DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-162 
 
xxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx  

FINAL DECISION 

 

 
 

 

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 Chair docketed the case after receiving the applicant’s 
completed  application  on  May  21,  2009,  and  assigned  it  to  staff  member  J.  Andrews  to  pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 

 
This final decision, dated February 25, 2010, is approved and signed by the three duly 

appointed members who were designated to serve as the Board in this case. 
 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, an active duty member of the Coast Guard, asked the Board to correct his 
record by removing a form CG-3307 (“Page 7”) stating that his urine tested positive for metabo-
lites of cocaine ingestion following a random urinalysis conducted at his unit on April 14, 2003.  
The  applicant  alleged  that  in  accordance  with  Article  20.C.5.  of  the  Personnel  Manual,  there 
should be no documentation of the incident in his record because his commanding officer did not 
find that he was involved in a drug incident.  He further alleged that the Page 7 will hinder his 
chances for advancement. 

 

SUMMARY OF THE RECORD 

 
 
The applicant enlisted in the Coast Guard on December 19, 2000, and has continued to 
serve on active duty while advancing from seaman recruit (E-1) to machinery technician, first 
class (MK1/E-6).  In the spring of 2003, the applicant was an MK3/E-4 stationed aboard a buoy 
tender based in xxxxxxxxxxxxxx.  On his semiannual performance evaluation dated March 31, 
2003, the applicant received nine average marks of 4, nine above-average marks of 5, and four 
excellent marks of 6 in the various performance categories, a satisfactory conduct mark, and a 
recommendation for advancement. 
 

The disputed Page 7, dated May 13, 2003, is the only negative Page 7 in the applicant’s 
military record.  It is titled a “Performance & Discipline” entry.  The applicant’s record contains 

This documents NJP held in the case of [the applicant] in violation of Article 112a (UCMJ) [Uni-
form Code of Military Justice] in that on or about 14 April 2003 after a random urinalysis found 
the member had tested positive for cocaine [sic].  The case was dismissed with a warning with the 
following stipulations: 
 
1.  The member attend command sanctioned screening for drug and alcohol abuse. 
 
2.  That the member be randomly tested for drug use per paragraph 20.C.5. to the reference. 
 
3.  That the command will make a final assessment of continued Coast Guard service on or about 
15 August 2003. 

 
The applicant’s record contains no performance evaluation documenting NJP on May 13, 
 
2003.  On his regular, semiannual performance evaluation dated September 30, 2003, the appli-
cant  received  two  below-average  marks  of  3  for  “Responsibility”  and  “Setting  an  Example,” 
eight marks of 4, seven marks of 5, and five marks of 6 in the various performance categories, a 
satisfactory  conduct  mark,  and  his  CO’s  recommendation  for  advancement.    He  advanced  to 
MK2 soon thereafter. 
  
The  applicant’s  record  contains  several  Page  7s  and  letters  documenting  superior  per-
 
formance throughout his service.  Since 2003, he has received primarily marks of 6 on his per-
formance evaluations, with some marks of 5 and 7, and he has always been recommended for 
advancement.  He advanced to MK1 two years ago. 
 

VIEWS OF THE COAST GUARD 

no  other  documentation  of  the  urinalysis,  the  subsequent  mast,  or  non-judicial  punishment 
(NJP).1  The Page 7 is signed by the  applicant and by the commanding  officer (CO) of buoy 
tender, a chief warrant officer, and states the following: 
 

On October 30, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted 

 
 
an advisory opinion in which he recommended that the Board deny the applicant’s request.   
 
 
The JAG alleged that the applicant has failed to prove by  a preponderance of the evi-
dence that his CO committed an error or injustice regarding the random urinalysis, the NJP, or 
the subsequent documentation of the urinalysis result and NJP on the Page 7.   The JAG noted 
that the applicant “did not challenge the validity of the positive urinalysis test results” and “pro-
vided  no  evidence  to  refute  the  validity  of  the  CG-3307  (Page  7)  documenting  the  mast  pro-
ceedings and the CO’s actions.  Therefore, the assumption can be made that the Page 7 entry into 
Applicant’s record is valid.” 
 

