DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-094 
 
XXXXXXXXXXXXXX 
xxxxxxxxxxxxx, SR (former)  
   

 

 
 

FINAL DECISION 

 
Author: Ulmer, D. 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425  of  title  14  of  the  United  States  Code.  The  application  was  docketed  on  April  15, 
2005, upon the Board's receipt of the applicant's complete application for correction of 
his military record. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated February 8, 2006, is signed by the three duly appointed 

APPLICANT'S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  correct  his  record  by  upgrading  his  under 
honorable  conditions  discharge  to  an  honorable  discharge.    The  applicant  was 
discharged from the Coast Guard with a general discharge under honorable conditions 
(known as a general discharge) by reason of misconduct (drug abuse). He was assigned 
an RE-4 (not eligible to enlist) reenlistment code and a HKK (involuntary discharge due 
to drug abuse) separation code.  
 
 
The  applicant  stated  that  he  has  been  out  of  the  Service  for  twenty  years  and 
would like his discharge changed to an honorable discharge for the record.   He stated 
that  he  discovered  the  alleged  error  or  injustice  on  August  30,  1985,  the  date  of  his 
discharge from the Coast Guard.   
 

SUMMARY OF RECORD 

 

The  applicant  enlisted  in  the  Coast  Guard  on  May  7,  1984.    At  that  time,  he 

signed an administrative remarks page (page 7), which advised him of the following: 
 

I have been advised that the illegal use or possession of drugs constitutes 
a  serious  breach  of  discipline  which  will  not  be  tolerated.    Also,  illegal 
drug  use  or  possession  is  counter  to  esprit  de  corps  &  mission 
performance and jeopardizes safety.  

 
 
On  May  28,  1984,  an  administrative  remarks  page  (Page  7)  was  placed  in  the 
applicant's  record  counseling  him  that  his  urine  sample  had  tested  positive  for  THC 
(marijuana).    The  applicant  acknowledged  the  following  by  his  signature:    "[the 
applicant]  .  .  .  understands  that  future  confirmed  positive  urinalysis  tests  will  be 
considered drug incidents and may result in [his] discharge from the service depending 
on  his  .  .  .  overall  performance  and  conduct  IAW  Article  20-B-3  and  12-B-18  CG 
PERSMAN."   
 
 
In June 1985, the applicant participated in a urinalysis screening by providing a 
sample to be tested for the presence of illegal drugs.  His urine specimen tested positive 
for THC.   
 
 
On June 17, 1985, the applicant was punished at captain's mast for the wrongful 
use of a controlled substance, a violation of Article 112a of the Uniform Code of Military 
Justice (UCMJ).   
 
 
On  June  21,  1985,  the  applicant's  commanding  officer  (CO)  informed  the 
applicant that he had initiated action to discharge the applicant from the Coast Guard 
with  a  general  discharge  under  honorable  conditions  due  to  misconduct/drugs.    The 
CO  advised  the  applicant  that  he  could  submit  a  statement  in  his  own  behalf  and 
consult with a lawyer. 
 
On  June  21,  1985,  the  applicant  acknowledged  notification  of  the  proposed 
 
discharge, did not object to being discharged, waived his right to submit a statement in 
his own behalf, and acknowledged that he had been provided with the opportunity to 
consult with a lawyer and waived the right to do so. 
 
 
discharge the applicant due to his wrongful use of illegal drugs.  
 
 
due to misconduct/drug abuse. 
 
 
had served one year, three months, and twenty-four days on active duty. 

On  June  21,  1985,  the  applicant's  CO  recommended  that  the  Commandant 

On August 14, 1985, the Commandant directed that the applicant be discharged 

On August 30, 1985, the applicant was discharged from the Coast Guard.  He 

 

VIEWS OF THE COAST GUARD 

 
On  August  26,  2005,  the  Board  received  an  advisory  opinion  from  the  Judge 
 
Advocate General (TJAG), recommending that the Board deny the applicant's request 
for relief.   
 

In  recommending  denial  of  relief,  the  JAG  argued  that  the  application  was 
untimely.    He  stated  that  applications  for  correction of  military records  must  be  filed 
within three years of the date the alleged error or injustice was, or should have been, 
discovered.  33 CFR § 52.22.  He said that the Board may waive the statute of limitations 
and consider the case if an applicant presents sufficient evidence that it is in the interest 
of justice to do so.  The JAG stated that the length of the delay, the reasons for the delay, 
and the likelihood of the applicant's success on the merits of his claim are factors to be 
considered in deciding whether to waive the statute of limitations.  The JAG stated that 
the applicant should reasonably have discovered the alleged error on his DD 214 when 
it was issued to him in 1985.  The JAG argued that the applicant offered no explanation 
or justification for his delay in discovering the alleged error or injustice.  
 

With respect to the merits of his claim, the JAG argued that the applicant has not 
presented any evidence to support his claim that the Coat Guard erred in characterizing 
his service upon his discharge. To the contrary, according to the JAG, the record shows 
that  the  applicant  was  properly  separated  from  the  Coast  Guard  after  he  failed  a 
urinalysis and it was determined that he committed misconduct by using illegal drugs.  
The  JAG  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).  Moreover, he stated that the applicant bears 
the burden of proving error under 33 C.F.R. § 52.24, and that he has failed to meet his 
burden in this case.   

