DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
Application for Correction of  
Coast Guard Record of: 
 
 
 
    

 
 
 
BCMR Docket  
No. 2003-041 
 

  FINAL DECISION 

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

 
ULMER, Chair: 
 
 
This is a proceeding under section 1552 of title 10 and section 425 of title 14 of the 
United States Code. The application was docketed on February 24, 2003,1 the date the 
Board received the applicant's complete application for correction of his military record. 
 
 
members who were designated to serve as the Board in this case. 
 
The applicant asked the Board:  (1) to remove all references to his August 9, 199x 
 
urinalysis test; (2) to remove all documents which reference the positive urinalysis test 
as the basis for his discharge from the Reserve; (3) to delete misconduct as the reason for 
his discharge as well as the corresponding separation code (HKK); (4) to award him an 
honorable discharge; and (5) to award him all pay, entitlements, and allowances that he 
is due, if his record is corrected.   
 

On August 9, 199x, the applicant gave a urine specimen that tested positive for 
marijuana.  Subsequently,  he  was  discharged  from  the  Reserve  on  February  24,  199x, 
with a general discharge under honorable conditions, by reason of misconduct due to a 
drug incident.  He was also assigned an RE-4 (not eligible for reenlistment) reenlistment 
code. 
 

SUMMARY OF RECORD AND SUBMISSIONS 

 
 
The applicant was a member of the Coast Guard Reserve from January 25, 197x, 
until his discharge on February 24, 199x.  He stated that at the time of his discharge, he 
was a qualified and experienced machinist mate, having provided over sixteen years of 
excellent service in the Reserve.  He stated that he participated in a random urinalysis 
collection on August 9, 199x.  He alleged that he was never shown any evidence that his 

                                                 
1      The  application  was  received  on  January  10,  2003,  but  was  not  docketed  until 
February  24,  2003  after  the  Board  received  the  applicant's  military  record,  which 
constituted a complete application.   
 

urine specimen actually tested "positive" for marijuana, that he was denied his right to 
see and refute the evidence against him, and that he was denied the right to have his 
urine specimen retested.  He stated that he was advised of his Article 31 rights, but the 
fact that he chose to remain silent was used against him.  More importantly, he asserted 
that  the Coast Guard violated Article 12 of the Personnel Manual when it discharged 
him without first convening an administrative discharge board (ADB) 2 to hear his case.  
 
 
The applicant stated that Article 12.B.18.d. of the Personnel Manual requires "All 
cases where a discharge under other than honorable conditions by reason of misconduct 
is  contemplated"  to  be  processed  as  prescribed  by  Article  12.B.32.,  which  details 
regulations for ADB hearings.  Under this provision, members entitled to an ADB have 
the  right  to  counsel  and  to  a  hearing  before  a  three-member  board  that  weighs  the 
evidence and recommends to the commandant whether the member should be retained 
in or discharged from the Coast Guard.  In addition, he stated that Article 12.B.32.a.(1) 
of  the  Personnel  Manual  requires  a  waiver  of  an  ADB  to  be  in  writing.  He  argued, 
therefore, that an ADB was mandatory in his case because he never waived his right to 
an ADB in writing or otherwise. 
 
Discharge from the Coast Guard Reserve 
 
 
On  November  10,  199x,  the  applicant's  commanding  officer  (CO)  notified  the 
applicant  that  he  was  recommending  the  applicant's  discharge  from  the  Coast  Guard 
Reserve under other than honorable conditions for misconduct due to a drug incident.  
The applicant was advised that he had a right to an ADB and the right to be represented 
by  a  military  attorney.  He  was  also  advised  that  he  had  a  right  to  have  his  sample 
retested.   There was also a place on this letter for the applicant to acknowledge by his 
signature  that  he  had  "received,  read,  and  under[stood]  this  letter."    (There  is  no 
evidence in the record that the applicant ever signed this acknowledgement.) 
 

Also, on November 10, 199x, the CO recommended to the Commandant that the 
applicant  be  discharged  from  the  Reserve.  The  CO  wrote  that  he  was  notified  on 
August  24,  199x,  that  the  applicant's  urine  sample  had  tested  positive  for  THC 
(marijuana  metabolite)  and  the  CO  immediately  resubmitted  the  sample  to  the 
laboratory  for  confirmation.    He  stated  that  on  September  28,  199x,  the  laboratory 
reported  to  the  unit  drug  coordinator  that  the  applicant's  resubmitted  sample  also 
tested positive for THC.  
 