                                                 
1 “Mast” is a proceeding at which non-judicial punishment (NJP) may be imposed by a CO under Article 15 of the 
UCMJ.  NJP “is a disciplinary 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.”  Manual  for  Courts-Martial  (MCM),  Part  V-1.  The  Military  Rules  of  Evidence  do  not  apply 
during the proceedings, and the standard of proof is the preponderance of the evidence.  Military Justice Manual, 
Chap. 1.D.1.f. and g. 

 
The JAG argued that Article 20.C.5. of the Personnel Manual does not apply to the appli-
cant’s case because there is no evidence that the CO “made a final conclusion of ‘No Drug Inci-
dent’” in accordance with that article.  The JAG alleged that the Page 7 shows that the CO con-
ducted a mast following the applicant’s positive urinalysis result and dismissed the case with a 
warning and a stipulation that “the command will make a final assessment of continued Coast 
Guard service on or about 15 August 2003.” 
 
The  JAG  alleged  that  the  Page  7  shows  that  the  CO  “decided  at  NJP  to  exercise  his 
 
discretion [in accordance with] PERSMAN Chapt. 20.C.3.c.[2] (Determining a Drug  Incident) 
and decided to delay final determination in order to pursue various options deemed appropriate.  
The  Page  7  stipulations  are  examples  of  the  options  deemed  appropriate  as  per  PERSMAN 
20.C.3.c.”  The JAG argued that although the CO’s final determination is not in the record, “the 
Page 7 at issue is documented evidence that reflects Applicant’s NJP for violating Article 112a 
of the UCMJ.  The command’s failure to document the final results does not invalidate or vitiate 
the Page 7 at issue.”  The JAG argued that the Page 7 is evidence that the CO probably wanted 
the applicant to have the Page 7 in his record to document his NJP and that the “Page 7’s validity 
should not depend on the final assessment or the command’s lack thereof.”  The JAG alleged 
that the applicant “was given a huge ‘benefit of the doubt’ by his CO for not initially processing 
the applicant for discharge based on the positive urinalysis” and is not entitled to relief. 
 
 
The JAG included with the advisory opinion a memorandum by the Commander of the 
Coast Guard Personnel Service Center (CGPSC), which the JAG adopted only in part because 
CGPSC recommended that the Board grant relief.  CGPSC stated that Article 20.C.5. of the Per-
sonnel Manual does not apply to the applicant’s case because his CO never made a “Finding of 
No Drug Incident.”  CGPSC stated that the disputed Page 7 “documents dismissal with a warn-
ing of UCMJ Article 112a charges against the applicant.  Dismissal with a warning is not tanta-
mount to a ‘Finding of No Drug Incident’” under Article 20.C.5. 
 
 
CGPSC stated that although the applicant has failed to substantiate an error, CGPSC has 
identified an error “significant enough in that it has the potential to cause severe injustice.”  First, 
CGPSC stated, the Page 7 mandated drug screening, and there is no evidence that such screening 
was ever provided.  Second, the Page 7 mandated random urinalyses, and there is no record of 
any follow-up or the results thereof.  Finally, the Page 7 promises a final assessment in August 
2003, and there is no documentation of one.  CGPSC stated that all that can be deduced is that a 
favorable  determination  was  made  at  some  point  because  otherwise  the  applicant  would  have 
been discharged, but he was not. 
 
 
CGPSC stated that the lack of follow-through by the command has created a “significant 
injustice for the applicant,” which may be unwarranted.  CGPSC stated that it cannot now be 
positively ascertained3 whether “the incident was or was not later determined to be a ‘Finding of 
No Drug Incident’” under Article 20.C.5.  Therefore, “the Page 7 in question has the potential to 
                                                 
2 Article 20.C.3.c. of the Personnel Manual concerns a  member’s legal rights during the investigation of a  “drug 
incident.”    It  appears  that  the  JAG  intended  to  cite  Article  20.C.3.d.  of  the  Personnel  Manual,  which  is  entitled 
“Determining a Drug Incident.” 
3 The applicant’s CO, CWO xxxxxxxxxx, retired from the active duty Coast Guard on xxxxxxxxxxx, 2004.  See 
. 

be wrongly construed.  The Coast Guard is deemed at fault for not properly documenting the 
final outcome of this incident.  The presumption of guilt should therefore not be borne by the 
applicant  for  the  remainder  of  [his]  professional  Coast  Guard  career.”    Commander,  CGPSC 
therefore recommended that the Board grant relief. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  November  3,  2009,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast 

