DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-191 
 
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 case after receiving the applicant’s 
completed application on July 1, 2009, 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). 

 
This final decision, dated April 9, 2010, is approved and signed by the three duly appoint-

ed members who were designated to serve as the Board in this case. 
 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, a former first class avionics electrical technician with more than 17 years 
of active duty, asked the Board to upgrade his reenlistment code from RE-4 (ineligible to reen-
list) to RE-1 (eligible to reenlist) and to return him to active duty in the Coast Guard. 
 
 
The applicant alleged that he was wrongfully discharged from the Coast Guard on Sep-
tember 26, 2007, for a drug-related offense.  He received a general discharge for misconduct and 
quickly applied to the Discharge Review  Board  (DRB).  On February 7, 2008, the DRB con-
vened  and  the  members  unanimously  found  that  the  applicant’s  discharge  had  been  both 
improper and inequitable.  The DRB recommended inter alia that his discharge be upgraded to 
honorable and that his RE code be upgraded to RE-1.  On March 4, 2009, the Vice Commandant 
approved  his  honorable  discharge  but  denied  the  recommended  change  to  his  RE  code.    The 
applicant alleged that the Vice Commandant’s action in denying his request for an upgraded RE 
code was arbitrary and capricious. 
 
 
The  applicant  alleged  that  his  discharge  resulted  from  negligent  medical  treatment  he 
received while on active duty.  Military physicians prescribed him powerful and highly addictive 
narcotic painkillers and failed to properly monitor his withdrawal from them.  Because of their 
failure to monitor, he took more painkillers to alleviate his withdrawal symptoms from the pre-
scribed painkillers.  When he realized what he was doing, he asked for help.  Almost three years 
later and after more than 17 years of his service, the Coast Guard discharged him with a general 

discharge.  Therefore, he argued, the Board should upgrade his RE code and return him to active 
duty in the Coast Guard because his discharge was “an example of extreme injustice.” 
 
 
The  applicant  argued  that  his  case  does  not  qualify  as  a  “drug  incident”  under  Article 
20.A.1.c. of the Personnel Manual.  He was medically prescribed the painkillers he used, “albeit 
not by a military physician.  [He] took the medication in order to alleviate the withdrawal symp-
toms associated with narcotic ‘tapering.’  He used the painkillers for their intended purpose: to 
alleviate pain.”  The applicant alleged that proper monitoring “would have prevented [his] need 
for painkiller medication.” 
 
 
Moreover, the applicant alleged that his due process rights were violated in several ways.  
First, he alleged that the Administrative Separation Board (ASB) served no purpose and did not 
provide  due  process  because  Coast  Guard  regulations  require  general  discharges  once  a  com-
mand has determined that a member was involved in a “drug incident.”  The applicant argued 
that the Coast Guard’s zero-tolerance policy denied him due process since the “recommendations 
from the command and the ASB are procedural shams of the notice and hearing requirements.” 
 

Second, the applicant alleged that his discharge was unjust because it took too long.  His 
command took 18 months to initiate his discharge, and the Personnel Command then took 14 
months to process him for discharge.  The applicant alleged that this delay was prejudicial to him 
because he had secured employment with Gulfstream, Inc., but had to decline the offer because 
the Coast Guard had not yet acted on his case. 

 

 
Third,  the  applicant  alleged  that  the  Coast  Guard  committed  substantive  due  process 
errors  because  its  “regulations  unlawfully  discriminate  between  ‘drug’  abusers  and  ‘alcohol’ 
abusers  since  both  are  chemically  addictive  and  both  may  be  used  for  legal  purposes.”    He 
argued that both types of chemical dependency should be treated the same under the regulations 
“when dealing with ‘legal substance’ dependency,” such as addiction to prescribed painkillers, 
and  that  the  regulations  should  be  revised  to  encourage  members  to  seek  help  for  addiction 
instead  of  deterring  them  from  doing  so  by  threatening  them  with  an  automatic  general  dis-
charge.  The applicant alleged that the zero-tolerance policy for drugs is contrary to the public 
interest “because it logically deters soldiers from seeking help.”  He also argued that the zero-
tolerance policy is contrary to the Coast Guard’s own stated objective, per Article 20.A.1.c. of 
the Personnel Manual, to identify, treat, and rehabilitate members with chemical dependencies. 

 
Fourth,  the  applicant  alleged  that  he  was  subject  to  selective  prosecution  because  two 
other members of the air station had “committed multiple alcohol-related offenses” and yet had 
not been separated as required by the Personnel Manual. 

 
The  applicant  stated  that  the  ASB  found  that  he  had  rehabilitative  potential,  and  he 
alleged  that  he  has  been  rehabilitated.    He  argued  that  the  Personnel  Command  should  have 
granted him a suspended discharge pursuant to Article 12.B.34. while he underwent rehabilita-
tion.  He further argued that the applicant’s command should have exercised discretion and that it 
was an abuse of discretion not to make an exception to the zero-tolerance policy in this case. 

The applicant asked the Board to consider his outstanding military career, spotless disci-
plinary record, and excellent performance evaluations, as well as the injustice committed against 
him, and to return him to active duty with an RE-1 reenlistment code. 

 
In support of his allegations, the applicant submitted letters from his parents and his sister 
to the Commandant.  His parents stated that in 2004 the applicant became addicted to prescrip-
tion medication which he began taking for pain.  In December 2004, he closed himself in his 
bathroom alone and “underwent the terrible effects of withdrawal during a period of 48 to 72 
hours.”  He then advised his supervisor of his addiction.  The applicant’s parents alleged that 
contrary to regulations, the ASB was convened more than 140 days later instead of just 30 days, 
and the ASB report was sent to the Personnel Command 112 days after the hearing instead of 30 
days.  Then the Personnel Command took four months to take final action on the applicant’s case 
instead of just 45 days.  During all this time, the applicant suffered from not knowing whether 
his military career was ending even though he was no longer abusing the prescription drugs. 

