DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-145 
 
XXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXX 

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 May 8, 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  January  14,  2010,  is  approved  and  signed  by  the  three  duly 

APPLICANT'S REQUEST AND BACKGROUND 

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 January 10, 2000, and was discharged under 
honorable conditions on February 16, 2001, 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 about the Coast Guard’s policy on illegal drugs on 
an  administrative  remarks  page  (page  7)  dated  January  10,  2000.    The  page  7  stated  the 
following,  in  pertinent  part:    “I  have  been  advised  that  the  illegal  use  or  possession  of  drugs 
constitutes a serious breach of discipline which will not be tolerated . . . No member will use, 
possess, or distribute illegal drugs or drug paraphernalia.”   

 
During a command investigation that occurred from December 7, 2000 to December 18, 
2000, the applicant admitted to a one-time use of marijuana while in the Coast Guard.  At the 
time of the misconduct the applicant was approximately 20 years old.   On December 20, 2000, 
the applicant was punished at captain’s mast (also known as non-judicial punishment (NJP)) for 
wrongful use of a controlled substance. 

 

 
 

 

 
 
   

APPLICANT'S ALLEGATIONS 

The  applicant  stated  that  he  wants  nothing  more  than  to  serve  his  country  and 
community,  but  he  has  been  unable  to  do  so  because  of  the  under  honorable  conditions 
discharge.  He stated that he discovered the alleged error on April 12, 2007, and that it is in the 
interest of justice to waive the untimeliness because he has shown to the community that he can 
become an outstanding police officer. 

 
In  support  of  his  application,  the  applicant  submitted  a  statement  from  the  Sheriff  of 
Jackson  County  Mississippi.    The  Sheriff  believed  that  the  applicant’s  discharge  should  be 
upgraded to honorable because the applicant is a good candidate for a career in law enforcement, 
but  is  prevented  from  working  in  the  field  due  to  his  military  discharge.    The  sheriff  further 
explained: 

 
[The applicant] spent several months working with the Jackson County Sheriff’s 
Department as an intern doing a field practicum from Virginia College.  He was 
assigned to our investigative division, patrol division, and spent time working at 
our  correctional  facility.    I  received  no  negative  comments  from  any  of  his 
supervisors during this time. 

 

 

 

[The applicant] took our Civil Service Test for full-time employment and passed 
the  written  exam  as  well  as  the  interview.    However,  his  background  check 
revealed the less than honorable discharge.   
 
The applicant submitted a transcript from Virginia College showing that he received an 

 
Associates Degree in criminal justice in February 2009. 
 
 
The applicant submitted a statement from the Lead Criminal Justice Instructor at Virginia 
College.  She highly recommended the applicant for employment as a law enforcement officer.  
Her letter is dated June 18, 2008.  
 
Discharge Proceedings 
 
 
On December 28, 2000, the applicant’s commanding officer (CO) advised the applicant 
that  the  CO  was  recommending  that  the  Commandant  discharge  the  applicant  from  the  Coast 
Guard under honorable conditions due to a drug incident.  The basis for the discharge was the 
applicant’s admission that he had used marijuana while on active duty in the Coast Guard.  The 
applicant was punished at captain’s mast for wrongful use of marijuana on December 20, 2000.  
The applicant was advised in writing that he could submit a statement, that he could object to the 
discharge and that he had the right to consult with a lawyer.   
 
 
On December 28, 2000, the applicant signed a statement in which he acknowledged the 
proposed discharge, did not object to it, and waived his right to submit a statement.  He consulted 
with a lawyer on January 25, 2001.   
  

 
On January 9, 2001, the CO recommended that the Commandant discharge the applicant 
with a general discharge due to a drug incident.  The CO stated that his recommendation was 
based  on  the  applicant’s  admission  that  he  used  marijuana  on  at  least  one  occasion  while 
assigned  to  the  unit.    In  this  regard  the  CO  stated,  “This  admission  was  made  during  a 
preliminary  investigation  conducted  from  11  December  to  18  December  2000  as  a  result  of 
allegations that [the applicant] was using drugs . . . “   The CO wrote that notwithstanding the 
off-duty use of drugs, the applicant had been an asset to the engineering department.  “He spent 
numerous  liberty  hours  ensuring  [the  cutter]  was  prepared  to  sail  on  time.    Additionally,  he 
always has an upbeat attitude and demonstrated strong initiative as he worked hard to qualify for 
his watchstations.” 
 