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

 

APPLICABLE REGULATIONS 

 
Regulations About Illegal Drug Use 
 
Article 20 of the Personnel Manual in effect in 2003 (COMDTINST M1000.6A (Change 
 
37)) contains most of the regulations regarding suspected illegal drug use by members.  Article 
20.A.1.c. states that the Coast Guard attempts to “[d]etect and separate from the Coast Guard 
those members who abuse, traffic in, or unlawfully possess drugs.”  Article 20.C.1.a. states that 
“Coast Guard members are expected not only to comply with the law and not use illegal drugs, 
but also, as members of a law enforcement agency, to maintain a life-style which neither con-
dones substance abuse by others nor exposes the service member to accidental intake of illegal 
drugs.    Units  shall  conduct  random  urinalysis  tests  throughout  the  fiscal  year  on  a  consistent 
basis.” 
 

Article 20.C.1.d. states that a unit CO should “investigate all incidents or circumstances 
in which the use or possession of drugs appears to be a factor, and take appropriate administra-
tive and disciplinary action.”  Article 20.C.3.a. states that “Commanding officers 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.A.2.k. defines a “drug incident” as the intentional use of drugs, the wrongful 
possession of drugs, or the trafficking of drugs.  It further states that “[t]he member need not be 
found guilty at court-martial, in a civilian court, or be awarded NJP for the conduct to be consid-
ered a drug incident” and that “[i]f the conduct occurs without the member’s knowledge, aware-
ness, or reasonable suspicion or is medically authorized, it does not constitute a drug incident.” 
 

Article 20.C.3.e. states that in determining whether a drug incident has occurred, the CO 
shall use “the preponderance of the evidence standard” and that a positive confirmed urinalysis 
result may by itself be “sufficient to establish intentional use and thus suffice to meet this burden 
of proof.”  Article 20.C.3.d. states that 
 

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 (PDR), and chain of command recommendations.  Evidence relating to the member’s per-
formance of duty, conduct, and attitude should be considered only in measuring the credibility of a 
member’s statement(s).  If the evidence of a possible drug incident includes a positive urinalysis 
result, the command should also determine  whether the urinalysis  was conducted in accordance 
with  this  article  and  whether  the  collection  and  chain  of  custody  procedures  were  properly 

followed.  The commanding officer may delay final determination to pursue any of these options 
deemed appropriate: 
 
1.  Ask the member to consent to a urinalysis test as outlined in Article 20.C.2.a. 
2.  Direct  the  member  to  participate  in  a  urinalysis  evaluation  program  for  a  maximum  of  six 

months as outlined in Article 20.C.2.a. 

3.  Request the laboratory reexamine the original documentation for error. 
4.  Request the laboratory retest the original specimen. … 
 
Article 20.C.4. states that if a CO determines that a drug incident did occur, the CO will 

do the following: 

 
1. Administrative Action.  Commands will process the member for separation by reason of mis-
conduct under Articles 12.A.11., 12.A.15., 12.A.21., or 12.B.18., as appropriate. … 
 
2.  Disciplinary  Action.    Members  who  commit  drug  offenses  are  subject  to  disciplinary  action 
under the UCMJ in addition to any required administrative discharge action. 
 
3. Eligibility for Medical Treatment.  Members who have been identified as drug-dependent will 
be offered treatment prior to discharge. … 

 

 

Article  12.B.18.b.4.  states  that  “[a]ny  member  involved  in  a  drug  incident  …  will  be 
processed for separation from the Coast Guard with no higher than a general discharge.”  Article 
12.B.2.f.2.a. states that a general discharge will be awarded when a member “has been identified 
as a user, possessor, or distributor of illegal drugs or paraphernalia.” 

