DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2008-086 
 
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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 on March 7, 2008, upon receipt 
of  the  applicant’s  completed  application,  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  January  8,  2009,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

The applicant asked the Board to correct his military record by upgrading his June 26, 
2003,  discharge  for  drug  use  from  general  “under  honorable  conditions”  to  “honorable.”    He 
stated that the general discharge was inequitable and unjust because it was based upon a single 
isolated incident of misconduct “during a period of service which included 34 months of out-
standing performance and service.”   

 
The applicant stated that in November 2001, he was assigned as a BM3/E-4 to the Opera-
tions Department of a cutter homeported in a small town in Maine.  His duties included navi-
gational  supervisor,  assistant  navigator,  operations  planning,  radio  communications,  security 
watchstander,  training  mentor,  aids-to-navigation  positioning  technician,  and  shipboard  fire-
fighter.  A couple of months after he began serving on the cutter, he started to feel depressed, 
anxious, and unappreciated.  His shipmates were not willing to socialize with him, and he had no 
way to relieve his depression in the small Maine town in the middle of winter.  Therefore, he 
began to drink alcohol to relieve his suffering and became very intoxicated during three parties 
that he attended in February 2002.  Under the influence of alcohol and depression at these par-
ties, he made a terrible decision and allowed himself to smoke marijuana three times.  The appli-
cant stated that he knew he had violated the law but did not know what to do because he was 
scared of the consequences. 

 

 
 

 

 

 

On March 6, 2002, he was questioned by Coast Guard investigators after someone report-
ed seeing him smoke marijuana at a party.  Although his urine did not test positive for marijuana 
use and he knew he had a right to remain silent, it “was not in [his] character to lie.”  Therefore, 
he “voluntarily admitted to the consumption of alcohol and use of marijuana during a two-week 
period in February 2002.”  The applicant stated that he chose to act honorably by admitting that 
he  had  unlawfully  used  marijuana  “after  becoming  intoxicated  [by  alcohol]  on  three  separate 
occasions during the previous two weeks at civilian parties.”  The applicant stated that he real-
ized that he had “made a terrible decision and wanted to do the honorable thing and take imme-
diate  steps  to  correct  his  behavior.”    Therefore,  he  admitted  to  having  smoked  marijuana  and 
pled guilty when taken to mast on April 19, 2002.  At mast, he was awarded non-judicial pun-
ishment  (NJP)  of  reduction  in  pay  grade  from  E-4  to  E-3  for  six  months;  forfeiture  of  seven 
days’ pay; and fourteen days of restriction with extra duties. 

 
The applicant stated that after the mast, he dedicated himself to duty and to ensuring that 
he would never use marijuana or abuse alcohol again.  However, in June 2002, he was told that 
he would be separated as a result of his use of marijuana.  Because of his excellent performance 
and dedication, his chain of command told him that they would recommend that he be given a 
second chance under the Coast Guard’s “second chance” policy.  Therefore, he dedicated himself 
to earning the second chance, and his efforts resulted in his qualifying as Quartermaster of the 
Watch; scoring 98% on the QM2 end-of-course examination; completing the practical require-
ments to advance to QM2; and training his shipmates in navigation.  His command trusted him 
enough to let him stand armed security watches and train to be an underway officer of the deck.  
In addition, because of his continuing exceptional performance, on November 14, 2002, his com-
manding officer (CO) recommended that his pay grade be restored to E-4.  On March 1, 2003, he 
was re-advanced to pay grade E-4.   

 
The applicant stated that in June 2003, despite all his efforts and the support of his CO, 
he was told that his request for a second chance had been denied and that he would receive a 
general discharge more than sixteen months after he had smoked marijuana and fifteen months 
after he had admitted to his misconduct.  Since his discharge, he has become a seaman in the 
Merchant Marine and he has been taking classes toward a bachelor’s degree with the hope of 
becoming a licensed civil engineer.   

