DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2002-093 
 
XXXXXX, Xxxxxx X. 
xxx xx xxxx, XXXX   

 

 
 

FINAL DECISION 

 
GARMON, Attorney-Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on April 11, 2002, upon the 
BCMR’s receipt of the applicant’s request for correction. 
 
 
members who were designated to serve as the Board in this case. 

This final decision, dated April 30, 2003, is signed by the three duly appointed 

 

APPLICANT’S REQUEST 

 

The  applicant  asked  the  Board  to  upgrade his  November  9,  19xx  discharge  for 
use  of  an  illegal  substance  from  general  (under  honorable  conditions)  to  honorable; 
upgrade his reenlistment code to RE-1; expunge from his record all references related to 
allegations  of  his  wrongful  use  of  marijuana  on  or  about  May  12,  19xx;  and  reinstate 
him to active duty in his former rank with entitlement to back pay and allowances. 

 

 

APPLICANT’S ALLEGATIONS 

The applicant alleged that because he did not wrongfully use marijuana, he was 
unjustly awarded a general discharge for misconduct in connection with drug use.  He 
alleged that he provided a urine sample as part of a random urinalysis conducted on 
May  12,  19xx.    He  stated  that  on  June  22,  19xx,  laboratory  results  for  his  sample 
“allegedly” returned positive for marijuana at the level of 23 nanograms per milliliter 
(ng/ml).  He alleged that on June 30, 19xx, he allowed a private laboratory to take a hair 
sample in an effort to obtain alternate testing for illegal drugs.  He alleged that his hair 
sample  subsequently  tested  negative  for  marijuana.    In  support  of  his  claim,  he 

provided a copy of the laboratory report, dated July 5, 19xx, from the private facility, 
which states that “cannabinoids (marijuana) [were] negative” for his hair sample.  
 
The  applicant  alleged  that  on  July  14,  19xx,  he  signed  an  administrative  entry 
 
(page  7),  which  advised  him  that  he  was  being  placed  on  a  two-month  evaluation 
urinalysis testing program by his commanding officer (CO).  He alleged that although 
the page 7 explains that he would be required to randomly provide sixteen samples, he 
was only required to provide two samples during his two-month evaluation and both, 
to his knowledge, tested negative for illegal drug use.   
 
 
The applicant alleged that pursuant to his CO’s request, a retest of his original 
sample collected on May 12, 19xx was conducted on July 26, 19xx.  Although the results 
of the urinalysis retest were positive for marijuana at the level of 13 ng/ml, he alleged 
that that level is below the Coast Guard’s cutoff for marijuana of 15 ng/ml.   
 
 
The applicant alleged that on June 13, 19xx, he was charged with failure to obey 
an order or regulation concerning the Coast Guard’s substance abuse policy and with 
wrongful use of marijuana.  He stated that on the same date, he provided the following 
statement in explanation of the suspected offenses: 
 

I … took a urinalysis test on XXXXX, the day of departure from XXXXXX.  The test came 
out positive and I know I had no first hand contact with the substance.  Although I did 
come  in  contact  with  the  substance  while  riding  with  a  XXXXX  [on  liberty  in  XXXXX, 
XXXXXX].    It  was  a  small  compact  vehicle  and  the  smoke  from  the  substance  was 
lingering  in  the  cab  because  there  was  a  heavy  stinch  [sic].    I  had  no  control  over  the 
situation and alcohol may have cause me not to use my better judgment to stop and get 
out of the cab.  I didn’t know the area and I was set on getting to my destination.  [A] 
petty officer …  was also in the cab  with me at the time.  It is unfortunate that  this  has 
happened because I have spent four years dedicated to the Coast Guard without a single 
glimps[1] on my record.  Thank you for your time and understanding. 

 

The  applicant  alleged  that  he  also  provided  supporting  statements  from  (1)  a 
petty officer, who confirmed his presence in the cab with the applicant and the lingering 
smoke; (2) a chief warrant officer, who confirmed that both the applicant and the petty 
officer  commented  on  their  “previous  encounter  with  the  marijuana  smoking  cab 
driver” to her; and (3) a petty officer, who stated that he was told by the petty officer 
(who was present in the cab), that the cab driver was smoking marijuana.   

 
The applicant stated that on September 25, 19xx, he was taken to Captain’s mast, 
where  his  CO  dismissed  the  charges  of  misconduct  with  a  warning.    He  alleged  that 
despite his CO’s determination that the charges were “unfounded as indicated by his 
dismissal  of  the  charges  at  mast,”  the  CO  requested  that  the  applicant  be  discharged 
upon  his  conclusion  that  a  drug  incident  had  occurred.    Moreover,  the  applicant 
                                                 
1 The Board interprets the applicant to mean a “blemish” or “imperfection.” 

questioned the request for his discharge based on drug abuse, particularly in light of his 
CO’s  request  that  such  discharge  occur  after  November  4,  19xx,  by  which  time  the 
applicant would have trained other personnel.   

