DEPARTMENT OF TRANSPORTATION
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2000-125
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.
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 appointed
APPLICANT’S REQUEST AND ALLEGATIONS
The applicant, a former seaman recruit (SR; pay grade E-1) in the Coast Guard,
asked the Board to upgrade his reenlistment code from RE-4 (ineligible for reenlist-
ment) to an RE-3 (eligible for reenlistment except for disqualifying factor which may be
waived) so that he can enlist in the Navy.
The applicant alleged that prior to graduating from high school in May 1998, he
enlisted in the Coast Guard under the delayed entry program. However, before begin-
ning boot camp on xxxxxx, he made the mistake of using marijuana. As a result, he
failed his initial urinalysis when he arrived at boot camp and was separated with a
general discharge under honorable conditions for misconduct on xxxxxxxxxxx. He was
awarded an RE-4 reenlistment code and a JDT separation code, which means
“fraudulent entry into military service, drug abuse.”
The applicant alleged that he regrets his mistake and has never been in any other
trouble with the law, apart from a speeding ticket. He alleged that he has learned a
great deal about responsibility and consequences from his mistake and knows that what
he did was wrong.
The applicant alleged that when he was discharged, he was told that he would
not be allowed to reenlist in the Coast Guard. In the fall of 1999, he contacted a Navy
recruiter and began the process of enlisting in the Navy. However, in January 2000, the
recruiter told him that the Navy had changed its rules and would no longer enlist per-
sons with RE-4 reenlistment codes. He was advised that he should apply for an
upgrade of his RE code if he wanted to join the Navy.
SUMMARY OF THE RECORD
On xxxxxxxx, the applicant enlisted in the Coast Guard Reserve under the
delayed entry program. On xxxxxxxx, he enlisted in the Coast Guard and began boot
camp at the training center in xxxxxxx. One of the enlistment papers he signed on
xxxxxx, informed him that during recruit training he would be required to undergo
urinalysis for the presence of illegal drugs. The enlistment paper further informed him
that if his urine tested positive for illegal drug use, he would “be subject to an
immediate general discharge by reason of misconduct. By signing below I am certifying
I have not knowingly ingested any illegal drug for at least the last 60 days.” On another
enlistment form, he acknowledged that the Coast Guard’s drug policies had been
explained to him and that any questions he had concerning those policies had been
answered.
On xxxxxxx, the applicant was awarded a general discharge by reason of
misconduct with an RE-4 reenlistment code and a JDT separation code. On an adminis-
trative entry in his record that day, he acknowledged that he was being awarded the
general discharge due to the positive result of a urinalysis that was conducted upon his
arrival at the training center.
VIEWS OF THE COAST GUARD
On November 15, 2000, the Board received an advisory opinion from the Chief
Counsel of the Coast Guard, in which he recommended that the Board deny the appli-
cation.
The Chief Counsel argued that the Board should dismiss the application because
the applicant did not exhaust his administrative remedies by filing an application with
the Discharge Review Board (DRB). The Chief Counsel stated that the DRB “may
upgrade a discharge or change the reason for discharge including the authority to
review an make changes to an RE or SPD code.” See 33 C.F.R. § 51.3 and 51.4.
With respect to the merits of the application, the Chief Counsel argued that
“[a]bsent strong evidence to the contrary, government officials are presumed to 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). He pointed out that the applicant did not dispute the results of his urinalysis or
allege any procedural error by the Coast Guard. The Chief Counsel alleged that the
Coast Guard “followed established policy when it discharged the Applicant from the
service.” As a member with less than eight years of active service, he argued, the appli-
cant was not entitled to a hearing before an Administrative Discharge Board prior to
being discharged. Under Article 12.B.16.d., members with less than eight years of serv-
ice are entitled only to (1) notice of the reason for discharge, (2) an opportunity to con-
sult counsel if they are being considered for a general discharge, and (3) an opportunity
to make a statement. However, the applicant did not prove or even allege any violation
of these procedural rights.
The Chief Counsel also argued that the Coast Guard committed no injustice in
discharging the applicant because he was expressly warned when he enlisted that he
would be tested for drugs upon beginning boot camp and that a positive urinalysis
would render him subject to a general discharge. See Reale v. United States, 208 Ct. Cl.