 
The applicant’s sister stated that her brother “has the biggest heart and the most genuine 
desire to ‘do the right thing’” and that it was that desire that caused him to report his addiction to 
the Coast Guard.  The applicant told her that he was scared to report his addiction but “coming 
clean  was  the  only  honorable  thing  to  do.”    She  alleged  that  he  has  remained  clean  since  his 
detoxification. 

 
The applicant also submitted four questionnaires solicited by the ASB on behalf of the 
applicant and completed by a lieutenant and three other petty officers whom the applicant had 
named as character references.  In completing the questionnaires for the ASB, the four highly 
praised the applicant’s leadership and performance and rated him as outstanding, excellent, or 
above average in military appearance, knowledge, attitude, obedience, competence, patriotism, 
honesty, reliability, and initiative. 

On October 31, 1989, the applicant enlisted in the Coast Guard.  Upon his enlistment, the 
applicant  was  counseled  about  the  Coast  Guard’s  drug  policy.    Following  recruit  training,  he 
served  on  a  cutter  before  being  trained  in  avionics.    He  subsequently  served  at  Air  Stations 
xxxxx, xxxxx, and xxxxx.  On his semiannual performance evaluations, the applicant received 
increasingly higher marks as he advanced until receiving his best evaluation on November 30, 
2001, when on his first evaluation as a first class petty officer, he received five above-average 
marks  of  5,  fifteen  excellent  marks  of  6,  and  two  best  possible  marks  of  7  in  the  various 
performance  categories.    Three  times  the  officers  of  his  air  station  awarded  him  a  trophy  for 
“exemplify[ing] the high standards of character, professionalism, ability and leadership.”   

 
After 2001, however, the applicant’s performance gradually declined.  By November 30, 
2003, he received more marks of 5 than 6 on his performance evaluations, and in 2004 and May 
2005  he  received  average  marks  of  4  in  some  of  performance  categories.    On  November  30, 
2005, the applicant received one below average mark of 3, six average marks of 4, eleven marks 
of 5, and two marks of 6 in the various performance categories, and he was not recommended for 
advancement.  On his May 31, 2006, evaluation, the applicant received fourteen marks of 4, ten 

 

 

SUMMARY OF THE RECORD 

marks of 5,  and one mark of 6, and he was not recommended for advancement.  The written 
comments  stated  that  the  applicant  “lacks  day  to  day  consistency”  and  “has  shown  average 
leadership.” 
 
 
According to the report of an investigation dated June 11, 2006, in April 2002, the appli-
cant was prescribed a narcotic painkiller, Oxycodone with acetaminophen, by a military doctor 
when he complained of pain in his back and neck.  X-rays revealed two bulging discs and some 
disc decalcification in his neck, but the applicant did not want surgery and so military doctors 
continued  to  prescribe  painkillers  and  physical  therapy.    The  investigator  found  that  that  the 
applicant had received prescriptions from military doctors for narcotic drugs such as Oxycodone, 
Diazepam, Fioricet,  Lortab, Codeine, and Tramadol six times in 2002, six times in 2003, and 
four times in 2004.  Gradually, the applicant began using the painkillers “to help him get through 
the day,” rather than for back pain.  According to HS2 X, the applicant later told him that he had 
“a long history of using [Norco] and other opioid medications (to include Percocet, Tramadol, 
Fioricet, T3 [Tylenol 3], diazepam).” 
 

In September 2004, the applicant stopped going to military doctors and started obtaining 
painkillers—specifically the narcotic drug Norco (Hydrocodone with Acetaminophen)—through 
civilian  doctors  over  the  internet  on  two  websites,  including  www.norcoworldwide.com.1    He 
used not only his own credit cards but his Government credit card to purchase Norco on-line.  
The  applicant  told  the  investigator  that  the  doctor  on  this  website  advised  him  to  take  eight 
Norco pills per day for his back pain and that he followed this medical advice because he was 
naïve about addiction.  The applicant also told the investigator that by November 2004, he was 
taking ten pills per day, so he consulted a civilian psychiatrist, who told him he should stop tak-
ing Norco because it was addictive.  The applicant tried to stop taking Norco on his own but was 
unsuccessful.   
 
The Applicant’s Self-Referral 
 

On December 7, 2004, the applicant and his wife together advised his command that he 
was addicted and needed help.  He told them that after his military prescription expired, he had 
continued to acquire painkillers from civilian sources.  He also advised them that he had drained 
all of his family’s savings and charged his credit cards to the limit to buy narcotic drugs.  The 
command  had  the  applicant  screened  at  an  Army  clinic  the  next  day.    An  Army  counselor 
advised the command that he should be held at the clinic for detoxification and for processing for 
separation from the Service.  However, the command disagreed with the recommendation.  The 
executive officer (XO) told the investigator that because the Personnel Manual does not address 
self-referrals  for  drug  addiction,  the  command  chose  to  treat  the  applicant’s  self-referral  as  it 
would  a  request  for  treatment  from  an  alcoholic,  instead  of  proceeding  with  a  drug  incident 
investigation.    The  commanding  officer  (CO)  stated  that  the  command  cadre  “considered  the 
situation ‘gray’ enough that [the applicant’s] situation ought to be handled similar to the self-
referral of an alcohol dependency,” but they told him that he might be separated because of the 
Coast  Guard’s  drug  policy.    The  CO  elected  to  handle  the  matter  quietly  and  discretely.    He 
ordered an informal investigation of which there was to be no written record, removed the appli-
                                                 
1 This company is out of business.  The applicant told the investigator that he could not remember the name of the 
other website from which he had ordered painkillers. 

cant  from  flight  status  and  aircraft  maintenance,  and  sent  him  to  a  Navy  inpatient  substance 
abuse rehabilitation program. 