 
The  applicant  alleged 

that  he  was  dismayed  when  he  received 

the 
recommendation  for  his  discharge  on  September  29,  19xx  because  he  “fully  and 
reasonably  believed”  that  no  further  action  would  be  taken  against  him  after  his  CO 
dismissed  the  charges  against  him.    He  alleged  that  when  he  was  presented  with the 
First Endorsement on his CO’s request for his discharge, he signed the document under 
pressure from his executive officer (XO) and the engineering officer (EO), and without 
fully understanding its implications in the absence of legal representation.  He alleged 
that the XO and the EO stated that “if [the applicant] pushed this and did not go along 
with  what  they  were  planning  to  do,  they  would  take  [his]  case  to  a  court  martial, 
where [he] would face a federal conviction, could go to jail and could get a bad conduct 
discharge.”   

 
The applicant alleged that he later discovered that the document he signed was a 
waiver of both his right to legal representation and his right to contest the separation 
action.  He alleged that on September 30, 19xx, when he was again taken to mast, he 
was  advised  that  he  would  be  discharged  from  the  Coast  Guard  and  that  due  to  his 
signing  of  the  First  Endorsement,  the  separation  action  could  not  be  challenged.    He 
stated  that  he  believed  that  the  Coast  Guard  intentionally  treated  him  in  an  unfair 
manner.   
 

SUMMARY OF THE APPLICANT’S RECORD 

 
 
On  July  30,  19xx,  the  applicant  enlisted  in  the  regular  component  of  the  Coast 
Guard  for  four  years,  through  July  29,  19xx.    On  the  same  day,  he  signed  a  form 
acknowledging  that  he  would  be  subject  to  urinalysis  testing  and  that  a  positive  test 
result would make him subject to an immediate general discharge for misconduct. 

 
On  May  12,  19xx,  the  applicant  gave  a  urine  sample  during  routine  random 
urinalysis  testing.    On  XXXXX,  the  XXXXX  XXXXXX  Medical  Center  XXXXXXXX 
conducted a screening test for the applicant’s sample and a verification screening test 
on June 2, 19xx.  The screening test was positive for marijuana metabolites.  On June 5, 
19xx,  the  screening  tests  were  confirmed  by  gas  chromatography/mass  spectrometry 
(GC/MS),  which  revealed  that  the  applicant’s  sample  tested  positive  for  marijuana 
metabolites2 at 23 nanograms per milliliter (ng/ml).   

 

                                                 
2  The 
identified  by  GC/MS,  11-nor-∆-9-
tetrahydrocannabinol-9-carboxylic acid, is produced by the metabolism of [t]etrahydrocannabinol [THC], 
the major psychoactive component of [m]arijuana, … a controlled substance.” 

that  “[t]he  metabolite 

laboratory 

report  stated 

On June 13, 19xx, the applicant was placed on report for the suspected violation 
of  Articles  92  (failure  to  obey  an  order  or  regulation  issued  by  the  Commandant  on 
substance abuse) and 112a (wrongful use of marijuana) of the Uniform Code of Military 
Justice (UCMJ).  The applicant was notified that an investigation had been initiated into 
the  suspected  violations.    His  record  contains  a  Miranda/Tempia  Warning  form 
indicating that he was advised of the charges against him, of his right to remain silent, 
and  of  his  right  to  a  lawyer.    The  applicant  indicated  on  this  form  that  he  wished  to 
consult with a lawyer and that he desired to make a statement.  In that statement, the 
applicant asserted that he “had no first hand contact with [marijuana]” … but “[came] 
in contact with the substance while riding with a cab driver.”   

 
The  applicant  also  submitted  three  signed  statements  in  support  of  his 

contentions.  Those statements are summarized, as follows: 
 

 
On  XXXXXXXXX,  Petty  Officer  J  wrote  that  he  recalled  riding  in  a  cab 
with  the  applicant  and  “coming  into  contact  with  smoke  from  an  illegal 
substance.”  He stated that in light of the circumstances, he did not use his better 
judgment to seek alternate transportation due to the late hour and his focus on 
returning to the cutter.  He stated that he had known the applicant for more than 
a  year  and  therefore,  because  of  their  close  association,  he  could  state  with 
certainty that the applicant was not involved with any illegal drugs. 
 