 
On January 22, 2001, the Commandant directed that the applicant be discharged with a 
general discharge by reason of misconduct due to involvement with drugs.  The Commandant 
directed that the applicant receive a JKK separation code with the appropriate narrative reason 
indicated in the Separation Program Designator (SPD) Handbook.   
 
Discharge Review Board (DRB) Decision 
 
 
Prior to filing his application with the BCMR, the applicant submitted an application to 
the DRB for an upgrade of his discharge.  The DRB members voted unanimously to recommend 
denial of relief.  On August 24, 2007, the Commandant of the Coast Guard approved the DRB’s 
recommendation.    The  DRB  members  recognized  the  applicant’s  one-time  use  of  drugs  as  a 
youthful  indiscretion  and  a  lapse  in  judgment,  but  felt  that  the  discharge  was  carried  out  in 
accordance with Coast Guard policy.   
 

 

VIEWS OF THE COAST GUARD 

 
 
On  September  30,  2009,  the  Board  received  an  advisory  opinion  from  the  Judge 
Advocate  General  (JAG),  of  the  Coast  Guard  recommending  that  the  applicant’s  request  be 
denied.    The  JAG  stated  that  Coast  Guard  policy  and  past  BCMR  findings  dictated  that  in 
considering  the  character  of  a  discharge,  the  Board  should  not  upgrade  a  discharge  based  on 
post-discharge  conduct  alone,  but  may  “take  into  account  changes  in  the  community  mores, 
civilians as well as military, since the time the discharge was rendered, and upgrade a discharge 
if it is judged to be unduly severe in light of contemporary standards.”  The JAG further stated 
that Article 12.B.18.b.4.a. of the Personnel Manual mandates a separation for drug use with a 
characterization no higher than a general discharge.  The applicant’s discharge under honorable 
conditions is consistent with CG policy and not unduly severe.   
 

The JAG also adopted the facts and analysis provided by Commander Personnel Service 
Command (PSC) as a part of the Coast Guard’s advisory opinion.  PSC stated that the discharge 
was in accordance with Coast Guard policy and noted that the CO’s discharge recommendation, 
the  applicant’s  discharge,  and  the  DRB  decision  support  that  policy.    PSC  stated  that  the 
applicant did not  contest the findings of the DRB or  allege that he had  been treated unjustly.  
PSC  concurred  with  the  findings  of  the  DRB  and  argued  that  the  Coast  Guard’s  actions  are 
presumptively correct in the absence of evidence to the contrary.   
 

APPLICANT'S REPONSE TO THE VIEWS OF THE COAST GUARD 

On October 1, 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.  of  the  Personnel  Manual  then  in  effect  defined  a  drug  incident  as 

follows: 
 
 Intentional drug abuse, wrongful possession of, or trafficking in drugs.  If the use 
occurs without a member’s knowledge, awareness, or reasonable suspicion or is 
medically authorized, it does not constitute a drug incident.  A civil or military 
conviction  for  wrongful  use,  possession,  etc.,  of  controlled  substances  is  prima 
facie evidence of a drug incident.  The member need not be found guilty at court-
martial, in a civilian court, or be awarded NJP for the behavior to be considered a 
drug incident.   

 
Article 20.C.1.b. places responsibility on COs for ensuring their unit’s compliance with 
 
the  Coast  Guard’s  Drug  Abuse  Program.    “Commanding  officers  shall  investigate  all 
circumstances  in  which  the  use  or  possession  of  drugs  appears  to  be  a  factor,  and  take 
appropriate administrative and disciplinary action. 
 

FINDINGS AND CONCLUSIONS 

1.    The  Board  has  jurisdiction  of  this  case  pursuant  to  section  1552  of title  10  United 

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: 
 
 
States Code.  
 