 
 
On  February  7,  199x,  the  applicant's  CO  wrote  to  the  Commander,  First  Coast 
Guard District recommending that the applicant's case be closed because the applicant 

                                                 
2      Article  12.B.31.a.  of  the  Personnel  Manual  states  that  an  administrative  discharge 
board "is a fact-finding body appointed to render findings based on the facts obtained 
and  recommend  either  retention  in  the  Service  or  discharge.  If  recommending  a 
discharge, the board also recommends a reason for discharge and the type of discharge 
certificate to be issued." 
 

had  not  signed  the  November  10,  199x  letter  advising  him  that  he  was  being 
recommended for a discharge from the Coast Guard. 
 
 
On February 16, 199x, the Commander, First Coast Guard District recommended 
to  the  Commandant  that  the  applicant's  case  be  closed  because  the  applicant had not 
responded to the letter informing him of the recommended discharge and of the right to 
an ADB.   
 
 
On  February  24,  199x,  the  Commandant  authorized  the  discharge  of  the 
applicant  under  honorable  conditions  due  to  misconduct,  with  an  RE-4  reenlistment 
code. 
  
 
 
The applicant stated in an affidavit to the BCMR that he never acknowledged in 
writing  the  letter  advising  him  of  his  discharge  and  right  to  an  ADB  because  legal 
counsel  advised  him  not  to  sign  it  if  he  did  not  agree  with  it.    The  applicant  stated, 
however, that he orally requested an ADB but was not given one.  He also stated that he 
wanted  to  have  the  urine  specimen  retested  but  was  told  none  of  the  sample  was 
available.  The applicant stated that he was removed from his pay billet and assigned to 
the individual ready reserve (IRR). 
 
Discharge Review Board (DRB) Decision 
 

The  applicant  filed  an  application  with  the  Discharge  Review  Board  (DRB)  on 
November 22, 199x.  On or about September 28, XXXX, he received a decision from the 
DRB  refusing  to  upgrade  his  general  discharge  under  honorable  conditions  to  an 
honorable one.  Although the DRB denied the applicant's request for an upgrade of his 
discharge, it made the following pertinent comments: 
 

initial 

interview  with 

The  [DRB]  was  disturbed  by  weaknesses  in  the  command's  handling  of 
[the  applicant]  on  31  October  199x, 
the 
documentation  of  attempts  at 
follow-up  contact,  preservation  of 
documentation, and an error in documentation of the urinalysis.  There is 
no written acknowledgement by the applicant of the initial interview by 
the  Reserve  Unit  [CO]  or  Executive  Officer  on  31  October  199x.    Nor  is 
there a statement by the interviewer and a witness noting the applicant's 
refusal to sign.  The 10 November 199x letter documenting the interview is 
incomplete.  There is no first-hand record of the results of the urinalysis 
test,  nor  of  the  sample  collection  (in  which  individuals  sign  for  their 
sample  numbers).    The  10  November  199x  letter  refers  to  urine  samples 
"CG-1485-718" and C6 1482-717".  The command's follow-up letter dated 7 
February  1993  refers  to  these  samples  as  "#  1482-717"  and  "#1482-718".  
Attempts  at  follow-up  contact  with  the  member  are  not  documented, 
other than a general statement in the 7 February 199x letter addressed to 
[the applicant].   On executing the discharge on 24 February 199x, there is 
no record of notification being sent to the applicant.   
 

Although  the  31  October  199x,  interview  was  not  acknowledged  by  the 
applicant  at the time, he did recall the interview in his testimony before 
the  [DRB].      He  testified  that  he  requested  a  copy  of  the  urinalysis  test 
results, but did not receive any.  He was clearly aware that there had been 
a positive urinalysis test and that he had been advised of his rights.  He 
also  mentioned  receiving  a  letter  from  his  commanding  officer.    He 
testified that the pressures of managing his business prevented him from 
responding  or  taking  follow-up  action.    It  was  the  applicant's  duty  to 
respond  to  the  command's  letter,  and  he  failed  to  do  so.    Knowing  the 
implications of the proposed discharge, he failed to protest the discharge 
or  contest  the  findings  of  the  urinalysis.    The  record  indicates  that  from 
the  applicant's  failure  to  respond,  the  command  assumed  that  the 
applicant intended not to challenge the urinalysis results or the proposed 
discharge.  While this may have been a mistaken assumption according to 
the applicant's testimony, the [DRB] concluded it was reasonable, and not 
improper, arbitrary, nor capricious.  
 
