DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-183 
 
   

 

 
 

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 application was received on 
August  20,  2004,  and  docketed  on  September  9,  2004,  upon  receipt  of  the  applicant’s 
military records 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  May  19,  2005,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, a former petty officer (pay grade E-4) in the Coast Guard Reserve, 
received  a  general  discharge  on  September  11,  1985.    He  was  administratively  dis-
charged  for  misconduct  after  his  urine  tested  positive  for  marijuana.    The  applicant 
asked the Board to upgrade his discharge from general to honorable.  He alleged that he 
did not discover the error in his record until March 5, 2003. 
 

The  applicant  alleged  that  his  discharge  was  inequitable  because  his  drug  use 
“was an isolated offense not characteristic of [his] overall quality of service.”  He argued 
that  the  following  considerations  outweigh  the  offense  and  sustain  an  honorable  dis-
charge: 
 

1.  He enlisted in the Army on March 20, 1972, “during a time of national crisis.” 
2.  He “performed in an outstanding manner for 12 years, receiving an Honorable Dis-

charge from U.S. Army Reserve.” 

3.  He  received  “humanitarian  awards  and  national  defense  decorations,  for  Mariel, 

Cuba Service,” during his Coast Guard career. 

4.  He received an honorable discharge button and was recommended for reenlistment 

upon his discharge on November 30, 1981. 

5.  If he had been discharged “at the expiration of the normal term of service,” exclud-
ing the conduct for which he was discharged, he would have received an honorable 
discharge. 

6.  If the DRB has previously upgraded an general discharge for drug use to honorable 
in a case where the veteran’s overall quality of service was inferior to the applicant’s, 
such a decision  would be inconsistent with the DRB’s decision  not to upgrade his 
discharge.1 

7.  He was discharged as a result of an Administrative Discharge Board that considered 
evidence  of  a  “compelled  urinalysis  administered  for  the  purpose  of  identifying 
drug abusers (either for purposes of entry into a treatment program or to monitor 
progress during rehabilitation or follow-up),” which would violate Article 31 of the 
Uniform Code of Military Justice (UCMJ) under the decision in Giles v. Sec’y of the 
Army, 475 F. Supp. 595, 7 MIL. L. REP. 2524 (D.C.C. 1979). 

8.  The decision in Giles and “the uniformity requirements of Pub. L. No. 95-126 man-

date that [he] receive an Honorable Discharge.” 

9.  Under 32 C.F.R. § 70.6(c)(1), the “current standards contained in DOD Dir. 1332.14 
(1977) differ in material respects from the policies and procedures under which [he] 
was discharged in that they mandate an Honorable Discharge for a service member 
discharged for personal abuse of drugs when evidence developed as a direct or indi-
rect result of a urinalysis was considered in the discharge proceeding.” 

10. DOD Directive 1332.14 “represents a substantial enhancement of the rights afforded 

[a servicemember] in such proceedings.” 

11. There is a “substantial doubt” about whether he would have received a general dis-

charge if DOD Directive 1332.14 had been in effect at the time of his discharge. 

 

SUMMARY OF THE RECORD 

 
 
On December 1, 1978, the applicant enlisted in the Coast Guard Reserve for three 
years.  He had prior service in the Army.  On June 16, 1981, he became eligible to wear 
the  Humanitarian  Service  Medal  for  his  participation  in  “Operation  Cuban  Refugee 
Relief” from July 22 to August 4, 1980.  On November 30, 1981, upon the expiration of 
the applicant’s enlistment, he was honorably discharged and immediately reenlisted for 
six years.  His final average conduct mark during the enlistment was 4.0 (out of 4.0). 
 

                                                 
1    In  a  telephone  call  on  May  9,  2005,  the  Coast  Guard’s  coordinator  for  the  Discharge  Review  Board 
stated that the DRB’s database indicates that the applicant did not apply to the DRB within 15 years of his 
discharge, as allowed under 10 U.S.C. § 1553, and has had no communication with the DRB. 

