DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2007-211
XXXXXXXXXXX
XXX XXXXXXXX
FINAL DECISION
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 on November
September 21, 2007, upon receipt of the applicant’s completed application and subsequently
prepared the final decision for the Board as required by 33 CFR § 52.61(c).
appointed members who were designated to serve as the Board in this case.
This final decision, dated June 12, 2008, is approved and signed by the three duly
APPLICANT'S REQUEST
The applicant asked the Board to correct his record by upgrading his discharge under
other than honorable conditions to a general discharge under honorable conditions (general
discharge).
The applicant enlisted in the Coast Guard on April 13, 1999, and was discharged on July
19, 2004, under other than honorable conditions by reason of misconduct due to involvement
with drugs. He was assigned an RE-4 (not eligible to reenlist) reenlistment code and a JKK
(misconduct/drug abuse) separation code.
APPLICANT'S ALLEGATIONS
The applicant alleged that he should have been discharged with a general discharge
because Article 12.B.18. of the Personnel Manual states that a member involved in a drug
incident will be processed for separation with no higher than a general discharge. He argued that
the drug incident in which he was involved occurred away from the cutter and did not disgrace
the Coast Guard. He requested a “fair discharge based upon [his] record of service.”
SUMMARY OF RECORD
The applicant enlisted in the Coast Guard on April 13, 1999. At that time, he signed an
administrative remarks (page 7) entry, 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. No member will use, possess, or distribute illegal drugs, drug parapherna-
lia or hemp oil products. I also understand that upon reporting to recruit training,
I will be tested by urinalysis for the presence of illegal drugs. If my urine test
detects the presence of illegal drugs I may be subject to discharge and receive a
general discharge.
A February 2, 2004 administrative remarks page (page 7) indicates that the applicant was
in the custody of the Baltimore, Maryland police on suspicion of conspiracy to import cocaine.
On February 10, 2004, the applicant was indicted by a grand jury in the U.S. District
Court for the District of Maryland for conspiracy to import cocaine, importation of cocaine,
possession of a firearm in the furtherance of a drug trafficking crime, and aiding and abetting.
On April 30, 2004, the applicant's commanding officer (CO) informed the applicant that
he had initiated action to discharge the applicant from the Coast Guard due to a drug incident.1
The CO advised the applicant that he could receive a discharge under other than honorable
conditions and the decision whether he would receive a general or other than honorable
discharge rested with the Commandant. The applicant was further advised that a discharge under
other than honorable conditions could only be awarded if an administrative separation board
recommended such a characterization. The applicant was advised that he could disagree with the
recommended discharge; that he could submit a statement in his own behalf; that he could elect
to have his case heard by an administration separation board, with the assistance of a military
lawyer; and that he could consult with a military lawyer prior to deciding whether to request an
administration separation board.
On April 30, 2004, the applicant signed a statement in which he acknowledged that he
had read and understood the discharge notification; that he understood that anything less than an
honorable discharge could deprive him of some or all Department of Veterans’ Affairs benefits;
and that he wanted to consult with an attorney regarding his decision to request an administrative
separation board.
On June 7, 2004, the applicant signed a statement affirming that he had consulted with a
military lawyer on May 12, 2004; that he waived his right to submit a statement regarding the
discharge; and that he waived unconditionally his right to an administrative separation board.
On June 9, 2004, the applicant's CO recommended that Commander, Coast Guard
Personnel Command (CGPC) discharge the applicant expeditiously with an OTH (other than
1 Chapter 20 of the Personnel Manual defines a drug incident as intentional drug abuse, wrongful possession of, or
trafficking in drugs. This definition further states that a civil or military conviction for wrongful use, possession,
etc., of controlled substances is prima facie evidence of a drug incident. 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 a drug
incident.
honorable discharge) by reason of misconduct due to involvement in a drug incident. The CO
noted that the applicant was incarcerated at the Maryland Correctional Adjustment Center and
that he had been indicted on various drug and gun charges.2
On July 19, 2004, CGPC directed that the applicant be discharged under other than
honorable conditions by reason of misconduct due to involvement with drugs under Article
12.B.18. of the Personnel Manual.
honorable conditions.
