DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-169 
Xxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR: Andrews, J. 
 
 
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 case was docketed on August 
17, 2004.1 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated April 21, 2005, is signed by the three duly appointed 

APPLICANT’S REQUEST 

 
The  applicant,  a  former  seaman  apprentice  (SA;  pay  grade  E-2)  in  the  Coast 
 
Guard, received a general discharge on November 15, 2002, after  completing just one 
year, two months, and eighteen days of military service.  He was administratively dis-
charged for misconduct after he was found guilty at mast of wrongfully possessing a 
controlled substance (marijuana) aboard a Coast Guard cutter.  The applicant asked the 
Board  to  vacate  his  discharge  and  reinstate  him  on  active  duty  in  his  previous  pay 
grade, E-3; to remove all records of the general discharge, RE-4 reenlistment code (ineli-
gible for reenlistment), and criminal charges from his record; and to restore to him “all 
rights, privileges, pay, allowances, and benefits which were denied him as a result of 
the non-judicial punishment imposed [at mast] on September 20, 2002.”   

 

                                                 
1  When the application was received on May 3, 2004, the applicant’s military records were ordered from 
the National Personnel Record Center, which reported that no records could be found.  The Coast Guard 
was also unable to locate the applicant’s military records.  On August 17, 2004, the Chair determined that 
although  no  official records could be found, the application could be docketed  based upon the records 
supplied by the applicant. 

In the alternative, the applicant stated, he asks that his discharge be upgraded to 
honorable, that his reenlistment code be upgraded to RE-1 (eligible to reenlist), and that 
he be awarded “any pay, allowances and benefits which were denied as a result of the 
wrongful  conviction  by  non-judicial  punishment  on  September  20,  2002,  and  subse-
quent administrative separation.”   
 

APPLICANT’S ALLEGATIONS 

 

The applicant alleged that at about 3:00 a.m., on July 21, 2002, a seaman on his 
cutter  making  the  rounds  as  mid-watch  messenger  of  the  watch  noticed  a  ceiling  tile 
ajar in the Deck Department “head area” and found a package wrapped in duct tape 
above it.  The seaman squeezed it and decided that it smelled like marijuana.  He com-
pleted his rounds and then returned, removed the package, and gave it to the quarter-
deck watchstander, who gave it to the Officer of the Deck, who took it to the stateroom 
of  the  executive  officer  (XO)  of  the  cutter.    The  XO  opened  the  package  and  found 
approximately 14.2 grams of marijuana wrapped inside a plastic “baggy” with a paper 
flyer  advertising  a  Jamaican  music  festival.    The  commanding  officer  (CO)  and  Coast 
Guard Investigative Services (CGIS) were informed. 

 
The applicant stated that on July 23, 2002, another seaman on the cutter, SN H, 
told a chief petty officer that “during the second day of a 3-day port call in Jamaica, [the 
applicant] showed her a package containing what she believed to be marijuana.”  SN H 
reported that after the applicant woke her early in the morning so that she could relieve 
him of duty as messenger of the watch, she went to the Deck Lounge “where the watch 
is  normally  turned  over.”    After  she  took the  watch,  she  stated,  the  applicant  left  the 
lounge but returned shortly and threw a black plastic bag in her lap.  When she opened 
the bag, she reported, she saw “at least two small clear plastic bags containing what she 
believed  to  be  marijuana.”    She  handed  him  back  the  bag,  and  he  told  her  he  had 
bought the marijuana in Jamaica and that another crewmate, BM3 E, was going to help 
him hide it on the cutter.  She stated that the applicant then fell asleep in the lounge.  
Later, when she returned from rounds, the applicant was gone, and she did not see the 
black bag. 

 
The applicant alleged that he did not buy marijuana in Jamaica.  He stated that 
on the first day of their three-day port call in Jamaica, he and a shipmate, SN G, went 
into town on liberty and bought various souvenirs and other items.  At one point they 
were separated in a shop.  However, he stated, neither of them bought any marijuana.  
After shopping, they joined up with several other crewmates at a hotel and spent the 
rest  of  the  day  and  evening  on  the  beach  and  in  several  clubs  and  restaurants  before 
returning to the cutter for duty the next morning. 

 
The applicant stated that he spent the morning on duty, slept during the after-
noon, and rose to stand the “2000-2400 [10:00 p.m. to midnight] watch, as well as the 

next two watches, the 0000-0200 and the 0200-0400” at which point he woke his relief, 
SN  H.    “[A]s  a  practical  joke,”  the  applicant  alleged,  on  his  way  back  to  the  Deck 
Lounge after waking SN H, he stopped by the galley and put some oregano in a bag.  In 
the lounge, he tossed the bag to SN H and told her it was marijuana.  

 
When  the  cutter  docked  in  Miami  on  July  29,  2002,  the  applicant  stated,  CGIS 
agents came aboard and questioned him and other crewmembers.  SN H told the CGIS 
agents the same story she had told the chief petty officer.  He was fingerprinted and his 
urine was tested for drug use that day.  However, the urinalysis was negative for drug 
use,2 and no fingerprints were found on the packaging of the marijuana.  

 
On September 12, 2002, the applicant stated, he was charged with violating Arti-
cle 112a of the Uniform Code of Military Justice (UCMJ) by wrongfully possessing mari-
juana.    On  September  20,  2002,  he  was  taken  to  mast  by  the  CO,  found  guilty,  and 
awarded  non-judicial  punishment  (NJP).    The  applicant  alleged  that  he  accepted  the 
NJP  upon  the  advice  of  his  leading  chief  petty  officer,  and  did  not  appeal  it,  only 
because he believed he had no chance of vindication.  He was removed from the cutter 
and sent to a shore unit. 

 
The applicant stated that on September 27, 2002, the CO initiated his administra-
tive discharge and informed him of the proposed discharge, which he acknowledged on 
September  29,  2002.    The  applicant  stated  that  he  waived  his  right  to  consult  counsel 
“because of the hopeless outcome presented by his superiors.”  However, he submitted 
a written statement because he hoped to convince his command “of his sincere desire to 
remain in the Coast Guard.” 

 
On November 4, 2002, the Coast Guard Personnel Command (CGPC) approved 

the CO’s recommendation and ordered that the applicant receive a general discharge. 