 
On September 8, 1984, members of the applicant’s Reserve unit underwent a uri-
nalysis. The laboratory report indicates that the urine of the applicant, which is identi-
fied by his Social Security number, tested positive for a metabolite of marijuana, THC, 
at a level of 90 nanograms per milliliter (ng/ml), and that the result was “confirmed by 
gas chromotography/mass spectrometry.” 
 
 
On October 21, 1984, the applicant’s commanding officer (CO) informed him that 
he would be recommended for a general discharge by reason of misconduct due to his 
use of marijuana, as documented by a positive urinalysis.  The CO also informed him 
that he had a right to consult counsel and to make a statement on his own behalf.  The 
applicant  waived  his  right  to  submit  a  statement,  but  he  requested  counsel  and  an 
Administrative Discharge Board (ADB). 
 
On  December  17,  1984,  the  applicant’s  CO  recommended  to  the  Commandant 
 
that  the  applicant  be  discharged  for  misconduct  due  to  drug  abuse.    He  noted  that 
because the applicant had more than eight years of military service, he was entitled to 
consult counsel and to appear at a hearing before an ADB. 
 
 
On  March  20,  1985,  an  ADB  was  convened  to  hear  the  applicant’s  case.    The 
applicant was represented by an attorney during the proceedings.  In its report dated 
May 4, 1985, the ADB noted that the applicant’s urine had tested positive for a meta-
bolite of marijuana at a level of 90 ng/ml and that any result above 50 ng/ml was con-
sidered evidence of a “drug incident.”2  The ADB noted that it found the results of the 
urinalysis  to  be  “valid  and  reliable”  and  that,  under  the  provisions  of  ALCOAST 
016/84, it could not recommend the retention of any member involved in a “drug inci-
dent.”    The  ADB  stated  that  the  applicant  “had  no  previous  history  of  disciplinary 
action” and that he denied ever knowingly using marijuana.  The transcript of the ADB 
hearing indicates that the applicant argued that he may have unintentionally ingested 
marijuana during his travels in the West Indies on business.  The ADB recommended 
that the applicant receive a general discharge. 
 
 
The report of the ADB was reviewed and concurred in by the Commander of the 
Seventh  Coast  Guard  District  on  July  2,  1985,  and  approved  by  the  Commandant  on 
September 5, 1985.  On September 11, 1985, the applicant received a general discharge 
“by reason of misconduct (drug abuse).” 
 

APPLICABLE LAW 

 
 
 
Commandant Instruction 5350.15, issued on May 20, 1983, concerned drug and 
alcohol  abuse  policy  for  reservists.    It  stated  that  Article  20  of  the  Personnel  Manual 
applied  to  reservists  on  inactive  duty  as  well  as  to  members  on  active  duty  and  that 

                                                 
2  Currently, the cut-off level for a positive THC urinalysis is only 15 ng/ml. 

reservists found to have been involved in a “drug incident” would be processed for dis-
charge  in  accordance  with  that  chapter.    The  instruction  also  stated  that  no  criminal 
charges would be filed under the UCMJ unless the drug or alcohol abuse was known to 
have occurred while the reservist was in a duty status. 
 
 
Article  20.A.2.m.  of  the  Personnel  Manual  stated  that  any  occurrence  of  drug 
abuse  constituted  a  “drug  incident.”    Article  20.B.2.b.(1)  authorized  “administrative 
inspections” in the form of random or all-unit urinalyses.  Article 20.B.3.c.(1) provided 
that after one “drug incident,” a petty officer might be retained in the Service, depend-
ing upon his overall performance and conduct and completion of screening and treat-
ment.  Article 20.B.3.c.(2) provided that after a second “drug incident,” a petty officer 
“shall normally be processed for separation.” 
 