1010, 1011 (1976) (holding that an “injustice” requiring correction is treatment by a mili-
tary authority that “shocks the sense of justice” but is not technically illegal). The Chief
Counsel further argued that the applicant’s admission that what he did was wrong is
evidence that no injustice was committed.
The Chief Counsel alleged that the applicant’s DD 214 reflects the proper codes
and words prescribed by the Separation Program Designator (SPD) Handbook, which is
used by all of the military services, for recruits whose urine tests positive for illegal
drug use. He alleged that the fact that the Navy now refuses to enlist persons with an
RE-4 reenlistment code does not prove that the Coast Guard committed any error or
injustice when it assigned the code to the applicant in accordance with the SPD Hand-
book. He alleged that the Coast Guard is bound to follow its own regulations, and the
Navy’s decision not to enlist persons with an RE-4 “is an independent action with no
legal moment as to the U.S. Coast Guard’s authority to assign” the RE-4 code.
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 any grant of relief by the Board 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 17, 2000, the Board sent a copy of the Chief Counsel’s advisory
opinion to the applicant and invited him to respond. On December 6, 2000, the Board
received the applicant’s response.
Regarding his failure to apply to the DRB, the applicant stated that he had been
advised by his congressman and by an attorney for the Army who works in his father’s
office that the proper procedure was to apply to the BCMR. He also stated that a Coast
Guard recruiter gave him the DD 149 BCMR application form to use. He argued that
because he has waited many months for the BCMR to complete its review, it would be
unjust for the case to be dismissed.
The applicant alleged that while assigning him the general discharge, JDT sepa-
ration code, and RE-4 reenlistment code were clearly within the discretion of the com-
manding officer of the training center, his exercise of that discretion in this case is not
necessarily just. The applicant alleged that the other services do not usually discharge
recruits who “test hot” upon entry, and that in the Army, such recruits are usually just
assigned to “special detail.” The applicant alleged that given (a) the disparate treatment
accorded to recruits who “test hot” by the different military services; (b) the fact that his
misconduct occurred before he entered on active duty; (c) his young age; and (d) his
otherwise clean record, the Board should upgrade his reenlistment code so that he can
serve his country in the Navy. He alleged that since his discharge, he has been working
as a swimming instructor and lifeguard and that he is enrolled in an Emergency Medi-
cal Training program to become a licensed EMS provider.
APPLICABLE REGULATIONS
Article 20.C.2.a.1. of the Coast Guard Personnel Manual states that members 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 inci-
dent” following the receipt of a positive confirmed urinalysis. 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 statements. Article 20.C.3.d.
states that a “member’s admission of drug use or a positive confirmed test result,
standing alone, may be sufficient to establish intentional use and thus suffice to meet
this burden of proof.”
Article 20.C.4. states that, if a commanding officer determines that a drug inci-
dent has occurred, he or she “will process the member for separation by reason of mis-
conduct 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 con-
templated 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 enlisted members involved in a “drug incident,”
as defined in Article 20, shall be discharged with no higher than a general discharge. It
also provides that the “Commanding Officer, Training Center Cape May is delegated
final discharge authority for members assigned to recruit training under this Article in
specific cases of drug use before enlistment (as evidenced by a positive urinalysis
shortly after training). New inductees shall sign a CG-3307 entry acknowledging that
the presence of drugs in their bodies is grounds for a general discharge for miscon-
duct.”
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 considered for discharge,
(b) be afforded an opportunity to make a statement in writing, and (c) “[i]f a general
discharge is contemplated, be afforded an opportunity to consult with a lawyer.”
The SPD Handbook states that the JDT separation code is to be assigned when
the member’s "[i]nvoluntary discharge [is] directed by established directive (no board
entitlement) when the member procured fraudulent enlistment, induction or period of
military service through deliberate material misrepresentation, omission or conceal-
ment of drug use/abuse." The handbook requires an RE-4 reenlistment code to be
assigned when the JDT separation code is used.
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the
applicant's submissions and military record, submission of the Coast Guard, and appli-
cable law:
title 10 of the United States Code. The application was timely.