On  XXXXXXXX,  Chief  Warrant  Officer  T  wrote  that  while  sharing  a 
taxicab  on  XXXXXXXXX  with  Petty  Officer  J  and  the  applicant,  Petty  Officer  J 
expressed  concern  about  whether  the  driver  was  “smoking  a  joint”  like  the 
driver he and the applicant encountered on the previous evening.  She stated that 
both explained their desire to avoid being stranded in an unfamiliar location, so 
“they  continued  on  to  their  hotel.”    She  asserted  that  had  she  known  that  the 
applicant  was  selected  for  a  random  urinalysis,  she  would  have  relayed  this 
information to the command. 
 

On XXXXXXXX, Petty Officer C wrote that on XXXXXXXXX, Petty Officer 
J  advised  him  that  during  a  taxicab  ride  shared  by  he  and  the  applicant,  the 
driver was smoking marijuana.  He contended that Petty Officer J stated that the 
applicant fell asleep but inhaled the smoke from the driver during the ride.  He 
stated  that  he  had  no  reason  to  doubt  the  applicant’s  character  because,  to  his 
knowledge,  the  applicant  had  not  previously  been  in  trouble  with  drugs  or 
otherwise.  Petty Officer C stated in closing that he regretted not providing this 
information sooner. 
 
On June 30, 19xx, the applicant had a hair sample taken by a private facility to 
test  for  the  presence  of  illegal  drugs.    On  July  1,  19xx,  the  applicant’s  sample  was 
received at the laboratory and screened for five different illegal drugs.  The laboratory 
report,  dated  July  5,  19xx,  stated  that  his  hair  sample  tested  negative  for  the  five 
screened drugs, including cannabinoids (marijuana).  The laboratory report notes that 

“[i]f  a  drug  was  reported  negative,  it  means  that  either  no  drug was  detected,  or  if a 
drug  was  detected,  it  was  present  at  a  concentration  less  than  the  laboratory’s 
established cutoff level.”  The laboratory’s screening and confirmation cutoff levels for 
marijuana metabolites are both 5 picograms per milligram (pg/mg).   

 
On July 14, 19xx, a page 7 was entered into the applicant’s record, stating that he 
was counseled on being placed on a two-month evaluation urinalysis testing program, 
as  a  result  of  his  positive  urinalysis  in  June  19xx.    He  was  advised  that  he  would  be 
required to provide up to sixteen urine samples at random times.  He was also advised 
that “the original positive urinalysis result may still be used as a basis for disciplinary 
action  under  the  UCMJ,  administrative  separation,  and  characterization  of  discharge 
depending on the basis for ordering the original test.”  He acknowledged receipt of this 
document by signature on the same date. 

 
On July 17, 19xx, the CO requested a retest of the applicant’s original sample and 
a listing of secondary Department of Defense (DoD) facilities, where the applicant could 
solicit alternate testing at his own expense.  On July 26, 19xx, XXXX FTDTL retested the 
applicant’s  sample  and  reported  that  it  was  positive  for  marijuana  at  a  level  of  13 
ng/ml.    Tripler  FTDTL  certification  paperwork  noted  that  the  DoD  established  cutoff 
for the marijuana metabolite identified by GC/MS is 15 ng/ml.   

 
By memorandum dated August 14, 19xx, the Commandant forwarded the results 
of the retest to the applicant’s CO.  The CO was advised that a sufficient quantity of the 
applicant’s  specimen  remained  for  the  applicant  to  have  alternate  testing  completed, 
should he so desire.  The memorandum also noted two laboratories that the applicant 
might consider to conduct such testing.   

 
On  September  25,  19xx,  the  applicant  was  taken  to  mast,  where  he  was 
represented by a petty officer whom he had selected.  In disposing of the matter at mast, 
the CO dismissed the charges against the applicant with a warning. 
 
 
On  September  26,  19xx,  the  applicant  was  formally  notified  that,  pursuant  to 
Article  12.B.18.  of  the  Personnel  Manual,  his  CO  was  recommending  that  he  be 
administratively discharged from the Coast Guard.  The applicant was advised of his 
right to submit a rebuttal statement, which would be forwarded to the Commander of 
Coast  Guard  Personnel  Command  (CGPC)  along  with  the  CO’s  recommendation  for 
consideration.   
 
 
On  September  28,  19xx,  the  applicant  signed  a  First  Endorsement  on  his  CO’s 
recommendation,  indicating  that  he  (1)  acknowledged  notification  of  his  proposed 
discharge; (2) waived his right to attach a statement on his own behalf; (3) understood 
that if he received a general discharge under honorable conditions, he could expect to 

encounter prejudice in civilian life; (4) waived his right to consult an attorney; and (5) 
did not object to being discharged.  The applicant’s signature was witnessed by his EO. 
 