 
Upon  admission  to  the  rehabilitation  clinic  on  December  14,  2004,  the  applicant  had 
between 50 and 60 pills, which he flushed.  On December 30, 2004, the applicant was discharged 
from the clinic for outpatient treatment.  He was diagnosed with an opioid addiction.  The clinic 
report notes that the applicant reported that he had started taking painkillers at age 33,2 when he 
took just two pills a day three or four times a year when he had back pain, but by age 37 he was 
taking ten to twelve pills every day “from the time he wakes up until he goes to sleep.”  His 
aftercare program included abstention, two support group meetings per week, one formal con-
tinuing care group meeting at the clinic per week, stress management counseling, and frequent 
random urinalyses.3 
 

On March 1, 2005, the applicant was counseled on a Page 7 about having misused a Gov-
ernment credit card 40 times during the prior ten months, which resulted in an unpaid balance of 
$1,490.72. 
 
 
According to the investigation, sometime in the spring of 2005, the applicant went to the 
clinic  complaining  of  back  pain  and  asked  HS2  X  for  Ultram,  which  is  a  “non-narcotic  pain 
medication that acts much like the other opioid medications.”  HS2 X refused and offered to get 
him a doctor’s appointment at the local Army hospital, but the applicant refused and never came 
back to the clinic with a complaint of back pain.  HS2 Y also witnessed this request. 
 
 
The CO, who transferred from the air station in July 2005, stated that when he left the 
station he believed that the applicant had succeeded in defeating his addiction, and “the issue of 
his  eventual  discharge  or  retention  was  still  in  question.”    Because  the  applicant  had  been 
removed from his prior duties, he had been assigned “as the coordinator for the air station’s Air-
man program,” assessing enlisted members’ skills and competency, and was doing a good job.  
The XO confirmed that after his reassignment, the applicant had “performed well and has regu-
larly sought increased responsibilities.  He was and continues to be a very solid performer with 
excellent career potential.” 
 

On August 10, 2005, at the applicant’s own request, he began undergoing more frequent 
urinalysis.  The investigator noted that the applicant had undergone four random urinalyses on 
August 26, September 9, September 22, and October 19, 2005, with no positive results. 
 

On November 1, 2005, the applicant reported to HS2 X that he might have accidentally 
ingested  codeine  the  night  before  when  he  took  some  cough  medicine,  which  made  him  feel 
sleepy.  The applicant stated that he did not know what was in the cough medicine because it was 
in an unlabeled bottle in his refrigerator. 

 

                                                 
2 The applicant was born on December 11, 1967, so he turned 33 on December 11, 2000. 
3 Opioids are detectable in urine variably from 2 to 7 days following ingestion. 

Also in November 2005, the applicant sought help from a civilian doctor for the emo-
tional stress of his separation from his wife.  He was prescribed the non-narcotic antidepressant 
Celexa, which he did not report to his command. 

 
On  November  24,  2005,  which  was  Thanksgiving  Day,  the  applicant  visited  a  civilian 
hospital emergency  room (ER) complaining of  inflammation of his lymph nodes.  He did not 
disclose his opioid addiction to the ER doctor and received prescriptions for Oxycodone, 800 
milligram tablets of Ibuprofen, and an antibiotic, which he filled at a Xxxx pharmacy.   

 
On February 14, 2006, the XO ordered a lieutenant commander to investigate the appli-

cant’s drug use because the command suspected that he had relapsed. 

 
On Thursday, May 11, 2006, the applicant visited an ER complaining of pain upon uri-
nation.  He was diagnosed with kidney stones.  The doctor prescribed 800-milligram tablets of 
Ibuprofen and 20 7.5/500-milligram pills of Oxycodone and recommended that the applicant stay 
home for two days and follow-up with his military physician on Monday if the stones did not 
pass.  The applicant told the investigator that he informed the ER doctor about his opioid addic-
tion but was told to take the Oxycodone anyway because of his severe pain.   

 
On Monday, May 15, 2006, the applicant consulted an Army physician, who prescribed 
30 pills of Oxycodone and told the applicant to wait a few more days to see if the stones would 
pass.  The applicant did not reveal his opioid addiction to this doctor.  Two days later, the appli-
cant  saw  this  doctor  again  and  was  prescribed  12  more  pills  of  Oxycodone  to  use  while  the 
stones passed.  He did not disclose his addiction.  Two days later, the applicant again saw this 
doctor and was prescribed 12 pills of Oxycodone to use until he could be evaluated by a urolo-
gist.  He did not disclose his addiction. 

 
On Saturday, May 27, 2006, the applicant visited the ER complaining of pain upon uri-
nation.  He was diagnosed with kidney stones and a urinary tract infection and prescribed 20 pills 
of Endocet, which contains Oxycodone and  Acetaminophen and  was noted to be “2 – 4 days 
worth.”  However, the applicant returned to the ER the next day, Sunday, complaining of more 
pain and was prescribed 20 pills of Hydromorphone and told to follow up with his Army physi-
cian on Tuesday, after the holiday.  On May 30, 2006, the applicant saw the Army physician and 
received a referral to a urologist and a prescription for 40 pills of Oxycodone.  He did not dis-
close his addiction.  On June 5, 2006, the applicant saw the urologist, who found that he needed 
lithotripsy to break up a 5-millimeter stone and prescribed him 60 tablets of Oxycodone to take 
while awaiting the procedure scheduled for June 12, 2006. 
 
Report of the Investigation 

 
On June 11, 2006, the investigator submitted his report to the applicant’s command.  The 

following are excerpts of the report: 

 
2.  Difficulties encountered: 
 

a.  Knowledge of the internet doctor site NorcoWorldwide is limited to information obtained from 
their  web  site  and  information  provided  by  [the  applicant].    No  information  is  available  on  the 
second internet site used because [the applicant] does not remember the name. 
 
b.    I  was  unable  to  obtain  a  list  of  medications  purchased  over  the  internet.    [The  applicant’s] 
medication  profile  only  lists  medication  obtained  from  local  pharmacies  and  does  not  include 
medications obtained from internet purchases. … 
 

Findings of Fact 

 
1.    [The  applicant]  abused  opiate-based  pain  medications,  specifically  the  narcotic  analgesic 
hydrocodone.  He obtained hydrocodone by purchasing Norco online.  Norco is the brand name 
for the combination of acetaminophen (Tylenol) and hydrocodone.  Norco was obtained without 
prior approval of MLC(k) or other Coast Guard medical personnel … 
 
