This proceeding was conducted according to 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 
completed application May 28, 2010, and assigned it to staff member J. Andrews to prepare the 
decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 

This final decision, dated February 24, 2011, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 

DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                       BCMR Docket No. 2010-186 
 
Xxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxx   

FINAL DECISION 

 

 
 

 

The applicant asked the  Board to remove from his record a form CG-3307 (“Page 7”) 
documenting a second “alcohol incident.”1  The Page 7 was issued by the commanding officer 
(CO) of the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx and was signed by the applicant in 
acknowledgement on October 15, 2009.  It states the following: 

 
01Sep09:  On this date you received an alcohol incident when your alcohol was determined to be a 
significant and causative factor in your behavior which brought discredit upon the Uniformed Ser-
vices  as  a  result  of  which  you  have  been  disenrolled  from  the  xxxxxxxxxxxxxxxxxxxxxxxxxx 
course while serving on Temporary Active Duty (TAD) to the U.S. Coast Guard xxxxx.  Upon 
your first day of class, you were informed during your orientation brief of the xxxxx eight-hour no 
drinking policy prior to training.  On the morning of your second training day, the xxxxxxxxxxx 
contract cleaning crew opened the door to your assigned interagency barracks room for cleaning 
and vomit was discovered in your room.  The vomit was located all over your pillow, sheets, blan-
ket,  night  stand,  wall,  and  floor.   This  was  verified  by  the  XXXXX  Executive  Officer,  [LT  Y, 
CWO X and BMC X].  [LT X] (Regulations Branch Chief) interviewed you and your roommate in 

                                                 
1 Article 20.A.2.d.1. of the Personnel Manual defines an “alcohol incident” as “[a]ny behavior, in which alcohol is 
determined, by the commanding officer, to be a significant or causative factor, that results in the member’s loss of 
ability to perform assigned duties, brings discredit upon the Uniformed Services, or is a violation of the Uniform 
Code of Military Justice, Federal, State, or local laws. The member need not be found guilty at court-martial, in a 
civilian court, or be awarded non-judicial punishment for the behavior to be considered an alcohol incident.”  Article 
20.B.2.h.2.  states  that  “[e]nlisted  members  involved  in  a  second  alcohol  incident  will  normally  be  processed  for 
separation.” 

which  you  stated  that  it  was  your  bed  and  you  had  no  memory  of  getting  sick  or  vomiting.  
Initially you stated that you only consumed three beers, however later you indicated you may have 
consumed no more than five beers the night before.  Upon consenting to a BAC using a calibrated 
ALCO Sensor IV, a result of .03 Blood Alcohol Content (BAC) was noted at approximately 1020 
on 01 Sep 09.  If you had consumed no more than 5 beers and followed XXXXX’s eight hour no 
drinking  policy  prior  to  training,  your  BAC  would  have  been  a  0.00  by  the  time  you  began 
training. 
 
I have recommended to your unit that you meet with your unit Command Drug and Alcohol Rep-
resentative (CDAR) to determine the nature of your relationship with alcohol, you receive medical 
screening and assessment to determine your dependency on alcohol, and that you abstain from the 
use of alcohol until your screening and assessment is completed.  If this is your second alcohol 
incident, it is recommended to your unit that you be processed for discharge from the U.S. Coast 
Guard, as per chapter 20 of the Personnel Manual COMDTINST M1000.6 (series). 
 
 
The applicant alleged that the CO of the XXXXX erred in deciding that he had incurred 
an alcohol incident.  He alleged that he did not violate the academy’s 8-hour policy because he 
drank only moderately and stopped drinking more than 8 hours before training began.  He argued 
that “no discredit was brought upon the Coast Guard” because all that happened is that he got 
sick in his room and failed to clean it up immediately.  In addition, he alleged that he had apolo-
gized profusely to the cleaning staff.  The applicant stated that the breathalyzer test was impro-
perly administered and that the results are unreliable because no one ensured that he had not had 
anything in his mouth during the 15 minutes before the test.  In support of his allegations, the 
applicant  submitted  the  report  of  an  investigation  conducted  by  his  permanent  command,  the 
MSST, and a Missouri State court decision, which is summarized below. 
 