 
Article 20.C.5. states the following: 

1.  In cases in which the commanding officer determines the urinalysis result attributed to a parti-
cular member resulted from administrative error; faulty chain of custody, evidence of tampering, 
or that drug use was not wrongful; e.g., prescribed medication or unknowing ingestion, the com-
manding officer will make a finding of no drug incident and close the investigation.  In addition, 
these actions shall be taken: 

a.    Screening  and/or  Counseling.  A  determination  shall  be  made  whether  psychiatric, 
medical, or drug dependency screening … is warranted.  At a minimum, the member’s command-
ing officer shall review with the member the previous training they received on the subject of drug 
abuse. … If retraining is considered necessary in these areas, arrangements will be made for the 
member’s participation in awareness training. 

b.    Letter  Report.    Commanding  officers  shall  notify  Commandant  …  by  letter  of  all 
cases involving positive urinalysis test results in which they make a finding of no drug incident.  
This letter shall indicate the drug(s) identified in the specimen and the reason for the no drug inci-
dent determination.  The member should not be identified by name, social security number, or any 
other means since the information will be used for statistical purposes only. 

 
 
Article 20.C.2.a.5. states that when a member receives a positive urinalysis result but the 
CO  “remains  doubtful  whether  the  member  has  used  drugs  wrongfully,”  the  CO  may  order 
evaluation testing for a period of two to six months, during which time up to 16 urine specimens 
may be taken at irregular intervals.  In such situations, however, 
 

the original positive urinalysis result may still be used as a basis for disciplinary action under the 
UCMJ,  administrative  separation,  and  characterization  of  discharge  depending  on  the  basis  for 
ordering the original test; e.g., probable cause, administrative inspection, consent or competence-
for-duty  test  ([see]  Article  20.C.2.a.8.).  The  results  of  the  evaluation  testing  may  be  used  as  a 

basis for administrative separation.  Positive test results from evaluation testing may not be used 
for disciplinary action under the UCMJ, nor may such results be used to characterize a discharge 
in separation proceedings.  

 
Regulations About Mast and NJP 
 
 
Article  1.D.9.  of  the  Military  Justice  Manual  (MJM)  states  that  if  at  a  mast  convened 
under Article 15 of the UCMJ, the CO finds none of the allegations against a member to be sup-
ported, the CO dismisses all of the charges.  “A mast ending in dismissal of all offenses is not 
punishment and no Court Memorandum (Form CG-3304) entry shall be made in the member's 
service record.”  Article 1.D.17. of the MJM, entitled “Dismissal with a Warning,” states that the 
CO “may decide not to punish a member by dismissing the matter with a warning.  Such a deci-
sion may be based on either a lack of proof or a determination that punishment is not appropriate 
even though the member committed an offense(s).  That decision is not considered NJP, and no 
Court  Memorandum  (Form  CG-3304)  entry  shall  be  made  in  the  member’s  service  record.”  
Under Article 1.D.19. of the MJM, 
 

If the commanding officer determines that, based on the evidence presented, that it is more likely 
than not that an offense was committed and that NJP is appropriate, he or she should announce 
punishment  at  this  point.  If  the  commanding  officer  decides  to  impose  punishment,  he  or  she 
should  choose  the  punishment  or  combination  of  punishments  that  is  most  appropriate  for  the 
member,  the  offense(s),  and  the  good  order  and  discipline  of  the  unit  …  .    In  determining  the 
appropriate punishment, the commanding officer should consider the purposes of NJP … and the 
general factors to be considered when awarding punishment … .  The commanding officer shall 
indicate  the  disposition  of  the  offense(s)  by  completing  and  signing  the  “Action  of  the  Com-
manding Officer” section on the CG-4910. 

Article 1.G.3.a. of the MJM concerns personnel record entries and states that 

 

 

[t]he Court Memorandum provides input to the service records of officer and enlisted personnel 
for all masts resulting in the imposition of punishment.  If mast was held, but no punishment as 
described under Article 15, UCMJ,  was awarded, then  Article 15 punishment (or NJP)  was  not 
awarded.  No Court Memoranda shall be prepared if, instead of imposing punishment, the matter 
is  dismissed,  dismissed  with  a  warning,  dismissed  with  administrative  action  taken,  referred  to 
court-martial, or results in recommendation for general court-martial because these actions are not 
considered the imposition of punishment. 

 
 
Under Article 10.B.5.b.3. of the Personnel Manual, the command must prepare and sub-
mit  a  special  performance  evaluation  for  any  enlisted  member  awarded  NJP.    Under  Articles 
10.B.2.a. and 10.B.8., any NJP, termination of the eligibility period for a Good Conduct Award, 
or an unsatisfactory conduct mark, non-recommendation for advancement, or poor performance 
mark on an enlisted member’s performance evaluation must be documented on a Page 7.  Chap-
ter 10.A.2. of the Personnel and Pay Procedures Manual provides instructions for preparing Page 
7s “to document counseling, or to record any other information required by current directives, or 
considered to be of historical value.” 
 