On  September  29,  19xx,  the  CO  forwarded  his  recommendation  for  the 
 
applicant’s  discharge  due  to  illegal  drug  use  to  the  Commander  of  CGPC.    The  CO 
stated that a random urinalysis revealed the presence of marijuana metabolites initially 
at a level of 23 ng/ml in the applicant’s sample and upon later retesting at a level of 13 
ng/ml.    He  asserted  that  after  officials  at  the  testing  facility  informed  him  that  the 
decrease in marijuana metabolites was consistent with its breakdown in urine samples 
over time, he found that a drug incident had occurred.  He further requested, should his 
recommendation be approved, that the applicant be discharged after November 3, 19xx 
due  to  personnel  shortages  in  the  applicant’s  rating.    The  CO  attached  to  the 
recommendation a copy of his September 26, 19xx memorandum to the applicant and a 
copy of the applicant’s September 28, 19xx endorsement. 
 
 
On  November  9,  19xx,  the  applicant  received  a  general  discharge  under 
honorable  conditions  by  reason  of  misconduct,  with  an  RE-4  reenlistment  code 
(ineligible) and a JKK separation code, which denotes an involuntary discharge due to 
drug abuse.  By the date of his separation, the applicant had served for four years, three 
months, and ten days on active duty. 
 

VIEWS OF THE COAST GUARD 

 
On November 19, 2002, the Chief Counsel provided the Coast Guard’s comments 
 
to the Board.  He attached to his advisory opinion a memorandum on the case prepared 
by CGPC and recommended that the Board deny relief.  
 
 
The  Chief  Counsel  argued  that  the  Board  should  dismiss  this  case  without 
prejudice because the applicant has failed to exhaust his administrative remedies.  He 
stated that pursuant to 33 C.F.R. §§ 51.3 and 51.4, the Discharge Review Board (DRB) is 
authorized to upgrade a discharge or change a reason for discharge for up to 15 years 
from the date of discharge.  He argued that the applicant has failed to demonstrate that 
he  has  applied  for  review  by  the  DRB  and  therefore,  exhausted  all  reasonable 
administrative remedies prior to applying to the Board.   
 
 
With  respect  to  the  merits  of  the  case,  the  Chief  Counsel  argued  that  a  service 
member “has no absolute right to remain in the service” and “may be appropriately and 
administratively discharged” prior to the end of his or her enlistment.  Giglio v. United 
States,  17  Cl.  Ct.  160,  166  (1989);  Keef  v.  United  States,  185  Ct.  Cl.  454,  463  (1963); 
McAuley v. United States, 158 Ct. Cl. 359, 364 (1962); Rowe v. United States, 167 Ct. Cl. 
468, 472 (1964), cert. denied, 380 U.S. 961 (1965).   
 

The  Chief  Counsel  stated  that  as  a  member  with  less  than  8  years  of  service, 
under Article 12.B.18.e. of the Personnel Manual, the applicant was entitled only to (1) 
notice of the reason for discharge, (2) an opportunity to make a written statement, and 
(3)  an  opportunity  to  consult  with  legal  counsel.    He  alleged  that  other  than  the 
applicant’s own assertion, the record fails to show that he was coerced into signing a 
waiver of his rights associated with his general discharge.  He argued that because the 
applicant acknowledged his rights, declined to make a statement, and signed the first 
endorsement  on  his  CO’s  recommendation  for  his  discharge,  the  applicant  was  not 
denied any due process regarding his discharge. 
 
 
The  Chief  Counsel  argued  that  absent  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  argued  that  the  applicant’s  CO 
exercised his discretion under proper authority when he concluded that the applicant 
was involved in a drug incident and recommended the applicant’s discharge.   
 

The  Chief  Counsel  argued  that  the  applicant  was  given  a  full  opportunity  to 
support  his  contention  that  he  was  subjected  to  second-hand  marijuana  smoke; 
however, the clinical evidence does not corroborate his passive inhalation explanation.  
He  relied  on  ALCOAST  081/93,  COMDTNOTE  5355  dated  August  20,  1993,  which 
states  that  the  positive  reporting  level  for  THC  was  decreased  from  50  ng/ml  to  15 
ng/ml  because  clinical  studies  had  shown  that  passive  inhalation  resulted  in  levels 
below 15 ng/ml.  He asserted that because the applicant has not proven that the Coast 
Guard committed any error in administering, collecting, or processing his urine sample, 
the  applicant  has  failed  to  produce  substantial  evidence  to  rebut  the  presumption.  
Therefore,  the  Chief  Counsel  concluded,  the  Board  should  find  that  the  Coast  Guard 
committed no error.   
 