 
On November 12, 2002, the applicant alleged, three days before his discharge, a 
crewmate,  SA  S,  signed  a  statement  indicating  that  on  November  8,  2002,  he  heard 
another crewmate, SN P, admit that “the marijuana in which [the applicant] was con-
victed and punished for processing, was his, but [SN P] could not remember where he 
placed it on board the [cutter] because of his intoxication.”  The applicant alleged that 
another seaman corroborated SA S’s statement. 
 
 
On November 13, 2002, the applicant alleged, he voluntarily underwent a poly-
graph  test.    The  examiner  found  that  he  was  truthful  in  claiming  that  he  had  never 
brought marijuana onto the cutter, that the marijuana found did not belong to him, and 
that he never showed SN H a bag of marijuana and told her it belonged to him. 

                                                 
2  The  applicant  submitted  a  copy  of  the  urinalysis  report  showing  that  the  test  was  negative  for 
metabolites of marijuana. 

 
 
The applicant alleged that his military career was destroyed “based solely upon 
the word of one person over another.”  He “was accused and convicted of such miscon-
duct without any direct, or circumstantial, evidence.”  Moreover, the applicant stated, 
SN H was not his friend and was not someone he would have trusted with information 
of criminal misconduct.  He pointed out that she waited two days to make her accusa-
tion.  He alleged that one month earlier, he had confronted her “about an inappropriate 
relationship she had with one of the engineers.”  He alleged that he had no contact with 
her from the time of the confrontation until he woke her to assume the watch.  
 
 
The  applicant  argued  that  “possession”  means  that  you  exercise  control  over 
something either constructively or by direct physical custody.  He alleged that the pack-
age of marijuana was found in a place that was accessible to and used by “numerous 
personnel who could have exercised control over the marijuana.”   
 

Regarding the oregano in the bag he tossed to SN H, the applicant noted that she 
“did  not  open  the  [small,  clear]  plastic  bags  [which  she  alleged  she  saw  in  the  black 
plastic bag], she did not smell or actually touch the material in the plastic bags.” More-
over,  he  argued,  the  package  found  above  the  ceiling  tile  did  “not  even  look  like  the 
same package that [he] jokingly showed to [SN H].”  The applicant argued that his com-
mand erred in assuming that the substance in the bag he tossed to SN H was marijuana:  

 
Although  the  identity  of  an  illicit  substance  can  be  established  by  circumstantial  evi-
dence, the burden is on the Government to prove the identity of the substance.  [United 
States  v.  Nicholson,  49  M.J.  478  (CAAF  1998).]    In  Nicholson,  a  witness  observed  the 
accused  talking  with  another  sailor  about  some  “partying.”    The  witness  also  saw  the 
accused return a plastic bag containing a brown leafy substance to his pocket.  The evi-
dence supporting the charge of wrongful possession consisted solely of the witness’s tes-
timony.  The Court of Appeals for the Armed Forces reversed the conviction,  set aside 
the finding of guilty and dismissed that charge.  The facts in Nicholson have many simi-
larities to the facts [in this case].  While several United States Courts of Appeal have … 
determined  that  the  identity  of  an  illicit  substance  can  be  established  by  circumstantial 
evidence, NONE OF THE CIRCUITS HAVE HELD THAT MERELY A BRIEF VIEWING 
OF THE SUBSTANCE CONSTITUTED THE REQUIRED LEVEL OF PROOF.  [Id. at 480] 

 
The applicant further argued that in deciding whether an untested substance is 
 
illicit, federal courts consider the totality of the circumstances.  He pointed out that in 
United States v. Wright, 16 F.3d 1429 (6th Cir. 1994), the court found that the prosecution 
had proved that the substance was illicit because of its physical appearance; its physical 
effect on people; the fact that it was used in the same manner as an illicit substance; the 
fact that high prices were paid for it in cash and covertly; and the fact that the substance 
was called by the name of an illicit narcotic.  In his case, however, the only one of these 
factors present is the fact that he told SN H that the substance was marijuana, which 
was a joke.  He alleged that the evidence of record just as easily supports his jest as it 
supports his command’s conclusion that the bag he tossed to SN H actually contained 

marijuana.  He noted that the court in Nicholson concluded that “mere speculation as to 
the  identity  of  a  substance  by  one  non-expert  witness—and  nothing  more—does  not 
rise to the level of legally sufficient evidence for conviction.” 
 
 
The applicant alleged that the criminal charge rested only on the fact that he had 
showed SN H “two round, golf-ball sized baggies” and told her they contained mari-
juana.  “Even assuming arguendo that the substance was marijuana (which is not con-
ceded), the Government’s evidence is wholly inadequate to find him guilty of posses-
sion of marijuana.”  He argued that the fact that a baggy or baggies of marijuana were 
found on the cutter does not prove that his baggies contained real marijuana. 
 

SUMMARY OF THE RECORD 

 
Reports of the CGIS Investigation 

 
The applicant submitted a copy of a CGIS report, which shows that on July 29, 
2002,  the  investigating  agent  received  two  items  from  the  cutter.    The  first  contained 
14.2 grams of marijuana and a paper flyer advertising a Jamaican music festival.  The 
packaging included a white box, duct tape with “parts of a plastic bag,” and a small zip-
lock bag.  The second consisted of a small plastic bag with 5.4 grams of marijuana and a 
yellow latex rubber glove.  No fingerprints were found on the packaging material. 

 
The applicant also submitted a copy of the CGIS final report, dated August 30, 
2002.  It indicates that two stashes of marijuana were found hidden above ceiling tiles in 
different common spaces on the cutter.  The first stash was found in the Deck Depart-
ment berthing area on July 21, 2002, the third day of a three-day port call in Jamaica.  
The few crewmembers who knew of the discovery were instructed not to speak of it.  
SN H  came forward on July 23, 2002, and reported that the applicant had shown her 
marijuana and said he would hide it on the cutter.  When the cutter reached Miami on 
July 29, 2002, a dog found a second stash of 5.4 grams of marijuana hidden in a rubber 
glove above a ceiling tile in the berthing area of the Engineering Department.  On July 
30, 2002, another witness came forward and said that on July 28, 2002, SN G had said 
that he had bought marijuana in Jamaica but threw it overboard because he had heard 
dogs  would  be  brought  aboard  to  search  the  cutter  in  Miami.    The  report  includes 
statements written by CGIS agents after interviewing the crew, including the following: 

 

•  The  seaman  who  found  the  first  stash  at  about  3:00  a.m.  on  July  21,  2002, 

stated that no one was around when he found it. 