Paragraph 4 of COMDTINST 1000.14B, entitled “Preparation and Submission of Admin-
istrative Remarks (CG-3307),” states that “[u]nits are prohibited from using the CG-3307 [Page 
7]  to  document  events  not  listed  in  reference  (a)  [the  Personnel  and  Pay  Procedures  Manual 
(PPPM), HRSICINST M1000.2A].  Unauthorized CG-3307’s received at HQ or CGPC will be 

destroyed.”  Chapter 10-A-2 of the Personnel and Pay Procedures Manual states that “[t]he only 
authorized CG-3307 entries [Page 7s] are those listed in Enclosure (6) to this manual.”  Enclo-
sure (6) includes “Performance & Discipline” as one category of authorized Page 7.  Chapter 10-
B-2  states  that  following  imposition  of  NJP,  a unit  should  “complete  the  special  performance 
evaluation and required CG-3307 entries and forward to HRSIC (ADV).” 
 

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.  
Although  the  application  was  not  filed  within  three  years  of  the  applicant’s  discovery  of  the 
alleged error or injustice, it is considered timely because the applicant has remained on continu-
ous active duty since the disputed Page 7 was entered in his record.4   

 
2.  

 
3. 

The applicant alleged that the Page 7 dated May 13, 2003, documenting NJP for a 
urinalysis positive for cocaine use and his CO’s subsequent stipulations is both erroneous under 
the  Personnel  Manual  and  unjust  because  it  will  hinder  his  career  advancement.5    The  Board 
begins its analysis in every case by presuming that the disputed information in the applicant’s 
military record is correct as it appears in his record, and the applicant bears the burden of proving 
by a preponderance of the evidence that the disputed information is erroneous or unjust.6  Absent 
evidence to the contrary, the Board presumes that Coast Guard officials and other Government 
employees have carried out their duties “correctly, lawfully, and in good faith.”7  For the reasons 
stated  below,  the  Board  finds  that  the  preponderance  of  the  evidence  shows  that  the  disputed 
Page 7 is both erroneous and unjust. 

The  disputed  Page  7  is  misleading  and  erroneous.    It  begins,  “This  documents 
NJP held in the case of [the applicant in that on or about 14 April 2003 … the member tested 
positive for cocaine.  The case was dismissed with a warning with the following stipulations.”  
However, under Article 1.D.17. of the Military Justice Manual, when a charge under the UCMJ 
is dismissed with a warning, no NJP has occurred.  Therefore, the Page 7 is obviously erroneous.  
While a mast was held, the applicant was not awarded NJP; ipso facto, no NJP should be docu-
mented in his record.  The fact that the CO did not award the applicant NJP is supported not only 
                                                 
4 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that, under § 205 of the Soldiers’ and Sailors’ Civil 
Relief  Act  of  1940,  the  BCMR’s  three-year  limitations  period  under  10  U.S.C.  §  1552(b)  is  tolled  during  a 
member’s active duty service). 
5  The Board notes that given the criteria for advancement under Article 5.C. of the Personnel Manual, the Page 7 is 
unlikely  to  hinder  the  applicant’s  advancement  to  chief  or  senior  chief  petty  officer.    However,  because  chief 
warrant  officers  are  selected  by  boards  that  review  the  candidates’  entire  records,  the  Page  7  could  prevent  his 
selection for appointment to chief warrant officer. 
6 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases prior to the promulgation of the latter 
standard in 2003 in 33 C.F.R.§ 52.24(b)). 
7 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

 
4. 

 
5. 

6. 

by the Page 7 stating that the charge was dismissed with a warning but also by the lack of all of 
the record entries that accompany NJP, including the Court Memorandum, the special perform-
ance evaluation, and the Page 7s documenting the unsatisfactory conduct mark, the non-recom-
mendation  for  advancement,  and  the  termination  of  one’s  Good  Conduct  Award  eligibility 
period.8  In addition, the Coast Guard admitted in the advisory opinion that the charge against the 
applicant was dismissed with a warning.  The fact that the CO imposed the stipulations of drug 
screening  and  testing  while  he  delayed  his  decision  about  whether  the  applicant  had  been 
involved in a drug incident does not alter the conclusion that no NJP was imposed. 

