DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-103 
 
XXXXXXXXXXXXXX 
XXXXXXXXXXXXXX 

 

 
 

 

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  application  upon  receipt  of  the 
applicant’s completed application March 9, 2009, and subsequently prepared the final 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 December 4, 2009, 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 
honorable conditions (commonly referred to as a general discharge) to an honorable discharge.   

 
The applicant enlisted in the Coast Guard on October 1, 2002, and was discharged under 
honorable conditions on March 29, 2007, by reason of misconduct.  He was assigned an RE-4 
reenlistment code and a JKK (drug abuse) separation code. At the time of enlistment and prior to 
recruit training, the applicant was counseled on an administrative remarks page (page 7) dated 
October 1, 2002, which stated the following, in pertinent part:  “I understand that I am not to use, 
possess, or distribute illegal drug, drug paraphernalia of hemp oil products  . . . If my urine test 
detects  the  presence  of  illegal  drugs,  I  may  be  subject  to  discharge  and  receive  a  general 
discharge.” 
 

APPLICANT'S ALLEGATIONS 

 
 
The  applicant  asserted  that  he  was  erroneously  given  an  under  honorable  conditions 
discharge,  when  he  should  have  been  given  an  honorable  discharge.    He  claimed  that 
unbeknownst to him at the time, a friend had laced his drink with an illegal drug.  He argued that 
his ingestion of the illegal drug was involuntary and should not have been characterized as a drug 
incident, which requires the intentional use of drugs.  He stated that his CO and others told him 

that he deserved an honorable discharge because his drug use was not a drug incident, but rather 
a matter of poor judgment.   
 
 
According to the applicant, the incident occurred on the third weekend in August 2006 
during a visit to his mother’s home.  He stated that he was hanging out with his brother and a 
friend of theirs in the basement when following the incident occurred: 
 

I spent time at my mother’s house . . . with [my brother].  That night we started 
drinking a few beers.  We had a few beers that night and hung out in my mother’s 
basement.  A couple hours later, probably around 2300, a mutual friend from high 
school came over, [TJ].  He came downstairs and hung out.  After a while and a 
couple  glasses  of  wine,  [TJ]  went  upstairs  to  grab  another  bottle.  He  said  we 
should do a toast for [a deceased friend].  We toasted and drank the wine together, 
bottoms up.  A couple of minutes later my mouth was tingling and numb and my 
brother was looking down into his glass.  We asked [TJ] what he did and he just 
looked back smiling.  I realized what happened and grabbed [TJ] and asked him 
what  the  hell  he  put  in  the  wine.    He  said  something  about  powder,  and  [my 
brother already] knew.  I went to hit [TJ] and [my brother] pulled me away from 
him and made [TJ] leave.  [My brother] walked him upstairs and [TJ] said “he just 
thought it would be funny.”  The rest of the night I felt awful . . . sweaty, itching, 
and couldn’t sleep.  I wanted to call the police on [TJ] but realized this happened 
in  my  mother’s  house  and  that  I  could  get  her  into  trouble.    The  following 
morning I woke up having to run to the bathroom to vomit and was covered in 
hives, itching like crazy.  I woke my brother up and showed him the hives on my 
arms and my chest and in between my fingers.  He stood by me while I was sick 
and wanted to  go to the ER.  But  I  was  afraid that it would all  go back to the 
Coast Guard, and I was scared to death.  
 

 
 
I  called  [the  Training  Center]  Yorktown  and  explained  I  was  sick  on  Monday 
morning  but  did  not  feel  well  enough  to  drive  the  8  hour  trip  until  Tuesday 
afternoon.  I arrived at Yorktown for class on Wednesday and reported to the MK 
Training Chief.  I was scared to death and knew I was going to be subject to a 
urinalysis  which  I  took  and  failed.    I  guess  I  was  under  some  illusion  that  this 
would  all  go  away.  I  prayed  that  I  would  pass  the  urinalysis.    The  morning  I 
returned I saw the medical officer and showed him the scabs from the hives all 
over my body.  I did not tell anyone exactly what happened until I was notified of 
the urinalysis results, at which point I asked to consult with an attorney. 
 