 
The applicant asked that his discharge be upgraded from general to honorable because it 
is based on an isolated week of misconduct in the middle of 34 months of honorable service.  He 
stated that he realizes the severity of his mistakes and has had two years to think about how he 
ruined his opportunities in the Coast Guard because of his irresponsible decisions.  He alleged 
that he “will never let anything like this happen again and will do everything [he] can to make up 
for it for the rest of [his] life.” 
 

SUMMARY OF THE RECORD 

 

On August 22, 2000, at the age of 18, the applicant enlisted in the Coast Guard for four 
years.  He admitted on his enlistment papers to having previously “tried cannabis.”  Also upon 
enlistment,  he  acknowledged  on  a  CG-3307  form  having  been  counseled  about  the  Coast 
Guard’s drug policy and about the fact that he would be subject to a general discharge if he used 

illegal  drugs.    He  enrolled  in  the  Montgomery  G.I.  Bill  program  for  educational  benefits  and 
acknowledged having been advised that he would not be eligible for the benefits unless he com-
pleted 48 months of active duty and received an honorable discharge.  He also acknowledged 
having been advised that part of his enlistment bonus would be recouped if he did not complete 
his four-year enlistment. 

 
On February 14, 2001, after completing boot camp and graduating from QM “A” School 
to  earn  the  quartermaster  rating,  the  applicant  was  assigned  to  a  high  endurance  cutter  as  an 
SNQM/E-3.  On February 15, 2001, he was counseled by the unit’s Command Drug and Alcohol 
Representative about the Coast Guard’s alcohol abuse policies, including policies about underage 
drinking, and was ordered to abstain from drinking alcohol until age 21.   

 
On August 1, 2001, the applicant advanced to QM3/E-4.  On September 18, 2001, his 
commanding  officer  commended  him  for  outstanding  performance  from  February  to  October 
2001.  The commanding officer wrote, inter alia, that during this period, the applicant “qualified 
as a gangway petty officer of the watch, completed basic and advanced damage control qualifi-
cations and qualified underway as helmsman/lookout and quartermaster of the watch.”  On Octo-
ber 1, 2001, after the cutter was decommissioned, the applicant was transferred to a buoy tender 
based in Rockland, Maine, which is on the Atlantic Coast about 75 miles northeast of Portland, 
Maine.   
 
On February 28, 2002, the applicant was charged with violating three articles of the Uni-
form Code of Military Justice (UCMJ) on three separate occasions.  The Report of Offense in his 
record indicates that on February 16, 17, and 28, 2002, he had violated Article 112a by using a 
controlled substance (marijuana); Article 92 by failing to obey a regulation (underage drinking); 
and Article 134 by committing “conduct to bring discredit upon the Armed Forces.”  Listed wit-
nesses included a seaman assigned to another Coast Guard cutter and two special agents of the 
Coast Guard Investigative Service (CGIS).  The Report of Offense states that the applicant “had 
knowledge of regulation and failed to obey the regulation by participating in underage drinking”; 
“wrongfully possessed and used a controlled substance (marijuana) and signed a voluntary sworn 
affidavit which contained an admission of use on three separate occasions”; and “brought dis-
credit  upon  the  US  Armed  Forces  by  participating  in  underage  drinking  and  using  marijuana, 
which was brought to this command’s attention by a civilian in the local community.” 

 
On March 7, 2002, the applicant’s CO advised him that he was initiating action to dis-
charge him based on his written admission of having used marijuana.  He advised the applicant 
of his right to disagree with the recommendation for discharge and to submit a statement on his 
own behalf.   

 
On April 15, 2002, the applicant acknowledged the charges against him and his right to 

refuse mast and demand trial by court-martial.  The applicant elected to accept mast. 

 
On April 19, 2002, the applicant was taken to mast for his offenses and awarded non-
judicial punishment (NJP) including 14 days of restriction and extra duty, reduction in pay grade 
to E-3 (SNQM), and forfeiture of $379.  His commanding officer (CO) suspended only the for-
feiture of pay for 6 months and recommended that the applicant be administratively discharged.  

