DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2002-044 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
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 docketed on 
February 13, 2002. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated October 31, 2002, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS  

 

The applicant asked the Board to correct her record by upgrading her May 17, 
1999,  discharge  for  drug  use  from  general  “under  honorable  conditions”  and  her 
reenlistment  code  and  by  reversing  the  revocation  of  her  entitlement  to  educational 
benefits under the Montgomery G.I. Bill (MGIB).   

 
The applicant alleged that in March 1999 she “found [her]self in a situation [she] 
was ill prepared to deal with.”  The day after she passed the test to become a seaman, 
she  alleged,  she  was  encouraged  by  a  petty officer  to  use  marijuana  and  did  so.    She 
stated  that  upon  discovery,  she  told  the  truth  and  took  responsibility  for  her  actions.  
She alleged that her confession was unsubstantiated by any drug test and that the con-
sequences  were  unduly  harsh  since  she  was  following  a  petty  officer’s  example.    She 
alleged that, even after she was taken to mast and knew that she would be discharged, 
she served the Coast Guard with honor and integrity. 

 
In support of her request, the applicant submitted two letters of reference and a 
copy of her final performance evaluation.  On the performance evaluation, she received 

primarily marks of 4 and 5, a mark of 6 for the category “Integrity,” but an “Unsatis-
factory”  conduct  mark  and  mark  of  “Not  Recommended”  for  advancement  from  her 
rating chain.   

 
One of the letters of reference is written by a first class petty officer, who was the 
Executive Officer of her station and the supervisor on her rating chain.  He wrote that 
the applicant was “an exceptional performer who excelled in taking on responsibility”  
He stated that she was “misguided by a few ‘bad apples’ and ultimately paid the price 
for her involvement.  Throughout the ordeal, [she] remained loyal and dedicated to her 
duty.”  He urged that her discharge be upgraded to honorable and that her reenlistment 
be upgraded to permit her to pursue a military career.  He also asked that her MGIB 
benefits be restored. 

 
A veterinarian for whom the applicant worked after her discharge wrote a letter 
stating that she is “an exceptional worker” who “has handled difficult situations profes-
sionally and has always been a reliable and responsible employee.”  
 

SUMMARY OF THE RECORD 

 

On January 13, 1998, at the age of 18, the applicant enlisted in the Coast Guard 
for four years.  On January 27, 1998, she signed a form to enroll in the Montgomery G.I. 
Bill program, under which members’ basic pay is reduced by $100 for each of their first 
12 months of service, but they become eligible for $10,800 in educational benefits.  The 
form states that, in addition to the payroll reduction, the member must complete at least 
36  months  of  active  duty  and  receive  an  honorable  discharge  to  be  eligible  for  the 
benefit.  The form also states that the pay reduction cannot be refunded. 

 
On February 26, 1998, the applicant signed a statement acknowledging that she 
received “a full explanation of the drug and alcohol abuse program” in compliance with 
Article 20.A.3. of the Personnel Manual. 

 
On March 12, 1999, the applicant, who was still a seaman apprentice in pay grade 
E-2,  was  charged  with  violating  Article  112a  of  the  Uniform  Code  of  Military  Justice 
(UCMJ).  A petty officer had told a Coast Guard investigator that he smoked marijuana 
with her at a local bar in January 1999.   

 
The applicant’s record contains a Miranda/Tempia Warning form indicating that 
she was advised of the charges against her, of her right to remain silent, and of her right 
to a lawyer.  The form also states, “If I decide to make a statement, anything I say may 
be used as evidence against me in any court-martial, nonjudicial proceeding, adminis-
trative  proceeding  or  civilian  court.”    When  questioned  by  the  investigator,  she  sub-
mitted a written statement in which she admitted that she had made a “big mistake.”  
She stated that she was “prepared to handle the consequences of my actions, but I don’t 

want it to jeopardize my career.”  The investigator reported that she orally admitted to 
him that she had smoked marijuana on two occasions.  He concluded that she had used 
a controlled substance while serving on active duty. 

 
In light of the evidence, the applicant’s commanding officer offered to take her to 
mast for nonjudicial punishment (NJP), instead of court-martialing her.  On March 16, 
1999, she signed a form accepting NJP and waiving her right to trial by court-martial.  
She  was  advised  that  if  she  accepted  NJP,  her  command  could  impose  a  maximum 
punishment of 60 days of restriction, forfeiture of one-half of her pay for two months, 
and reduction to the next lower pay grade.  In addition, she was advised that the results 
of the proceeding would become a part of her permanent record and “may become the 
basis  for  adverse  personnel  actions.”    She  was  also  advised  that  if  she  insisted  on  a 
court-martial and if the command chose to proceed to trial, the maximum punishment 
that  could  be  imposed  was  a  dishonorable  discharge  and  confinement  for  up  to  10 
years. 