 

•  SN H reported the applicant’s conduct in the lounge when, after she relieved 
him as messenger of the watch, he left the lounge but returned a few minutes 
later and tossed her a black plastic bag with at least two “baggies” in it, told 
her it was marijuana, and said that BM3 E would help him hide it. 

 

•  BM3 E denied any knowledge of the matter and said he had never discussed 
drugs with the applicant.  He stated that he could not remember being with 
the applicant in the lounge before SN H was awakened to take the watch. 

 

•  The  applicant—who  was  advised  that  he  was  suspected  of  possessing  an 
illicit drug and advised of his rights prior to questioning—denied possessing 
marijuana.  When asked about his activity during the port call in Jamaica, he 
recounted the first morning of shopping with SN G and apparently made no 
mention  of  marijuana.    He  stated  that  while  serving  as  messenger  of  the 
watch the next night, he had watched movies in the lounge between rounds 
with BM3 E, who left at about 3:00 a.m.  After waking SN H at 3:30 a.m. to 
relieve  him  as  messenger  of  the  watch,  he  stated,  he  “spent  about  2  more 
hours in the deck lounge, sleeping,” before going to bed.  He stated that he 
did not say any thing to SN H about marijuana.  He made no mention of the 
alleged joke he played with oregano. 

•  SN G, who spent the first day of the port call on liberty with the applicant, 
was also under suspicion and advised of his rights.  He stated that when he 
and  the  applicant  were  shopping,  people  in  the  shops  were  smoking  mari-
juana and tried to sell it to them.  He stated that he “saw no one purchase any 
[marijuana].”  However, after leaving the first shop, where he himself bought 
nothing, the applicant carried a black plastic bag with a small knife in it. 

 

 

Report of the Administrative Investigation 
 
 
On September 15, 2002, the XO designated an ensign to conduct an inquiry into 
the criminal charge against the applicant.  The applicant was again advised of his rights.  
He chose to answer questions and submit a statement, but he waived his right to con-
sult  an  attorney.    In  his  report,  dated  September  19,  2002,  the  ensign  opined  that  the 
applicant’s  statement  about  the  jest  with  oregano  should  be  discounted  because  he 
made no mention of it to the CGIS agent.  The ensign recommended that the applicant 
be  charged  with  making  a  false  official  statement  as  well  as  wrongful  possession 
because the two statements he had made to the investigators differed.  He also recom-
mended that SN H be charged with obstructing justice because she waited to report the 
incident in the lounge.  He recommended that the charges be handled at mast. 
 
The applicant’s statement for the administrative investigation is dated September 
 
19, 2002.  In it, he described the first day of the port call without mentioning any pur-
chase of a knife or anything else.  He stated that he returned to the cutter at 0700 (7:00 
a.m.) the next day because he had duty.  That morning on duty, he, SN H, and another 
member of the Deck Department scrubbed one of the small boats.  After he got off duty 
at  lunch  time,  he  ate  and  went  to  bed  because  he  had  to  be  on  watch  by  10:00  that 
evening.  Because he was not sleepy, he stayed on watch (taking others’ shifts), watch-
ing movies in the lounge between rounds.  At 0330, he woke SN H because she had the 
next watch.  He described his next actions as follows: 
 

On my way back towards the lounge, I went in the galley and put some oregano in a bag 
as  a  joke,  and  proceeded  back  to  the  lounge.    When  [SN  H]  arrived  in  the  lounge,  I 
passed down to [her] any information I needed to.  I then tossed the bag at her as a joke, 
not  thinking  that  she’d  take  it  that  seriously,  and  at  the  time,  I  didn’t  think  she  did.    I 
went back to watching TV, and about 10 or 15 minutes later, I fell asleep in the lounge.  I 
woke up around 0530, to an empty lounge.  I then got up, and made my way to my rack. 

 
Report of Offense 
 
 
This report, dated September 12, 2002, indicates that the applicant was charged 
with  wrongfully  possessing  marijuana  in  July  2002,  informed  of  the  charge,  and 
assigned a chief petty officer to represent him at mast.  It also shows that, at mast on 
September  20,  2002,  the  CO  awarded  the  applicant  NJP  of  45  days  of  restriction  with 
extra duties, reduction from E-3 to E-2, and  forfeiture of $500 pay per month for two 
months.  The applicant was informed of his right to appeal the NJP but did not do so. 
 
Discharge Proceedings 
 
On September 27, 2002, the CO notified the applicant that he was initiating pro-
 
cedures to discharge him because of his “purchase and possession of illegal drugs and 
failing to adhere to the Coast Guard’s Core Values of Honor, Respect and Devotion to 

Duty.”  The CO stated that CGPC would determine the type of discharge he received 
and that, if he received a general discharge, he might “encounter prejudice in civilian 
life.”    The  CO  notified  him  of  his  right  to  consult  counsel  and  to  submit  a  written 
statement that would be forwarded with the CO’s recommendation to CGPC. 
 
 
On  September  29,  2002,  the  applicant  acknowledged  the  CO’s  notification  in 
writing.    He  stated  that  he  waived  his  right  to  submit  a  statement  and  to  consult  an 
attorney and that he did not object to being discharged. 
 
 
On October 3, 2002, the CO sent CGPC his recommendation that the applicant be 
discharged.  He described SN H’s account of the incident with the applicant in the Deck 
Lounge and noted that a baggy of marijuana had been found above a ceiling tile on the 
cutter on July 21, 2000.  He noted that the applicant’s “problems with drug use directly 
relate to a lack of maturity and a blatant disrespect to any and all authority.” 
 
 
On October 11, 2002, the applicant submitted a written statement.  He wrote that 
during his interview with the ensign who conducted the administrative investigation, 
he realized that his statement to the CGIS agent had been “changed around and twist-
ed.”  He stated that the ensign had already made up his mind that the applicant was 
guilty because after their interview, when the applicant offered to submit another state-
ment to clarify what was in the CGIS report, the ensign told him he could not.  After his 
chief intervened, the ensign accepted the second statement.  The applicant also stated 
that he believed the CO had made up his  mind about the applicant’s guilt before the 
mast  because  the  CO  refused  to  respond  to  his  greetings  between  the  day  he  was 
charged and the day of his mast.  The applicant stated that at mast, when he said he did 
not  admit  to  the  charges,  the  CO  shook  his  head,  “giving  me  the  impression  that 
anything I had to say in my defense during that mast was going to be useless.”  By the 
end of the mast, he had lost hope and so decided not to appeal.  He argued that he had 
been made a scapegoat because of one person’s word. 
 