I have contacted [TJ] since that night and asked that he write a sworn statement to 
show what happened and what he did.  He agreed to do so.  I have spoken to him 
again  since.    When  I  went  home  for  Christmas  it  was  my  intention  to  get  the 
signed statement from him and from my  brother.   I  got the statement from my 
brother but was unable to get the statement from [TJ].  I am guessing that he may 

  * 

 

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feel that he has no reason to help me.  Like many people, he is looking out for 
himself . . . either that, or he has legitimately been missing my messages.    

The  applicant  submitted  a  supporting  statement  from  his  brother.  The  brother 
corroborated the applicant’s statement that a friend of theirs had spiked the applicant’s drink with 
drugs without the applicant’s knowledge.  After consuming the drink with the drug, the applicant 
became sick but refused to go to the hospital because he needed to return to duty and he was 
afraid  that  the  Coast  Guard  would  find  out  about  the  incident.    According  to  the  brother,  the 
applicant was sick for two days and called his unit to inform them that he was too sick to drive 
back to the unit. The brother stated that the applicant was in trouble because of their friend’s 
action and that the applicant hates drugs and would never do cocaine. 
 
    
The  applicant  submitted  a  statement  that  had  been  presented  at  his  non-judicial 
punishment (NJP)1 for illegal use of drugs from a BMCS (senior chief boatswain’s mate) who 
was  his  previous  officer-in-charge  (OIC)  from  2003  to  2006.    The  BMCS  stated  that  the 
applicant was an extremely high performer and that he had been the unit’s sailor of the quarter 
and had been nominated as the sector’s enlisted person of the year.  The BMCS stated, “While I 
certainly cannot attest to his actions as they pertain to the [drug] charges, I find it unlikely, based 
solely on my past interactions with him that the member would consciously use narcotics, other 
than those prescribed by a physician.”  
 
 
The applicant also submitted a statement that was used at his NJP from a BMC (chief 
boatswain’s mate) who was the applicant’s past executive petty officer (XPO).  The BMC stated 
that  he  has  always  had  the  highest  confidence  in  the  applicant,  and  “Having  witnessed  his 
character, his honesty and his desire to do the right thing regardless of the repercussions, I have 
full confidence in his word when he tells me he did not intentionally ingest cocaine but believes 
it was surreptitiously given to him.”   
 

The applicant submitted the statement that he wrote dated February 8, 2007, objecting to 
his discharge from the Coast Guard due to misconduct (drug abuse).2  In the statement, he denied 
having intentionally used drugs and noted the difficulty of proving his innocence in the absence 
of any actual physical evidence of what happened on the night in question.  The applicant stated 
that he has served honorably in the Coast Guard for four and one-half years and questioned the 
fairness of an under honorable conditions discharge due to misconduct (drug abuse) for someone 
with an excellent service record like himself.   

 
A  page  7  and  the  DD214  stated  that  the  applicant  was  discharged  under  honorable 

 

 

conditions on March 29, 2007, by reason of misconduct.  

 
 

                                                 
1      The  actual  NJP  documents  are  not  in  the  applicant’s  military  records.  However,  in  his  application  to  the 
Discharge  Review  Board  (DRB)  the  applicant  stated  that  he  went  to  captain’s  mast  as  a  result  of  the  positive 
urinalysis.  According to the DRB report the NJP was held on January 29, 2007.   
2   The notification to the applicant of his proposed discharge is not in the military record.   

Discharge Review Board (DRB) Decision 
 
 
The applicant submitted an application to the DRB for an upgrade of his discharge.  The 
DRB  recommended  by  a  vote  of  4  to  1  not  to  change  the  applicant’s  discharge.    The  Vice 
Commandant of the Coast Guard approved the majority DRB recommendation.  The majority of 
the  DRB  found  the  applicant’s  claim  that  he  unintentionally  ingested  cocaine  to  be 
“incredulous”.   They stated that at the time, the applicant was 27 years of age, had over four 
years of service, and was a second class petty officer with strong evaluations, and therefore, he 
should have known to report the incident immediately to his command.  They also noted that 
when the applicant’s brother suggested that the applicant go to the hospital, the applicant refused 
because he was afraid that the Coast Guard would find out about the incident. 
 