The BCMR has jurisdiction over this matter pursuant to section 1552 of
1.
The Chief Counsel argued that the case should be dismissed for failure to
exhaust administrative remedies by applying to the DRB. Under 33 C.F.R. § 51.3, veter-
ans “may apply to the DRB for a change in the character of, and/or the reason for, the
discharge.” Under 33 C.F.R. § 51.4, the term “discharge” is defined to include “the
assignment of a separation program designator, separation authority, the stated reason
for the discharge, and the characterization of service.” However, the applicant has
asked only for a change in his RE code, which is not mentioned in either 33 C.F.R. § 51.3
or § 51.4. Although a change in the character of discharge ordered by the DRB may
sometimes result indirectly in a change of RE code and the BCMR sometimes revises
discharges along with RE codes, veterans need not apply to the DRB before applying to
the BCMR when their requests concern solely their RE codes. Moreover, the Board
notes that, even if the applicant is dissatisfied 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 dis-
charge.
The record indicates that the Coast Guard committed no procedural or
other legal errors in awarding the applicant a general discharge with a JDT separation
code and an RE-4 reenlistment code for testing positive for drug use during boot camp.
The applicant neither alleged nor proved any such error.
In the absence of error, the Board must determine whether the Coast
Guard committed an injustice when it assigned the applicant the RE-4 reenlistment
code. The BCMR has “an abiding moral sanction to determine insofar as possible, the
true nature of an alleged injustice and to take steps to grant thorough and fitting relief.”
Caddington v. United States, 178 F. Supp. 604, 607 (Ct. Cl. 1959). However, the Deputy
General Counsel has ruled that in the absence of legal error, an applicant’s treatment by
military authorities must “shock the sense of justice” to justify correction by the Board.
Decision of the Deputy General Counsel, BCMR Docket No. 346-89 (citing Reale v.
United States, 208 Ct. Cl. 1010, 1011 (1976)).
4.
2.
3.
5.
The applicant was expressly warned that he would be tested for drug use
upon his arrival at boot camp and that he would be subject to a general discharge if he
ever tested positive for illegal drug use. He signed an acknowledgement of this warn-
ing and certified that he had not used illegal drugs during the previous 60 days.
6.
The applicant argued that, although his commanding officer acted within
his discretion, his RE-4 code is unjust because (a) the other military services do not
automatically discharge recruits who “test hot” upon enlistment, (b) he made this mis-
take at a young age, and (c) he used the marijuana before beginning military service.
(a)
A significant part of the Coast Guard’s mission is to prevent the
importation and distribution of illegal drugs. In light of this mission, the Coast
Guard may be more rigorous in applying the regulations to discharge members
and recruits who test positive for illegal drug use. However, the applicant has
not only failed to prove this disparity in treatment, he has also failed to prove
that the alleged disparity is illegal or unjust in any way. He has not proved that
all of the military services must or should treat young recruits who “test hot”
identically or leniently.
The fact that the applicant is young does not mean that the Coast
Guard committed an injustice when it discharged him and assigned him the JDT
and RE-4 codes. The codes were correctly assigned in accordance with the SPD
Handbook. The fact that the Navy has now determined that it does not ever
want to enlist persons who have been assigned JDT and RE-4 codes for failing
urinalysis tests during boot camp does not render the Coast Guard’s accurate use
of those codes in the applicant’s case unjust.
The applicant entered the Coast Guard under the delayed entry
program. While he may not have been serving on active duty when he ingested
the marijuana, he was presumably already a member of the Coast Guard Reserve
and subject to the Uniform Code of Military Justice. Moreover, upon enlisting in
the Coast Guard, he signed a false statement denying illegal drug use during the
previous 60 days.
7.
the RE-4 reenlistment code on his DD 214 constitutes an error or injustice.
The applicant has failed to prove by a preponderance of the evidence that
8.
Accordingly, the applicant’s request should be denied.
(b)
(c)
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
ORDER
The application of XXXXXXXXX, USCG, for correction of his military record is
denied.
Kevin C. Feury
Todd E. Givens
Mark A. Tomicich
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