Statements Concerning SN P 
 
 
On  November  12,  2002,  the  applicant  submitted  another  statement  indicating 
that he had heard a rumor that the marijuana found above a ceiling tile on the cutter 
belonged to another seaman, SN P.  Therefore, on November 8, 2002, in the presence of 
three  other  seaman,  he  asked  SN  P  if  the  marijuana  was  his.    SN  P  replied,  “I  don’t 
know.  I was too drunk when I hid mine to remember where it was.  I’m not sure if that 
was mine that they found or not.  I’m going to have to look around for it.”  Moreover, 
the applicant alleged, in a recent telephone call with another crewmate, SN D, he was 
told that on the morning before the mast, SN D informed their chief that the marijuana 
belonged to SN P, not to the applicant.  However, the chief, who served as his mast rep-
resentative, never informed him of this discussion, which he could have raised at mast.  
The  applicant  further  stated  that  he  had  also  learned  that  another  seaman  who  was 

taken to mast told the CO that SN H had  smoked marijuana, so  she should not have 
been considered a credible witness against the applicant.   
 

The applicant attached to this statement two others signed by crewmembers of 
the  cutter.    One  signed  by  SA  R  indicated  that  on  November  8,  2002,  he  heard  SN  P 
admit to having had marijuana on the cutter.  SA R stated that SN P said, “I was too 
messed up to remember where I had put it” and “I need to search around and see if it 
was  mine.”    Another  statement,  signed  by  SNGM  P,  indicates  that  on  November  8, 
2002, “when asked if drugs on the boat were his, [SN P] said, quote, ‘I was too messed 
up to remember where I put it.’” 

 

Polygraph Test 

 
On November 13, 2002, a licensed polygraph examiner sent the applicant’s attor-
ney a letter stating that the applicant had answered the following four questions truth-
fully and that no deception was indicated: 

 
•  “Do you intend to truthfully answer my questions about the marijuana found 

aboard [the cutter]?”  Response:  “Yes.” 

•  “Have you ever brought marijuana aboard [the cutter]?”  Response:  “No.” 

•  “Did  the  marijuana  found  aboard  [the  cutter]  belong  to  you?”    Response:  

 

 

“No.” 

 

•  “Did you ever show a bag of marijuana to [SN H] and tell her it belonged to 

you?”  Response:  “No.” 

 
 
On November 15, 2002, the applicant received a general discharge, pursuant to 
Article 12.B.18. of the Personnel Manual.  His DD 214 bears an RE-4 reenlistment code, a 
JKK separation code, and “Misconduct” as his narrative reason for separation. 
 
 
On December 30, 2002, the applicant wrote to the Commandant.  He wrote that 
he had been made a scapegoat because CGIS could not determine who had stashed the 
marijuana on board.  He alleged that SN H had a grudge against him and had not spo-
ken to him for one month because he had confronted her about an inappropriate rela-
tionship he thought she was having with someone in the Engineering Department.  He 
stated that the CGIS report “completely and deliberately misinterpreted everything” he 
had said under questioning.  He alleged that the CGIS agents had “put their ‘spin’ on to 
make me look like the guilty party in the matter.”  He complained that the ensign who 
conducted the administrative investigation balked at allowing him to submit a written 
statement because, the ensign told him, he had already signed statements prepared by 
the CGIS.  However, the applicant pointed out, he had never signed any statements for 

the CGIS.  Moreover, the applicant alleged, at his mast, SN H said he showed her an 
amount of marijuana “roughly the size of a golf ball” and described the plastic bags, but 
the Officer of the Day said that the amount of marijuana found was “roughly the size of 
a hotdog, possibly a little bigger,” and it was found wrapped in paper and duct tape.  
However,  he  complained,  the  CO  ignored  the  difference  in  the  amounts  and  the 
packaging.  The applicant also sent the Commandant copies of the statements indicat-
ing  that  SN  P  had  admitted  to  hiding  marijuana  on  the  cutter  at  some  point,  and  he 
alleged that SN D had told the chief who represented him at mast that the marijuana 
belonged to SN P.  He alleged that the chief and SN P were very “close.”  In addition, he 
alleged that another seaman, who went to mast for drug use on the same day he did, 
stated at mast that he had seen SN H smoke marijuana. 
 

VIEWS OF THE COAST GUARD 

On January 3, 2005, the Judge Advocate General (JAG) of the Coast Guard rec-

 
 
ommended that the Board deny relief in this case.   
 
 
The JAG argued that the applicant has failed to prove that any error or injustice 
was committed with respect to his NJP.  The applicant’s CO was authorized by statute 
and  regulation  to  impose  NJP  and  in  doing  so  had  “the  opportunity  to  view  the 
evidence,  including  the  demeanor  of  Applicant  and  the  witnesses  against  him.    His 
decisions are therefore entitled to some deference.”  The JAG argued that absent proof 
that  the  CO’s  determinations  were  clearly  erroneous  or  that  a  substantial  right  of  the 
applicant’s was materially prejudiced, the Board should uphold the CO’s decision. 
 
 
The  JAG  argued  that  under  Article  15  of  the  UCMJ,  which  provides  for  masts 
and NJP, Congress authorized COs to deal with minor violations “as an essential part of 
their responsibility to preserve discipline and maintain an effective armed force.”  Arti-
cle 15 allows COs to maintain good order and discipline without the members incurring 
the  stigma  of  a  criminal  conviction  by  court-martial.    The  JAG  argued  that  Article  15 
endows the CO with the “authority to determine whether an offense occurred and, if so, 
the  appropriate  punishment.”    He  argued  that  the  applicant  has  not  overcome  the 
“strong  presumption  that  the  military  officials  involved  performed  their  duties  cor-
rectly, 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). 
 