2.  [The applicant] purchased Norco from two online sites.  One web site was Norco Worldwide 
(www.norcoworldwide.com).  NorcoWorldwide uses licensed doctors who prescribe medications 
filled through a U.S. licensed pharmacy.  Their primary pharmacy is xxxxxxxxxxxxxx in xxxxxx, 
XX. … 
 
3.  [The applicant] began taking pain medication for back pain in 2002.  [The applicant] stopped 
going to the military doctor for pain medication and began purchasing medication on-line in Sep-
tember 2004. … 
 
4.  [The applicant] used his government credit card to make some of his on-line drug purchases.  
He had 37 inappropriate charges on his government credit card during October, November, and 
December of 2004. … 

●  ●  ● 

13.    [The  applicant]  was  prescribed  a  narcotic  analgesic  (Tylox)  on  24  Nov  05  [Thanksgiving 
Day] by an emergency room (ER) doctor.  [He] visited the ER for lymph node inflammation.  [He] 
did not notify the doctor of his opioid dependency.  The prescriptions were filled on 24 Nov 05 at 
a Xxxxxxxxx Drug Store.  Tylox is a trade name hydrocodone product. … 
 
14.   [The  applicant]  was  prescribed  Celexa  by  a  civilian  doctor.   Celexa  is  the  brand  name  for 
citalopram which is an antidepressant medication.  The prescriptions were filled on 18 Oct 05 and 
16 Dec 05.  These prescriptions were obtained without prior approval of MLC(k) or other Coast 
Guard medical personnel. 
 
15.  [The Medical Manual] prohibits active duty personnel from obtaining health care in civilian 
medical facilities for non-emergent conditions without prior approval of MLC(k). … 
 
16.  [The Medical Manual] lists opioid dependence as disqualifying for enlistment, and requires 
processing in accordance with Chapter 20 of [the Personnel Manual]. 
 
17.  [The applicant] presented to the ER for abdominal pain on 11 May 2006.  He was diagnosed 
with renal calculi (kidney stone) and prescribed pain medication.  He was prescribed a total of 214 
tablets of narcotic pain medications during various doctor visits between 11 May and 5 Jun 06. … 
 

 
1.  [The applicant] intentionally used prescription medications for effect.  Per [the Personnel Man-
ual], using prescription medication for effect is contrary to their intended use and qualifies as a 
drug incident. … 
 
2.  The preponderance of the evidence indicates that [the applicant] is opioid dependent. 
 

Opinions 

3.  [The applicant] became addicted to drugs original prescribed through the Coast Guard medical 
system.    [He]  crossed  the  line  into  drug  incident  when  [he]  took  the  medication  for  effect  and 
sought the medication outside the Coast Guard medical system. … 
 
4.  There is no indication that [the applicant] purchased the pain medication from any source other 
than the on-line doctors. … 
 
5.  [The applicant] may have relapsed in November 2005.  He drank the unlabeled cough medicine 
that may or may not have contained codeine on 1 Nov 05.  He also obtained a prescription for 
Tylox on 24 Nov 05 after failing to inform an emergency room doctor that he was treated for an 
opioid dependency. … 
 
6.  [The applicant] continues to abuse pain medication. … 
 
7.    [The  applicant]  continues  to  violate  [the  Medical  Manual]  by  seeking  civilian  medical  care 
without going through the Coast Guard medical system.  He filled two Celexa (citalopram) pre-
scriptions obtained from a civilian doctor.  He kept this a secret until specifically asked about it 
during  a  second  interview.    He  then  admitted  to  obtaining  the  medication  only  once.    Records 
show he filled two prescriptions for the antidepressant medication (18 Oct 05 and 16 Dec 05). … 
 
8.  [The Personnel Manual] provides guidance for members who self-refer for alcohol abuse but is 
silent about self-referrals for prescription drug abuse.  Although [the applicant] should have come 
forward sooner, he did self-refer and some consideration should be given to that fact. … 
 
The investigator included with his report a statement signed by the applicant on March 1, 
2006.  The applicant was first advised of his rights.  He stated that when he was prescribed nar-
cotic pain medications, he was naïve about their addictive nature.  He alleged that the doctors 
never told him that the drugs could be addictive.  In September 2004, the applicant alleged, a 
friend introduced him to a doctor over the internet, who recommended that the applicant take 
eight Norco pills containing the opioid Hydrocodone every day.  He followed this recommended 
regimen for two months because he was naïve.    In November 2004, the applicant  alleged, he 
consulted a civilian psychiatrist because he did not like the way the drugs made him feel.  The 
psychiatrist informed him that Norco was very addictive and told him to stop taking it.  There-
fore, he tried to stop taking Norco and was unsuccessful because of withdrawal symptoms.  In 
early December 2004, he discussed his problem with his family and decided to inform the Coast 
Guard about his problem.  The applicant acknowledged that he had made many mistakes, includ-
ing not reporting his problem immediately and getting help through the Coast Guard. The appli-
cant noted that during the period of his drug abuse, his father died of a longstanding illness, his 
wife was diagnosed with diabetes, and a friend died in a car accident.   

 
As a result of the investigator’s report, the CO found that the applicant had been involved 
in a drug incident.  On  June 22, 2006, the CO  notified the  applicant  that he had initiated the 
applicant’s discharge for misconduct under Article 12.B.18. of the Personnel Manual due to his 
illegal use of prescription painkillers.  The CO advised him that he had a right to submit a state-
ment in his own behalf to rebut the recommendation for discharge; a right to present his case to 
an ASB with the assistance of a military lawyer at Government expense or a civilian lawyer at 
his own expense; and a right to consult a lawyer when deciding whether to request an ASB.  The 

 

Discharge Proceedings 

applicant  acknowledged  this  notification  on  June  29,  2006,  and  asked  to  consult  an  lawyer 
regarding his decision with respect to an ASB. 
 