. . . While there are weaknesses in the documentation as noted, the record 
as a whole, coupled with the applicant's testimony, shows that a positive 
urinalysis 
took  appropriate 
administrative  action  which  led  to  a  General  Discharge  by  reason  of 
Misconduct.  In effecting the discharge, there is no evidence that the Coast 
Guard  acted  improperly,  arbitrarily,  or  capriciously.    The  discharge  was 
proper.   

took  place  and 

test 

the  command 

 
Views of the Coast Guard  
 
 
On July 7, 2003, the Board received an advisory opinion from the Chief Counsel 
of the Coast Guard.  He recommended that the Board grant partial relief by correcting 
the applicant's record to show that he was honorably discharged for convenience of the 
government  under  Article  12.B.12.a.17  of  the  Personnel  Manual.    He  did  not 
recommend that the applicant's RE-4 reenlistment code be upgraded.   
 
 
The Chief Counsel stated that the preponderance of the evidence refuted all of 
the  applicant's  allegations  except  for  the  error  committed  by  the  Coast  Guard  in  not 
convening  an  ADB  hearing  in  his  case.    He  stated  that  the  Coast  Guard's  failure  to 
conduct  an  ADB  hearing,  absent  a  signed  waiver  from  the  applicant,  constituted 
procedural error.    
 
 
The Chief Counsel stated that while partial relief is appropriate in this case, the 
applicant's  RE-4  reenlistment  code  should  not  be  changed.    In  this  regard,  the  Chief 
Counsel noted that the applicant never denied that he was involved in a drug incident.  
He further stated the following: 
 

Applicant's  discharge  was  originally  effected in furtherance of the Coast 
Guard's  zero-tolerance  policy  for  illegal  drug  use.    The compelling need 

for  armed  forces  personnel  to  remain  free  of  illegal  substances  warrants 
continued  consideration  in  this  case.    Applicant's  Commanding  and 
Executive  Officers  determined  that  Applicant  was  involved  in  a  drug 
incident  .  .  .  The  Coast  Guard  DRB  later  affirmed  this  finding  .  .  .  The 
Coast Guard's administrative error does not change the facts underlying 
these  determinations.    Furthermore,  Applicant  has  not  provided  any 
evidence  to  show  that  this  error  was  anything  other  than  a  good  faith 
mistake.    Accordingly,  the  services'  procedural  oversight  should  not 
provide  grounds  to  undermine  the  integrity  of  its  ranks  by  affording 
Applicant the opportunity to reenlist.   
 
. . . Applicant does not specifically request that he be allowed to reenter 
the armed forces.  Accordingly, the nature of relief Applicant seeks can be 
granted without changing his reenlistment code.   

 
 
The Chief Counsel stated a service member has no absolute right to remain in the 
service until the end of his enlistment period.  Giglio v. United States, 17 Cl. Ct. 160, 166 
(1989).    Therefore,  as  a  member  of  the  armed  forces,  the  applicant  could  be 
appropriately and administratively discharged prior to that time. He stated 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  (1992).      He  argued  that  the  Coast  Guard's  error  in  this  case  was  a  "good  faith 
mistake" and the applicant has not shown otherwise.   
 
 
The Chief Counsel stated that he adopted the memorandum from Commander, 
Coast Guard Personnel Command, which was attached as Enclosure (1) to the advisory 
opinion.   CGPC stated that Article 12.B.32 of the Personnel Manual provided only one 
exception for a requirement to obtain a written waiver for an ADB. That one exception 
applied  to  members  in  civilian  confinement  who  after  notification  by  registered  mail 
could waive an ADB by declining to reply to the ADB notification letter.  He stated that 
the applicant's case did not meet the exception for not obtaining a written waiver for an 
ADB hearing.  He further stated that under Article 12.B.32 of the Personnel Manual  "a 
board should have been convened after the Applicant was given a reasonable time to 
waive  this  right."    He  stated  that  because  the  applicant  never  waived,  in  writing,  his 
right to an ADB hearing, the Coast Guard's failure to convene an ADB constituted error.   
 