 
Furthermore, the JAG argued, even if the applicant could prove an administra-
tive or procedural error, “he would not be entitled to relief on that basis alone.  Under 
regulations  established  by  the  President,  non-compliance  with  any  of  the  procedural 
provisions for imposing [NJP] does not invalidate a punishment unless the error mate-
rially prejudiced a substantial right of the Applicant.  Manual for Courts-Martial, Part 
V,  Para.  1h.    In  addition,  the  JAG  stated  that  the  constitutional  rights  applicable  to 
criminal trials, such as those provided under the Fifth and Sixth Amendments, do not 

apply  to  NJP  proceedings.    The  JAG  concluded  that  “to  establish  a  claim  of  error  or 
injustice  regarding  the  imposition  of  NJP,  the  Applicant  must  prove  a  clear  legal  or 
factual error, or a clear abuse of the broad discretion accorded to these authorities, and 
material prejudice to the Applicant’s substantial rights as a result of such error.” Coch-
ran v. United States, 1 Cl. Ct. 759 (1983), reh. denied, 3 Cl. Ct. 3 (1983), aff’d, 732 F.2d 168 
(Fed. Cir. 1984), cert. denied, 469 U.S. 853 (1984). 
 

Moreover, the JAG pointed out, the applicant failed to take advantage of his right 
under statute and regulation to appeal the NJP.  Had the applicant appealed his NJP, 
the  CO’s  determinations  and  sentence  would  have  been  reviewed  by  a  “flag  officer 
acting with the advice of his staff judge advocate.”  Therefore, he argued, “absent proof 
of compelling circumstances,” the Board should consider the matter waived. 

 
The  JAG  stated  that  the  applicant’s  argument  that  his  CO  was  precluded  from 
finding  that  he  had  violated  Article  112a  of  the  UCMJ  is  “misplaced.”    At  mast,  the 
standard applied by a CO is the preponderance of the evidence.  The JAG pointed out 
that the Board does not know everything that was said at the mast, but that in light of 
the  following  evidence,  the  Board  must  conclude  that  it  was  “entirely  reasonable  for 
Applicant’s commanding officer to have concluded that Applicant possessed marijuana 
in violation of Article 112a., UCMJ”:  (1) marijuana was found on the cutter in an area to 
which the entire crew had access; (2) a crewmember, SN H, informed her chain of com-
mand that the applicant showed her a bag containing at least two bags of marijuana and 
told her he would hide it on the cutter; (3) after being advised of his rights by the CGIS, 
the applicant “asserted that he never said anything about marijuana” to SN H; and (4) 
three weeks later, he contradicted his statement to the CGIS by stating that he had told 
her that he had marijuana in the bag but that it actually contained oregano.  The JAG 
argued that the applicant’s admission that he lied to the CGIS agent about the substance 
of  his  conversation  with  SN  H  “greatly  undercuts  [his]  credibility  and  would  have 
given any reasonable person pause in accepting [his] later story in which he attempted 
to explain away his conduct as a practical joke.”  He noted that the applicant could have 
been charged with making a false official statement to the CGIS. 

 
Regarding the stashes of marijuana, the JAG argued that “a change in packaging 
is  inconclusive  that  it  is  not  the  same  marijuana,  but  is  to  a  large  degree  irrelevant.  
Even if Applicant were not linked to that particular marijuana, the evidence before the 
commanding officer would still support a finding that Applicant possessed some quan-
tity of marijuana aboard the cutter when he showed it to [SN H].”  The JAG alleged that 
marijuana is “readily distinguishable from oregano by any but the most naïve.” 

 
The JAG argued that the applicant’s arguments about whether the evidence was 
sufficient for a criminal conviction are irrelevant because the applicant was not convict-
ed  by  court-martial,  where  the  standard  is  “beyond  a  reasonable  doubt”  rather  than 
“preponderance of the evidence.”  He argued that there was sufficient evidence for the 

CO “to reasonably conclude that Applicant possessed marijuana aboard the cutter. …  
This is so even if Applicant did not possess the particular marijuana recovered.  All that 
was necessary is that he possessed some quantity of marijuana, a fact supported by both 
the witness’s observations and Applicant’s own words.”   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On January 28, 2005, the applicant responded to the views of the Coast Guard.   
He argued that his failure to appeal his NJP should not be held against him because he 
did so based on the advice of superiors, who told him an appeal would be futile.  He 
stated that his failure to appeal “does not make him less believable or less creditable.” 
He also argued that it is unfair for the JAG to allege that he made a false official state-
ment since he provided no signed statement to the CGIS, whose report includes merely 
a summary of what he allegedly said during his interviews. 
 
 
The  applicant  stated  that  he  “never  possessed  a  controlled  substance  on  board 
the  [cutter].”    He  stated  that  SN  H  “could  only  speculate  as  to  what  she  saw.”    He 
argued that nothing connects him to the marijuana found on July 21, 2002.  He remind-
ed the Board that his urinalysis was negative and that no fingerprints were found on 
the bags of marijuana, which he is accused of having handled in the lounge with SN H. 
 

APPLICABLE LAW 

 

 
Article  20.C.1.b.  states  that  “[c]ommanding  officers  shall  investigate  all  circum-
stances in which the use or possession of drugs appears to be a factor, and take appro-
priate administrative and disciplinary action.”  Article 20.C.3.a. provides that COs “shall 
initiate  an  investigation  into  a  possible  drug  incident,  as  defined  in  Article  20.A.2, 
following receipt of a positive confirmed urinalysis result or any other evidence of drug 
abuse.”  Article 20.C.3.b. provides that “[b]efore being questioned in relation to a drug 
incident,  members  are  entitled  to  be  advised  of  their  Article  31,  UCMJ  rights.    This 
applies whether or not disciplinary action under the UCMJ is contemplated.” 

 
Article 20.A.2.k. defines a “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.c.  states  that  “[i]n  determining  whether  a  drug  incident 
occurred,  a  commanding  officer  should  consider  all  the  available  evidence,  including 
positive confirmed urinalysis test results, any documentation of prescriptions, medical 
and dental records, service record, and chain of command recommendations.  Evidence 
relating to the member’s performance of duty, conduct, and attitude should be consid-
ered  only  in  measuring  the  credibility  of  a  member’s  statement(s).”    Article  20.C.3.d. 
provides  that  “[f]indings  of  a  drug  incident  shall  be  determined  by  the  commanding 
officer … using a preponderance of the evidence standard.” 

 

Article  20.C.4.  provides  that  if,  after  completing  the  investigation  described  in 
Article 20.C.3, the CO determines that a drug incident did occur, he or she must take 
administrative action by processing the member for separation by reason of misconduct 
and may take disciplinary action pursuant to the UCMJ. 
 