In Hurt v. Director of Revenue State, State of Missouri, 291 S.W.3d 251 (Mo. Ct. App. 
2009), the court upheld a decision to set aside the suspension of the plaintiff’s driving privileges 
because his “breathalyzer test  [result was] invalid due to the presence of chewing tobacco in his 
mouth throughout the 15-minute observation period preceding the test.”  The court deferred to 
the trial court’s credibility determinations, and the trial court had believed the plaintiff, who said 
that he had put chewing tobacco in his mouth upon leaving a bar and still had it in his mouth 
when the test was conducted.  The police officer who stopped the plaintiff’s car reported that his 
eyes  were  glassy,  he  smelled  of  alcohol,  and  he  failed  three  field  sobriety  tests.    Two  police 
officers who were observing him for 15 minutes prior to the test did not see any sign of chewing 
tobacco, but they did not ask him if he had anything in his mouth before conducting the test.  The 
plaintiff’s BAC was measured at 0.121%.  The court noted that regulations and the instructions 
for the breathalyzer required no smoking or oral intake of any material during the 15 minutes 
prior to the test.  The court also noted expert evidence that the “presence of compounds in the 
mouth at the time of breath collection will produce an extremely high breath alcohol value that is 
far from indicative of alveolar breath alcohol concentration” and that “[s]ome foreign objects in 
the  mouth,  such  as  chewing  tobacco,  may  trap  alcohol  and  affect  the  breath  test.”    The  court 
noted that in Coyle v. Director of Revenue, 181 S.W.3d 62 (Mo. 2005) (en banc), the Supreme 
Court of Missouri had found that the regulation requiring no smoking, vomiting, or oral intake of 
material during the 15 minutes before the test “creates a presumption that smoking, vomiting or 
oral intake of material during the 15-minute period invalidates the test results.” 
 

 
 
The applicant enlisted in the Coast Guard on September 11, 2001, and became a boat-
swain’s mate.  On October 18, 2004, the applicant’s commanding officer entered a Page 7 in his 
record documenting his first alcohol incident,2 which occurred on October 1, 2004.  The Page 7 
states  that  he  had  violated  a  rule  about  not  consuming  alcohol  during  the  12  hours  prior  to  a 
period of “alert duty status.”  A breathalyzer test had shown that his BAC was 0.037 when he 
reported  for  duty.    The  Page  7  states  that  he  was  counseled  about  the  Coast  Guard’s  policies 
regarding  alcohol  and  specifically  advised  that  any  additional  alcohol  incident  in  the  future 
would result in his discharge in accordance with Article 20 of the Personnel Manual. 
 

On  November  29,  2004,  his  commanding  officer  entered  another  Page  7  in  the  appli-
cant’s record stating that as a result of the alcohol incident, the applicant had undergone screen-
ing at a clinic, and the screening results indicated that he did not meet the criteria for alcohol 
dependence.    The  Page  7  notes  that  the  applicant  had  been  counseled  about  the  regulations 
regarding alcohol in Article 20 of the Personnel Manual. 

 
In 2009, the applicant was assigned to a Maritime Safety and Security Team (MSST).  At 
the end of August 2009, he was assigned to temporary duty at the XXXXX, which is located at 
the xxxxxxxxxxxxxxxxxxxxxxx to attend a course from August 31 to September 4, 2009.  On 
September 1, 2009, the CO of the XXXXX determined that the applicant had incurred an alcohol 
incident, which was his second,3 and disenrolled him from the course. 

SUMMARY OF THE RECORD 

 
On September 4, 2009, the CO of the MSST ordered a lieutenant, the Operations Officer 
of the MSST, to investigate the events that had resulted in the CO of the XXXXX disenrolling 
the applicant and issuing him a Page 7 documenting an alcohol incident.  According to the report 
of  the  investigating  officer  (IO),  dated  September  14,  2009,  the  applicant  was  disenrolled  for 
“bringing discredit upon the service by leaving vomit in his room which was allegedly due to an 
excessive amount of alcohol being consumed.”   The  IO’s report states that after the applicant 
went running on the  evening of August 31, he  went to a student lounge with two other petty 
officers, MST3 E and BM2 L, at about 8:00 p.m. and remained there until 10:30 p.m.  The three 
of them shared pitchers of light beer and ate “stale popcorn.”  The applicant consumed an inde-
terminate amount of beer.  Upon returning to his room, he watched television and spoke to his 
wife on the telephone.  The IO noted that he was unable to find evidence proving whether or not 
the applicant drank alcohol after leaving the lounge.   