Discharge Review Board (DRB)
On July 19, 2004, the applicant was discharged from the Coast Guard under other than
Prior to filing his application with the Board, the applicant applied to the DRB to
have his under other than honorable conditions upgraded. On September 5, 2006,
the Commandant approved the DRB’s decision not to upgrade the applicant
discharge. According to the DRB report, the applicant stated that his discharge
was unfair under the circumstances; that he was never convicted of any criminal
charges while in the Coast Guard; and that page 7 entries and absences without
leave are not a sufficient basis on which to award an other than honorable
discharge.
In denying relief to the applicant, the DRB discussion and conclusion were as follows:
[DRB] members thoroughly reviewed the applicant’s record of service and all
available documentation. The discharge package clearly documented the
circumstances and basis for the Under Other Than Honorable Discharge. The
applicant was given all required notices and accorded all of his rights. The
applicant was indicted by civil authorities for numerous drug trafficking charges
and was incarcerated at the time of his discharge. The applicant did not provide
the Board with the outcome of the civil criminal indictment. Despite the
applicant’s assertion that he was not convicted while on active duty, the
indictment was sufficient to warrant discharge due to a drug incident. The [DRB]
felt that the discharge was carried out in accordance with Coast Guard policy.
VIEWS OF THE COAST GUARD
On February 1, 2008, the Board received an advisory opinion from the Judge Advocate
General (JAG), recommending that the Board deny the applicant's request for relief. The JAG
adopted the facts and analysis provided by CGPC, which was attached as enclosure (1) to the
advisory opinion. CGPC offered the following:
2 The Coast Guard submitted evidence with its advisory opinion that the applicant was subsequently convicted of
the charges alleged in the indictment and sentenced to over 17 years in prison.
A complete review of the applicant’s record does not reveal an error or injustice
with regard to the applicant’s separation processing or the assignment of an other
than honorable discharge. The applicant was involved in a drug incident as
determined by the command and was provided with legal counsel and he
voluntarily elected to unconditionally waive his right to an administrative
separation board . . . The applicant’s case was reviewed by the Coast Guard
Discharge Review Board whose unanimous recommendation, as approved by the
Commandant, that the applicant’s discharge remain unchanged . . .
The applicant alleges that his conduct while in the service supports the assignment
of a general discharge and since his drug incident did not occur on Coast Guard
property that he is being unjustly served by the assignment of an other than
honorable discharge. The applicant’s record manifestly supports a drug incident
through his federal indictment . . . The applicant does not deny a drug incident or
the appropriateness of his discharge, only the character of service assigned. The
applicant maintains that he was subject to a conspiracy making him a scapegoat,
and that he was sentenced regarding the charges after his discharge from the
Coast Guard. However, there is nothing in the applicant’s record to support such,
nor does the applicant’s subsequent conviction and incarceration on these charges
. . . lend credibility to his assertions of injustice by the federal agents/prosecutors.
Article 12.B.18. of the Personnel Manual prescribes not less than a general
discharge for involvement with drugs. This does not prohibit granting a less
desirable discharge than general. The grave nature of the applicant’s misconduct
relative to the drug incident sufficiently justifies the other than honorable
discharge he was awarded.
APPLICANT'S REPONSE TO THE VIEWS OF THE COAST GUARD
Coast Guard Personnel Manual
Article 12.B.18.b.4.a. of the Personnel Manual states the following:
On March 13, 2008, the Board received the applicant rebuttal to the views of the Coast
Guard. The applicant suggested that the conspiracy charge was a trumped up charge and that
“the proceedings are still pending court rulings.” He alleged that the military lawyer, who
advised him on whether to waive the administrative board hearing and other issues, reassured
him that he would receive a general discharge “since the case was still pending trial and there
was no conviction at that time.” He alleged moreover that the military lawyer did not explain to
him that he could have a military lawyer at the government’s expense, but that he would have to
pay his civilian lawyer to represent him before an administrative board. He again requested to
be granted a general discharge in accordance with his interpretation of the Personnel Manual.