On August 8, 2006, after consulting with an attorney, the applicant asked for a hearing 
before an ASB.  On August 23, 2006, a Navy attorney was detailed to serve as the applicant’s 
counsel before the ASB.  The record also contains an undated letter from the ASB to the appli-
cant regarding the regulations that would apply to the ASB proceedings and how he should assert 
his rights timely and submit any objections to the process in writing. 
 
Administrative Separation Board Report 

 
On October 3, 2006, the applicant’s CO ordered the ASB to convene and conduct a hear-
ing.  He instructed the ASB to “render findings based on the facts obtained, identify any reasons 
for separation supported by the evidence, recommend either retention in or separation from the 
Coast Guard,  and recommend the appropriate characterization of service.”   On  November 14, 
2006, the ASB convened and held a hearing.  On December 15, 2007, the ASB forwarded its 
report to the applicant’s CO.  The ASB summarized the applicant’s testimony as follows: 
 

The respondent elected to make an oral un-sworn statement to the Board.  The statement opened 
with a summary of the respondent’s service.  He stated he enjoyed serving in the Coast Guard and 
has been and will continue to be an asset to the service.  Highlights of his career included selection 
as an alternate to Officer Candidate School and application to the Coast Guard Investigative Ser-
vice.  He acknowledged that the last two years of service had not been his best and that he “had a 
hard time leaving his problems at the gate.”  He is seeking help through the Employee Assistance 
Program  (EAP).    The  respondent  offered  that  there  was  no  excuse  for  markings  of  “3”  on  his 
enlisted evaluations other than he was just not performing well.  He did state that he has been a 
flight mechanic for 13 years and has served on a Flight Examination Board for seven years.  He 
stated that he is capable and will perform better after this incident.  The respondent stated that he 
was naïve to what drug addiction was and did not take advantage of the services that exist to help 
members (i.e., EAP).  He stated that his motivation for not returning to using prescription medica-
tions was his daughter.  The daughter’s mother (respondent’s ex-wife) is not in good health and 
not expected to live for longer than 10 years.  He does not want his daughter to have a father who 
is addicted to medications in addition to being motherless.  The respondent restated his enjoyment 
of serving in the Coast Guard.  He stated that he never flew (as part of an aircrew) while taking 
prescription medications.  He is now doing the same jobs as he was before the incident with the 
exception of quality assurance or flight duties.  He is currently on anti-depressants.  Respondent 
closed by reiterating his love for his job and asked for mercy from the Board. 

 
Testimony of the Unit Corpsman 
 
 
The  ASB  summarized  the  testimony  of  various  witnesses  in  its  report  including  the 
following testimony from the unit corpsman, HS1 Z, a first class health specialist.  HS1 Z testi-
fied that in the spring of 2005, the applicant complained to him of back pain and asked him for 
Ultram to relieve the pain.  Ultram “is a Schedule III non-narcotic prescription drug that has an 
‘opioid-like effect.’  Opioid medications are a Schedule II narcotic, meaning they are known to 
be addictive.”  HS1 Z did not give the applicant the Ultram and advised him to seek care through 
his doctor.  Then in November 2005, the applicant approached HS1 Z and told him that he “had 
taken cough medicine from an unlabeled container stored in the refrigerator the night before … 
that the medication gave him a ‘narcotic feel’ and [he] was worried that it may have contained 
Codeine.”  HS1 Z documented the incident and told the applicant “that all future administration 

of medications is to be conducted through the unit’s corpsman.”  Also in November 2005, the 
clinic received information from a hospital emergency room that the applicant had visited for 
sinusitis and been prescribed the opioid medication Tylox.  HS1 Z noted that the applicant was 
“going through ‘rough times’ to include a divorce and custody battle” in 2005 but that he had 
“passed all urinalysis tests that were administered.” 

 
HS1 Z stated that on May 15, 2006, the applicant went to a hospital emergency room for 
a kidney stone that was 5 millimeters in diameter and was prescribed Percocet, an opioid medi-
cation, for the pain.  The applicant told the emergency room doctor that he was opioid dependent 
(HS1 Z did not state his basis for knowing that the applicant had told the doctor about his addic-
tion), but the doctor prescribed Percocet anyway.  The applicant “followed up with his military 
primary care manager but did not disclose his opioid dependency.  Over the course of approxi-
mately one month, [the applicant] was prescribed various opioid medications in short-term doses 
(small quantities).  In once instance, [the applicant] took Hydromorphone but experienced nausea 
and vomiting and was told to switch to Percocet.  After the kidney stone was passed, the pre-
scription  of  small  quantities  of  Percocet  ceased.    Later,  HS1  Z  learned  that  the  applicant  had 
twice taken prescription medications while at work. 

 
HS1 Z testified regarding Coast Guard regulations and stated that although the applicant 
was fit for duty, he was not authorized to fly; that a member cannot fly for one full year after 
taking an anti-depressant medication; and that there is no regulation regarding a member return-
ing to flight status following opioid dependency.  HS1 Z further testified that regulations state 
that  members  are  supposed  to  seek  routine  and  chronic  care  through  military  facilities;  that 
seeking routine and chronic care at civilian medical facilities in neither authorized nor expressly 
prohibited;  that  emergency  care  may  be  sought  at  a  civilian  hospital;  and  that  “members  in  a 
flight status can never self-medicate.” 

 
HS1  Z  further  stated  that  the  applicant’s  use  of  prescribed  medications  following  his 
medical visits did not constitute abuse and that because there are no non-narcotic alternatives for 
severe  pain,  people  who  are  opioid  dependent  should  not  be  prohibited  from  taking  opioids.  
“Ultimately,” he said, “it is the responsibility of the doctor to prescribe the necessary medica-
tions” if the patient discloses his dependency.  “If a dependency condition is not made known to 
the doctor, then that responsibility lies with the patient.”  HS1 Z alleged that HS2 Y knew of the 
applicant’s dependency at the time of his sinus infection. 
 