Pursuant to this mast, the applicant also received a performance evaluation with very poor marks 
and  no  recommendation  for  advancement.    Written  comments  indicate  that  the  applicant  had 
“shown an apathetic attitude towards both the military and his work since his arrival,” had con-
sistently delivered his navigation briefs “with a complete lack of professionalism,” and had dis-
played  a  “severe  lack  of  responsibility”  by  his  illegal  drug  use  and  underage  consumption  of 
alcohol.  The CO noted on this evaluation that the applicant had been repeatedly counseled about 
his apathetic attitude and “apparent lack of Petty Officer potential.”  The applicant’s eligibility 
period for a Good Conduct Medal was terminated. 

 
The applicant continued to serve aboard the buoy tender and received high marks and his 
CO’s  recommendation  for  re-advancement  to  QM3/E-4  on  his  performance  evaluation  as  an 
SNQM/E-3 dated July 31, 2002.  The applicant’s supervisor noted that he had “taken a difficult 
situation, where he violated the trust of the unit, and turned it around by focusing his energies on 
his job, the ship and the crew.  He has embraced the Joint Rating Review, trained BMs in deter-
mining  true  noon,  and  interpolating  sun  lines.    He  has  participated  in  Deck  Force  training, 
assisted  with  the  superstructure  painting  project,  and  has  remained  flexible  to  last  minute 
changes, always accepting the new direction with zeal and attentiveness.” 

 
On  August  26,  2002,  the  applicant’s  CO  sent  the  Coast  Guard  Personnel  Command 
(CGPC), via the District Commander, a memorandum regarding the applicant’s “discharge for 
reason of misconduct,” as required by Article 12.B.18.b.4. of the Personnel Manual, “following 
command  determination  of  a  drug  incident.”    The  CO  cited  the  CGIS  report,  the  applicant’s 
signed  confession,  and  the  negative  urinalysis  results.    He  stated  that  the  applicant  had  been 
afforded and exercised his right to legal counsel.  The CO stated that although he understood the 
Coast Guard’s drug policy, he was requesting clemency.  He attributed the applicant’s miscon-
duct to immaturity, feelings of isolation, and “a need to try to ‘fit in.’”  The CO noted that the 
applicant had “accepted his punishment with dignity and honor” and that since the mast he had 
“consistently demonstrated remarkable and sustained improvements in performance, attitude and 
personal growth.”  Therefore, the CO “strongly and specifically recommend[ed] that considera-
tion be given towards retention of this member through the Commandant’s ‘second chance’ ini-
tiative.” 
 
The  CO  forwarded  with  his  recommendation  the  applicant’s  objection  to  the  proposed 
discharge.  In this statement, the applicant attributed his misconduct to his “inexperience and the 
new environment [which] had caused me a real case of the ‘blues’.”  The applicant noted that 
since the NJP, he had qualified as the quartermaster of the watch, completed the practical factors 
for advancement to QM2, passed the QM2 EOCT with a score of 98%, and trained junior per-
sonnel in navigation skills.  He asked that he be retained in the Coast Guard so that he could 
serve his country honorably. 

 
On  November  14,  2002,  the  applicant’s  CO  sent  the  District  Command  copies  of  his 
memorandum dated August 26, 2002, and the applicant’s statement, which had apparently not 
been received. 

 
On November 14, 2002, the applicant’s CO also asked CGPC to return the applicant’s 
rate to QM3/E-4 because of his exceptional performance since his NJP.  The CO stated that the 

applicant had been performing at the QM2 level for some time and had “demonstrated pride in 
himself, the unit and his department no seen prior to his award of punishment and has served as a 
positive example to his fellow crewmembers.”  The CO stated that the applicant “has demon-
strated to me that he is truly remorseful for the charges he was found guilty of.  The level of 
competence he consistently performs at gives substance and credibility to my strongest recom-
mendation that he be restored to the rate of QM3.” 

