DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-053 
 
xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxx   

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 after receiving the 
completed application on December 9, 2008, 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 September 10, 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 May 19, 1988, for illegal drug use, asked the Board to upgrade his General dis-
charge  to  Honorable  and  to  issue  him  an  Honorable  discharge  certificate.    He  also  asked  the 
Board for a corresponding upgrade of his RE-4 reenlistment code (ineligible for reenlistment).   
 

The applicant argued that his General discharge should be upgraded because he has suf-
fered the burden of it for more than twenty years.  Moreover, while in the Service, he received 
several  ribbons  and  awards  and  qualified  as  an  underway  watchstander.    He  alleged  that  he 
served both the Coast Guard and his country well and that his discharge should reflect this. 
 
 
Regarding the timing of his request, the applicant alleged that he discovered the error in 
his record on August 8, 2008.  He stated that the Board should find it in the interest of justice to 
waive the three-year statute of limitations and consider his application because he has suffered 
the  burden  of  his  General  discharge  for  more  than  twenty  years.    In  addition,  the  applicant 
alleged that an administrative officer told him on the day of his discharge that he could get his 
General discharge upgraded within a seven-year period. 
 
In support of his request, the applicant submitted copies of his DD 214 from the Coast 
 
Guard, which shows his General discharge for misconduct, and of his DD 214 covering more 

than seven months of training in the Army National Guard in 1983, as well as a photocopy of his 
military identification cards.  
 

SUMMARY OF THE RECORD 

 

 
On May 21, 1984, the applicant enlisted in the Coast Guard as a seaman apprentice (SA) 
for four years.  He had prior service in the Army National Guard.  Upon enlistment, the applicant 
was advised that he would be subject to the Uniform Code of Military Justice (UCMJ) and that 
the illegal use or possession of drugs constituted a serious breach of discipline. 
 

On  May  23,  1984,  during  his  initial  training,  the  applicant’s  urine  tested  positive  for 
THC, a metabolite of marijuana.  He was counseled about Article 20 of the Personnel Manual 
and advised that any future positive urinalysis would be considered a “drug incident” and result 
in  his  discharge  from  the  Service  under  Article  12-B-18.    On  June  15,  1987,  the  applicant 
received more instruction in the UCMJ, the code of conduct for the Armed Forces, and the Coast 
Guard’s drug and alcohol abuse program under Article 20 of the Personnel Manual. 
 
 
Following  his  initial  training,  the  applicant  was  assigned  to  a  cutter  based  in  Kodiak, 
Alaska.  On August 17, 1984, he signed a Page 7 (form CG-3307) acknowledging having been 
counseled about the fact that the Personnel Manual had been amended so that members involved 
in a single “drug incident” would normally be discharged for misconduct under Article 12-B-18 
with a less than Honorable discharge.1 
 

On  September  19,  1984,  the  applicant  was  counseled  about  his  poor  performance  and 
attitude by the Executive Officer of the cutter.  On December 20, 1984, he was punished at mast 
and  awarded  2  hours  of  extra  duties  for  20  days  for  being  derelict  in  his  duties  by  failing  to 
report for work as ordered and going to his rack (bed) instead. 
 

In 1985, the applicant sought and received a mutual exchange transfer to New York.  On 
June 19, 1985, he was punished at mast and awarded 10 days of extra duties and a reduction in 
paygrade to SR for having used disrespectful language toward a petty officer.  The reduction in 
paygrade was suspended for three months upon condition of good behavior and the suspension 
was never vacated.   On  June 20, 1985, the applicant’s  command counseled him about  a poor 
attitude and undesirable work habits. 
 
 
On October 25, 1985, the applicant was punished at mast and awarded 15 days of extra 
duties and a reduction in pay grade to SR for having been absent without leave (AWOL) for 1.5 
hours and telling his supervisor that he was at a medical appointment, which was not true.  The 
reduction in paygrade was suspended for six months upon condition of good behavior and the 
suspension was never vacated. 
 