APPLICABLE REGULATIONS
Involvement with Drugs. Any member involved in a drug incident or the illegal,
wrongful, or improper sale, transfer, manufacture, or introduction onto military
installation of any drug . . . will be processed for separation from the Coast Guard
with no higher than a general discharge . . .
Article 20.A.2.K. of the Personnel Manual states the following:
This provision of the Personnel Manual defines a drug incident as intentional drug abuse,
wrongful possession of, or trafficking in drugs. This definition further states that a civil or
military conviction for wrongful use, possession, etc., of controlled substances is prima facie
evidence of a drug incident. 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 a drug incident.
Separation Program Designator (SPD) Handbook
Section two of the SPD Handbook authorizes only the assignment of an RE-4
reenlistment code for the JKK separation code. The SPD Handbook states that the JKK
separation code is appropriate when there is an "[i]nvoluntary discharge directed by established
directive (no board entitlement) when a member is involved in drug abuse, which is the illegal,
wrongful or improper use, possession, sale, transfer or introduction on a military installation of
any narcotic substance …"
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the applicant's
submissions and military record, the Coast Guard’s submission, and applicable law:
1. The Board has jurisdiction of this case pursuant to section 1552 of title 10 United
States Code. The application was timely.
2. The applicant has failed to prove that the Coast Guard committed an error or
injustice in discharging him under other than honorable conditions for involvement in a drug
incident. Article 12.B.18.b.4.a. of the Personnel Manual states that any member “involved in a
drug incident or the illegal, wrongful, or improper sale, transfer, manufacture, or introduction
onto military installation of any drug . . . will be processed for separation from the Coast Guard
with no higher than a general discharge.” Article 20.A.2.k. of the Personnel Manual states that a
member need not be found guilty at court-martial, in a civilian court, or be awarded NJP for such
conduct to be considered a drug incident. The applicant’s arrest and subsequent indictment by
civilian authorities for various drug and gun charges formed a sufficient basis for his command
to find that he was involved in a drug incident. The Board notes that the applicant was
subsequently convicted and sentenced to more than 17 years in prison for orchestrating a cocaine
shipment through Baltimore-Washington International Airport.
3. The applicant’s interpretation that under Article 12.B.18.b.4.a. of the Personnel
Manual, he should have been awarded a general discharge under honorable conditions is
incorrect. The provision merely limits the highest discharge that can be awarded in a drug case
to a general discharge. It does not prevent the Commandant from awarding a discharge under
other than honorable conditions, a less favorable discharge than a general discharge under
honorable conditions. In this case, the Commandant determined that a discharge under other
than honorable conditions was appropriate. The Board notes that the DRB was also satisfied that
the applicant’s discharge was proper. The evidence presented by the applicant does not
persuade the Board that the Commandant abused his discretion in awarding a discharge under
other than honorable conditions to the applicant under the circumstances of this case.
4. The applicant was provided with his due process rights and chose to waive his right to
an administrative discharge board hearing. The applicant’s current allegation that his military
lawyer assured him that he would receive a general discharge even if he waived his right to an
administrative discharge board fails for lack of proof. The only evidence in the record is the
applicant’s signed statement waiving his right to an administrative discharge board without any
conditions. Accordingly, the applicant’s allegation in this regard is not sufficient to prove that
he did not knowingly waive his right to an administrative discharge board.
should be denied.
5. The applicant failed to prove an error or injustice in this case. Accordingly, relief
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
The application of former XXXXXXXXXXXX USCG, for correction of his military
ORDER
Evan R. Franke
Robert S. Johnson
Adrian Sevier
record is denied.
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