DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-172 
 
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 on June 16, 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  March  11,  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 general discharge 
under  honorable  conditions  (commonly  referred  to  as  a  general  discharge)  to  an  honorable 
discharge and by upgrading his RE-4 (not eligible to reenlist) reenlistment code.   The applicant 
enlisted in the Coast Guard on June 22, 1999, and was discharged under honorable conditions on 
February  8,  2002,  by  reason  of  misconduct  due  to  drug  abuse.    He  was  assigned  an  RE-4 
reenlistment code and a JKK1 (drug abuse) separation code.  

 
The applicant contended that he should receive the requested relief because he did not 
undergo a drug test or screening during the investigation into his drug use.  He asserted that the 
investigating officer did not like or respect him and coerced him into saying that he had used 
Ecstasy.  The applicant claimed that he was at the wrong place at the wrong time.  He stated that 
he was a good sailor and further stated the following: 

 
I  have  held  a  captains  license  [for]  4  years  now  and  still  support  what  the  US 
Coast Guard does.  I am not looking to get my GI Bill or any compensation from 
the Guard.  I have been interested in [the United States] Customs and . . .  Border 
Patrol for some time now and feel with my qualifications I would be perfect for 

                                                 
1 The Separation Program Designator (SPD) Handbook states that a JKK separation code indicates a member has 
been involuntarily discharged due to a drug incident.   

the  job.    I  have  been  married  for  almost  4  years  now  and  have  a  son  and  a 
daughter on the way.  I also have my own construction business.   I have made the 
best  or  my  life  after  the  horrible  way  of  leaving  the  Coast  Guard.    I  hope  that 
something can be done . . .    
 
The applicant stated that the Board’s three-year statute of limitations should be waived in 

the interest of justice because “I feel the type of separation should be changed.”   

 

BACKGROUND 

 
At  the  time  of  enlistment,  the  applicant  was  counseled  on  a  page  7  about  the  Coast 
Guard’s policy on illegal drugs.   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.”    

 
A preliminary investigation was conducted into the applicant’s alleged drug use and the 
Investigating officer issued his report on November 26, 2001.  The investigating officer found 
that the applicant had consumed Ecstasy in June or July 2001 and had purchased and consumed 
Ecstasy  on  at  least  eleven  more  occasions  since  the  June/July  incident.    The  Investigating 
Officer’s  findings  were  based  upon  the  applicant’s  written  admissions  to  Coast  Guard 
Investigative Service agents.  The investigative report noted that the applicant was a qualified 
coxswain and had only one negative page 7 for reporting late to duty.    

 
On December 1, 2001, the applicant was punished at non-judicial punishment (NJP) (also 
know as captain’s mast) for the wrongful use of a controlled substance (Ecstasy) in violation of 
Article 112a of the Uniform Code of Military Justice.   
 
 
On December 18, 2001, the applicant’s commanding officer (CO) advised the applicant 
that  the  CO  was  recommending  that  the  Commandant  discharge  the  applicant  from  the  Coast 
Guard with a general discharge under honorable conditions due to a drug incident.  The basis for 
the  discharge  was  the  imposition  of  NJP  for  the  wrongful  use  of  a  controlled  substance,  the 
findings of the preliminary investigating officer, and the applicant’s incriminating statements to 
Coast Guard Investigative Service agents.  
 

The applicant was advised in writing that he could submit a statement in his own behalf, 

that he could object to the discharge, and that he had the right to consult with a lawyer.   
 
 
On December 18, 2001, the applicant signed a statement in which he acknowledged the 
proposed discharge, waived his right to submit a statement, waived his right to consult with a 
lawyer, and did not object to the discharge. 
 
 
On January 1, 2002, 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 to CGIS investigators that he used Ecstasy while serving on 
active duty and the imposition of NJP for the wrongful use of the controlled substance. 

 
 
On January 22, 2002, the Commandant directed that the applicant be discharged with a 
general discharge under honorable conditions by reason of misconduct due to his involvement 
with drugs.  The Commandant directed that the applicant receive a JKK separation code with the 
appropriate narrative reason as 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 October 20, 2003, the Commandant of the Coast Guard approved the DRB’s 
recommendation.    The  DRB  members  concluded  that  the  applicant’s  discharge  was  well 
documented and 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  also  adopted  the  facts  and  analysis  provided  by  Commander,  Personnel 
Service  Command  (PSC)  as  the  Coast  Guard’s  advisory  opinion.    PSC  asserted  that  the 
application was untimely and that the applicant had not provided an explanation for his failure to 
file timely.  
 

PSC also stated that the discharge was in accordance with Coast Guard policy and noted 
that that the applicant did not contest the findings of the DRB or allege that he had experienced 
any unjust prejudice.  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 

 
 
 

 

follows: 
 

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 

 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 or within three years of the issuance of a DRB decision. See Ortiz v. 
Secretary of Defense, 41 F.3d 738, 743 (D.C. Cir. 1994).  The DRB issued its decision on June 3, 
2003, and the applicant did not file his application with the Board until February 25, 2008.  The 
applicant discovered or should have discovered the alleged error upon his receipt of the DRB 
decision.  All information was available to him at the time to pursue a correction of his record. 
Therefore, the BCMR application is untimely by approximately two years.   
  

3.    The  Board  may  still  consider  the  application  on  the  merits,  if  it  finds  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  in  assessing  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).    

 
4.  The applicant’s assertion that it is in the interest of justice to consider his application 
despite its untimeliness because of his belief that the type of separation should be changed is not 
a compelling reason to waive the statute of limitations.   
 
5.  With respect to the merits, the applicant is not likely to prevail on his application for 
 
an  upgrade  of  his  general  discharge  by  reason  of  misconduct.    In  this  regard,  the  applicant 
admitted in statements to CGIS investigators that he had used the controlled substance  Ecstasy, 

a violation of Article 112a of the UCMJ.  The applicant’s admission that he had used Ecstasy 
while  in  the  Coast  Guard  and  his  punishment  at  captain’s  mast  for  wrongful  use  of  the  drug 
constituted 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. The 
applicant’s  admission  that  he  had  used  Ecstasy,  even  in  the  absence  of  other  evidence  to  the 
contrary  was  sufficient  for  the  CO  to  conclude  that  he  was  involved  in  a  drug  incident.    The 
applicant now suggests that he was coerced into admitting that he had used drugs, but offered 
nothing to corroborate his allegation. The Board notes that the applicant was provided with the 
required NJP and administrative due process and did not assert at the time that he was coerced 
into making any admissions.    
 
 
6.    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  June  22,  1999,  advising  him  of  the  Coast 
Guard’s drug policy.   
 

7.  The Board is sympathetic to the applicant’s plea for an honorable discharge so that he 
can work with the United States Customs and Border Patrol.  However, the applicant’s inability 
to work in this field does not prove that the Coast Guard committed an injustice by discharging 
him with an under honorable conditions discharge due to misconduct (drug abuse) in accordance 
with the applicable regulations.   
 

 
8. Accordingly, the application should be denied because it is untimely and because the 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

applicant is not likely to prevail on the merits of his claim.  

 
 
 
 
 
 
 

 

 
 
 

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

ORDER 

 

 
 
 Lillian Cheng 

 

 
 George J. Jordan 

 

 

 
 
 Paul B. Oman 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 

 
 

 
 
record is denied.