DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-188 
 
Xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxx 
 

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  June  16,  2011,  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). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  March  16,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  who  received  a  general  discharge  under  honorable  conditions  from  the 
Coast  Guard  on  March  14,  1986,  for  illegal  use  of  cocaine,  asked  the  Board  to  upgrade  his 
“discharge status.”  The applicant stated that his general discharge has prevented him from being 
employed by State and municipal governments.   
 

SUMMARY OF THE RECORD 

 

 
On  January  23,  1984,  at  age  20,  the  applicant  enlisted  in  the  Coast  Guard  as  a  seaman 
recruit  (SR).    On  his  enlistment  application,  he  denied  ever  having  used  illegal  drugs.    During 
recruit training on February 2, 1984, the applicant signed another statement: 
 

Member  was  given  a  full  explanation  of  the  drug  and  alcohol  abuse  program  by  the  Command 
Drug and Alcohol Program Representative (D&A Rep) this date in compliance with Article 20-B-
1, CG PERSMAN COMDTINST M1000.6 (old CG-207). 

On May 7, 1984, the applicant signed the following statement for his record: 

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.    No  member  will  use,  possess  or  distribute 
illegal drugs or drug paraphernalia.     

 
 
 

 

 

Upon completing boot camp, the applicant advanced to seaman apprentice (SA/E-2) and 
was assigned to a cutter.  On September 11, 1984, the applicant failed to return to the cutter from 
liberty, missed the sailing of the cutter, and was absent without leave (AWOL) until he returned 
on September 30, 1984.  On October 22, 1984, he was counseled about failing to report for duty, 
refusing to come on deck when summoned, and vomiting due to intoxication. 

 
On November 1, 1984, the applicant was punished at mast for his unauthorized absence 
from  September  11  to  30,  1984,  and  for  missing  ship’s  movement.    His  punishment  included 
reduction in rate from E-2 to E-1, restriction to base for 45 days with extra duties, and forfeiture 
of $393.00. 

 
On  November  26,  1984,  he  was  counseled  about  viewing  all  criticism  as  a  personal 
attack, failing to improve his performance in response to counseling, and requiring an inordinate 
amount of supervision to complete tasks.  The Executive Officer of the cutter noted that he had 
been “a problem from his first day aboard, [and] he is presently a liability to the deck force and 
the ship as a whole.”   

 
On  February  1,  2005,  the  applicant  was  placed  on  report  “for  spending  the  night  as  an 
unauthorized guest in the barracks. … He has little or no concept of why rules and authority exist 
in the military, and even less respect  for the same.”  The applicant was placed on performance 
probation. 

 
The  applicant  was  transferred  to  Governor’s  Island.    Following  a  random  urinalysis 
conducted on November 29, 1985, the applicant’s urine tested positive for cocaine.  On January 
16, 1986, the applicant was punished at mast.  He admitted to the offense and was reduced in rate 
from E-2 to E-1.   
 
 
On  January  21,  1986,  the  applicant’s  commanding  officer  advised  him  that  he  had 
initiated the applicant’s general discharge due drug abuse.  The commanding officer advised the 
applicant  that  he  had  a  right  to  consult  a  lawyer,  to  object  to  the  proposed  discharge,  and  to 
submit  a  statement  on  his  own  behalf.    On  January  23,  1986,  the  applicant  acknowledged  the 
notification and the opportunity to consult a lawyer, objected to the discharge, waived his right to 
submit a statement, and acknowledged that with a general discharge he “may expect to encounter 
prejudice in civilian life.” 
 
 
On January 23, 1986, the applicant’s commanding officer recommended that he receive a 
general  discharge  for  misconduct  because  of  the  urinalysis  results.    The  Group  Commander 
endorsed this recommendation on January 28, 1986, and the District Commander endorsed it on 
February 5, 1986.   
 
 
On  February  13,  1986,  the  Commander,  Personnel  Command  issued  orders  for  the 
applicant to receive a general discharge for misconduct with an HKK separation code denoting 
drug abuse in accordance with Article 12-B-18 of the Personnel Manual. 
 

 

 

On  March  14,  1986,  the  applicant  was  awarded  a  general  discharge  “under  honorable 
conditions” for misconduct in accordance with Article 12-B-18 of the Personnel Manual with an 
HKK separation code and an RE-4 reentry code (ineligible to reenlist).   

 
In  1991,  the  applicant  applied  to  the  Discharge  Review  Board  (DRB)  for  an  honorable 
discharge  and  upgraded  reentry  code.    He  stated  that  he  needed  his  discharge  upgraded  to 
become an attorney.  The DRB found that there were no grounds for upgrading the applicant’s 
general discharge and reentry code.  The DRB’s decision was approved by the Commandant. 

 
On  July  6,  1992,  in  response  to  his  inquiry,  the  applicant  was  advised  that  he  had  not 
received  a  copy  of  the  DRB’s  decision  because  the  DRB’s  repeated  correspondence  to  the 
applicant  about  his  hearing  date  had  been  returned  by  the  Post  Office  as  unclaimed.    The 
President  of  the  DRB  advised  the  applicant  that  he  could  apply  to  the  BCMR  if  he  was 
dissatisfied with  the decision of the DRB.  However, the BCMR has no record of receiving an 
application from the applicant at that time.  
 

VIEWS OF THE COAST GUARD 

 

On  September  14,  2011,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  sub-
mitted an advisory opinion recommending that the Board deny relief in this case.  In so doing, he 
adopted  the  findings  and  analysis  provided  in  a  memorandum  on  the  case  prepared  by  the 
Personnel Service Center (PSC).   