Article 12.B.2.e. of the Personnel Manual provided that the characterization of a 
 
member’s service (honorable, general, etc.) “will be determined solely by the member’s 
military record during that enlistment” and that conduct or performance during prior 
periods of military service “shall not be considered.”  Article 12.B.2.f.(2) provided that a 
“general discharge will be issued … [w]hen  a member has been identified as either a 
user,  possessor,  or  distributor  of  illegal  drugs  or  paraphernalia”  unless  the  discharge 
was not administrative but punitive (by court-martial), in which case a worse character 
of service could be assigned. 
 

ALCOAST  016/84,  which  was  issued  by  the  Commandant  on  July  30,  1984, 
stated that “[e]ffective upon receipt, any member involved in a drug incident as defined 
by [the Personnel Manual] … will be processed for separation.”  It noted that the then-
current  drug  policy  had  been  in  effect  for more  than two  years and  had  been  widely 
publicized through recruit training and required unit indoctrination.  It stated that in 
the Service’s attempt to rid itself of anyone who abused drugs, more than 700 members 
had  received  general  discharges  due  to  drug  abuse  since  April  1982.    The  ALCOAST 
provided  that  if  a  member  accused  of  drug  abuse  was  entitled  to  an  ADB,  the  ADB 
should  make  findings  about  the  reliability  of  the  evidence,  including  any  test  results, 
and about whether the member was involved in a drug incident.  The ALCOAST stated 
that  if  a  “drug  incident”  was  found  to  have  occurred,  no  recommendation  regarding 
retention  should  be  made.    Instead,  the  ADB  should  make  a  recommendation  as  to 
whether the member should receive a general or other than honorable (OTH) discharge. 
 

Instruction  5810.4,  which  was  issued  the  Commander  of  the  Seventh  Coast 
Guard District on March 26, 1984, provided that although not mandatory in other dis-
tricts, unit urinalysis was mandatory in the Seventh District due to the prevalence and 
availability of illegal drugs in the geographic area.  Unit urinalysis would be conducted 
on an “all hands” or random selection basis at least quarterly and with no forewarning.  
Rule 313 of the Manual for Courts-Martial made the results of these urinalyses admissi-
ble as evidence in judicial and non-judicial proceedings.  Instruction 5810.4 noted that 

the primary purpose of such urinalyses was to “ensure the security, operational readi-
ness, safety, health, military fitness, and good order and discipline of the command.”  It 
also noted that all members, including reservists, who were found by urinalysis to have 
THC levels above 50 ng/ml were deemed to have been involved in a “drug incident” 
whether or not the drug abuse occurred on base or while serving on active duty.  The 
instruction  further  noted  that  at  court-martial,  the  maximum  punishment  for  illegal 
drug use was a dishonorable discharge, forfeiture of all pay and allowances, and con-
finement at hard labor for five years. 
 

Article  20.C.2.  of  the  current  Personnel  Manual  permits  the  administrative 
inspection of any unit, regular or Reserve, by mandatory urinalysis “to determine and 
maintain  the  unit’s  security,  military  fitness,  and  good  order  and  discipline.”    Under 
Article 20.C.3.e., a positive urinalysis test result is sufficient to prove a drug incident. 
Under Article 12.B.18.b.4. of the current Personnel Manual, “[a]ny member involved in 
a  drug  incident  …  will  be  processed  for  separation  from  the  Coast  Guard  with  no 
higher than a general discharge.”   
 

VIEWS OF THE COAST GUARD 

On January 26, 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  application  was  untimely  and  that  the  applicant  had 
failed to show that it is in the interest of justice for the Board to excuse his delay.  He 
argued that the applicant’s claim that he did not discover the alleged error in his record 
until 2003 is blatantly false since he received his DD 214 upon his discharge in 1985 and 
was assisted by counsel at his ADB.  The JAG argued that because there is no substan-
tive reason for the delay in the record and because there is no reasonable chance that the 
applicant will prevail on the merits, the Board should find that it is not in the interest of 
justice to waive the statute of limitations. 
 
