DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2008-160 
 
xxxxxxxxxxxxxxxxxxxx 
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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 July 14, 2008, upon receipt of 
the applicant’s completed application, 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  April  16,  2009,  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 August 12, 1988, for illegal drug abuse, asked the Board to correct his record by 
upgrading his discharge to honorable.  The applicant explained his request as follows: 
 

As  a  young  man  of  21  in  the  U.S.  Coast  Guard,  I  used  what  I  though  was  only  a  very  small 
amount  of  marijuana  at  a  party  to  impress  a  young  lady.    Not  long  after,  I  was  called  in  for  a 
random  urinalysis  and  tested  positive,  as  would  be  expected,  it  registered  far  below  what  was 
considered acceptable levels before disciplinary action was to be taken.  Unfortunately for me, a 
very small amount of another substance, cocaine, was discovered as well.  When confronted with 
this by my superior officer, he informed me of what he said they had found and strongly suggested 
that I sign a form admitting my guilt or face a far worse outcome.  I did not knowingly participate 
in  the  use  of  any  other  substance,  other  than  the  one  of  my  aforementioned  admission.    At  the 
time, I had already been accepted into the voluntary reduction in force program (R.I.F.) and was 
being  processed  out  of  the  service.    By  my  own  admission,  I  was  wrong.    Until  that  costly 
transgression,  I  had  served  with  distinction,  and  am  continuing  to  try  to  make  up  for  my 
shortcomings,  past  and  present,  by  being  the  most  productive  person  I  can  be.    Thus,  I  am 
requesting an upgrade in my discharge. 

 
 
The applicant did not provide the date of his discovery of the alleged error but wrote that 
the Board should consider his application in the interest of justice because his “home address on 
[his] DD 214 was incorrect, and [he] had to call for a copy, still not realizing the problem until 
later.”    The  applicant  indicated  that,  whereas  he  lived  in  Apartment  B  at  a  particular  street 
address, the mailing address on his DD 214 shows that he lived in Apartment 13. 

 
 
In  support  of  his  request,  the  applicant  submitted  copies  of  his  DD  214;  certificates 
showing that he is a licensed electrical contractor specializing in low voltage systems in the State 
of North Carolina;  and  a certificate showing that in 2004 he earned an  Associate’s Degree in 
Applied Science, Advertising and Graphic Design.  
 

SUMMARY OF THE RECORD 

 

 
On May 27, 1985, the applicant enlisted in the Coast Guard as a seaman recruit (SR) for 
four years.  On the same day, the applicant was advised that he would be subject to urinalysis 
and  the  Uniform  Code  of  Military  Justice  (UCMJ)  while  on  active  duty,  and  he  signed  the 
following acknowledgment, which is in 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. 

 
 
Another acknowledgment in the applicant’s record shows that the UCMJ and the code of 
conduct for members of the Armed Forces were explained to him during boot camp.  On August 
2, 1985, upon completing boot camp, the applicant was advanced to seaman apprentice (SA), and 
in September 1985, he reported for duty aboard cutter homeported in Sitka, Alaska. 
 
 
On  March  15,  1987,  the  applicant  advanced  to  seaman  (SN).    On  April  3,  1987,  he 
applied to attend Radioman “A” School.  On May 7, 1987, the applicant was advised that he was 
in receipt of transfer orders to the air station in Clearwater, Florida, and was also on the list to 
attend Radioman “A” School.  He was advised that if he chose to accept the transfer orders, he 
would have to serve at his new unit for six months before attending “A” School.  The applicant 
chose to accept the transfer orders. 
 
 
On February 19, 1988, the applicant submitted to the Commandant a “Request for Early 
Release from Active Duty,” pursuant to a Service-wide reduction in force (RIF).  He asked to be 
released as of July 1, 1988.  On April 1, 1988, the Commandant authorized his early release.  On 
April  21,  1988,  the  applicant’s  command  prepared  an  Endorsement  on  Orders  to  release  the 
applicant for the “convenience of the Government” on June 22, 1988.   
 
 
On April 25, 1988, the applicant’s command conducted a random urinalysis on several 
member, including the applicant.  The applicant’s urine tested positive for cocaine and for THC, 
a  metabolite  of  marijuana,  at  the  level  of  45  micrograms  per  milliliter  (ng/mL).    A  test  on  a 
second sample taken from the applicant the same day confirmed these positive results. 
 

On June 14, 1988, the applicant’s command notified him that, based on the results of the 
urinalysis, he was “being recommended for discharge … by reason of Misconduct for drug abuse 
in accordance with [Article 12-B-18 of the Personnel Manual].”  The applicant was advised that 
he would receive no higher than a General discharge; that he had a right to submit a statement in 
his own behalf; and that he would be afforded an opportunity to consult a lawyer.  Also on June 
14, 1988, the applicant signed an acknowledgment of this notification and indicated that he did 

not desire to submit a statement in his own behalf.  There is no written confession of drug abuse 
in the applicant’s military record. 

 
On June 14, 1988, the applicant’s command informed the Commandant that his urine had 
tested positive for cocaine and recommended that he be processed for a discharge due to miscon-
duct in lieu of the authorized early release.  On June 21, 1988, the Commandant authorized the 
applicant’s command to hold his release in abeyance. 
 