 
On  January  13,  2003,  the  applicant’s  CO  submitted  to  CGPC,  via  the  District  Com-
mander, a memorandum with the same text that he had submitted on August 26, 2002, and the 
same attachments.  On May 23, 2003, the District Commander forwarded the CO’s memoran-
dum to CPGC with his own recommendation that the applicant be discharged.  He noted that the 
applicant had admitted to using a controlled substance on several occasions and that the applicant 
had “attempted to deceive urinalysis tests through the purchase and use of a commercially avail-
able ‘flushing kit.’”  He concluded that the “second chance waiver provision is not appropriate in 
this matter.”   

 
In late February and March 2003, the applicant was assigned temporarily to the District 

Operations Department.  In March 2003, the applicant’s CO re-advanced him to QM3/E-4. 

 
On May 29, 2003, CGPC ordered that the applicant receive a general discharge for mis-
conduct under Article 12.B.18. of the Personnel Manual, with separation code JKK, no later than 
June 26, 2003. 

 
On  June  26,  2003,  the  applicant  received  a  general  discharge  “under  honorable  condi-
tions” because of “misconduct” with an RE-4 reenlistment code (ineligible to reenlist) and a JKK 
separation code (involuntary discharge for illegal drug use supported by evidence not attributed 
to  urinalysis).    He  had  completed  2  years,  10  months,  and  5  days  of  active  duty,  including  2 
years, 3 months, and 26 days of sea service. 
 

DECISION OF THE DISCHARGE REVIEW BOARD 

 

On  December  5,  2005,  the  applicant  petitioned  the  Coast  Guard’s  Discharge  Review 
Board (DRB) to upgrade his character of discharge.  He pointed out that he had voluntarily con-
sented to a urinalysis and admitted his misconduct to the CGIS agents who questioned him on 
March 6, 2002, even though he knew that he had a right to remain silent.  In addition to submit-
ting the allegations summarized above, the applicant submitted several strong letters of recom-
mendation from members who served with him and the CO of the buoy tender; documentation of 
his service in the Merchant Marine; and his college grade report.   

 
In his statement to the DRB on behalf of the applicant, which is dated May 22, 2005, the 
CO noted that, unlike most members who become “virtually useless” once their discharge for 
illegal drug use has been initiated, the applicant found ways to pass on the lesson he had learned 
to junior shipmates and improved his attitude towards his responsibilities and the Coast Guard.  
The applicant maintained this high level of performance up to the day of his discharge.  The CO 
stated that he worked hard to get the applicant a second chance despite his youthful indiscretion, 
and this process, which took about 14 months to complete, was ultimately unsuccessful.  The CO 

stated that he was not happy with CGPC’s decision but understood it because giving someone 
with a drug incident a second chance “would have created an unusually difficult precedent that 
would have run counter [to] our service standards.”  The CO stated that he would be happy to 
serve with the applicant again. 

 

 
In a statement on behalf of the applicant dated June 14, 2005, the District Operational 
Commander, CDR X, wrote that he was initially surprised that the CO was recommending that 
the applicant receive a “second chance” given the CO’s “strong views against substance abuse.”  
However, the CO was convinced that the applicant’s misconduct was a “one-time incident”; that 
he  had  shown  true  remorse;  and  that  he  had  backed  up  his  words  with  superior  performance.  
Because of the applicant’s age, CDR X decided to keep an open mind when the applicant was 
assigned temporarily to the District staff in February and March 2003.  CDR X stated that the 
applicant’s  performance  during  his  weeks  at  the  District  office  was  “nothing  short  of  exem-
plary,” as the CO had described.  CDR X stated that he believes that “it was a mistake to dis-
charge [the applicant] from the Coast Guard as he clearly showed strong personal character and 
his ability to learn from mistakes.”  CDR X also recommended that the DRB upgrade the appli-
cant’s discharge to “honorable” so that he would not bear the stigma of a general discharge. 