 
The Chief Counsel argued that there is no injustice or legal prohibition or policy 
“in  discharging  the  applicant  from  the  Coast  Guard  after  taking  [him  to  mast]  and 
dismissing  the  case.”    He  argued  that  in  fact,  the  applicant’s  discharge  furthers  the 
“Coast Guard[’s] policy and the compelling need for armed forces personnel to remain 
free of illegal substances.”  He argued that “there is no evidence that the Coast Guard 
treated the applicant unjustly,” and therefore, his discharge does not rise to the level of 
an injustice that shocks the conscience.  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)).   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

 
On November 25, 2002, the Chair sent a copy of the views of the Coast Guard to 
the applicant and invited him to respond within 15 days.  He was granted an extension 
of time to respond and on January 7, 2003, forwarded his response to the Board. 
 
 
The  applicant  alleged  that  the  Coast  Guard  is  incorrect  in  its  assertion  that  he 
failed to exhaust all administrative remedies by not first seeking resolution at the DRB.  
He  argued  that  because  the  DRB  has  adjudicative  powers  limited  to  changing  the 
nature  of  discharges  and  upgrading  reenlistment  codes,  “[j]udicial  economy  requires 
that [his] petition be heard in the only forum that can offer [the] complete relief“ he is 
seeking. 
 
 
The applicant alleged that contrary to the Coast Guard’s opinion, the evidence in 
record circumstantially demonstrates that due to pressure from his command, he was 
not provided proper notification of his right to seek counsel.  The applicant stated that 
upon receiving notification of his pending discharge, he was threatened with possible 
court-martial  if  he  disputed  the  discharge.    He  argued  that  his  contentions  of  being 
coerced are supported by the fact that (1) he signed the first endorsement of his CO’s 
recommendation on the same date that he was notified of that recommendation for his 
discharge;  (2)  the  waiver  was  witnessed  by  the  EO;  and  (3)  the  form  of  the  waiver  is 
substantially similar to the CO’s recommendation for discharge.  He contended that the 
limiting terms of the waiver prevented him from acknowledging the notification of his 
proposed discharge without waiving his right to make a statement or to consult with an 
attorney.  He argued that the use of such restrictive terms in the waiver shows that it 
was drafted before he met with the XO and EO and that he was not properly advised of 
his rights prior to being pressured into signing the waiver.   
 

The applicant stated that under the Personnel Manual, the standard of proof for 
finding that a drug incident has occurred during a Captain’s mast is the preponderance 
of the evidence.  He alleged that there was “no logical reason” for the CO to dismiss his 
case  at  mast  but  decide  that  a  drug  incident  had  occurred,  requiring  the  applicant’s 
administrative  separation.    He  contended  that  the  “irregularity”  with  which  the  CO 
handled  the  charges  against  him  likely  resulted  in  his  command  applying  “unusual 
pressure [for him]… to waive his right to counsel and [right to] rebut the [separation] 
decision  ….”    The  applicant  stated  that  the  Coast  Guard’s  action  of  dismissing  the 
charges  against  him  is  “tantamount  to  a  finding  that  the  evidence  was  insufficient  to 
support the allegations.” 

 
The applicant questioned the Coast Guard’s explanation of the inconsistency in 
the laboratory results between June 5, 19xx and July 23, 19xx.  He argued that because 
urine  samples  are  frozen  to  prevent  diminution  of  concentration  and  that  the  time 
period  between  the  initial  testing  and  re-testing  of  his  sample  was  less  than  two 
months, it is “highly unlikely” and not “properly supported by scientific data” that the 
decrease  in  concentration  upon  re-testing  would  have  occurred.    He  argued  that 

notwithstanding  its  inadequate  explanation,  the  Coast  Guard  failed  to  address  the 
applicant’s  hair  sample  testing  evidence,  which  documented  that  he  had  not  used 
marijuana.  He asserted that under the hair analysis drug testing regimen, drugs could 
be detected in the hair for approximately 90 days after ingestion.  He claimed that in 
light of the fact that he submitted to hair analysis—which revealed negative results for 
marijuana—only 48 days after the collection of his urine sample, the record shows that 
the  evidence  was  insufficient  to  support  the  Coast  Guard’s  allegation  of  misconduct 
against him. 
 

 
Personnel Manual (COMDTINST M1000.6A) 
 

APPLICABLE LAW 

Article  20.A.2.k.  of  the  Personnel  Manual  defines  a  “drug  incident”  as 
“[i]ntentional  drug  abuse,  wrongful  possession  of,  or  trafficking  in  drugs.    If  the  use 
occurs without the member’s knowledge, awareness, or reasonable suspicion …, it does 
not  constitute  a  drug  incident.  …    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. governs the procedures for processing members found to have been 
involved  in  a  drug  incident.    Article  20.C.3.a.  states  that  “following  [the]  receipt  of  a 
positive  confirmed  urinalysis  result  or  any  other  evidence  of  drug  abuse,”  COs  are 
required  to  initiate  an  investigation  into  a  possible  drug  incident.    Article  20.C.3.b. 
provides that members are entitled to be advised of their Article 31, UCMJ rights prior 
to being questioned about a drug incident.   
 