 
On March 18, 1999, the applicant was taken to mast.  She was represented by a 
petty officer whom she asked to represent her.  She was found guilty and awarded NJP 
of 45 days of restriction, forfeiture of one-half of her pay for two months, and reduction 
to pay grade E-1.  However, her command suspended all of the sentence and informed 
the applicant that he would be recommending that she be discharged administratively. 

 
On March 22, 1999, the applicant’s command formally notified her that, pursuant 
to Article 12.B.18. of the Personnel Manual, she was being recommended for discharge 
by reason of “misconduct due to drug abuse.”  She was informed of her right to submit 
a  statement  in  her  own  behalf.    On  the  same  day,  the  applicant  signed  a  statement 
indicating that she (a) had received the notice, (b) had been afforded an opportunity to 
consult a lawyer, (c) waived her right to submit a statement in her own behalf, (d) knew 
that if she received a general discharge under honorable conditions, she could expect to 
encounter prejudice in civilian life, and (e) did not object to being discharged. 

 
On  April  22,  1999,  the  Coast  Guard  Personnel  Command  ordered  that,  in 
accordance with Article 12.B.18. of the Personnel Manual, the applicant and two other 
members  of  her  unit  be  administratively  discharged  by  May  17,  1999,  with  general 
discharges by reason of misconduct and with the separation code JKK, which denotes 
an  involuntary  discharge  due  to  drug  abuse  that  has  been  proven  by  evidence  other 
than a urinalysis. 

 
On  May  17,  1999,  the  applicant  received  a  general  discharge  under  honorable 
conditions  by  reason  of  misconduct  with  a  JKK  separation  code  and  an  RE-4 
reenlistment code, which makes her ineligible to reenlist.  She had completed one year, 
four months, and five days of active duty. 

 

Following  her  discharge,  the  applicant  applied  to  the  Coast  Guard’s  Discharge 

Review Board.  However, that board denied her request on April 30, 2001. 

 

VIEWS OF THE COAST GUARD 

On June 28, 2002, the Chief Counsel submitted an advisory opinion in which he 

 
 
recommended that the Board deny relief in this case. 
  

The Chief Counsel stated that a service member “has no absolute legal right to 
remain  in  the  service”  and  “may  be  appropriately  and  administratively  discharged” 
prior to the end of her enlistment.  Giglio v. United States, 17 Cl. Ct. 160, 166 (1989); Rowe 
v.  United  States,  167  Ct.  Cl.  468,  472  (1964),  cert.  denied,  380  U.S.  961.    He  argued  that 
“absent strong evidence to the contrary,” the Board should presume that the applicant’s 
command carried out its 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). 

 
The Chief Counsel argued that the preponderance of the evidence in the record 
indicates  that  the  applicant—after  having  been  notified  of  her  Miranda  rights—orally 
admitted  to  having  smoked  marijuana  while  serving  on  active  duty.    Moreover,  her 
statement was corroborated by a fellow member, and she admitted in writing to having 
made  a  big  mistake.    Therefore,  the  Chief  Counsel  concluded,  the  applicant’s  “com-
manding  officer  had  a  reasonable  basis  to  conclude  that  she  had  ingested  an  illegal 
substance.” 

 
The  Chief  Counsel  alleged  that  the  applicant  was  not  denied  any  due  process 
with respect to her discharge.  As a member with less than eight years of active service, 
she  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 entitled 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 she was due during the processing of her discharge. 

 
The Chief Counsel also argued that “there is no injustice in Applicant receiving a 
general  discharge”  since  she  signed  a  form  acknowledging  that  she  had  been  fully 
informed  of  the  Coast  Guard’s  drug  policies.    He  alleged  that  she  was  informed  she 
would receive a general discharge if she was ever discovered to have used illegal drugs.  
He argued that “[h]er discharge was effected in furtherance of Coast Guard policy and 
the compelling need for armed forces personnel to remain free of illegal substances.” 

 

The  Chief  Counsel  further  argued  that  even  if  the  Board  upgraded  the 
applicant’s  discharge,  she  would  not  qualify  for  MGIB  benefits  because  she  failed  to 
complete at least three years of active duty, as required under 38 U.S.C. § 3011. 