                                                 
1 ALCOAST 016/84 amended Article 20-B-3(c) of the Personnel Manual in effect in 1984 to require discharge for 
misconduct under Article 12-B-18 after a single “drug incident,” whereas the previous rule required discharge only 
after a member’s second drug incident.  In addition, the regulation was amended to make a positive urinalysis result, 
by  itself  and  without  corroborative  evidence,  a  sufficient  basis  for  a  commanding  officer  to  decide  that  a  “drug 
incident” had occurred.  

 
On April 1, 1986, the applicant’s command counseled him about having been arrested by 
the New York City police for assaulting his wife.  The applicant was issued a restraining order 
for two weeks and referred for counseling. 
 

On July 21, 1986, the applicant advanced to seaman (SN).   
 
 
 
On  May  29,  1987,  the  applicant  was  counseled  about  his  poor  behavior,  performance, 
attitude, and lack of respect for authority.  He was advised that if he did not improve, he would 
not be recommended for advancement or reenlistment. 
 

On October 6, 1987, the applicant was counseled about his poor behavior, performance, 
and attitude.  It was noted that he had, on several occasions while on watch, answered the tele-
phone, set down the receiver, and walked away without notifying anyone.  In addition, he had 
several times failed to file documents properly.  He had put all of the documents he had been 
asked to file in a single, erroneous place in a filing cabinet. 
 
 
On October 19, 1987, the applicant was counseled about his continuing poor performance 
and about the fact that he would not be recommended for reenlistment.  On October 29, 1987, the 
Executive  Officer  noted  that  the  applicant’s  attitude  and  work  had  improved  to  an  acceptable 
level during the prior 10 days. 
 

On December 14, 1987, the applicant participated in a random urinalysis at his unit.  He 
signed a Page 7 noting his two sample numbers and affirming that his samples had been properly 
sealed  and  were  not  tampered  with  or  switched.    A  pharmaceutical  laboratory  report  dated 
December 21, 1987, shows that the applicant’s urine sample tested positive for a metabolite of 
marijuana, at a level of 50 micrograms per milliliter.  A second pharmaceutical laboratory report 
dated January 14, 1988, shows that the applicant’s other urine sample also tested positive for a 
metabolite of marijuana, at a level of 56 micrograms per milliliter.2 

 
On February 4, 1988, the Group Commander notified the applicant that he intended to 
initiate his discharge and was recommending that the applicant receive a General discharge for 
misconduct due to drug abuse.  He advised the applicant that he had a right to submit a rebuttal 
statement regarding the proposed discharge within three days. 

 
Also on February 4, 1988, the applicant signed a form acknowledging that he had been 
notified that his command was initiating a General discharge for misconduct.  He indicated that 
he did not object to being discharged but would submit a statement on his behalf. 

 
On February 8, 1988, the applicant submitted a statement asking to receive an Honorable 
discharge for the convenience of the Government instead of a General discharge for misconduct.  
He  stated  that  he  had  experimented  with  only  a  minute  amount  of  marijuana  because  he  was 
feeling stressed and depressed. 

 

                                                 
2 In 1988, the Coast Guard’s minimum cut-off level of THC for a “positive” urinalysis result was 50 micrograms per 
milliliter because it was not then known what level could be caused by secondary inhalation of others’ marijuana 
smoke.  The cut-off is now set at 15 micrograms per milliliter. 

On February 17, 1988, the Group Commander recommended to the Commandant that the 
applicant receive a General discharge for misconduct because of the positive urinalysis results.  
In  response,  the  Personnel  Command  advised  the  applicant’s  command  to  ensure  that  he  was 
given an opportunity to consult legal counsel because of the proposed General discharge. 

 
On March 18, 1988, the applicant appealed the recommended discharge.  He noted that 
he had consulted a Coast Guard attorney and requested a General discharge for unsuitability due 
to psychological problems.  He also asked for a hearing by an Administrative Discharge Board.  
He asked the Coast Guard to remove his February 8, 1988, statement from his record since he 
had not yet consulted counsel when he wrote it. 