 
The IO stated that early the next morning before class, MST3 E spoke to the applicant 
and later told the IO that he had not appeared “hung over” or sick.  In addition, he could not 
recall smelling any odor of alcohol coming from the applicant.  However, at 7:45 a.m., the appli-
cant was pulled out of class because the cleaning staff had found vomit in and around his bed.  
                                                 
2 Under Articles 2.B.2.e. and 2.B.2.g. of the Personnel Manual, if a CO determines that a member has incurred a first 
alcohol incident, the member is counseled about alcohol policies and specifically the rule that a second alcohol inci-
dent will result in the member’s discharge; a Page 7 is prepared to document the incident; and after the member has 
been  screened  for  alcohol  dependency,  another  Page  7  is  entered  in  the  record  to  document  the  results  of  the 
screening.  The member is afforded the rehabilitative treatment required by the diagnosis. 
3 Article 20.B.2.h.2. states that “[e]nlisted members involved in a second alcohol incident will normally be proc-
essed for separation.” 

The applicant “verified that he was responsible but did not remember vomiting.”  The applicant 
was sent to the medical clinic, where a doctor noted that he “could have thrown up due to dehy-
dration and not eating adequately the night before.”  The doctor found him fit for duty.  How-
ever, a breathalyzer test conducted at 9:39 a.m. showed that the applicant’s BAC was 0.03.  The 
breathalyzer had been calibrated at 8:56 that morning.   

 
The  IO  reported  that  the  petty  officer  who  conducted  the  test  had  not  monitored  the 
applicant during the 15 minutes prior to the test, as required by the instructions to the breatha-
lyzer, to ensure that nothing happens to cause a false test result.  In addition, the applicant was 
not questioned about whether “he had any food, drinks, or other foreign objects in his mouth and 
was not given any direction to flush or remove any potential residue from his mouth.”  However, 
a chief petty officer (BMC X) “stated that he was present with [the applicant] the entire time, 
excluding the four minutes inside the exam room at medical and never observed [the applicant] 
place any foreign matter in his mouth.”  The applicant, who was interviewed on September 8, 
2009, told the IO that he was using smokeless tobacco within 15 minutes of when his BAC was 
tested.  The applicant stated that he had “put a  ‘pinch’ in his mouth while he was at medical 
when [BMC X] was not present because he was nervous since it would be his second potential 
alcohol incident.”  The IO also noted that the applicant initially stated that he was required to 
clean up his vomit before he took the breathalyzer but later corrected his statement. 

 
The  IO  noted  an  article  stating  that  “[o]ther  common  things  that  can  cause  false  BAC 
levels are alcohol, blood or vomit in the subject’s mouth, electrical interference from cell phones 
and police radios, tobacco smoke, dirt, and moisture,” and that “[t]here are no facts or statements 
besides  the  breathalyzer  that  can  confirm  [the  applicant]  violated  the  XXXXX’s  alcohol 
consumption policy.”  The article states that “[r]esearch indicates that breath tests vary at least 
15% from actual blood alcohol concentration.  At least 23% … of all individuals tested will have 
a BAC reading higher than their actual BAC.” 

 
The IO noted that as a result of the incident, the CO of the XXXXX disenrolled the appli-
cant, informed the applicant’s command, and prepared and forwarded the Page 7 documenting 
the alcohol incident to the command because the applicant’s conduct had “brought discredit upon 
the uniformed service due to his vomiting in his room.”  The IO stated that in his opinion, “there 
is too much circumstantial evidence to concur with the decision to disenroll [the applicant].”  He 
stated that the applicant could have put tobacco in his mouth during the minutes he was in the 
medical  examining  room  and  that  there  is  “no  solid  proof”  that  the  applicant  did  not  have 
tobacco residue in his mouth when the test was conducted.  Therefore, he concluded, it cannot be 
determined whether the applicant drank alcohol past 11:00 p.m. on the evening of August 31, 
2009 (less than 8 hours before class began at 7:00 a.m. on October 1, 2009).  In addition, he con-
cluded that although the applicant’s consumption of alcohol could have contributed to his dehy-
dration, “solely consuming alcohol was not a ‘significant and causative factor’ in relation to the 
member vomiting and him bringing discredit upon the service.  His dehydration from a lack of 
water and not eating an adequate meal contributed to this.”  Therefore, he recommended that the 
CO of the MSST rescind the alcohol incident issued by the CO of the XXXXX if possible.  The 
IO attached to his report several statements from witnesses to the events: 
 

