes that, even if the applicant is dis-
satisfied with the Board’s decision, he can still apply to the DRB for an upgrade 
of his discharge within 15 years of his date of discharge.  
 

3. 

The  record  indicates  that  the  applicant  was  advised  of  the  Coast 
Guard’s drug policies on the day he enlisted.  The record further indicates that 
after a urinalysis conducted in accordance  with regulation on xxxxxx 1998, the 
applicant’s urine tested positive for cocaine metabolites.  Upon receipt of the test 
results,  his  commanding  officer  ordered  an  investigation,  at  the  conclusion  of 
which he reasonably determined that the applicant had been involved in a “drug 
incident”  as  defined  in  Article  20.A.2.k.  of  the  Personnel  Manual.    Therefore, 
under  Articles  20.C.4.  and  12.B.18.,  the  applicant  was  subject  to  an  immediate 
general discharge.  
 

The  record  further  indicates  that  the  Coast  Guard  committed  no 
procedural  errors  in  conducting  the  investigation  into  the  drug  incident  or  in 
processing  the  applicant  for  discharge  by  reason  of  misconduct  due  to  drug 

4. 

abuse.   The applicant was informed of and afforded his due rights under Arti-
cles 12.B.18.e. and 20.C.3.b. 

 The fact that the applicant’s drug abuse did not seem to harm his 
job performance at xxxxxxxx is insufficient grounds for upgrading his discharge 
from “general under honorable conditions” to “honorable.”  
 
 
 
 

Accordingly, the application should be denied for lack of merit. 

 
5. 

6. 

 
 
 

 

ORDER 

The  application  of  former  XXXXXXXXXX,  USCG,  for  correction  of  his 

 
 

 
 

 
 

 
 

military record is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
Kevin C. Feury 

 

 

 
Todd E. Givens 

 

 

 
Mark A. Tomicich