 
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 July 1, 2002, the Chair sent the applicant a copy of the advisory opinion and 

 
 
invited her to respond within 15 days.  No response was received.  
 

APPLICABLE REGULATIONS 

 

Article  20.A.3.b.    states  that  “[a]ll  members  entering  the  Coast  Guard,  recruits, 
officer candidates, direct commission officers, and cadets shall have the Commandant's 
policies  on  drug  and  alcohol  abuse  explained  to  them  during  their  initial  training, 
documented by appropriate Administrative Remarks (CG-3307) entry in each member's 
Personnel Data Record.” 
 

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 
incident has occurred, he or she “will process the member for separation by reason of 
misconduct under Articles 12.A.11., 12.A.15., 12.A.21., or 12.B.18., as appropriate.” 
 

Article  12.B.18.b.4.  provides  that  the  Commander  of  the  Military  Personnel 
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 conditions.” 

 
 
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  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  10  U.S.C. 
§ 1552.    The  application  was  timely,  and  the  applicant  exhausted  her  administrative 
remedies by applying to the Discharge Review Board before applying to this Board. 
 

2. 

The  record  indicates  that  the  applicant  was  fully  advised  of  the  Coast 
Guard’s  drug  policies  on  February  26,  1998,  while  she  was  still  at  boot  camp.    The 
record  further  indicates  that,  after  she  was  accused  by  another  member  of  smoking 
marijuana,  she was advised of  her Miranda rights by a Coast Guard investigator and 
admitted  that  she  had  in  fact  smoked  marijuana  on  two  occasions.    In  light  of  her 
admission and the corroborating evidence, the Board finds that her commanding officer 
reasonably  concluded  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., she was subject to an immediate general discharge.  
 

3. 

The applicant did not allege and there is no evidence in the record that the 
Coast Guard committed any procedural errors in conducting the investigation into the 
drug incident or in processing her for discharge by reason of misconduct due to drug 
abuse.  The record indicates that the applicant was informed of and afforded her due 
rights prior to being questioned by the investigator, prior to accepting NJP and waiving 
her  right  to  court-martial,  and  prior  to  being  discharged,  in  accordance  with  Articles 
12.B.18.e. and 20.C.3.b. of the Personnel Manual and Article 15 of the UCMJ. 

 
4. 

When the Coast Guard has not committed any errors, the Board must still 
consider whether the applicant’s record contains an injustice.  The BCMR has “an abid-
ing  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).  The applicant was just 19 years old when she 
was apparently encouraged to smoke marijuana by an older petty officer.  When con-
fronted, she honestly admitted her mistake.  In light of these facts and the consequences 
to  the  applicant,  her  general  discharge  seems  harsh.    However,  the  Deputy  General 
Counsel  has  held  that,  in  the  absence  of  error  or  a  denial  of  due  process,  not  every 
seeming  injustice  in  an  applicant’s  record  should  be  corrected  by  the  Board.    Only 
serious injustices, such as those that “shock the sense of justice,” require correction.  See 
Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989), rev’d on other grounds, 930 F.2d 1577 
(citing Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976)). 

 
5. 

In  light  of  the  fact  that  the  applicant  was  fully  warned  on  February  26, 
1998, about the legal consequences of using illegal drugs in the Coast Guard, the Board 
cannot find that the applicant’s general discharge and RE-4 reenlistment code constitute 
a serious injustice.  The Board finds that the applicant has not proved by a preponder-
ance of the evidence that her character of discharge or reenlistment code should be up-
graded. 
 
6. 

Upon  enlisting  in  the  Coast  Guard,  the  applicant  enrolled  in  the  MGIB 
program and signed an acknowledgment of the statutory requirements for earning the 
benefits.    As  the  Chief  Counsel  argued,  she  is  not  entitled  to  those  benefits  not  only 
because of the character of her discharge, but also because she failed to complete at least 
three years of active duty.  The Board finds that the applicant has not proved that her 
failure to qualify for MGIB benefits is the result of an error or injustice committed by the 
Coast Guard. 
 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

7. 

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

 

ORDER 

 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

 
 

 
 

 
 

 
 

 
 

(abstained)*    
 Murray A. Bloom 

 

 

 
 Nancy Lynn Friedman 

 

 

 

 
 
 Robert A. Monniere 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

her military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

* The member participated in the deliberations of this case but chose to abstain in the 
vote.  Under the Board’s rules at 33 C.F.R. § 52.11, two members constitute a quorum of 
the Board.  Therefore, the Board’s decision is final.