 

•  LT  Y  stated  that  when  the  cleaning  staff  complained  about  the  vomit,  he  went  to  the 
applicant’s room with LCDR B, BMC X, and CWO X, and found “a large pile of vomit on 
the night stand and floor” beside the applicant’s bed. 

•  CWO  X  stated  that  he  was  asked  to  accompany  LT  Y  and  BMC  X  to  the  applicant’s 
room, and while the bed assigned to the applicant’s roommate, BM2 S, was neatly made, the 
bed assigned to the applicant was unmade and there was vomit on the bed, the night table, the 
floor, the wall, and the pillow, which was on the floor.  CWO X stated that he witnessed LT 
X’s  interview  with  the  applicant,  and  the  applicant  denied  knowledge  of  any  vomit  and 
denied having had too much to drink.  The applicant stated that he had eaten the night before 
but  had  not  gotten  sick.    When  shown  the  vomit,  the  applicant  said,  “I  guess  I  did,”  but 
denied that the vomit was due to consumption of alcohol.  LT X told BMC X to escort the 
applicant to the health clinic. 
 
•  BMC X stated that when he was asked to accompany LT Y to the barracks with LCDR B 
and CWO X, they found vomit on the bed, the floor, the night stand, and the pillow.  In addi-
tion, BMC X “noticed that there was an odor of an alcoholic beverage lingering in the room.”  
He told the cleaning staff that the applicant would clean up the mess.  BMC X and CWO X 
notified LT X, who told them to get the applicant from his classroom and escort him to LT 
X’s office.  In the office, the applicant said he had no idea how vomit had gotten all over his 
side of the bedroom.  BMC X stated that he escorted the applicant to the clinic, where he was 
found fit for duty, and then escorted the applicant back to LT X’s office for a breathalyzer 
test.  BMC X stated that he was with the applicant the entire time except for when the appli-
cant was in the examination room at the clinic for about four minutes.  BMC X “never once 
noticed anything foreign in his mouth, nor did I notice [him] introduce any substances into 
his mouth.  During the time I was with him, I never noticed him to exit any type of matter out 
of his mouth.”  After the test, LT X ordered the applicant to clean his room. 
 
•  Medical notes show that at 9:20 a.m. on September 1, 2009, the applicant was examined 
at  the  training  center’s  health  clinic.    The  applicant  stated  that  he  had  vomited  during  the 
night but could not remember having done so.  The applicant also stated that he had not eaten 
dinner the night before; had drunk three cups of beer before going to bed; and had run four 
miles before drinking.  The doctor’s comments are mostly indecipherable but the phrase “2° 
[secondary] to EtOH [alcohol] or food allergy” is legible. 
 
•  LT  X  stated  that  LT  Y,  CWO  X,  and  BMC  X  told  him  about  the  complaint  from  the 
cleaning staff that the applicant’s vomit was “abundantly scattered throughout his room.”  He 
ordered the applicant to his office and questioned him.  The applicant told him he had drunk 
only  three  drinks  the  night  before  and  “did  not  throw  up  in  his  room.    [The  applicant] 
informed me that he went to his room after calling his wife and went to sleep.  [He] then 
informed me he woke up, showered and went to muster.”  LT X went to the room with the 
applicant,  CWO  X,  and  BMC  X.    They  “discovered  vomit  covering  the  entire  sleeping 
surface of the mattress, the entire pillow, a portion of the nightstand, and the floor area to the 
side of the bed.”  The applicant commented, “Well, I guess I did throw up.”  LT X ordered 
BMC X to escort the applicant to the clinic for an evaluation and ordered a petty officer to 

conduct a breathalyzer test, which showed that the applicant had a BAC of 0.03 at about 9:39 
a.m. 
 
