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