 
2.  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 filed his application with the Board more than 
three years after he knew or should have known of the alleged error on his DD 214, he filed it 
within  three  years  of  the  DRB  decision.    The  DRB  has  a  fifteen-year  statute  of  limitations.  
Under  Ortiz  v.  Secretary  of  Defense,  41  F.3d  738,  743  (D.C.  Cir.  1994),  the  application  is 
considered  timely  because  the  Board’s  statute  of  limitations  is  tolled  during  the  DRB 
proceedings. 

 
 
3.    The  applicant’s  admission  that  he  had  used  marijuana  while  in  the  Coast  Guard 
constituted a drug incident for which he was punished at captain’s mast.  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.    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. Under Article 20.D.3.d. of the 
Personnel Manual, a preponderance of the evidence is the evidentiary standard for finding that a 
member is involved in a drug incident.  The applicant’s admission that he had used marijuana, 
particularly  in  the  absence  of  other  evidence  to  the  contrary  was  sufficient  for  the  CO  to 
conclude that he was involved in a drug incident.  
 
 
4.    Under the Personnel Manual, an under honorable conditions discharge is appropriate 
for a discharge due to a drug incident.  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 discharge.”  The applicant 
signed an administrative remarks page (page 7) on January 10, 2000, advising him of the Coast 
Guard’s drug policy.  The applicant was afforded his due process rights prior to discharge and 
does  not  make  any  claim  that  he  was  denied  any  such  rights.      Based  upon  the  above,  the 
applicant has failed to prove an error with respect to his discharge. 
 
 
5.  The applicant has not shown that his under honorable conditions discharge was unjust.  
“[i]njustice’, when not also ‘error’, is treatment by the military authorities, that shocks the sense 
of justice, but is not technically illegal.” Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976).  
The applicant was warned about the Coast Guard’s policy with regard to the illegal use of drugs 
when  he  entered  active  duty.  The  applicant’s  admission,  his  youthful  age  at  the  time  of  the 
offense, his work ethic and his upbeat attitude did not dissuade the CO from recommending the 
applicant’s  discharge  or  CGPC  from  approving  the  discharge.      The  Coast  Guard  has  a  zero 
tolerance  policy  toward  drug  use  and  its  decision  to  discharge  members  involved  in  drug 
incidents  with  no  higher  than  a  general  discharge  is  reasonable  given  its  mission  of  drug 
interdiction. 
 

6.  The Board is sympathetic to the applicant’s plea for an honorable discharge so that he 
can work in the law enforcement field.  However, the applicant’s inability to serve in the civilian 
law enforcement field does not prove that the Coast Guard committed an injustice by discharging 
him with an under honorable conditions discharge in accordance with the applicable regulation.  
The  Secretary’s  delegate  stated  in  a  1976  memorandum1  that  Board  should  not  upgrade  a 
discharge  based  on  post-discharge  conduct  alone,  but  may  “take  into  account  changes  in  the 
community mores, civilians as well as military, since the time the discharge was rendered, and 
upgrade  a  discharge  if  it  is  judged  to  be  unduly  severe  in  light  of  contemporary  standards.”   
There has not been a change in the manner in which the Coast Guard treats members involved in 
drug  incidents  since  the  applicant’s  discharge.      The  Coast  Guard  looked  unfavorably  upon 
                                                 
1  Department of Transportation, Office of the Secretary Memorandum, BCMR and “Clemency,” July 2, 1976. 

illegal drug use at the time of the applicant’s discharge and continues to do so today, and it still 
refuses to grant honorable discharges for member discharged due to drug incidents.   
 

 
7. Accordingly, the applicant has failed to prove an error injustice and his request should 

be denied.    

 
 
 
 
 
 
 

 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

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

ORDER 

 

 
 Donna M. Bivona 

 

 

 
Evan R. Franke 

 

 

 
 James E. McLeod 

 

 

 
 

 

 

 
 

 

 

 

 

 

 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 
 

 
 
record is denied.