•  MK1 X stated that he calibrated the breathalyzer machine after being notified of the need 
at about 8:45.  At 9:35, he was called to LT X’s office to conduct the test.  He explained the 
test instructions to the applicant and conducted the test, which showed a BAC of 0.03.  He 
thought that LT X had been monitoring the applicant.  
 
•  MST1 M, who was the class sponsor, stated that he witnessed the breathalyzer test and 
was told by LT X to go with the applicant to his room to ensure that he did a thorough job of 
cleaning it.  Once in the room, the applicant “stated that he did not understand why it was 
such a big deal wasn’t this part of their job in cleaning the rooms.”  MST1 M told him the 
cleaning staff was “not responsible for cleaning your vomit.”  After the applicant did a tho-
rough job of cleaning the room, they returned to the classroom, but were called to LT X’s 
office again at about 10:45 a.m.  LT X asked the applicant to explain again what had hap-
pened the night before, listened to what the applicant said, and then stated that he would be 
recommending disenrollment. 
 
•  MST3 E stated that he and the applicant are assigned to the same MSST.  He went to the 
student lounge at about 8:00 p.m. on August 31, 2009, and saw the applicant there with sev-
eral other students.  He sat around a table and shared pitchers of beer and baskets of popcorn 
with the other students.  He did not see the applicant drinking excessive amounts of alcohol 
and no one was getting out of control.  MST3 E left the lounge at about 10:00 to 10:30.  He 
heard the applicant express his intention to leave the lounge as well. 
 
•  BM2 L stated that he had run into the applicant in the hall at about 7:00 p.m. on August 
31, 2009.  The applicant, who was covered in sweat after a run, agreed to meet him in the 
lounge after showering to “catch up on old times.”  They met in the lounge at about 7:45 p.m.  
MST3 E joined them at their table.  They “ordered 3 – 4 pitchers between all of us, as well as 
shared some of our pitchers with friends coming up to the table for a few minutes.”  They left 
the lounge by 10:30 p.m. and headed back to their rooms.  The applicant did not seem intox-
icated. In addition, BM2 L stated that he spoke to the applicant before class the next morning 
and that the applicant “seemed normal and nothing was out of the ordinary.”  He could not 
recall the applicant smelling like alcohol. 
 
•  The applicant stated that on the evening of August 31, 2009, he first ran two miles and 
then, instead of eating dinner, he went to the student lounge and shared three pitchers of light 
beer with MST3 E and BM2 L.  At about 10:00 p.m., the applicant left the lounge to go to his 
room, where he watched television and spoke to his wife on the telephone until about 11:00 
p.m.  He awoke when his alarm rang at 6:30 a.m., took a shower, put on his uniform, and 
mustered in the mess hall at 7:15 a.m.  After he was pulled out of class, LT X asked him if he 
had been sick the night before, and he said he had not.  He was escorted to his room and 
shown the vomit and then escorted to the clinic.  When he was sitting in the examination 
room waiting for the doctor, he put a pinch of smokeless tobacco in his mouth where it would 
not be noticed.  The doctor said his vomiting was likely due to dehydration or a food allergy.  
After the medical examination, LT X told the applicant to clean up his room.  MST1 M went 

with  him.    Later,  on  their  way  back  to  the  administrative  building,  the  applicant  took  the 
tobacco out of his mouth and threw it under a bush.  Once inside, LT X asked him if he had 
been  drinking  the  night  before,  and  he  said  he  had  drunk  his  “share  of  a  pitcher,  approx-
imately three beers, at the on-base club.”  Then the breathalyzer was administered, but no one 
asked him if he had anything to eat or drink recently. 
 
The applicant stated that he had drunk between three and five light beers in the evening of 
August 31, 2009.  Therefore, he was shocked by the result of the breathalyzer because he 
realized he would be discharged and he did not initially try to figure out how the test result 
could be 0.03 after drinking moderately the evening before.  However, when he returned to 
the MSST, his supervisor asked him why his BAC had been above zero if he had not drunk 
alcohol in more than ten hours.  His supervisor “reminded me of the potential for foreign 
objects in the mouth to cause inaccurate readings and advised me to retrace my actions prior 
to the test.  Acting on this I recalled the tobacco use.”  The applicant stated that he had not 
taken a breathalyzer test for more than two years before the incident and so forgot that he 
should have washed the tobacco out of his mouth and waited 15 minutes to take the test. 
 