 
The Executive Petty Officer (XPO) of the buoy tender stated that in February 2002, the 
CO of Coast Guard Station Rockland “began receiving reports from concerned parents of under-
age local girls of ‘parties’ taking place at an Unaccompanied Personnel Leased Housing Unit … .  
This unit consisted of two townhouse style apartments with three bedrooms each and was pri-
marily used to house single personnel from the [buoy tender and another cutter].”  Therefore, the 
CO requested the help of CGIS to substantiate the claims.  During the investigation, the applicant 
admitted to smoking marijuana on three different occasions, although the results of his urinalysis 
were negative.  Two crewmembers from the other cutter were also implicated although they did 
not confess.  The XPO stated that because the Coast Guard was “feverishly trying to add person-
nel”  after  the  attacks  of  September  11,  2001,  the  Commandant  had  just  announced  a  “second 
chance program” and he and the CO decided to try to have the applicant retained under this pro-
gram.  The XPO noted that illegal drug use is “the one unforgivable transgression in the Coast 
Guard” but that the second chance program seemed to provide a “glimmer of hope.”  Therefore, 
they tried to get the applicant a second chance but advised him not to allow himself false hope 
because it “was a long shot at best” and “the only thing he could do if he wanted to stay in was to 
work hard, improve himself, and make the bridge of the [buoy tender] the best bridge in the fleet.  
That  is  exactly  what  he  did;  he  worked  intensely,  honing  his  skills  as  a  quartermaster,  and 
worked around the clock organizing the bridge, training new personnel and improving planning 
of upcoming operations.”  The XPO also noted that the applicant was treated for mild depression 
after the NJP.  He stated that despite their recommendations, the District Commander viewed the 
applicant’s misconduct as three separate drug incidents and recommended that he not receive a 
second chance.  The XPO stated that he fully supports the Coast Guard’s drug abuse program but 
believes that each case should be judged on its own merits.  He stated that in light of the appli-
cant’s voluntary admission and strong performance after his NJP, he recommends that his dis-
charge be upgraded from general to honorable so that his mistake would not “continue to haunt 
his civilian endeavors and career.” 

 

After  holding  a  hearing  with  the  applicant  on  September  12,  2006,  and  reviewing  his 
submissions and service record, the DRB unanimously recommended that his general discharge 
stand  as  issued  because  it  was  proper  and  equitable.    The  DRB  noted  that  the  applicant  had 
shown remorse and a willingness to learn from his mistakes after the NJP but also that he had 
admitted to smoking marijuana and drinking alcohol while underage on three separate occasions 
and to “attempting to deceive the urinalysis test through the purchase and use of a commercially 
available ‘flushing kit’.”  On June 15, 2007, the Commandant approved the recommendation of 
the DRB. 

VIEWS OF THE COAST GUARD 

On July 15, 2008, the Judge Advocate General (JAG) of the Coast Guard submitted an 

 
 
advisory opinion in which he recommended that the Board deny relief in this case.   
  

The JAG stated that the Coast Guard properly followed its regulations in awarding the 
applicant a general discharge for illegal drug use.  The JAG noted that Article 20.C.4. of the Per-
sonnel Manual states that once a CO determines that a drug incident has occurred, the CO must 
process the member for separation by reason of misconduct.  The JAG further noted that under 
the “second chance program,” which now appears in Article 12.B.1. of the Personnel Manual, 
members involved in a drug incident are not eligible for a second chance. 

 
The JAG argued that there “is no injustice in the applicant receiving a general discharge 
from the Coast Guard” since he was advised of the drug policy and the consequence of using or 
possessing an illegal drug.  The JAG stated that upgrading the applicant’s discharge “would run 
counter to the Coast Guard core values and to the compelling need for all members of the Coast 
Guard to remain free of illegal substances.  Awarding an honorable discharge to the applicant 
would set a dangerous precedent that is inconsistent with the good order and discipline of the 
Armed Forces of the United States.”   