Article 12.B.18.b.4. provides that the Commander of the Military Personnel Com-
mand 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 a general discharge due to misconduct are not entitled to a 
hearing before an Administrative Discharge Board but must be (a) informed in writing 
of  the  reason  they  are  being  considered  for  discharge,  (b)  afforded  an  opportunity  to 
make a statement in writing, and (c) afforded an opportunity to consult a lawyer. 
 
 
The Separation Program Designator (SPD) Handbook states that when a member 
is involuntarily discharged for the “illegal, wrongful or improper use, possession, sale, 
transfer or introduction on a military installation of … marijuana when supported by 
evidence  not  attributed  to  urinalysis”  with  no  entitlement  to  an  Administrative  Dis-
charge Board, his DD 214 shall bear a JKK separation code, an RE-4 reenlistment code 
(ineligible to reenlist), and “Misconduct” as the narrative reason for separation. 
 

Article 112a of the UCMJ provides that any member who wrongfully uses, pos-
sesses,  manufactures,  distributes,  imports,  exports  or  introduces  onto  the  property  of 
the  Armed  Forces  any  marijuana  or  other  such  controlled  substance  is  punishable  by 
court-martial.  The elements of “wrongful possession” are that the accused possessed an 
amount  of  the  substance  and  his  possession  was  wrongful.    “Possession”  must  be 
knowing  and  may  be  direct  and  physical  or  constructive,  “as  in  the  case  of  a  person 
who  hides  an  item  in  a  locker  or  car  to  which  that  person  may  return  to  retrieve  it.”  
Manual for Courts-Martial (MCM), Part IV, p. 54.  The maximum punishment by court-
martial  for  wrongful  possession  of  less  than  30  grams  of  marijuana  is  a  dishonorable 
discharge, forfeiture of all pay and allowances, and confinement for two years.  How-
ever, the maximum period of confinement is increased to five years when the offense is 
committed aboard a vessel of the Armed Forces. MCM, Part IV-56. 
 
 
Part V-1 of the MCM states that NJP under  Article 15 of the UCMJ “is a disci-
plinary measure more serious than the administrative corrective measures … but less 
serious than trial by court-martial,” which “provides commanders with an essential and 
prompt  means  of  maintaining  good  order  and  discipline  and  also  promotes  positive 
behavior changes in servicemembers without the stigma of a court-martial conviction.”  
Each CO exercises personal discretion in considering cases for disposition under Article 

15 and in determining sentences.  NJP is normally reserved for minor offenses, but the 
“decision whether an  offense is ‘minor’ is a  matter of discretion for the commander.”  
MCM, Part V-1; see Coast Guard Military Justice Manual (MJM), Chap. 1.A.5.  Unless 
the  accused  is  attached  to  or  embarked  on  a  vessel,  he  or  she  may  refuse  NJP  and 
demand  trial  by  court-martial,  and  this  right  to  refuse  may  be  granted  by  the  CO  to 
those attached to or embarked on a vessel.  MCM, Part V-2; MJM, Chap. 1.B.5.  At mast, 
the member is entitled to representation by a spokesperson and to present evidence and 
witnesses.  MJM, Chap. 1.C.  The Military Rules of Evidence do not apply during the 
proceedings,  and  the  standard  of  proof  is  the  preponderance  of  the  evidence.    MJM, 
Chap. 1.D.1.f. and g.  The maximum NJP a CO may impose at mast includes correction-
al  custody  for  not  more  than  30  days;  forfeiture  of  not  more  than  one-half  of  one 
month’s pay per month for two months; reduction in grade; extra duties for not more 
than 45 consecutive days; and restriction to specified limits (geographical) for not more 
than  60  consecutive  days.  MCM,  Part  V-5;  MJM,  Chap.  1.E.1.c.    Any  member  may 
appeal his NJP to a superior authority within five days of the mast, and the  superior 
authority must refer the case to a judge advocate for consideration and advice before 
acting on the appeal. MCM, Part V-8; MJM, Chap. 1.F. 
 

Military Rule of Evidence 707 provides that “the results of a polygraph examina-
tion, the opinion of a polygraph examiner, or any reference to an offer to take, failure to 
take, or taking of a polygraph examination, shall not be admitted into evidence.” 

FINDINGS AND CONCLUSIONS 

 

The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 

 
 
applicant's 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. 

 
2. 

The  applicant  alleged  that  he  was  wrongfully  awarded  NJP  and  dis-
 
charged from the Coast Guard.  Among other requested relief, he asked the Board to 
remove the records of his NJP and to void his discharge and reinstate him or upgrade 
his discharge and reenlistment code.  Article 12.B.18.b.4. of the Personnel Manual pro-
vides that an enlisted member involved in a “drug incident” shall be discharged with 
no  better  than  a  general  discharge.    Under  Article  20.A.2.k.,  the  definition  of  a  “drug 
incident” includes the wrongful possession of marijuana, and 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.”  Therefore, the applicant could have been discharged, even 
if he had not been taken to mast, based upon his CO’s finding that he was involved in a 
drug  incident.    Under  Article  20.C.3.d.,  a  CO  uses  a  preponderance  of  the  evidence 
standard to determine whether a drug incident has occurred.  This is the same standard 
a CO uses at mast, pursuant to Chapter 1.D.1.f. of the Military Justice Manual.   

 

3. 

The Board begins its consideration of each case presuming administrative 
regularity  on  the  part  of  Coast  Guard  officials.    33  C.F.R.  § 52.24(b).    Therefore,  the 
Board  must  determine  whether  the  applicant  has  overcome  this  presumption  and 
proved that his CO erred in determining that a preponderance of the evidence indicated 
that the applicant had been involved in a drug incident by wrongfully possessing mari-
juana.  The applicant must prove this alleged error by his CO by a preponderance of the 
evidence.  33 C.F.R. § 52.24(b).  The Board notes that the applicant has argued that the 
evidence against him was insufficient for a criminal conviction, for which the standard 
is  “beyond  a  reasonable  doubt.”    The  Coast  Guard’s  regulations,  however,  allow  a 
member  to  receive  an  administrative  general  discharge  under  honorable  conditions, 
without  a  criminal  conviction,  whenever  a  CO  is  persuaded  that  a  drug  incident  has 
occurred  by  a  preponderance  of  the  evidence.    The  fact  that  the  evidence  against  the 
applicant might have been insufficient to result in a criminal conviction by court-martial 
does not necessarily mean that the Coast Guard erred or committed an injustice by dis-
charging him after his CO determined that a preponderance of the evidence indicated 
that he had been involved in a drug incident. 