On September 14, 2009, the applicant emailed the IO to say that two events in his statement 
were out of order.  He stated that he had taken the breathalyzer test before he cleaned up his 
room.  But he repeated his allegation that he had thrown his tobacco in a bush just a few 
minutes before the test was administered. 
 

•  The applicant’s wife stated that she received three telephone calls from the applicant on the 
night of August 31, 2009.  At 6:30 p.m., he told her he was going running; at 8:30 p.m., he 
said he was in a bar on the base and was catching up with an old friend from a prior duty sta-
tion; and at around 10:00 p.m., he called her again and said he was back in his room, laying 
in  bed,  and  watching  television.    He  told  her  funny  stories  he  had  heard  from  his  friend.  
They talked for about 30 minutes and he did not sound drunk.   

 
 
The applicant applied to the Personnel Records Review Board (PRRB) seeking removal 
of the disputed Page 7.  The CO of the MSST strongly supported his request because he does not 
think that “discredit was sufficiently brought upon the armed services as a result of his actions.”  
The CO stated that because he was dissatisfied with how the XXXXX handled the incident, he 
initiated  his  own  investigation.    The  CO  alleged  that  the  XXXXX’s  failure  to  follow  proper 
procedures  before  conducting  the  BAC  test  cast  doubt  on  the  result,  as  did  the  doctor’s 
“assessment that the member likely  vomited because of dehydration from the exercise he had 
done  combined  with  the  lack  of  food  and  water.”    The  CO  alleged  that  before  making  the 
decision about whether to document the event as an alcohol incident, the CO of the XXXXX had 
checked to see whether the applicant had a prior alcohol incident and had said he believed that 
the applicant has “an alcohol problem.”  The CO stated that he was “most disappointed that [the 
applicant] didn’t simply clean up the vomit, and didn’t have the presence of mind to tell the staff 
that the tobacco he had may have skewed the test.”  The CO stated that the applicant, who was 
being processed for separation, “is an outstanding performer at this unit.” 
 
 
The IO also submitted a statement to the PRRB on behalf of the applicant.  He stated that 
as Operations Officer of the MSST, he relies heavily on the applicant “to keep the division on 

course and constantly progressing.”  He praised the applicant’s attitude, expertise, and profes-
sionalism.  The IO stated that the applicant should not be penalized because the XXXXX con-
ducted the test improperly and that he “find[s] it difficult to believe that the documented accusa-
tions were indeed true. … It would be a shame for the Coast Guard to lose such a high performer 
as [the applicant] over this incident.” 
 
 
The PRRB denied the applicant’s request to remove the Page 7.  The PRRB noted that in 
response  to  the  applicant’s  allegations,  on  March  18,  2010,  the  XXXXX  conducted  an 
experiment to see how use of smokeless tobacco affected the results of a breathalyzer test and 
found that the “use of the smokeless tobacco did not affect the results of the test.”  In addition, 
the PRRB contacted the executive officer of the MSST, who reported that the applicant had “not 
been able to explain how he could have vomited in his sleep, [woken] up, take[n] a shower and 
report[ed] to class without knowing what had occurred or even discover the vomit.”  The PRRB 
stated  that  the  CO  of  the  XXXXX  relied  on  the  following  facts  in  deciding  that  an  alcohol 
incident had occurred:  vomit was found in and around the applicant’s be; he did not remember 
vomiting or discover it when he awoke; and the breathalyzer showed his BAC was 0.03.  The 
PRRB noted that no one saw the applicant insert or remove the smokeless tobacco, and he only 
claimed that he had used it days after he returned to his permanent unit. 
 
 
The PRRB concluded that the applicant had not rebutted the presumption that the CO of 
the XXXXX acted correctly and appropriately in his apprehension of an alcohol incident.  The 
Director of Personnel Management approved the PRRB’s decision to deny relief. 
 
 
having two alcohol incidents in his record.4 
 

According to the Personnel Service Center, the applicant remains on active duty despite 

VIEWS OF THE COAST GUARD 

 
 
On October 8, 2010, the Judge Advocate General of the Coast Guard submitted an advi-
sory opinion in which he recommended that the Board deny relief in this case.  In so doing, he 
adopted the findings and analysis provided in a memorandum prepared by the Personnel Service 
Center (PSC). 
 