 
The  JAG  included  with  his  advisory  opinion  a  memorandum  on  the  case  prepared  by 
CGPC, which states that the Coast Guard acted in accordance with its regulations and that illegal 
drug use “is completely inconsistent with the Coast Guard’s maritime law enforcement mission 
whereby the organization conducts counter-drug operations each and every day of the year.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On July 17, 2008, the Chair sent the applicant a copy of the advisory opinion and invited 
 
him to respond within 30 days.  The applicant requested and received a 23-day extension, but the 
Board did not receive any written response to the JAG’s advisory opinion.  On October 17, 2008, 
however,  the  applicant  asked  for  a  hearing  before  the  BCMR  so  that  he  could  “enlighten  the 
Board regarding his accomplishments.” 
 

APPLICABLE REGULATIONS 

Article 20.A.3.b. of the  Personnel Manual in  effect in 2002 and 2003 states that “[a]ll 
members entering the Coast Guard, recruits, officer candidates, direct commission officers, and 

 

cadets shall have the Commandant's policies on drug and alcohol abuse explained to them during 
their  initial  training,  documented  by  appropriate  Administrative  Remarks  (CG-3307)  entry  in 
each member's Personnel Data Record.” 
 

Article 20.A.2.k. defines “drug incident” as “[i]ntentional drug abuse, wrongful posses-
sion of, or trafficking in drugs. …  The member need not be found guilty at court-martial, in a 
civilian court, or be awarded NJP for the behavior to be considered a drug incident.”  Article 
20.C.3.b. states that members must be advised of their rights under the Uniform Code of Military 
Justice before being questioned about possible drug incidents.   

 
Article 20.C.3. states that a commanding officer should determine whether a “drug inci-
dent” has occurred, warranting further action, based on the preponderance of all available evi-
dence, and that the “absence of a positive confirmed urinalysis result does not preclude taking 
action based on other evidence.  Article 20.C.3.e. states that a “member’s admission of drug use 
or a positive confirmed test result, standing alone, may be sufficient to establish intentional use 
and thus suffice to meet this burden of proof.” 

 
Article 20.C.4. states that, if a commanding officer determines that a drug incident has 
occurred,  he  or  she  “will  process  the  member  for  separation  by  reason  of  misconduct”  under 
Article 12.B.18.” 
 

Article  12.B.18.b.4.a.  states  that  “[a]ny  member  involved  in  a  drug  incident  …,  as 
defined  in  Article  20.A.2.k.,  will  be  processed  for  separation  from  the  Coast  Guard  with  no 
higher than a general discharge.”  Article 12.B.2.c.1.b. states that a “general discharge” is a sepa-
ration “under honorable conditions.” 

 
 
Article 12.B.18.e. states that members with less than eight years of service who are being 
recommended  for  an  honorable  or  general  discharge  by  reason  of  misconduct  must  (a)  be 
informed  in  writing  of  the  reason  they  are  being  considered  for  discharge,  (b)  be  afforded  an 
opportunity to make a statement in writing, and (c) “[i]f a general discharge is contemplated, be 
afforded an opportunity to consult with a lawyer.” 
 
 
The  Separation  Program  Designator  (SPD)  Handbook  states  that  persons  involuntarily 
discharged for illegal drug use due to evidence other than a positive urinalysis result and without 
being tried by court-martial shall be assigned a JKK separation code, an RE-4 reenlistment code, 
and “misconduct” as the narrative reason for separation shown on their DD 214s.   
 