The disputed Page 7 is also misleading and erroneous because the first sentence 
states that the applicant was “in violation of Article 112a (UCMJ)” because of the positive uri-
nalysis result.  However, the Coast Guard has admitted that the CO never made a “drug incident” 
determination, and without such a determination, the positive urinalysis result shows only that 
the applicant ingested cocaine, not that he had violated Article 112a of the UCMJ by intention-
ally ingesting cocaine.  The first sentence of the Page 7 leaves the reader believing that the appli-
cant was awarded NJP because he had violated Article 112a by intentionally ingesting cocaine.  
This  impression  is  clearly  misleading  because  the  CO  did  not  award  NJP  and  dismissed  the 
UCMJ charge.  The Board finds that in the absence of NJP or at least an administrative finding 
of a drug incident by the CO, the statement in the disputed Page 7 that the applicant was in vio-
lation of Article 112a of the UCMJ is unsupported and unjust.  Under Article 20.C.3.e. of the 
Personnel Manual, a CO may find that a drug incident has occurred based solely on a positive 
urinalysis result.  However, the CO made no such finding, and so the applicant’s positive uri-
nalysis result does not equate to a violation of Article 112a. 

Articles 20.C.3.e. and 20.C.4. of the Personnel Manual require a CO to determine 
whether a member has been involved in “drug incident,” as defined in Article 20.A.2.k., based 
on the preponderance of the evidence and to initiate discharge proceedings against any member 
who has incurred a drug incident.  The Coast Guard has admitted that the applicant’s CO never 
made a finding of a drug incident and never initiated the applicant’s discharge.  The CO’s inac-
tion is strong evidence that, despite the positive urinalysis result, he was never persuaded that the 
applicant had incurred a drug incident by intentionally using illegal drugs.  What other evidence 
the CO may have considered is not in the record before the Board. 
 

Article 20.C.3.d. of the Personnel Manual allows a CO to postpone a drug inci-
dent determination for up to six months when the matter is in doubt.  Doubt is the only permis-
sible basis for postponing a drug incident determination.  The Page 7 shows that the applicant’s 
CO  postponed  his  determination  for  three  months.    Whether  the  CO’s  doubt  stemmed  from 
awareness of circumstances in which the applicant might have unwittingly ingested cocaine or 
from distrust of the unit’s urinalysis procedures is unknown.  Therefore, the JAG’s claim that the 
applicant “was given a huge ‘benefit of the doubt’ by his CO” is unsupported and speculative.  
                                                 
8 Articles 1.D.17. and 1.G.3.a. of the Military Justice Manual clearly state that because no NJP has been awarded 
when charges are dismissed with a warning at mast, no Court Memorandum should be entered in the record.  Article 
10.B.5.b.3.  of  the  Personnel  Manual  requires  that  a  command  document  NJP  by  entering  a  special  performance 
evaluation in the member’s record.  Articles 10.B.2.a.and 10.B.8. require a command, following imposition of NJP, 
to prepare Page 7s documenting the member’s unsatisfactory conduct mark, non-recommendation for advancement, 
and loss of eligibility for a Good Conduct Medal for the foregoing period. 

The CO’s postponement of the drug incident determination indicates that he was not persuaded 
by the preponderance of the evidence before him, including the positive urinalysis result, that the 
applicant had intentionally ingested cocaine but that, because of the possibility that the applicant 
had intentionally ingested cocaine, the CO decided to postpone his determination and require the 
applicant  to  undergo  frequent  testing  for  three  months,  pursuant  to  Article  20.C.3.d.  of  the 
Personnel Manual. 