 
 
The  PSC  stated  that  the  determination  by  the  CO  of  the  XXXXX  that  the  applicant 
incurred  an  alcohol  incident  was  the  official  determination  and  that  the  MSST’s  subsequent 

                                                 
4 Article 20.B.2.h.2.a. of the Personnel Manual states the following regarding the retention of enlisted members fol-
lowing a second alcohol incident: 

Commanding Officers retain the authority to request retention of those enlisted members who they 
believe warrant such exception.  However, retention of enlisted members following a second alco-
hol incident should not be considered a routine action. In those cases when a commanding officer 
feels that mitigating circumstances or an exceptional situation warrants consideration for retention, 
a letter request for retention and treatment, including the medical screening results, treatment plan, 
and commanding officer's recommendation concerning treatment shall be forwarded via the chain 
of command to Commander [PSC] who shall consult with Commandant (G-WKH) and direct the 
appropriate action regarding retention. The command recommendation for retention will be sub-
mitted as a cover letter to the required discharge package. 

investigation has no bearing on the validity of that determination. The PSC stated that the PRRB 
correctly found no basis for removing the disputed Page 7 from the applicant’s record. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On October 19, 2010, the Chair sent a copy of the views of the Coast Guard to the appli-
cant’s attorney.  On November 10, 2010, it was returned by the Post Office as  undeliverable.  
Subsequent attempts by the staff to contact the applicant and his attorney were unsuccessful. 

 

FINDINGS AND CONCLUSIONS 

 

The Board makes the following findings and conclusions on the basis of the applicant’s 

 
 
military record and submissions, the Coast Guard’s submission, and applicable law: 
 
 
The application was timely. 
 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  

1. 

2. 

3. 

The applicant asked the Board to remove from his record the Page 7 documenting 
his second alcohol incident.  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.5 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.”6  
 
The applicant argued that the Page 7 should be removed because his conduct on 
 
the night of August 31/September 1, 2009, did not qualify as an alcohol incident pursuant to the 
definition in Article 20.A.2.d.1. of the Personnel Manual.  That article requires that a member 
commit “[a]ny behavior in which alcohol is determined, by the commanding officer, to be a sig-
nificant or causative factor, that results in the member’s loss of ability to perform assigned du-
ties, brings discredit upon the Uniformed Services, or is a violation of the Uniform Code of Mil-
itary  Justice.”    The  applicant  argued  that  his  behavior  did  not  meet  these  criteria  because,  he 
alleged, he drank alcohol only moderately on the evening of August 31, 2009; his vomiting was 
caused by dehydration or a food allergy, not by excessive alcohol consumption; he did not drink 
within 8 hours of muster, which was at 7:15 a.m.; and his conduct did not bring discredit upon 
the Uniformed Services. 
 
 
Given the following evidence, which was available to the CO of the XXXXX on 
September 1, 2009, the Board finds that he did not err or commit an injustice in deciding that the 
applicant had incurred an alcohol incident: 

4. 

                                                 
5 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)).   
6 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

 

2009. 

•  The applicant shared a few pitchers of beer with two friends in the evening on August 31, 

•  The applicant vomited profusely on and around his bed and nightstand that night without 

•  The applicant dressed and left his room on the morning of September 1, 2009, without 

being aware of it. 

noticing the vomit. 

•  The applicant’s bedroom smelled of an alcoholic beverage. 
•  The doctor who examined the applicant noted that the incident was secondary to alcohol 

consumption or a food allergy. 

•  The applicant had ingested only beer and popcorn the evening before. 
•  The applicant’s BAC measured 0.03 the next morning.  
 

 
6. 

 
7. 

5. 