Article  20.C.1.b.  provides  that  “COs  are  responsible  for  ensuring  their  unit’s 
compliance  with  the  Coast  Guard’s  Drug  Abuse  Program”  and  “shall  investigate  all 
circumstances in which the use or possession of drugs appears to be a factor, and take 
appropriate administrative and disciplinary action.”  Article 20.C.1.c. states that the CO 
may  obtain  advice  in  processing  administrative  actions  on  drug  abuse  cases  from  the 
Commander of CGPC, while “[m]edical and chemical questions should be referred to 
the screening laboratory.” 
 

Article  20.C.3.c.  provides  that  a  CO  should  consider  all  the  available  evidence 
when  determining  whether  a  drug  incident  has  occurred.    Such  evidence  to  be 
considered  includes  “positive  confirmed  urinalysis  test  results,  any  documentation  of 
prescriptions,  medical  and  dental  records,  service  record,  and  chain  of  command 
recommendations.”  Article 20.C.3.d. provides that the CO shall determine the finding 
of  a  drug  incident  by  a  preponderance  of  the  evidence  standard.    It  states  that  “[a] 
preponderance of the evidence refers to its quality and persuasiveness, not the number 

of witnesses or documentation.  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,  upon  a  CO’s  determination  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.”  It further states 
that “[m]embers who commit drug offenses are subject to disciplinary action under the 
UCMJ in addition to any required administrative discharge action.” 

 
Article 12.B.18.b.4. provides that “[a]ny member involved in a drug incident … 
will be processed for separation from the Coast Guard with no higher than a general 
discharge.” 

 
Article 12.B.18.e. states that members, who are being recommended for general 
discharge for misconduct, with less than eight years of service must be (1) informed of 
the  reason(s)  they  are  being  considered  for  discharge;  (2)  afforded  an  opportunity  to 
make a written statement; and (3) afforded an opportunity to consult with legal counsel, 
“if a general discharge is being contemplated.” 

 
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.    
 
 
Under Chapter 1.D.17. of the Military Justice Manual, once a member is charged 
with  a  UCMJ  offense  and  agrees  to  go  to  mast  (thereby  avoiding  a  potential  court-
martial), the CO may take the member to mast but “decide not to punish a member by 
dismissing the matter with a warning.  Such a decision may be based on either a lack of 
proof or a determination that punishment is not appropriate even though the member 
committed  an  offense(s).”    A  dismissal  with  warning  is  not  considered  non-judicial 
punishment (NJP), and no entry is made in the member’s record. 
 

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 submission, and appli-
cable law: 
 
 
§ 1552.  The application was timely.   
 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

1. 

2. 

The  Chief  Counsel  argued  that  under  33  C.F.R.  §  52.13,  the  application 
should  be  dismissed  for  failure  to  exhaust  administrative  remedies  because  the 

applicant has not yet sought relief from the DRB.  Title 33 C.F.R. § 51.3 provides that 
veterans “may apply to the DRB for a change in character of, and/or the reason for, the 
discharge.”    However,  in  addition  to  a  change  in  the  character  and  reason  for  his 
discharge,  the  applicant  has  also  requested  reinstatement  to  active  duty  in  his  prior 
rank with entitlement to back pay and allowances—relief which the DRB cannot grant.  
Therefore, because a major part of the applicant’s request falls outside the jurisdiction of 
the DRB, he need not have applied to the DRB before applying to this Board.  
 
 
The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair, 
acting pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition 
of the case without a hearing.  The Board concurs in that recommendation. 
 

3. 

4. 

The  record  indicates  that  the  applicant  was  counseled  on  the  Coast 
Guard’s drug policies on July 30, 19xx, the date he entered active duty.  The record also 
indicates that as part of a random urinalysis conducted on May 12, 19xx, the applicant 
submitted  a  specimen,  which  tested  positive  for  THC,  the  parent  metabolite  in 
marijuana.  When his command received the positive results in June 19xx, the applicant 
was placed on report and, in accordance with Article 20.C.3.b., advised of his Miranda 
rights  prior  to  being  questioned  by  a  Coast  Guard  investigator.    Thereafter,  the 
applicant’s  CO  ordered  an  investigation  into  the  allegations,  requested  a  retest  of  the 
applicant’s  original  sample,  and  concluded  that  a  “drug  incident”  had  occurred.  
Personnel Manual, Articles 20.C.3.a. and 20.A.2.k. 
 

5. 