 
The Personnel Manual in effect in 2002 and 2003 did not mention a second chance pro-
gram, which was apparently in development.  In October 2005, Article 12.B.1.a. of the Personnel 
Manual was revised to include the following language about the program: 
 

In an effort to retain good, solid first-term performers with potential, but who have made a youth-
ful  mistake  that  would  otherwise  result  in  their  discharge,  the  Commandant  has  established  a 
“Second Chance Program”. The Second Chance Program authorizes the first Flag Officer/SES in 
the  chain-of-command  of  the  first  term  performers  to  waive  all  policy  discharge  authorities 
(except as noted below) contained in Article 12.B.9. (Unsatisfactory Performers), Article 12.B.12. 
(Convenience of the Government), Article 12.B.16. (Unsuitability), and Article 12.B.18. (Miscon-
duct). The first Flag Officer/SES  with assistance  from their units shall define the internal proc-

esses for forwarding waiver requests to them. The Second Chance Program specifically excludes 
all  policy  discharges  contained  in  Article  12.E.  (Homosexuality),  Article  12.B.12  (Obesity)  or 
Chapter 20.C. (Substance Abuse Prevention Program) of this manual. 

 

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 submissions, and applicable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  
Under 10  U.S.C. § 1552(b) and 33 C.F.R. § 52.22, an application to the Board must be  filed 
within  three  years  after  the  applicant  discovers,  or  reasonably  should  have  discovered,  the 
alleged  error  or  injustice.    Although  the  applicant  in  this  case  filed  his  application  more  than 
three years after he knew or should have known of the “character of service” shown on his dis-
charge  form,  DD  214,  he  filed  it  within  three  years  of  the  decision  of  the  Discharge  Review 
Board.  Therefore, under Ortiz v. Secretary of Defense, 41 F.3d 738, 743 (D.C. Cir. 1994), the 
application is considered timely. 

The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair,  acting 
pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case with-
out a hearing.  The Board concurs in that recommendation.  See Armstrong v. United States, 205 
Ct. Cl. 754, 764 (1974) (stating that a hearing is not required because BCMR proceedings are 
non-adversarial and 10 U.S.C. § 1552 does not require them).  

The  applicant  asked  the  Board  to  upgrade  his  general  discharge,  which  he 
received as a result of illegal drug use.  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. 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)).  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.” Arens v. United States, 969 F.2d 1034, 1037 (Fed. 
Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979). 

The record shows that the applicant was advised of the Coast Guard’s drug poli-
cies  at  the  time  of  his  enlistment.    A  CG-3307  in  his  record  shows  that  he  was  specifically 
advised that illegal drug use could result in a  general discharge.  The record further indicates 
that, after the parents of underage girls complained to the Coast Guard about parties being held 
in crew housing, CGIS investigators interviewed the applicant, who confessed in writing to hav-
ing smoked marijuana at three different parties during a two-week period.  Although the appli-
cant’s urinalysis results were negative, there is also evidence in the record indicating that he pur-
chased a “flushing kit” to subvert the urinalysis by removing the metabolites of marijuana from 
his  system.    In  light  of  his  admission  and  the  corroborating  evidence  about  his  purchasing  a 

 
2. 

 
3. 

 
4. 

5. 

“flushing  kit,”  the  Board  finds  that  his  CO  reasonably  concluded  that  the  applicant  had  been 
involved in a “drug incident” as defined in Article 20.A.2.k. of the Personnel Manual.  There-
fore, in accordance with Articles 20.C.4. and 12.B.18.b.4.a., he was properly subject to a general 
discharge.  
 

The  applicant  was  not  quickly  discharged  upon  discovery  of  the  drug  incident 
because the Coast Guard was developing a “second chance” program in 2002, and his CO hoped 
that he might be eligible for retention under the program.  The applicant continued to serve on 
active duty  for more than a  year  after he was punished at mast for the drug incident, and the 
record shows that he performed admirably during his final months in the Service, in contrast to 
his  apparently  apathetic  attitude  during  the  months  prior  to  the  mast.    The  XPO’s  statement 
shows that the command informed the applicant that it was very unlikely that he would receive a 
second chance, and ultimately he did not, despite his CO’s recommendation.  The applicant did 
not allege or prove any procedural error in the conduct of the investigation, mast, consideration 
for the second chance program, or discharge.   