Because  the  applicant  reported  his  own  drug  dependency  and  the  drugs  had  been  pre-
scribed, the unit treated him as it would treat someone who reported his own alcohol dependency 
and sent him for two weeks of inpatient treatment at a Navy Substance Abuse and Rehabilitation 
Program.   
 
Testimony of Colleagues 
 
 
AMT1 X, who worked with the applicant, praised his character and “stated that he would 
have no problems with any of the aircraft that [the applicant] may work on.”  AMT3 X, who also 
worked with the applicant, stated that there had “been no indications of problems with [the appli-
cant] while on duty” and that he had been coping with his problems very well. 

Testimony of the Applicant’s Parents 
 
 
The  applicant’s  mother  stated  that  in  December  2004,  he  went  through  withdrawal  by 
himself.  In June 2005, his daughter fell and broke some teeth, which cost a lot to repair, and in 
July 2005, the applicant’s wife left him.  Because of the divorce, the applicant had to sell his 
house and pay child support.  In January 2006, he learned he was being investigated for drug use 
and could be discharged.  He had to take a second job at Home Depot.  The applicant’s stepfather 
stated that the applicant was a very honest and caring person. 
 
Findings of the Administrative Separation Board 
 
 
The ASB found that the applicant had “used drugs for other than their intended purpose 
when  he  began  to  use  them  ‘for  effect’  and  to  avoid  withdrawal  symptoms  instead  of  their 
intended use as pain relief.”  The ASB also found that the applicant had received high perform-
ance marks for most of his career, numerous personal citations, and positive endorsements for 
OCS and CGIS and that the board had received a great deal of testimony reflecting the appli-
cant’s “caring, dedicated, and selfless character.” 
 
 
The ASB concluded that the applicant’s conduct had met the criteria for a “drug incident” 
under Article 20.A.2.k.1.d. of the Personnel Manual and that otherwise, “he has had an exem-
plary career.”  Because of the drug incident, the ASB recommended that the applicant be dis-
charged, but because of his exemplary service, the ASB recommended that he receive an honor-
able discharge.  The ASB noted that there  were  mitigating  and extenuating circumstances but 
that the applicant’s conduct constituted a drug incident and that he was culpable.  The ASB also 
found  that  “the  military  medical  system  in  some  ways  failed  [the  applicant].    If  he  had  been 
properly  monitored,  it  is  unlikely  that  he  would  have  developed  his  dependency.    The  Board 
believes that [he] has been a solid Coast Guardsman and with proper guidance and support, could 
continue to be.”  The ASB noted that if the applicant had abused alcohol instead of drugs, he 
would have been retained because Coast Guard regulations do not require separation after a sin-
gle  alcohol  incident.    The  ASB  stated  that  if  Coast  Guard  policy  had  any  flexibility  to  allow 
retention of a member following a drug incident, the board would have recommended his reten-
tion on active duty. 
 

On March 1, 2007, the applicant’s CO forwarded the report of the ASB to CGPC through 
the District Commander and stated that he fully concurred with the recommendation for an hon-
orable discharge in light of the applicant’s “exemplary service prior to this incident, the highly 
favorable statements provided by co-workers, and the recommendation of the [ASB].” 
 
 
On April 11, 2007, the District Commander forwarded the report of the ASB to CGPC 
and concurred with the findings and the recommendation for an honorable discharge based on 
the  applicant’s  “actions  with  respect  to  his  self-reporting,  and  his  exemplary  service  as  docu-
mented in the Board’s report prior to the incident leading to this separation recommendation.” 
 
On August 24, 2007, Commander, CGPC approved the ASB’s recommendation that the 
 
applicant  be  discharged  but  disapproved  the  recommendation  that  his  discharge  be  honorable 
because  “Coast  Guard  policy  does  not  provide  special  consideration  that  would  allow  the 

upgrade  of  a  discharge  for  members  involved  with  a  drug  incident  as  recommended  by  the 
Board.”  Commander, CGPC stated that the applicant would receive a general discharge under 
honorable conditions by reason of misconduct due to a drug incident.   
 

On September 26, 2007, the applicant received a general discharge for misconduct under 
Article 12.B.18. of the Personnel Manual, with a GKK separation code, denoting drug abuse, and 
an RE-4 reenlistment code.  He had completed 17 years, 10 months, and 27 days of military ser-
vice and had received the following awards and decorations:  five consecutive Coast Guard Good 
Conduct Awards; Commandant’s Letter of Commendation with two gold stars; Presidential Unit 
Citation; DOT Outstanding Unit Award; Coast Guard Unit Commendation with one gold star; 
Coast  Guard  Meritorious  Unit  Commendation  with  two  gold  stars;  Joint  Meritorious  Unit 
Award; Bicentennial Unit Commendation; Coast Guard “E” Ribbon; Global War on Terrorism 
Service  Medal;  Humanitarian  Service  Medal  with  one  bronze  star;  National  Defense  Service 
Medal  with  one  bronze  star;  Special  OPS  Service  Ribbon  with  two  bronze  stars;  Sea  Service 
Ribbon; Pistol Marksman Ribbon; and Rifle Marksman Ribbon. 
 
 
Although the applicant was discharged and reenlisted several times during his career and 
reenlisted indefinitely on November 9, 2003, his record contains one DD 214 covering his almost 
18 years of service from October 31, 1989, to September 26, 2007.  The DD 214 notes his char-
acter of service as “general.”  
 
 
On  September  18,  2008,  the  President  of  the  DRB  informed  the  Commandant  that 
following a hearing on February 7, 2008, the DRB had voted unanimously to recommend cor-
rection of the applicant’s record to reflect an honorable discharge under Article 12.B.12. of the 
Personnel Manual with a JND separation code, meaning that he was discharged for “miscellane-
ous/general reasons.”  The DRB reported the following: 
 

The applicant was being treated for injuries sustained in the line of duty in 2004.  His course of 
treatment included prescribed, addictive narcotic pain killers.  Based on information included in 
the  member’s  medical  record  and  information  contained  in  the  [ASB]  documents,  the  [DRB] 
found insufficient evidence to support a finding of a drug incident. 
 