 
CGPC stated that he concurred with the DRB that the applicant was aware of the 
recommendation to discharge him and of his due process rights; that the applicant had 
sufficient time to exercise his due process rights because he was notified of them at least 
a month before his discharge; and that the applicant had engaged in a drug incident.  
However, CGPC noted that the DRB decision failed to address the Coast Guard's error 
of not convening an ADB in the applicant's case.   
 
 
stating the following: 
 

CGPC  did  not  recommend  upgrading  the  applicant's  RE-4  reenlistment  code, 

[A]uthorizing the applicant's reinstatement is not in the best interest of the 
government.    The  Coast  Guard's  conclusion  that  the  Applicant  was 
involved in a drug incident is substantiated by the available record, and 
that allowing the Applicant the possibility of reenlistment would degrade 
its  ability  to  enforce  its  zero  tolerance  policy  on  the  illegal  use  of  drugs 
and  degrade  its  law  enforcement  mission.    Furthermore,  ten  years  have 
elapsed  since  the  applicant's  separation.    He  is  no  longer  qualified  for 
reenlistment in the rating he [held when] discharged, and the investment 
in  time  and  money  to  reestablish  the applicant's qualifications would be 
an unreasonable burden for the government to bear.   
 
 
 
 

 
Applicant's Response to the Views of the Coast Guard 
 
 
On April 15, 2003, the Board received the applicant’s response to the views of the 
Coast Guard.  He stated in the interest of compromise and expeditious resolution of his 
claim, he accepted the Coast Guard's recommendation for relief and he agreed not to 
further  pursue  upgrading  his  RE-4  reenlistment  code.3    In  this  regard,  he  stated  the 
following: 
 

This agreement by the parties renders further analysis and argument on 
the  issue  superfluous  and  [Applicant]  urges  the  [Board]  to  adopt  the 
agreed position of both parties and enter a finding and order allowing the 
requested  relief,  with  the  exception  of  removal  of  the  contested 
reenlistment code.   

 

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 
applicable law: 
 
 
1.    The  Board  has  jurisdiction  of  this  case  pursuant  to  section  1552  of  title  10 
United States Code.  The application was timely.  An applicant has fifteen years from 
the date of discharge to apply to the Discharge Review Board (DRB) for an upgrade of 
his  discharge.    The  applicant  applied  to  the  DRB  approximately  three  and  one-half 
years  after  his  discharge,  and  the  DRB  issued a final decision on September 26, xxxx.  
According to Ortiz v. Secretary of Defense, 41 F. 3rd. 738 (D.C. Cir. 1994), the BCMR's 
three year statute of limitations begins to run at the conclusion of DRB proceedings for 

                                                 
3   Although the applicant agreed with the Chief Counsel's recommendation for relief, 
he  took  issue  with  several  of  the  statements  in  the  Coast  Guard's  advisory  opinion.  
Since  these  differences  are  irrelevant  to  the  major  issue  of  whether  the  Coast  Guard 
erred in not convening an ADB, they are not summarized in this final decision.   

2.    The  Chairman  has  recommended  disposition  of  the  case  without  a  hearing, 

an  applicant  who  is  required  to  exhaust  administrative  remedies  by  applying  to  the 
DRB before seeking redress from the BCMR.  Under 33 CFR § 52.13, the applicant was 
required to exhaust his administrative remedies by applying to the DRB.  Therefore, the 
applicant's BCMR application, received by the Board on January 10, 2003, was timely. 
 
 
pursuant to 33 CFR § 52.31.  The Board concurs in that determination. 
 