There  is  no  evidence  in  the  record  to  suggest,  nor  does  the  applicant 
allege, that the Coast Guard committed any errors or breaches concerning the integrity 
of the urinalysis testing procedures.  Nevertheless, the applicant questioned the validity 
of  the  original  results  of  his  urinalysis.    He  argued  that,  in  light  of  his  negative  hair 
analysis  results  and  the  fact  that  the  retesting  of  his  original  sample  revealed  a  THC 
concentration below the cutoff level for a positive result under Coast Guard and DoD 
standards, his CO improperly concluded that there was sufficient evidence to support 
the allegations of misconduct against him.  Although hair analysis is now admitted in 
court as reliable and scientifically acceptable evidence of illegal drug use,3 the applicant 
has failed to show by a preponderance of the evidence how the hair analysis evidence 
he submitted proves his case. 
 

6. 

According to the laboratory report, the negative results of the applicant’s 
hair  analysis  “means  that  either  no  drug  was  detected,  or  it  was  present  at  a 
concentration  less  than  [5  picograms  per  milligram  (pg/mg),]  the  laboratory’s 
established cutoff level.”  However, the evidence fails to prove the applicant’s non-use 
of marijuana during the weeks before May 12, 19xx, when his urine sample was taken.  

                                                 
3 See United States v. Bush, 47 M.J. 305 (1997); United States v. Nimmer, 43 M.J. 252 (1995). 
 

The applicant provided no specific scientific evidence to indicate that the negative hair 
test results definitely disproved the results of the two screening tests and GC/MS test of 
his  urine.    Furthermore,  unlike  urinalysis  testing,  there  are  no  Coast  Guard  or  DoD 
established  cutoff  levels  for  hair  analysis,  and,  for  civilian  federal  employees,  hair 
analysis test cutoffs are set at substantially lower levels than the level used by the above 
private  facility.    Using  hair  analysis,  the  initial  test  cutoff  concentration  for  THC  is  1 
pg/mg,  while  the  confirmatory  test  cutoff  concentration  is  set  at  0.05  pg/mg.    See 
Mandatory Guidelines for Federal Workplace Drug Testing.4  Therefore, the applicant’s 
hair analysis test does not persuade the Board that the urinalysis testing was inaccurate. 
 

7. 

The  record  indicates  that  the  Coast  Guard  committed  no  procedural  or 
legal  errors  concerning  the  decreased  level  of  THC  reported  upon  retesting  the 
applicant’s urine specimen.  Under Article 20.C.1.c. of the Personnel Manual, COs may 
obtain  guidance  on  medical  and  chemical  questions  regarding  drug  abuse  cases  from 
the screening laboratory.  Accordingly, with respect to the decrease in the applicant’s 
sample of THC from 23 to 13 ng/ml, the applicant’s CO conferred with experts at XXXX 
FTDTL,  who  explained  that  the  stated  decrease  in  THC  was  consistent  with  urine 
samples,  as  that  metabolite  breaks  down  in  urine  over  time.  Although  the  applicant 
alleged that the Coast Guard’s explanation of the decrease in THC is “not scientifically 
supported”  because  urine  samples  are  frozen  to  prevent  such  diminution,  he  has 
offered  no  evidence  other  than  his  bare  assertion  to  support  the  accuracy  of  his 
contentions.  Absent 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).    The  Board  finds  that  the  CO  reasonably 
relied on the forensic laboratory’s explanation of the decreased level of THC reported in 
the  retest  of  the  applicant’s  urine  sample.    Consequently,  the  applicant  has  failed  to 
prove by a preponderance of the evidence that the results of either the original test or 
the retest of his urine constitute an error or injustice.   
 
 
There  is  no  indication  in  the  record  that  the  CO  failed  to  consider  all 
available  evidence  in  determining  that  the  applicant  had  been  involved  in  a  drug 
incident, as required by Article 20.C.3.c. of the Personnel Manual.  Given the applicant’s 
denial  of  wrongful  use  of  marijuana  and  his  explanation  of  passive  inhalation  with 
supporting  statements,  balanced  against  the  results  of  the  applicant’s  urinalysis, 
established drug cutoff levels, and clinical evidence of levels for passive inhalation, the 
Board concludes that the applicant’s CO reasonably found by a preponderance of the 
evidence  that  the  applicant  did  wrongfully  use  marijuana  in  accordance  with  Article 
20.C.3.d. of the Personnel Manual.  Moreover, the urinalysis of the applicant’s specimen 
                                                 
4  According  to  the  Department  of  Health  and  Human  Services,  Substance  Abuse  and  Mental  Health 
Services  Administration  (SAMHSA),  the  Mandatory  Guidelines  for  Federal  Workplace  Drug  Testing 
Subpart  C,  §  3.3,  the  guidelines  apply  to  the  Uniformed  Services,  but  exclude  the  Armed  Forces,  as 
defined  in  5  U.S.C.  §  2101  (2).    The  Coast  Guard  is  included  under  the  definition  of  Armed  Services.  
Subpart A, § 1.1 of the guidelines.   