 
The dissenting member of the DRB believed the applicant’s account, although he agreed 
that the applicant had used poor judgment in not reporting the incident immediately after the fact.  
The  minority  member  felt  that  because  of  the  applicant’s  exemplary  performance  evaluations 
coupled with his receipt of the Coast Guard Achievement Medal,3 there is sufficient information 
to suggest that the applicant’s claims have merit in that he did not intentionally use drugs, and 
therefore, should have been afforded an opportunity to remain in the Service.   
 

 

VIEWS OF THE COAST GUARD 

 
 
On  July  21,  2009,  the  Board  received  an  advisory  opinion  from  the  Judge  Advocate 
General (JAG), adopting the facts and analysis provided by Commander, Coast Guard Personnel 
Service  Center  (PSC),  who  recommended  denial  of  the  applicant’s  request.    PSC  stated  the 
following: 
 

The  applicant  participated  in  a  random  urinalysis  and  tested  positive  for  a 
controlled substance.  The applicant affirms that his positive test for Cocaine was 
as  a  result  of  his  wine  being  laced  with  a  drug  while  he  was  associating  with 
known drug abusers (his brother and friend).  The applicant provides a statement 
from  his  brother  corroborating  this  story.    However,  given  the  nature  of  the 
incident,  the  applicant  did  not  come  forward  regarding  the  drug  incident  until 
after he tested positive on a urinalysis.  Had the incident been involuntary as the 
applicant  claims,  the  applicant’s  failure  to  disclose  the  alleged  involuntary  use 
until after he tested positive on a urinalysis does not lend credibility toward his 
argument. 
 
Current  Coast  Guard  policy  clearly  defines  that  individuals  involved  in  a  drug 
incident shall receive no higher than a General Discharge . . .  A review of the 
applicant’s  record  does  not  reveal  any  awards  that  would  merit  special 
consideration  under  Article  12.B.2.f.1.f.    The  applicant’s  discharge  was  in 
accordance with Coast Guard policy for processing personnel for misconduct.                 

                                                 
3   According to the DD 214, in addition to the Coast Guard achievement Medal, the applicant also earned the Good 
Conduct  Medal,  Coast  Guard  Pistol  Expert  Medal,  Coast  Guard  Presidential  Unit  Citation;  Coast  Guard  Rifle 
Marksman Ribbon, and the Global War on Terrorism Service Medal.   

 
One of the express objectives of the Coast Guard’s Alcohol and Substance Abuse 
program  is  to  “Detect  and  separate  from  the  Coast  Guard  those  members  who 
abuse,  traffic  in,  or  unlawfully  possess  illegal  drugs:    .  .  .  (PERSMAN  Article 
20.A.1.c.)    Allowing  members  of  the  Coast  Guard  to  abuse  illicit  drugs  and 
continue  to  serve  runs  counter  to  the  Service’s  core  values  and  is  completely 
inconsistent with the Coast Guard’s maritime law enforcement mission.”   

APPLICANT'S REPONSE TO THE VIEWS OF THE COAST GUARD 

On August 14, 2009, a copy of the Coast Guard views was sent to the applicant for any 

 
 
response that he wanted to make.  The BCMR did not receive a response from the applicant. 
 

APPLICABLE REGULATIONS 

Article 12.B.18.b.4.a. of the Personnel Manual states the following: 

 

 
 
 

 

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. defines a drug incident as any of the following conduct as determined by the 
commanding officer (CO): 
 

“a. Intentional use of drugs;  
“b. Wrongful possession of drugs;  
“c. Trafficking (distribution, importing, exporting, or introduction into a military facility) 
of drugs;  
“d. The intentional use of other substances, such as inhalants, glue, and cleaning agents, 
or  over-the-counter  (OTC),  or  prescription  medications  to  obtain  a  “high,”  contrary  to 
their intended use; or,  
“e. A civil or military conviction for wrongful use, possession, or trafficking of drugs, 
unless rebutted by other evidence.” 