 
On March 31, 1988, the applicant’s Group Commander forwarded the discharge package 
to the Commandant and recommended that the applicant be discharged for drug abuse rather than 
for any psychological reason.  He noted that the applicant was not entitled to an Administrative 
Discharge Board because he had less than eight years of service. 

 
On  April  20,  1988,  the  Commandant  ordered  that  the  applicant  receive  a  General  dis-
charge for misconduct due to drug abuse under Article 12-B-18 of the Personnel Manual within 
30 days. 
 
On  May  19,  1988,  the  applicant  received  his  discharge  form,  DD  214,  with  a  General 
discharge “under honorable conditions” by reason of misconduct in accordance with Article 12-
B-18 of the Personnel Manual.  The DD 214 bears his signature.  The DD 214 also shows that 
his separation code is HKK, which denotes a discharge due to illegal drug abuse, and his reenlist-
ment code is RE-4.  The decorations and awards listed on his DD 214 are the following:  Coast 
Guard  Pistol  Shot  Marksmanship  Ribbon  (Marksman),  Coast  Guard  Rifleman  Marksmanship 
Ribbon (Marksman), Coast Guard Unit Commendation Ribbon with “O” Device, and Comman-
dant’s  Letter  of  Commendation  Ribbon  Bar.    Because  of  his  misconduct,  the  applicant  never 
received a Good Conduct Medal.   
 

VIEWS OF THE COAST GUARD 

 

On April 30, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted an 

advisory opinion recommending that the Board deny relief in this case.   

 
The JAG stated that the application was not timely and should be denied for untimeliness 
because the applicant provided “no rationale for his approximately 21 year delay.”  The JAG also 
adopted the findings and analysis provided in a memorandum on the case prepared by the Coast 
Guard Personnel Service Center (PSC), which also recommended that the Board deny relief. 

 
The PSC noted that the applicant’s urine had tested positive for marijuana use in 1984 
and that he had been advised in 1984 that a subsequent positive urinalysis could be grounds for 
discharge. 

 
The PSC noted that the applicant had asked, after consulting an attorney, that his Febru-
ary 8, 1988, rebuttal statement, in which he admitted having used marijuana, be removed from 

his record.  The PSC argued that even without that admission, the confirmed positive urinalysis 
constituted “sufficient grounds to substantiate drug use.” 

 
The  PSC  stated  that  under  current  policy,  members  involved  in  a  drug  incident  may 
receive no higher than a General discharge.  The PSC stated that the applicant’s record does not 
contain any special awards that would merit special consideration and does include many nega-
tive entries documenting other misconduct by the applicant.  Moreover, the PSC argued, allow-
ing members to abuse drugs is completely inconsistent with the Coast Guard’s major role in drug 
interdiction. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On May 4, 2009, the Chair sent the applicant a copy of the views of the Coast Guard and 
invited him to respond within thirty days.  The applicant’s response was received on May 28, 
2009.  He stated that he disagreed with the views of the Coast Guard.  He repeated his allegation 
that on his day of discharge, an administrative officer told him that he would “have the oppor-
tunity to apply for a discharge upgrade (via) four  years and up.”  However, he waited twenty 
years before receiving information or guidance about upgrading his discharge. 
 
 
The applicant stated that he feels strongly that his past mistake in having used marijuana 
“should  not  currently  be  able  to  constitutional[ly]  deny  [him]  success  in  upgrading  [his]  dis-
charge.”  He noted that his discharge was General “under honorable conditions,” not Dishonor-
able.  The applicant noted his receipt of medals and awards from the Army National Guard and 
the Coast Guard and his completion of his four-year enlistment.  He stated that he wants his dis-
charge upgraded so that he can hang the certificate over his mantel with his other achievements. 
 

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 con-
trolled 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. 
 
 
code authorized for members discharged due to illegal drug use is the RE-4. 
 