The [DRB] determined that in this particular case, there was insufficient basis to justify separating 
the applicant for a drug incident.  The applicant became addicted to opiate based pain medications, 
which had been prescribed for his use through the military medical care system.  After his “offi-
cial”  supply  was  used  up,  he  sought  and  received  additional  medications  through  a  legitimate 
online medication provider.  Once the applicant realized he had an addiction, he self referred for 
military treatment.  The [ASB] convened for this applicant recommended he be discharged based 
on current policy for a drug incident.  Additionally, they recommended he be given an honorable 
discharge.  The additional [ASB] comments are quoted herein verbatim: 
 

“The decision of the [ASB] turned on the wording in the Personnel Manual (12.B.4.a.) 
that states, ‘Any member involved in a drug incident … as defined in Article 20.A.2.k., 
will  be  processed  for  separation  from  the  Coast  Guard  …’    Despite  mitigating  and 
extenuating factors, the [ASB] was bound by this explicit policy.  While [the applicant] 
was  culpable,  the  military  medical  system  in  some  ways  failed  [him].    If  he  had  been 
properly  monitored,  it  is  unlikely  that  he  would  have  developed  his  dependency.    The 
[ASB] believes that [the applicant] has been a solid Coast Guardsman and  with proper 
guidance and support could continue to be. 
 

“The Command had no latitude in this case due to the narrow focus of current drug regu-
lations.  If the abuse had been alcohol, vice prescription medications, the member’s self-
referral  would  not  have  constituted  an  alcohol  incident,  and  the  member  would  be 
retained.  If there were a change in the Coast Guard policy, the [ASB] could have come 
to a different decision as to the disposition of this case.” 

 
[DRB]  members  requested  the  [ASB]  package  on  [the  applicant]  and  all  members  reviewed  it.  
[DRB] members agree with the [ASB] members that the military medical system failed this appli-
cant.  If  he had been properly  monitored  while  he  was prescribed this high power narcotic, his 
dependency  would  have  likely  been  discovered  and  treated.    The  applicant  self  referred  to  his 
chain of command on 7 December 2004 to seek treatment for his drug dependency and was subse-
quently boarded and discharged. 
 
The  [DRB]  believes  that  when  the  applicant  self  referred,  he  should  have  been  treated  for  his 
addiction and  give the opportunity to rehabilitate.  Had this been the case, this  would  not have 
constituted  a  drug  incident  and  the  applicant  would  not  have  been  discharged.    The  [DRB]  re-
solved that the discharge was not carried out in accordance with Coast Guard policy.  The [DRB] 
recommends an Honorable discharge, a separation code of JND by narrative reason of Miscellane-
ous/General, and a re-entry code of RE-1. 
 
Propriety:  Discharge was improper. 
 
Equity:  Discharge was not equitable. 
 
Board Conclusion:  The [DRB] voted 5-0 to grant relief. 

 
 
On  March  4,  2009,  the  Vice  Commandant  ordered  that  the  applicant’s  DD  214  be 
changed  as  the  DRB  had  recommended  except  that  she  ordered  “No  Change”  to  his  RE-4 
reenlistment code.   
 
 
As a result of the Vice Commandant’s decision, the Coast Guard issued the applicant a 
form  DD  215,  which  is  a  form  for  making  corrections  to  a  veteran’s  DD  214.    The  DD  215 
shows that the applicant’s discharge has been corrected to honorable; the authority for the dis-
charge to Article 12.B.12. of the Personnel Manual; the separation code to JND; and the narra-
tive reason for separation to “Separation for Miscellaneous/General Reasons.” 
 

VIEWS OF THE COAST GUARD 

 
 
On October 15, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion in which he recommended that the Board deny the applicant’s requests.  In 
so doing, he adopted the findings and analysis of the case provided in a memorandum prepared 
by the Personnel Service Center (PSC). 
 
 
The PSC noted that the applicant alleged that the Vice Commandant acted arbitrarily and 
capriciously in not upgrading his reenlistment code.  The PSC stated that the Vice Commandant 
exercised her delegated authority and discretion in taking final action on the DRB’s recommen-
dation.  The PSC submitted an email from the legal advisor to the Vice Commandant, who stated 
that the Vice Commandant 
 

carefully considered the recommendation of the Discharge Review Board (which struggled with 
the  ADSEP Board’s finding  of a drug incident  where the  individual self-reported his addiction) 

and  the  Vice  concurred  in  upgrading  the  discharge  to  Honorable.    That  the  Vice  examined  the 
record and concurred in part and disagreed in part reflects careful consideration and deliberation in 
the exercise of her discretion … the exact opposite of an arbitrary action.  The concurrence with 
upgrading to Honorable does not mean that the Vice Commandant agreed with the DRB that there 
was no drug incident; it simply means she concurred that in this case, the standard General Under 
Honorable Conditions discharge was not the appropriate result. 
 
Moreover, in exercising  her  discretion pursuant to 33 CFR Part 51 and considering all relevant 
information in the record, the Vice was well aware of [the applicant’s] continued misuse of his 
Government credit card to purchase pills --- one factor of many that were available to the Vice for 
consideration  as  she  reasonably  determin[ed]  that  [the  applicant]  should  not  be  afforded  the 
opportunity to reenlist. 
 
An RE-4 is an available reentry code in the SPD handbook for a JND/Miscellaneous SPD Code 
and is well within the Vice Commandant’s discretion to award.  The result is not capricious just 
because the Board recommended something different or because the applicant does not like it. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

 

On November 4, 2009, the Board received the applicant’s response to the views of the 
Coast Guard.  The applicant stated that the Coast Guard addressed only his claim that the Vice 
Commandant’s decision was arbitrary and capricious and not his claim that the Coast Guard had 
violated his due process and equal protection rights. 