This provision also states that a member need not be found guilty at court-martial, in a 
civilian court, or be awarded NJP [non-judicial punishment] for the conduct to be considered a 
drug incident.  The provision further states that “[i]f the conduct occurs without the member’s 
knowledge, awareness, or reasonable suspicion or is medically authorized, it does not constitute 
a drug incident.”    
 

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 does not deny that his urine tested positive for an illegal drug, but he 
argued that because his drug ingestion was not intentional it does not meet the definition of a 
drug  incident.    Article  20.A.2.k.  of  the  Personnel  Manual  defines  a  drug  incident  as  the 
intentional use of drugs, the wrongful possession of drugs, or the trafficking in drugs.  It further 
provides  that  if  the  use  occurs  without  the  member’s  knowledge,  awareness,  or  reasonable 
suspicion or is medically authorized, it does not constitute a drug incident.   
 

 
6.  With regard to the applicant’s argument that it is unfair for someone with his record of 
service  to  be  prejudiced  with  a  general  misconduct  discharge,  Article12.B.18.b.4.a.  of  the 
Personnel Manual makes it clear 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 

records,  service 

3.  Article 20.A.2.k.1. of the Personnel Manual gives the applicant’s CO the authority to 
determine  if  the  applicant’s  drug  use  was  a  drug  incident.    Article  20.C.3.c.  states  that  in 
determining  whether  a  drug  incident  occurred,  a  commanding  officer  should  consider  all  the 
available  evidence,  including  positive  confirmed  urinalysis  test  results,  any  documentation  of 
prescriptions,  medical  and  dental 
record,  and  chain  of  command 
recommendations.    This  provision  further  provides  that  evidence  relating  to  the  member’s 
performance  of  duty,  conduct,  and  attitude  should  be  considered  only  in  measuring  the 
credibility  of  a  member’s  statements.    Article  20.D.3.d.  of  the  Personnel  Manual  states  that 
preponderance of the evidence is the standard for finding a drug incident. 
 
 
4.    The applicant had the opportunity during his NJP to present the CO with his own 
statement  explaining  how  his  urine  tested  positive  for  an  illegal  drug.    The  CO  also  had  the 
applicant’s brother’s statement and the character references from the applicant’s past OIC and 
XPO.  The  applicant  also  had  an  opportunity  to  write  a  statement  objecting  to  his  proposed 
discharge.  Yet, as evidenced by the applicant’s discharge, the CO determined that the applicant 
had  been  involved  in  a  drug  incident  and  recommended  his  discharge  from  the  Coast  Guard, 
which required the approval of the commander, Coast Guard Personnel Command (CGPC).   
 
 
5.  As the applicant has not presented any evidence other than that reviewed by the CO 
and  has  not  alleged  that  he  was  denied  of  any  due  process  rights  afforded  under  applicable 
regulation, the only basis for the Board to overturn the CO’s and CGPC’s determination that the 
applicant was involved in a drug incident is to give more weight and credibility to the statements 
of  the  applicant  and  his  brother  than  did  the  CO  or  the  Coast  Guard.      The  CO  had  the 
opportunity  to  observe  and  weigh  the  applicant’s  credibility  during  the  NJP  hearing  and  to 
consider  the  applicant’s  brother’s  written  statement.  Despite  the  applicant’s  excellent  service 
record and the character references from his previous OIC and XPO, apparently the CO did not 
believe the applicant’s explanation that he did not intentionally use drugs.  Moreover, the Coast 
Guard has entrusted the CO with making these judgments and, in the absence of a violation of 
the Personnel Manual or compelling evidence of an injustice, the Board will not substitute its 
judgment for that of the CO or CGPC.    

discharge.”  The applicant signed an administrative remarks page (page 7) on October 1, 2002, 
advising him of the Coast Guard’s drug policy.   
 

7.   The applicant has failed to prove that the Coast Guard committed an error or injustice 

in discharging him with a general discharge for involvement in a drug incident. 
 
 

8. Accordingly, the application should be denied.  
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 
 
 

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

ORDER 

 
 
record is denied. 
 
 
 
 
 

 
 
 
 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Nancy L. Friedman 

 

 

 
 Patrick B. Kernan 

 

 

   
 George A. Weller