 
The JAG also argued that the Coast Guard's policy on separating drug users is 
appropriate given the Coast Guard's prominent role in enforcing the nation's drug laws.  
The  JAG  stated  that  the  applicant  violated  the  Service's  core  values  by  using  illegal 
drugs and did not complete his obligated service honorably.   

 
 Attached  to  the  advisory  opinion  as  Enclosure  (1)  were  comments  from 

 
Commander, Coast Guard Personnel Command (CGPC), who offered the following: 
 

The applicant alleges no error in the proceeding that led to his separation, 
and  I  find  no  evidence  of  error  or  injustice  in  the  record  to  recommend 
approval  of  the  applicant's  request.  The  record  also  indicates  that  the 
applicant received prior counseling on the Coast Guard's policies on the 
use  of  illicit  substances  and  the  consequences  for  violating  them.    These 

policies are in keeping with the Coast Guard's law enforcement and drug 
interdiction missions and must be maintained with strict adherence.   
 
As  stated  in  his  application,  the  applicant  requests  relief  because  it  has 
been  almost  twenty  years  since  the  incident.  However,  the  applicant's 
discharge was and is appropriate, and accurately reflects the character of 
the  applicant's  period  of  service  with  the  Coast  Guard.    The  applicant 
engaged in a serious infraction of the Coast Guard's core values of Honor, 
Respect, and Devotion to Duty that would result in a discharge with the 
same  characterization  today.    The  Coast  Guard  has  no  policy,  nor  is  it 
contemplating a policy, to upgrade the discharge of members based solely 
on  their  subsequent  good  behavior  in  civilian  life,  especially  discharges 
concerning  the  use  of  illegal  drugs  where  neither  error  nor  injustice  has 
occurred.  

  

 
 
 
 

APPLICANT'S REPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On August 29, 2005, a copy of the Coast Guard views was sent to the applicant 
for  any  response  that  he  desired  to  make.    The  BCMR  did  not  receive  a  reply  to  the 
views of the Coast Guard. 
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's  submissions  and  military  record,  submission  of  the  Coast  Guard,  and 
applicable law: 
 

1.    The  Board  has  jurisdiction  of  this  case  pursuant  to  section  1552  of  title  10 

United States Code.   
 
 
2.  The  application  was  not  timely.    The  applicant  had  been  discharged  for 
approximately  twenty  years  before  he  filed  this  application  with  the  Board.    To  be 
timely, an application for correction of a military record must be submitted within three 
years after the alleged error or injustice was discovered or should have been discovered.  
See 33 CFR 52.22.   
 

3.  However, the Board may still consider the application on the merits, if it finds 
it is in the interest of justice to do so. In Allen v. Card, 799 F.  Supp. 158, 164 (D.D.C. 
1992), the court stated that in assessing whether the interest of justice supports a waiver 

of the statute of limitations, the Board "should analyze both the reasons for the delay 
and  the  potential  merits  of  the  claim  based  on  a  cursory  review."    The  court  further 
stated that "the longer the delay has been and the weaker the reasons are for the delay, 
the more compelling the merits would need to be to justify a full review."  Id. at 164, 
165.   See also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995). 

 
4.    The  applicant  stated  that  he  discovered  the  alleged  error  on  the  date  of  his 
discharge in 1985.  However, he did not explain to the Board why he could not have 
filed an application to correct the alleged error within three years after he discovered it.  
 
 
 5.  A cursory examination of the merits indicates that the applicant is not likely 
to prevail on his request for correction of his record.  The applicant did not allege any 
specific error or injustice on the part of the Coast Guard, nor did he present any proof 
that  the  Coast  Guard  had  committed  an  error  or  injustice  by  discharging  him  with  a 
general  discharge  under  honorable  conditions  due  to  misconduct/drug  abuse.    In 
addition, the applicant's military record indicates that approximately one year prior to 
his discharge he was counseled after testing positive for marijuana use that any further 
infractions  would  probably  result 
the  Coast  Guard.  
Notwithstanding  this  counseling,  the  applicant  failed  a  second  drug  test  and  was 
awarded  non-judicial  punishment  for  use  of  marijuana.    Moreover,  the  applicant  did 
not object to the discharge after being advised of his right to do so.   
 

in  his  discharge 

from 

6.  The  general  discharge  due  to  misconduct/drug  use  was  assigned  in 
accordance with the Personnel Manual.  Article 12.B.18. of the Personnel Manual states 
that  individuals  discharged  due  to  drug  involvement  will  receive  no  higher  than  a 
general discharge.   
 
 
7. Accordingly, due to the length of the delay, the reasons (or lack of reasons) for 
not filing his application sooner, and the probable lack of success on the merits of his 
claim,  the  Board  finds  that  it  is  not  in  the  interest  of  justice  to  waive  the  statute  of 
limitations.  The application should be denied because it is untimely. 
 
 
 
 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES ON NEXT PAGE] 

  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

ORDER 

The application of former SR xxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

 
 

 
 
his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Kevin M. Walker 

 

 

 
 Richard Walter 

 

 

 
 Kenneth Walton