Under 10 U.S.C. § 1552, however, even when the Coast Guard has not committed 
any errors under its regulations, the Board must still consider whether an applicant’s record con-
tains an injustice that should be removed.  For the purposes of the BCMRs, “injustice” may be 
defined as “treatment by the military authorities that shocks the sense of justice, but is not techni-
cally illegal.” 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)).  The  applicant 
argued  that  his  general  discharge  in  unjust  and  should  be  upgraded  to  honorable  because  he 
smoked  marijuana  only  during  a  two-week  period  out  of  his  34  months  on  active  duty.    He 
claimed that he only smoked marijuana because he had been assigned to a small, isolated unit 
and  was  feeling  lonely  and  rejected  by  his  crewmates.    In  light  of  the  fact  that  the  applicant 
attended three parties with other enlisted members in crew housing during a two-week period, 
the Board is not persuaded that the applicant’s misconduct was an aberration induced by loneli-
ness and difficult circumstances.   
 

7. 

The  applicant  argued  that  his  discharge  should  be  upgraded  because  of  his 
exemplary conduct after his NJP and since his discharge.  He submitted references from superior 
officers attesting to his tremendous efforts to earn a second chance.  On July 7, 1976, the dele-
gate of the Secretary informed the BCMR of the following determination:  
 

 
6. 

[T]he Board should not upgrade discharges solely on the basis of post-service conduct. … [T]he 
Board  should  not  upgrade  [a]  discharge  unless  it  is  convinced,  after  having  considered  all  the 
evidence  [in  the  record],  that  in  light  of  today’s  standards  the  discharge  was  disproportionately 
severe vis-à-vis the conduct in response to which it was imposed. 

 
This  instruction  would  not  preclude  a  grant  of  clemency  if  the  Board  found  forgiveness  was 
warranted.  However, although the  applicant acted commendably in  exerting himself to try to 
earn  a  second  chance  and,  following  his  discharge,  by  becoming  a  seaman  in  the  Merchant 
Marine and pursuing further education, the Board finds insufficient grounds on which to grant 
clemency because these positive aspects of his performance do not outweigh the seriousness of 
his past misconduct so as to justify upgrading his discharge to honorable.  In addition, the Board 
notes that Coast Guard members involved in drug incidents have long been and still are awarded 

general discharges.  Therefore, the applicant’s discharge cannot be considered disproportionately 
severe in light of today’s standards.  The Board’s decision in this regard is consistent with many 
decisions  in  past  cases  involving  marijuana  use.   See,  e.g.,  Final  Decisions  in  BCMR  Docket 
Nos. 2007-095, 2007-051, 2004-183, 2004-169, 2003-114, 2002-044, wherein the Board denied 
applications from applicants who had received general discharges for marijuana use.  
 

The  record  indicates  that  the  applicant  not  only  smoked  marijuana  three  times 
while on active duty but did so in front of other members and civilians.  In addition, he drank 
alcohol on these occasions, in violation of a direct order and the UCMJ, even though he was 
underage.    The  Service’s  drug  policies,  which  mandate  no  higher  than  general  discharges  for 
members separated for illegal drug use, had been explained to him, and he presumably knew that 
the interdiction of illegal drugs is one of the Coast Guard’s major missions.  Given these facts, 
the Board is not persuaded that the applicant’s general discharge “under honorable conditions” 
for drug abuse is unjust; it simply does not shock the Board’s sense of justice.  Id. 
 
 
 
 
 

Accordingly, the application should be denied for lack of merit. 

 
8. 

9. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The application of former xxxxxxxxxxxxxxxxxxx, USCG, for correction of his military 

ORDER 

 

 

 
 

 
 

record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Philip B. Busch 

       

 

 
 
 Diane Donley 

 

 
 Jeff M. Neurauter