 
The PSC pointed out that the application is untimely since the  applicant was discharged 
in 1986.  The PSC also noted that under the current Separations Manual, any member involved in 
a  drug  incident  is  discharged  “with  no  higher  than  a  general  discharge.”    The  PSC  concurred 
with the finding of the DRB that there are no grounds for upgrading the applicant’s discharge or 
reentry  code.    The  PSC  argued  that  the  applicant’s  record  “is  presumptively  correct  with  the 
administrative  discharge …  for  drug  use.    The  applicant  has  failed  to  substantiate  any  error  or 
injustice with  regards to  his record.”  Therefore, the PSC recommended that the application be 
denied. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  September  20,  2011,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast 

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

APPLICABLE LAW 

 

 Under Article 12-B-18.b.(4) of the Personnel Manual in effect in 1986, the Commandant 

 
could separate a member for misconduct due to drug abuse as follows:  
 

Involvement with drugs.  Any member involved in a drug incident as defined in article 20-A-2h., 
…  will  be  processed  for  separation  from  the  Coast  Guard  with  no  higher  than  a  General  Dis-
charge.   

 

 

 

Under Article 12-B-18.e.(1), a member with  less  than eight  years of active service who 
 
was being recommended for a general discharge for misconduct was entitled to (a) be informed 
of the reason for the recommended discharge, (b) consult an attorney, (c) object to the discharge, 
and (d) submit a statement in his own behalf. 
 
 
Guard Separations Manual.  

These regulations remain essentially the same under Article 1.B.17. of the current Coast 

FINDINGS AND CONCLUSIONS 

 

 
 
military record and submissions, the Coast Guard’s submissions, and applicable law: 

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

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

1. 
 
2. 

An  application  to  the  Board  must  be  filed  within  three  years  after  the  applicant 
discovers, or reasonably  should have discovered,  the alleged error in  his  record  or within three 
years of a decision by the DRB.1  The applicant was discharged in 1986 and was informed of the 
reasons for his discharge at that time.  In addition, he received the decision of the DRB in 1992.  
Therefore, his application is untimely. 

 
3. 

Pursuant  to  10  U.S.C.  §  1552(b),  the  Board  may  excuse  the  untimeliness  of  an 
application  if  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 to determine 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.”2  The court further instructed 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.”3   

 
4. 

The  applicant  did  not  explain  or  justify  his  long  delay  in  seeking  an  upgrade  of 

discharge and reentry code. 

 
5. 

A cursory review of the merits of this case indicates that the applicant was prop-
erly awarded a general discharge for misconduct, in accordance with Article 12-B-18 of the Per-
sonnel Manual then in effect, with an HKK separation code and an RE-4 reentry code after his 
urine  tested  positive  for  cocaine  use  during  a  random  urinalysis.    His  record  shows  that  he 
received due process as provided in Article 12-B-18.e.(1) of the Personnel Manual then in effect.  
These records are presumptively correct under 33 C.F.R. § 52.24(b).4  The Board notes that the 
applicant submitted no  evidence to support his  request, and the  record contains no  grounds  for 
upgrading his discharge or reentry code.  The applicant’s request cannot prevail on the merits. 

 

                                                 
1 10 U.S.C. § 1552; 33 C.F.R. § 52.22; Ortiz v. Secretary of Defense, 41 F.3d 738, 743 (D.C. Cir. 1994). 
2 Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992). 
3 Id. at 164, 165; see also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995).   
4 See Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992) (citing  Sanders v. United States, 594 F.2d 804, 
813  (Ct.  Cl.  1979),  for  the  required  presumption,  absent  evidence  to  the  contrary,  that  Government  officials  have 
carried out their duties “correctly, lawfully, and in good faith.”). 

 

 

6. 

The Board notes that the applicant was young when he committed the offense for 
which  he  was  discharged  and  he  has  borne  the  consequences  of  his  drug  use  for  a  long  time.  
However,  the  delegate  of  the  Secretary  informed  the  Board  on  July  7,  1976,  by  memorandum 
that  it  “should  not  upgrade  a  discharge  unless  it  is  convinced,  after  having  considered  all  the 
evidence … that in light of today’s standards the discharge was disproportionately severe vis-à-
vis the conduct in response to which it was imposed.”5  Under Article 1.B.17. of the Separations 
Manual  in  effect  today,  members  whose  urine  tests  positive  for  cocaine  are  discharged  for 
misconduct with no better than a general discharge.  Therefore, the Board is not persuaded that 
the applicant’s general discharge for misconduct  is disproportionately severe in light of current 
standards. 

 
7. 

Based on the record before it, the Board finds that the applicant’s request for cor-
rection  of  his  general  discharge  for  misconduct  cannot  prevail  on  the  merits.   Accordingly,  the 
Board  will  not  excuse  the  application’s  untimeliness  or  waive  the  statute  of  limitations.    The 
applicant’s request should be denied. 

 
 
 
 
 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

                                                 
5 Memorandum of the General Counsel to J. Warner Mills, et al., Board for Correction of  Military Records (July 7, 
1976). 

 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

military record is denied.   
 

ORDER 

 

 

 

 

 

 

 

 

 

 
Paul B. Oman 

 

 

 

 
Jeffrey E. VanOverbeke 

 

 

 

 
Dorothy J. Ulmer