 
3.  The Coast Guard admitted that it committed an error in the applicant's case 
by  failing  to  convene  an  ADB  before  discharging  him  from  the  Coast  Guard  with  a 
general discharge under honorable conditions due to misconduct.  Therefore, the Chief 
Counsel  recommended  that  the  Board  grant  relief  to  the  applicant  by  correcting  his 
record  to  show  that  he  was  honorably  discharged  form  the  Coast  Guard  for  the 
convenience  of  the  government  pursuant  to  Article  12.B.12.a.17  of  the  Personnel 
Manual,  but  the  Coast  Guard  did  not  recommend  upgrading  the  applicant's 
reenlistment code.  The Separation Designator Code (SPD) Handbook permits an RE-4 
reenlistment  code  with  a  discharge  by  reason  of  Secretarial  authority.    The  applicant 
accepted  the  recommendation  of the Coast Guard and agreed not to contest the RE-4 
reenlistment code if the Board ordered the relief recommended by the Coast Guard.  
 

4.    The  Board  finds  that  the  Coast  Guard  committed  a  substantial  error  by 
discharging the applicant with a general discharge due to misconduct without an ADB 
hearing, as required by the Personnel Manual.  The error appears even more egregious 
in  the  applicant's  case  because  he  was  a  sixteen-year  veteran  of  the  Coast  Guard 
Reserve. Article 12.B.18.d. of the Personnel Manual requires that a member who is being 
considered  for  an  other  than  honorable  discharge  or  a  member  with  more  than  eight 
years of service, like the applicant, who is being considered for discharge by reason of 
misconduct  shall  be  processed  in  accordance  with  Article  12.B.32  of  the  Personnel 
Manual,  which  provides  for  a  hearing  before  an  ADB.    However,  under  Article 
12.B.32.b.  of  the  Personnel  Manual,  the  Coast  Guard  could  have  discharged  the 
applicant without convening an ADB hearing, if the applicant had waived his right to 
the hearing in writing.  There is no written waiver of the applicant's right to an ADB in 
the  record.    Therefore,  in  light  of  the  Coast  Guard's  violation  of  the  applicant's  due 
process  rights,  the  Board  will  direct  that  the  applicant's  record  be  corrected  in  the 
manner recommended by the Coast Guard and agreed to by the applicant.   

 
5.  Neither the Chief Counsel nor the applicant discussed the separation code to 
be  applied  if  the  Board  ordered  the  relief  recommended  by  the  Chief  Counsel  and 
agreed to by the applicant.  In reviewing the SPD handbook, the Board finds that JFF is 
the  appropriate  separation  code  for  the  relief  being  granted.    A  JFF  code  means  an 
"Involuntary discharge directed by established directive . . . when separation is made by 
order  of  the  Department  Secretary  of  the  Service  component  in  which  member  is 
serving." 

 
6.    The  applicant  is  not  entitled  to  a  DD  Form  214  (certificate  of  discharge  or 
release from active duty) because he was not on active duty at the time of his discharge 

but was serving on inactive duty in the Reserve.  In correcting the applicant's record, 
the  Coast  Guard's  attention  is  directed  to  Personnel  Action  Form  (CG3312a),  which 
describes  the  applicant's  February  24,  199x  discharge  as  a  general  discharge  under 
honorable  conditions  due  to  misconduct,  as  well  as  any  other  documents  that  may 
contain this erroneous information.  

8.  Accordingly, the applicant is entitled to partial relief. 

 
7.  Any other issues raised by the applicant in this application are rendered moot 
by his agreement not to challenge his RE-4 reenlistment code if the Board ordered his 
record  corrected  as  recommended  by  the  Coast  Guard.    The  Board  finds  the  relief 
recommended by the Coast Guard and accepted by the applicant to be an appropriate 
remedy for the failure of the Coast Guard to convene an ADB in the applicant's case.   
 
 
 
 
 
 
 
 
 
 

ORDER 

 
 
The  application  of  xxxxxxxxxxxxxxxxxx,  USCGR,  for  the  correction  of  his 
military  record  is  granted  in  part  and  denied  in  part.    His  record,  including  Coast 
Guard Form (CG3312a), shall be corrected to show that he was honorably discharged 
from  the  Coast  Guard  Reserve  for  the  convenience  of  the  Government  by  reason  of 
Secretarial Authority, pursuant to Article 12.B.12. of the Personnel Manual, with a JFF 
separation code.   
 
 
 
 

All other relief is denied. 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

_______________________________ 
 Janis Monk 

_______________________________ 
 Dorothy J. Ulmer 

 

 

 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 
 

 
 
 

 
 
 

 
 
 

_______________________________ 
 Thomas H. Van Horn