 
On June 30, 1988, the Commandant asked the applicant’s command if the applicant had 
consulted legal counsel since he was being recommended for a General discharge.  On July 6, 
1988, the applicant signed another memorandum acknowledging the proposed discharge for drug 
abuse and the fact that he had been “afforded the opportunity to consult with legal counsel.” 
 
 
with a General discharge by reason of misconduct due to drug abuse within 30 days. 
 
 
On August 12, 1988, the applicant received a General discharge “under honorable condi-
tions”  by  reason  of  misconduct  in  accordance  with  Article  12-B-18  of  the  Personnel  Manual.  
His DD 214, which bears all of this information and his mailing address, also bears the appli-
cant’s signature.  
 

On July 14, 1988, the Commandant directed the applicant’s command to separate him 

VIEWS OF THE COAST GUARD 

 

On November 18, 2008, the Judge Advocate General of the Coast Guard submitted 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 Coast Guard 
Personnel Command (CGPC). 

 
CGPC pointed out that the application is untimely since the applicant was discharged in 
1988.  CGPC also stated that the Discharge Review Board has no record of an application from 
the applicant. 

 
CGPC  noted  that  in  1988  the  minimum  level  of  THC  that  constituted  grounds  for 
disciplinary  action  for  illegal  drug  use  was  50  ng/mL,  whereas  today  the  minimum  level  for 
disciplinary action is 15 ng/mL.  CGPC stated that “while the threshold for THC may not have 
been met, any reported level of cocaine clearly constitutes a drug incident. … Regardless of the 
applicant’s intention to use cocaine, the urinalysis results confirm his cocaine use.  The applicant 
has not provided any evidence to support that the results of his drug test are in dispute.” 

 
CGPC stated that under Article 12.B.18.b.4.a., members found to have used illegal drugs 
in a “drug incident … will be processed for separation from the Coast Guard with no higher than 
a  General  discharge.”    CGPC  noted  that  in  his  application,  the  applicant  admitted  to  having 
“voluntarily engaged in illegal use of marijuana,” but claims that “he did not knowingly engage 
in illegal use of cocaine.”  CGPC stated that there are no awards or other grounds for special 
consideration in the applicant’s record.  CGPC stated that discharging members who have abused 

illegal drugs is especially given the Service’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 November 19, 2008, 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 1988, the Commandant 

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

Drug abuse.  The illegal, wrongful, or improper use, possession, sale transfer, or introduction on a 
military  installation  of  any  narcotic  substance,  intoxicating  inhaled  substance,  marijuana,  or 
controlled substance, as established be 21 U.S.C. 812.  Any member involved in a drug incident 
will be separated from the Coast Guard with no higher than a general discharge.  However, in truly 
exceptional situations, commanding officers may recommend retention of members E-3 and below 
involved in only a single drug incident. …  

 
 
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, and (c) submit a statement 
in his own behalf. 
 
 
Under Article 20.C. of the current Personnel Manual, any member involved in any “drug 
incident”  is  subject  to  an  administrative  discharge  with  no  greater  than  a  General  discharge 
“under honorable conditions.” 

 

 

 

 
2. 

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 

1. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552. 
The Board finds that the applicant has exhausted his administrative remedies, as required by 33 
C.F.R. § 52.13(b), because there is no other currently available forum or procedure provided by 
the Coast Guard for correcting the alleged error or injustice. 

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.  10  U.S.C.  
§ 1552; 33 C.F.R. § 52.22. The applicant was discharged on August 12, 1988.  Prior to that date, 
he was notified of the pending General discharge and afforded counsel about it.  In addition, he 
signed his DD 214, which shows that he was discharged “under honorable conditions.”  There-
fore, he knew or should have known of the alleged error in his record in 1988.  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.”  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.”  Id. at 164, 165; see also Dickson v. Secretary 
of Defense, 68 F.3d 1396 (D.C. Cir. 1995).   

Regarding the delay of his application, the applicant argued that it would be in the 
interest of justice to excuse the untimeliness of his application because the home address on his 
DD 214 was incorrect, so he did not receive it when it was first mailed to him and had to call 
later for a copy.  The Board finds that the applicant’s explanation for his delay is not compelling 
because he clearly knew the character of his discharge in 1988 and he has failed to show that 
anything prevented him from seeking correction of the alleged error or injustice more promptly. 

A cursory review of the merits of this case shows that it lacks potential merit.  The 
applicant’s  command  determined  on  the  basis  of  his  urinalysis  results  that  the  applicant  was 
involved in a “drug incident” because he had knowingly used an illegal drug.  He was afforded 
all due process under Article 12-B-18.e.(1) of the Personnel Manual then in effect.  His com-
manding officer’s determination that he was involved in a drug incident and the resultant General 
discharge are presumptively correct under 33 C.F.R. § 52.24(b).  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.”).  Although the applicant 
now claims he did not know that he was ingesting cocaine when he knowingly smoked mari-
juana, his claims  are insufficient to overcome his commanding officer’s  determination that he 
was involved in a drug incident in that he knowingly used an illegal drug, which is all that is 
required to trigger  a General discharge under Article 12-B-18.b.(4).  The Board finds that the 
applicant’s claim 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.  

 
4. 

 
5. 

 
6. 

 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The application of former SN xxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

ORDER 

 

his military record is denied.   
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

        

 
 
 Diane Donley 

 

 

 
 
 Robert S. Johnson, Jr. 

 

 

 
 Kathryn Sinniger