Under Articles 20.C.3. and 20.C.5. of the Personnel Manual, a CO must ultimate-
ly make and report either a finding that a drug incident occurred or a finding that no drug inci-
dent occurred.  The applicant’s CO never completed this task.  The JAG argued that despite the 
CO’s failure to make an official finding of no drug incident under Article 20.C.5., the disputed 
Page 7 is neither erroneous nor unjust and should not be removed from the applicant’s record.  
The JAG did not acknowledge the errors in the Page 7 identified in findings 3 and 4 above and 
alleged that it was within the CO’s discretion to enter this Page 7 in the record to document the 
positive  urinalysis  result  despite  the  fact  that  he  never  imposed  NJP  or  made  a  drug  incident 
determination.  However, a CO’s authority to enter Page 7s in members’ records is not unlimited.  
COMDTINST 1000.14B prohibits commands from using Page 7s to document events not listed 
in the Personnel and Pay Procedures Manual (HRSICINST M1000.2A) and states that unauthor-
ized Page 7s will be destroyed by the Personnel Command.  Chapter 10-A-2 of the Personnel and 
Pay Procedures Manual states that “[t]he only authorized CG-3307 entries [Page 7s] are those 
listed in Enclosure (6) to this manual.”  Enclosure (6) authorizes the entry of “Performance & 
Discipline” Page 7s to document poor performance or misconduct, but nothing that would man-
date the prejudicial documentation of a positive urinalysis result in the absence of actual disci-
pline (NJP) or a finding that the member had wrongfully ingested illegal drugs. 

 
7. 

 
8. 

The applicant’s CO did not follow the procedures set out in the Personnel Manual 
for handling members’ positive urinalysis results.  He failed to make an official drug incident 
determination and either initiate the applicant’s discharge, pursuant to Article 20.C.4.1., or notify 
the Commandant that there was no drug incident, pursuant to Article 20.C.5.1.b.  Instead, the CO 
documented  the  urinalysis  result  on  a  Page  7  in  the  applicant’s  record,  which  allows  him  to 
remain on active duty but impedes his career.  However, the Coast Guard is required to follow its 
own regulations.9  Article 20.C. of the Personnel Manual does not permit the aborted due process 
afforded the applicant in 2003.  Given the significant, prejudicial errors in the disputed Page 7 
and  the  highly  prejudicial  nature  of  its  content,  the  Board  finds  that  the  Page  7  should  be 
removed from his record in its entirety because it is both erroneous and unjust.  Leaving a Page 7 
purporting to document NJP for intentional illegal drug use in violation of the UCMJ in a mem-
ber’s record when his CO never made a finding—even by a preponderance of the evidence stan-
dard—that the member had intentionally used illegal drugs would be significantly unjust.10 
                                                 
9 Fort Stewart Schools v. Federal Labor Relations Auth., 495 U.S. 641, 654, 110 S. Ct. 2043, 2051, 109 L. Ed. 2d 
659  (1990)  (“It  is  a  familiar  rule  of  administrative  law  that  an  agency  must  abide  by  it  own  regulation.”);  see 
Drumheller v. Dep’t of Army, 49 F.3d 1566, 1573 (Fed. Cir., 1995) (C.J. Newman, dissenting) (“It is black letter law 
that an agency must comply with its employee regulations.’”).  
10 Under 10 U.S.C. § 1552, the Board is authorized not only to correct errors but to remove injustices from any 
Coast Guard military record.  For the purposes of the BCMRs, “‘[i]njustice’, when not also ‘error’, is treatment 
by the military authorities, that shocks the sense of justice, but is not technically illegal.” Reale v. United States, 
208 Ct. Cl. 1010, 1011 (1976).  The Board has authority to determine whether an injustice exists on a “case-by-
case  basis.”  Docket  No.  2002-040  (DOT  BCMR,  Decision  of  the  Deputy  General  Counsel,  Dec.  4,  2002).  

9. 

 
 
disputed Page 7 dated May 13, 2003, from the applicant’s record. 
 
 
 
 

Accordingly, relief should be granted by ordering the Coast Guard to remove the 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

                                                                                                                                                             
“Indeed, ‘when a correction board fails to correct an injustice clearly presented in the record before it, it is acting 
in violation of its mandate.’” Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004) (quoting Yee v. United 
States, 206 Ct. Cl. 388, 397 (1975)). And “[w]hen a board does not act to redress clear injustice, its decision is 
arbitrary and capricious.” Boyer v. United States, 81 Fed. Cl. 188, 194 (2008). 

ORDER 

 

 

 
 

 

 

 

 
 

 
 

        

 
 Bruce D. Burkley 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 
military record is granted.  The Coast Guard shall remove from his military records all copies of 
the Page 7 (form CG-3307) dated May 13, 2003. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 Francis H. Esposito 

 
 Erin McMunigal