 
Furthermore, the JAG argued, even if the Board should waive the statute of limi-
tations, the application should be denied for lack of merit.  The JAG noted that “[a]bsent 
strong evidence to the contrary, government officials are presumed to have carried out 
their duties correctly, lawfully, and in good faith.”  Arens v. United States, 969 F.2d 1034, 
1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).   
 

The JAG pointed out that the applicant does not dispute the accuracy of the uri-
nalysis but instead argues that his general discharge was ultra vires.  The JAG stated that 
the DOD directives cited by the applicant “have no applicability to the Coast Guard.”  
Regarding the applicant’s arguments about Giles v. Secretary of the Army, 627 F.2d 554 
(D.C. Cir. 1980), the JAG stated the following: 

 

Applicant’s reliance on Giles is misplaced.  First, Giles only addressed a small sub-group 
of  those  identified  as  having  abused  drugs,  a  sub-group  to  which  Applicant  does  not 
belong.  [Id. at 557.]  Secondly, the court in Giles was concerned about giving deference to 
the Court of Military Appeals … and based its decision on cases decided by C.M.A. that 
held use of a compelled urinalysis violated Article 31, Uniform Code of Military Justice 
(UCMJ).  C.M.A. later repudiated that position, leading to a different analysis by the Cir-
cuit  Court.    See  Walters  v.  Secretary  of  Defense,  725  F.2d  107,  109  (D.C.  Cir.  1983),  citing 
Murray v. Haldeman, 16 M.J. 74, 81 (C.M.A. 1983).  See also Military Rules of Evidence 313. 

 
 
Finally, the JAG argued that the Coast Guard’s policy of separating drug abusers 
with  a  general  discharge  is  proper  as  applied  to  the  applicant  since  he  “violated  the 
Coast  Guard’s  core  values  by  using  illegal  drugs  and  did  not  complete  his  obligated 
service honorably.  To award him an Honorable Discharge would be to inappropriately 
impugn  the  significance  of  that  achievement  and  to  insult  all  those  men  and  women 
who actually earned such a characterization.” 

 
The JAG attached to and adopted in his advisory opinion a memorandum on the 
case prepared by the Coast Guard Personnel Command (CGPC).  CGPC stated that the 
urinalysis  was  proper,  that  the  applicant  received  prior  notice  of  the  Coast  Guard’s 
policies, and that he received all due process in his discharge proceedings.  CGPC stated 
that the Coast Guard’s policies on discharging drug abusers “are in keeping with the 
Coast Guard’s law enforcement and drug interdiction missions and must be maintained 
with strict adherence.”  In addition, CGPC argued that the general discharge “accurately 
reflects that the Applicant performed honorably in some aspects of his service, but also 
reflects that he engaged in serious misconduct (use of illegal substance), which brought 
discredit to him and the service.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
Guard and invited him to respond within 30 days.  No response was received.   

On January 27, 2005, the Chair sent the applicant a copy of the views of the Coast 

FINDINGS AND CONCLUSIONS 

 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military records and submissions, the Coast Guard's submissions, and appli-
cable law: 
 

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

1. 
§ 1552.   
 
2. 

An  application  to  the  Board  must  be  filed  within  three  years  after  the 
applicant  discovers  the  alleged  error  in  his  record.  10  U.S.C.  §  1552(b).  The  applicant 
received his general discharge in 1985.  Therefore, he knew or should have known of 
the alleged error in his record in 1985.  His application was untimely. 

 
3. 

Pursuant  to  10  U.S.C.  §  1552(b),  the  Board  may  waive  the  three-year 
statute of limitations if it is in the interest of justice to do so.  To determine whether it is 
in the interest of justice to waive the statute of limitations, the Board should conduct a 
cursory review of the merits of the case and consider the length of and reasons for the 
delay. Dickson v. Sec’y of Defense, 68 F.3d 1396 (D.D.C. 1995); Allen v. Card, 799 F. Supp. 
158, 164 (D.D.C. 1992).   

 
4. 

The  applicant  failed  to  explain  his  reason  for  waiting  almost  nineteen 

years to apply for an upgrade of his discharge. 