 
8. 

is  presumed  to  be  legally  and  scientifically  supportable  to  prove  that  he  unlawfully 
used  marijuana,  and  the  applicant  provided  insufficient  evidence  to  overcome  that 
presumption.  Consequently, under Articles 20.C.4. and 12.B.18.b.4., he was subject to 
an immediate general discharge. 
 

9. 

The applicant argued that there was “no logical reason” for his CO to find 
that a drug incident  had occurred one day  after he dismissed the charges against the 
applicant at Captain’s mast.  He argued that the CO’s dismissal with warning indicated 
that there was insufficient evidence to prove by a preponderance of the evidence that he 
committed  the  offenses.    However,  under  Chapter  1.D.17.  of  the  Military  Justice 
Manual, a CO may, at his or her discretion, dismiss a charge “with warning” at mast 
even  if  the  evidence  presented  proves  that  the  member  committed  the  offense.    The 
applicant  has  not  proved  that  his  CO  found  insufficient  evidence  to  prove  that  he 
committed  the  offenses  with  which  he  had  been  charged.    The  Board  therefore  finds 
that  the  applicant  has  failed  to  prove  that  his  CO  committed  an  error  or  injustice  by 
finding  that  a  drug  incident  occurred  even  though  he  dismissed  the  criminal  charges 
against him.   
 

10. 

 The  record  indicates  that  the  applicant’s  discharge  proceedings  were  in 
accordance with applicable law and regulations with no indication of procedural errors, 
which would tend to jeopardize his due process rights.  On July 14, 19xx, the applicant 
acknowledged that “the original positive urinalysis result may still be used as a basis 
for disciplinary action under the UCMJ, administrative separation, and characterization 
of discharge.…”  Furthermore, he was entitled to and provided (1) notice of the reasons 
which  he  was  being  considered  for  discharge,  (2)  the  opportunity  to  make  a  written 
statement, and (3) the opportunity to consult a lawyer, as required by Article 12.B.18.e. 
of  the  Personnel  Manual.    By  signature  dated  September  28,  19xx,  the  applicant 
acknowledged the foregoing rights, certified that he received said notice, and chose not 
to make a statement or consult with counsel. 
 
The applicant alleged that he was not provided with proper notice of his 
 
right  to  seek  counsel  and  was  coerced  into  being  separated  from  the  Coast  Guard 
without  protest  on  his  part.    In  support  of  his  contention  that  he  was  pressured  into 
waiving  his  rights  and  accepting  a  general  discharge,  the  applicant  argued  that  the 
language  of  the  first  endorsement  was  drafted  in  such  a  manner  that  prevented  him 
from acknowledging notification of his proposed discharge without waiving his rights 
to  make  a  statement  and  to  consult  with  an  attorney.    While  the  format  of  the  first 
endorsement may or may not establish that the Coast Guard anticipated the applicant’s 
execution of the document, it certainly does not establish coercion.  The language of the 
first  endorsement  was  clear  and  unambiguous,  and  not  so  heavily  restrictive  that  he 
was precluded from striking language out or adding any desired changes to the text.   
 

11. 

12.  Moreover, the record contains insufficient evidence to find that the Coast 
Guard  erred  or  committed  an  injustice  because  the  EO  witnessed  the  applicant’s  first 
endorsement.  The applicant has presented no law or regulation which prohibits an EO 
from  witnessing  such  an  endorsement.    Neither  has  the  applicant  submitted  any 
statements  to  corroborate  his  allegation  that  he  was  coerced  into  waiving  his  right  to 
counsel  by  his  command.    The  record  indicates  that  the  applicant  was  informed  on 
September  26,  19xx,  that  his  CO  was  initiating  action  to  effect  his  discharge  from  the 
Coast  Guard,  and  that  on  September  28,  19xx,  he  signed  the  first  endorsement  of  his 
CO’s recommendation.  In the absence of any persuasive evidence to the contrary, the 
Board  finds  that  the  applicant  was  informed  of  and  afforded  his  due  process  rights 
prior to waiving his rights to submit a statement and consult counsel, and prior to being 
discharged.   
 

13. 

The applicant has failed to prove by a preponderance of the evidence that 
the Coast Guard committed an error or injustice in awarding him a general discharge 
with  a  JKK  separation  code  and  an  RE-4  reenlistment  code  for  wrongful  use  of 
marijuana.   
 
 
 
 

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

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

ORDER 

The application of                               , USCG, for the correction of his military 

 
 
record is denied.   
 
 
 
 

 

 
 Nancy Lynn Friedman 

 

 

 

 
 Gerald H. Meader 

 

 

 
 Dorothy J. Ulmer