 
4. 

The  JAG  argued  that  the  Board  should  consider  the  matter  waived 
because the applicant did not appeal his NJP.  The Board’s rules at 33 C.F.R. § 52.13 do 
require  applicants  to  exhaust  available  administrative  and  legal  remedies  prior  to 
applying.  However, as the right to appeal NJP is limited to five days, the remedy is no 
longer  available  to  the  applicant.    The  Board’s  policy  in  such  cases  is  to  consider  an 
applicant’s failure to avail himself of a right to appeal as evidence of his state of mind 
with respect to the action taken against him at that time.  The applicant alleged that he 
did not appeal the NJP because he was discouraged by his CO’s attitude and thought an 
appeal would be useless.  However, the Board is not persuaded that someone who has 
been wrongly accused of a crime and who is about to lose his chosen career as a result 
of the accusation would likely forgo an appeal to a higher authority. 

 
5. 

following:   

 

The  evidence  against  that  applicant  at  the  time  of  his  mast  included  the 

a) 

According to the CGIS report, SN G stated that while on liberty in 
Jamaica on the first day of the cutter’s port call, he and the applicant spent time 
in a shop where people tried to sell them marijuana.  They were separated.  The 
applicant  exited  the  shop  carrying  a  black plastic  bag  with  a  knife.    SN  G  also 
told the CGIS that he saw no one buy marijuana, but another crewmember told 
the CGIS that SN G had admitted to buying marijuana and to throwing it over-
board  the  day  before  the  cutter  reached  Miami  because  he  had  heard  that  it 
would be searched by dogs. 

 

b) 

SN H stated that when she relieved the applicant of the watch early 
one  morning  during  the  port  call,  the  applicant  left  the  lounge  and  returned  a 
few minutes later and tossed a black plastic bag in her lap.  She looked inside it 
and saw at least two golf-ball sized “baggies” of marijuana inside.  The applicant 
confirmed to her that it was marijuana that he had bought in Jamaica and stated 
that BM3 E, who had been with him in the lounge earlier, was going to help him 
hide it.  
 
c) 

Two stashes of marijuana were later found on the cutter hidden in 

plastic bags and other packaging.  

 
d)  When interviewed by CGIS about a week later, the applicant was 
informed that he was under suspicion of possessing a controlled substance and 
he  was  asked  to  describe  his  interactions  with  SN  H  in  the  lounge.    The  CGIS 
agent’s summary of the interview indicates that he never mentioned that he had 
shown her a bag and told her that it contained marijuana, which he was going to 
hide.    His  failure  to  mention  the  alleged  joke  with  oregano  at  this  point  even 
though he knew he was under suspicion and was being questioned about what 
happened in the lounge strongly undercuts his credibility on this point. 

 
e) 

Upon questioning by the administrative investigator several weeks 
later, the applicant admitted to the behavior in the lounge that SN H had report-
ed but alleged that it was a joke and that the substance was oregano instead of 
marijuana.  In addition, he stated that he picked up the oregano in the galley on 
his way back to the lounge after waking her, whereas she had reported that he 
had left the lounge after she relieved him of the watch and returned a few min-
utes later with “baggies” of marijuana in a black plastic bag. 
 
6. 

The evidence in the applicant’s favor at the time of the mast included the 

 
following: 

 

a) 

The  applicant  apparently  had  not  previously  presented  perform-

ance or conduct problems.  

 
b) 

SN H was not an expert on marijuana.  There is no evidence in the 
record that she handled or smelled the substance in the black plastic bag.   She 
could not say how much of the substance was in the bag. 

 
c) 

Neither of the two stashes of marijuana found on the cutter was in 
exactly the same packaging that SN H had seen in the lounge.  Both stashes were 
found in places accessible to other crewmates. 

 

d) 

The applicant’s urinalysis was negative for marijuana use, and no 

fingerprints were found on the packaging of the two stashes of marijuana. 

7. 

 
In addition to the evidence that was clearly known to the CO, the Board 
 
notes that there are other discrepancies in the applicant’s version of events that he has 
not bothered to explain to the Board and that may have been noticed by the CO.  For 
example, in the statement the applicant signed on September 19, 2002, he wrote that on 
his way between SN H’s rack and the lounge, he stopped in the galley and filled a bag 
with oregano.  However, SN H saw a black bag with at least two “baggies” in it.  The 
applicant’s description of his actions in the galley does not adequately explain the com-
plex package (multiple “baggies” in a black plastic bag) that he tossed in SN H’s lap in 
the lounge.  In addition, he has not explained what he did with the oregano after his 
alleged jest.  Nor has he explained why he apparently told no one about the alleged joke 
with marijuana until many weeks after the fact. 
 

8. 

The CO had the advantage of speaking in person to the applicant and the 
witnesses at mast.3  Moreover, the applicant’s CO presumably knew the applicant and 
the witnesses and the nature of their relationships.  The applicant’s allegations about his 
relationship with SN H and his actions in the lounge are inconsistent.  If his relationship 
with SN H was actually unfriendly, as he alleged, why would he attempt to joke with 
her  about  buying  marijuana?    The  Board  finds  it  highly  unlikely  that  he  would  have 
played the alleged joke on her if their relationship were not friendly.  In addition, the 
applicant alleged that he had no contact with SN H during the month before he woke 
her to assume the watch, but his written statement dated September 19, 2002, indicates 
that they had worked together on a project with one other member of the Deck Depart-
ment on the morning before the incident in the lounge. 
 
 
The applicant alleged that his case can be summarized as being his word 
against that of SN H.  This is a mischaracterization of the evidence against him because 
he has admitted to the behavior she reported in the lounge and to identifying the sub-
stance as marijuana to her.  The evidence against the applicant in this case comes largely 
from him:  He told and showed SN H that he possessed marijuana; he failed to mention 
his conduct in the lounge under close questioning at more than one interview with the 
CGIS; and he waited  more than a month before admitting to and trying to justify his 
behavior in the lounge with an inadequate, unsupported, and improbable explanation.  
Although the applicant alleged that the CGIS agent had “twisted” his words in the final 
report, he has not alleged or proved that anything in the CGIS summary of his inter-
views is false or misleading. 
 

9. 

                                                 
3  On his application form, DD 149, the applicant indicated that he did not wish to appear at a hearing 
before this Board. 

10. 