 
5. 

The  Board’s  review  indicates  that  the  application  lacks  merit.    Absent 
evidence  to  the  contrary,  the  Board  presumes  that  Coast  Guard  officials  have  acted 
correctly, lawfully, and in good faith. Arens v. United States, 969 F.2d 1034, 1037 (Fed. 
Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).  The applicant has not 
denied the accuracy of the urinalysis in his application; he challenges only the legality 
of its consideration by the ADB and of the characterization of his discharge as general 
under honorable conditions. 

 
6. 

Article  20.B.2.b.(1)  of  the  Personnel  Manual  in  effect  in  1985  authorized 
“administrative inspections” in the form of random or all-unit urinalyses.  Instruction 
5810.4,  which  was  issued  by  the  Commander  of  the  Seventh  Coast  Guard  District  on 
March  26,  1984,  authorized  the  mandatory  urinalysis  of  all  active  duty  members  and 
reservists in the district.  These regulations are consistent with the regulations in effect 
today  under  Article  20.C.2.  of  the  current  Personnel  Manual.    Moreover,  as  the  JAG 

stated,  the  applicant’s  reliance  on  Article  31  of  the  UCMJ  and  the  decision  in  Giles  v. 
Secretary  of  the  Army, 627  F.2d  554  (D.C.  Cir.  1980),  is  misplaced  because  in  Walters  v. 
Secretary of Defense, 725 F.2d 107, 109 (D.C. Cir. 1983), the court held that “[a]s a matter 
of  Article  31  law,  then,  the  introduction  of  compulsory  urinalysis  evidence  into 
administrative discharge proceedings is now lawful.”  Therefore, the applicant’s argu-
ment  that  the  ADB  should  not  have  considered  the  positive  result  of  his  compelled 
urinalysis is incorrect. 

 
7. 

The  applicant  alleged  that  he  should  have  received  an  honorable  dis-
charge  based  on  the  overall  character  of  his  service  and  receipt  of  awards  during  his 
enlistment.  However, under ALCOAST 016/84 and Article 12.B.2.f.(2) of the Personnel 
Manual,  anyone  identified  as  a  user  of  illegal  drugs  received  a  general  discharge.    In 
this  respect,  the  Board  notes  that  ALCOAST  016/84  amended  Article  20.B.3.c.  of  the 
Personnel Manual, under which a member would only be discharged after his second 
drug incident. 

 
8. 

The  applicant  alleged  that  he  should  have  received  an  honorable  dis-
charge because he had previously received honorable discharges and had been recom-
mended  for  reenlistment.    However,  under  Article  12.B.2.e.  of  the  Personnel  Manual, 
the characterization of a discharge is determined solely by the member’s performance 
and conduct during the enlistment.  Therefore, the character of the applicant’s service 
during prior enlistments for which he received honorable discharges is irrelevant in the 
determination of what type of discharge he should have received in 1985. 

 
9. 

The  applicant  alleged  that  his  general  discharge  was  unjust  because  the 
purpose  of  the  urinalysis  program  was  to  get  members  into  treatment  programs.  
However, ALCOAST 016/84 clearly states that the Coast Guard’s intent was to rid itself 
of drug users. 

 
10. 

The  applicant  alleged  that  under  current  law,  he  would  likely  have 
received  an  honorable  discharge.    The  applicant  is  wrong.    Article  12.B.18.b.4.  of  the 
current  Personnel  Manual  mandates  that  Coast  Guard  members  involved  in  a  drug 
incident  be  discharged  with  no  better  than  a  general  discharge.    As  the  JAG  stated, 
DOD Directive 1332.14 does not apply to the Coast Guard. 

 
11.   Accordingly, the Board finds no reason to waive the statute of limitations.  

The application should be denied. 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

ORDER 

 

The application of former _______________________, for correction of his military 

 

 
 

 
 

record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 William R. Kraus 

 

 

 
 Dorothy J. Ulmer 

 

 

 
 George A. Weller