In support of his allegations, the applicant has submitted statements from the two 
members with whom he socialized in the evening, and they state that they did not see him drink 
an excessive amount of alcohol; that he did not appear intoxicated; and that he left the lounge 
where they were drinking by or before 10:30 p.m.  He also submitted a statement from his wife, 
who wrote that her husband was not intoxicated when they spoke on the phone that night.  How-
ever, a member need not be intoxicated to incur an alcohol incident.  As noted in Finding 3, the 
regulation requires only that the consumption of alcohol be a significant or causative factor in the 
member’s behavior. 

The applicant alleged that the doctor found that his vomiting was caused not by 
alcohol consumption but by either dehydration or a food allergy.  He noted that he had gone run-
ning the evening before and skipped dinner.  However, the applicant’s allegation about the doc-
tor’s  finding  is  contradicted  by  the  doctor’s  own  notes,  which  show  that  he  believed  that  the 
vomiting was secondary to alcohol consumption or a food allergy.  The record shows that the 
applicant consumed only beer and popcorn during the evening before he vomited, and there is no 
evidence that he is allergic to either beer or popcorn. 

The record shows that the breathalyzer used to measure the applicant’s BAC was 
calibrated just before the test was conducted but that no one asked the applicant if he had had 
anything in his mouth during the 15 minutes leading up to the test.  The record also shows that he 
was under observation from the time he was pulled out of class until the breathalyzer was con-
ducted except for a period of about 4 minutes while he waited for the doctor in the examining 
room,  and  there  is  no  evidence  that  anyone  noticed  him  having  anything  in  his  mouth.    The 
applicant  alleged  that  the  breathalyzer  result  must  be  considered  unreliable  because,  while  he 
was alone in an examining room waiting for the doctor, he placed tobacco in his mouth and left it 
there until shortly before he entered the administrative building to take the breathalyzer test.  He 
submitted evidence showing that breathalyzer test results are sometimes considered unreliable if 
the evaluee has had tobacco in his mouth prior to the test.  However, there is no evidence to sup-
port  the  applicant’s  allegation  that  he  put  tobacco  in  his  mouth  while  waiting  for  the  doctor, 
which the Board finds to be a very unlikely action, and he did not make this allegation until sev-
eral days after the incident.  Moreover, although the applicant alleged that he put the tobacco in 
his  mouth  while  waiting  for  the  doctor  because  he  was  nervous  about  possibly  incurring  his 
second alcohol incident, he also claimed that he was “shocked and in disbelief” a few minutes 

later upon learning the results of the breathalyzer test.  The Board is not persuaded that the appli-
cant had tobacco in his mouth during the 15 minutes prior to the breathalyzer test.  The prepon-
derance of the evidence does not show that the results of the breathalyzer test are unreliable.  

The  applicant  argued  that  his  behavior  did  not  constitute  an  alcohol  incident 
because he did not drink alcohol within 8 hours of when class began at 7:15 a.m., which is pro-
hibited by the training center’s rules, and because his behavior did not bring discredit upon the 
Uniformed Services.  As stated in Finding 3, one criteria of an alcohol incident is that the mem-
ber’s behavior “results in the member’s loss of ability to perform assigned duties, brings discre-
dit upon the Uniformed Services, or is a violation of the Uniform Code of Military Justice.”  The 
investigation shows that the applicant’s conduct was known not only to the staff of the training 
center but to several members of the Coast Guard.  The CO concluded and wrote on the Page 7 
that the applicant’s behavior had brought discredit upon the Service, and the applicant has not 
proved his determination is erroneous or unjust.7  Moreover, the applicant’s behavior resulted in 
his disenrollment from the training course, which was his officially assigned duty. 

Accordingly, the applicant’s request should be denied because he has not proved 
by a preponderance of the evidence that the Page 7 in his record documenting his second alcohol 
incident is erroneous or unjust. 

 
8. 

 
9. 

 
 

 

 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
7 See Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989), rev’d on other grounds, 930 F.2d 1577 (citing Reale v. 
United  States,  208  Ct.  Cl.  1010,  1011 (1976) (finding  that  for  purposes  of  the  BCMRs  under  10  U.S.C.  § 1552, 
“injustice” is treatment by military authorities that “shocks the sense of justice”). 

The  application  of  xxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his  military 

ORDER 

 
 
record is denied. 
 
 
 
 
 
 
 

 
 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Troy D. Byers 

 

 
 
 Katia Cervoni 

 

 
 Francis H. Esposito