The Separation Program Designator (SPD) Handbook shows that the only reenlistment 

 
Under Articles 20.C.4.1. and 12.B.18.b.4.a. of the current Personnel Manual, any member 
involved in a “drug incident” is subject to an administrative discharge for misconduct and “will 
be processed for separation from the Coast Guard with no higher than a General discharge.” 

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.3 

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  in  his  record.4  
The  applicant  has  alleged  that  his  General  discharge  and  RE-4  are  erroneous  or  unjust.    He 
received  and  signed  his  DD  214  with  the  General  discharge  and  RE-4  on  May  19,  1988.  
Therefore, although he claimed on his application form that he discovered the alleged error or 
injustice in his record in 2008, the Board finds that he clearly knew about his General discharge 
and the RE-4 in 1988.  Therefore, his application is untimely. 

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.”5 

Regarding the delay of his application, the applicant argued that it would be in the 
interest of justice for the Board to excuse the untimeliness of his application because he waited 
and has suffered the burden of the General discharge for more than twenty  years.   The Board 
finds that the applicant’s explanation for his delay is not compelling because he has admitted that 
he was told on the day he was discharged that he could apply to have his discharge upgraded and 
yet he did not pursue the upgrade for more than twenty years.  He has not shown that anything 
prevented  him  from  seeking  correction  of  the  alleged  error  or  injustice  in  his  record  more 
promptly. 

 
2. 

 
3. 

 
4. 

 

                                                 
3 Under 10 U.S.C. § 1553(a), the Discharge Review Board has authority to upgrade veterans’ discharges only within 
the first 15 years from the date of discharge. 
4 10 U.S.C. § 1552(b); 33 C.F.R. § 52.22. 
5 Allen v. Card, 799 F. Supp. 158, 164-65 (D.D.C. 1992); see also Dickson v. Secretary of Defense, 68 F.3d 1396 
(D.C. Cir. 1995).   
 

5. 

A cursory review of the merits of this case shows that it lacks potential merit.  The 
record shows that the Group Commander determined on the basis of confirmed urinalysis results 
that the applicant was involved in a “drug incident.”  The Group Commander’s determination 
that the applicant had used an illegal drug and the resultant General discharge are presumptively 
correct under 33 C.F.R. § 52.24(b).6  As a result of the “drug incident,” the applicant was proc-
essed for a General discharge in accordance with Article 12-B-18.b.(4) of the Personnel Manual 
in effect in 1988, which stated that “[a]ny member involved in a drug incident will be separated 
from the Coast Guard with no higher than a general discharge.”  The record shows that he was 
not  initially  offered  legal  counsel  but  that  this  mistake  was  rectified  and  his  appeal  was  for-
warded  to  the  Commandant.    Although  the  applicant  admitted  smoking  marijuana  in  his  first 
statement, dated February 8, 1988, and may not have done so had he received counsel earlier, his 
General discharge was not based on this admission but on the urinalysis results and on Article 
12-B-18.b.(4), under which he was not eligible for an Honorable discharge.   

The  applicant  argued  that  his  discharge  and  RE-4  code  should  be  upgraded 
because he served his country and the Coast Guard well and has suffered the burden of his Gen-
eral  discharge  for  more  than  twenty  years.    The  Board  is  not  persuaded  that  the  burden  of  a 
General discharge under honorable conditions is overly onerous in light of the applicant’s drug 
abuse while serving on active duty.  As the PSC indicated, drug abuse by members is particularly 
offensive to the Coast Guard because of the Service’s major role in drug interdiction.  Moreover, 
the  applicant’s  military  record  reveals  repeated  instances  of  other  types  of  misconduct,  disre-
spect, and poor performance.  Therefore, 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.  

 
6. 

 
7. 

 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
6 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.”). 

The application of former SN xxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Bruce D. Burkley 

 

 

 

 
 
 Robert S. Johnson, Jr. 

 

 

 
 Randall J. Kaplan 

 

 

 
 

 

 

 

 

 

 

 

 

 

 

military record is denied.