 
In  light  of  the  findings  above  and  all  matters  of  record,  the  Board  finds 
that the applicant has not proved by a preponderance of the evidence that his CO erred 
or  committed  an  injustice  in  awarding  him  NJP  for  violation  of  Article  112a  of  the 
UCMJ, in determining that he had been involved in a drug incident, or in recommend-
ing that he receive a general discharge for misconduct. 
   

11. 

The applicant argued that there is no evidence that either stash of mari-
juana  found  on  the  cutter  was  ever  in  his  possession.    He  argued  that  the  marijuana 
found in the berthing area of the Deck Department, which he alleged was attributed to 
him,4 belonged to someone else.  The Board notes that the CGIS report indicates that the 
applicant’s friend, SN G, told someone that he bought marijuana in Jamaica but threw it 
overboard when he heard that the cutter would be searched by dogs in Miami the next 
day.  It is highly likely that if SN G did this, he would also have informed the applicant 
of the pending canine search.  Moreover, the record indicates that the packaging of both 
stashes included small plastic bags, or “baggies,” such as SN H reported seeing in the 
black  plastic  bag,  and  the  CO  was  in  a  position  to  and  presumably  questioned  SN  H 
about  what  she  saw  and  to  compare  it  to  the  packaging  of  the  stashes  found  and  to 
what  was  available  in  the  galley.    The  differences  in  packaging  and  the  uncertain 
ownership  of  the  discovered  stashes  do  not  persuade  the  Board  that  the  CO  erred  in 
finding by a preponderance of the evidence that the applicant had possessed marijuana 
on the cutter based upon the applicant’s own admitted words and conduct. 

 
12. 

The applicant argued that the amount of marijuana in the stash attributed 
to him was described as being the size of a hotdog, whereas SN H stated that she saw a 
golf-ball sized bag.  However, as pointed out by the JAG, SN H stated that she saw at 
least two golf-ball sized “baggies” of marijuana in the black plastic bag that the appli-
cant threw on her lap.  The Board notes that the applicant was convicted at mast of pos-
sessing “an unknown amount” of marijuana.  Furthermore, because the applicant was 
charged with illegal possession of marijuana rather than use, the negative results of his 
urinalysis do not disprove the charge. 

 
13. 

The applicant alleged that prior to his mast, SN D told his spokesperson 
that the marijuana that had been found belonged to another crewmate, SN P, and that 
his spokesperson failed to inform him of this evidence.  He presented no evidence to 
support this allegation.  Absent evidence to the contrary, the Board presumes that Coast 
Guard  officials,  such  as  the  applicant’s  spokesperson,  have  acted  correctly,  lawfully, 
and in good faith. Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. 
                                                 
4  The Board notes that neither the CGIS report nor the report of the administrative investigation contains 
an opinion as to whether either of the two discovered stashes of marijuana belonged to the applicant.  In 
addition, at mast, he  was convicted of possessing an  “unknown amount” of marijuana, rather than the 
exact amount of one of the two stashes found on the cutter.  In his letter to CGPC dated October 3, 2002, 
the CO mentioned the stash found in the berthing of the Deck Department, but he did not state outright 
that he believed that stash belonged to the applicant. 

United States, 594 F.2d 804, 813 (Ct. Cl. 1979).  Moreover, the Board notes that the truth 
of SN D’s alleged statement to the spokesperson is undercut by SN P’s own statements 
on November 8, 2002, when according to the applicant, SN P stated something like the 
following  when  asked  by  the  applicant  if  one  of  the  discovered  stashes  of  marijuana 
was his: “I don’t know.  I was too drunk when I hid mine to remember where it was.  
I’m not sure if that was mine that they found or not.  I’m going to have to look around 
for it.”  Two other witnesses alleged that SN P admitted having had marijuana on the 
cutter  and  saying  that  he  “was  too  messed  up  to  remember  where  [he]  put  it.”    It  is 
highly unlikely that SN D could know for a fact that one of the discovered stashes of 
marijuana belonged to SN P, when SN P himself did not know.  These statements indi-
cate only that SN P admitted to having had marijuana on the cutter at some point in 
time; they are not evidence that the applicant did not possess marijuana on the cutter. 
 

14. 

The applicant alleged that the results of his polygraph test on November 
13, 2002, prove that he never possessed marijuana on the cutter.  Although the report of 
the polygraph was prepared by a licensed examiner, there is no indication of what tech-
nique he used; what other questions were asked and answered and how truthfully; or 
how he assessed the alleged truth of the applicant’s answers to the four cited questions.  
The scientific reliability of the applicant’s polygraph test is very unclear given the man-
ner  in  which  the  results  were  submitted  to  the  Board.    Moreover,  the  reliability  of 
polygraph evidence, even when the technique used is known, is considered so doubtful 
that it cannot be presented at a court-martial or in many federal courts.  In United States 
v. Scheffer, 523 U.S. 303 (1998), the Supreme Court held that at court-martial, the accused 
had correctly been barred from presenting the results of a polygraph test as part of his 
defense.  The Court stated that “there is simply no consensus that polygraph evidence is 
reliable.  To this day, the scientific community remains extremely polarized about the 
reliability of polygraph techniques.  [Citation omitted.]  Some studies have concluded 
that polygraph tests overall are accurate and reliable.  [Citation omitted.]  Others have 
found that polygraph tests assess truthfulness significantly less accurately -- that scien-
tific field studies suggest the accuracy rate of the ‘control question technique’ polygraph 
is ‘little better than could be obtained by the toss of a coin,’ that is, 50 percent.  [Citation 
omitted.]”  Id. at 309-10.  The Court also noted that there were known countermeasures 
for subverting polygraph evidence.  Id. at 310 n.6.  Given the inadequacies of the poly-
graph report and in light of the Court’s conclusions in Scheffer, the Board finds that the 
results of the applicant’s polygraph test do not prove that his CO’s determination that 
he had possessed marijuana on board the cutter was erroneous or unjust. 

 
15. 

The  record  indicates  that  the  applicant  received  all  due  process  with 
respect to the investigations, the mast, and his general discharge.  He has not proved by 
a preponderance of the evidence that his military record contains any error or injustice. 

 
16.   Accordingly, the applicant’s request should be denied. 

 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

ORDER 

 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

 
 

 
 

his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Nancy L. Friedman  

 

 

 
 
 Adrian Sevier 

 

 

 
 Thomas H. Van Horn