 
The applicant noted that recently, Captain xxxxxxxxxxxxxx was allowed to retire from 
the Coast Guard after being tried by court-martial for using cocaine.  His sentence was just a 
written reprimand and a $5,000 fine.  The applicant alleged that whereas he himself confessed 
his  addiction  to  lawfully  prescribed  painkillers  and  sought  help,  the  captain  “lied  about  his 
unlawful use and tried to blame it on others.”  The applicant submitted a copy of a newspaper 
article  about  Captain  xxxxxxxxxxx’s  conviction  with  several  comments  from  Coast  Guard 
members  accusing  the  Coast  Guard  of  having  a  double  standard  for  officers  and  enlisted 
members. 

 
Therefore, the applicant argued, justice requires either that he receive constructive credit 
for service up to 20  years with retirement pay or reinstatement on active duty.  The applicant 
argued that the Coast Guard’s zero-tolerance policy is flawed and inequitable and that it “dis-
misses military commanders’ inherent right to exercise discretion in all UCMJ matters.” 
 

APPLICABLE REGULATIONS 

 
Medical Manual 
 
 
regarding members’ medical care: 
 

Chapter 2.A.1.b. of the Medical Manual (COMDTINST M6000.1C) states the following 

Under  ordinary  circumstances,  members  shall  be  enrolled  in  Active  Duty  TRICARE  Prime, 
assigned a Primary Care Manager (PCM) and receive health care at that organization to which the 
member is assigned.  However, Commanding Officers may request assignment to another USMTF 
[U.S. medical treatment facility] through the cognizant MLC.  Members away from their duty sta-

tion or on duty  where there is no USMTF of their own service  may receive care at the nearest 
USMTF. 

Chapter 2.A.1.e. states the following regarding members’ use of other Services’ medical 

 
 
facilities and civilian facilities: 

 
The  closest  USMTF  having  the  appropriate  capabilities  shall  be  used  for  nonemergency  health 
care. Health care in civilian medical facilities for nonemergent conditions is not authorized with-
out  prior  approval  of  MLC  (k).    All  health  care  received  at  other  than  a  CG  Clinic  shall  be 
recorded in the Coast Guard health record. 

Chapter 2.A.8. lists the procedures a member must follow before seeking nonemergency 

 
 
medical care at a nonfederal facility. 
 
 
Under  the  regulations  for  prescribing  practices,  Chapter  10.B.6.c.1.  states  that  “[c]on-
trolled substances shall be prescribed in minimal quantities consistent with proper treatment of 
the patient’s condition.”  In addition, such prescriptions are limited to 30-day quantities. 
 
 
Chapter  5.B.5.b.  states  that  opioid  dependence  is  disqualifying  for  retention  on  active 
duty and that opioid dependent members shall be processed in accordance with Article 20 of the 
Personnel Manual. 
 
Personnel Manual 
 
 
Article  20  of  the  Personnel  Manual  (COMDTINST  M1000.6A  (Change  41))  contains 
regulations regarding suspected illegal drug use by members.  Article 20.A.1.b. states that “[t]he 
goal of the substance and alcohol abuse program is to enable the Coast Guard to accomplish its 
missions unhampered by the effects of substance and alcohol abuse.”  Article 20.A.1.c. states 
that  the  Coast  Guard  attempts  to  “[d]etect  and  separate  from  the  Coast Guard  those  members 
who abuse, traffic in, or unlawfully possess drugs” and to “[f]acilitate the identification, treat-
ment, and rehabilitation of members who are found to be chemically dependent on drugs or alco-
hol prior to discharge from the Coast Guard.”  
 

Article 20.C.1.d. states that a unit CO should “investigate all incidents or circumstances 
in which the use or possession of drugs appears to be a factor, and take appropriate administra-
tive and disciplinary action.”  Article 20.C.3.a. states that “Commanding officers shall initiate an 
investigation into a possible drug incident, as defined in Article 20.A.2, following receipt of a 
positive confirmed urinalysis result or any other evidence of drug abuse.”   

 
Article 20.A.2.h. defines “drug abuse” as “[t]he use of a drug or substance for other than 

its intended legal use.”   
 

 

Article 20.A.2.k.1. defines a “drug incident” as  

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. 
 
2. The member need not be found guilty at court-martial, in a civilian court, or be awarded NJP for 
the conduct to be considered a drug incident. 
 
3. If the conduct occurs without the member’s knowledge, awareness, or reasonable suspicion or is 
medically authorized, it does not constitute a drug incident. 
 
Article 20.C.3.a. states that “[c]ommanding officers shall initiate an investigation into a 
possible drug incident, as defined in Article 20.A.2, following receipt of a positive confirmed 
urinalysis result or any other evidence of drug abuse.  The absence of a positive confirmed uri-
nalysis result does not preclude taking action based on other evidence.” 

 
Article 20.C.3.e. states that in determining whether a drug incident has occurred, the CO 

shall use “the preponderance of the evidence standard.”  

 
Article 20.C.4. states that if a CO determines that a drug incident did occur, the CO will 

do the following: 

 
1. Administrative  Action. Commands  will process the  member  for separation by reason of  mis-
conduct under Articles 12.A.11., 12.A.15., 12.A.21., or 12.B.18., as appropriate. Cases requiring 
Administrative Discharge Boards because of the character of discharge contemplated or because 
the  member  has  served  a  total  of  eight  or  more  years,  will  also  be  processed  under  Articles 
12.B.31. and 12.B.32., as appropriate. 
 
2.  Disciplinary  Action.  Members  who  commit  drug  offenses  are  subject  to  disciplinary  action 
under the UCMJ in addition to any required administrative discharge action. 
 
3. Eligibility for Medical Treatment. Members who have been identified as drug dependent will be 
offered treatment prior to discharge.  If accepted, immediately on completing this treatment, the 
member will be discharged from the Service.  Treatment will be coordinated through the applica-
ble Maintenance and Logistics Command and may be either in-patient or out-patient treatment. …   

Article 20.C.5.1. states the following: 

In cases in which the commanding officer determines the urinalysis result attributed to a particular 
member resulted from administrative error; faulty chain of custody, evidence of tampering, or that 
drug use was not wrongful; e.g., prescribed medication or unknowing ingestion, the commanding 
officer will make a finding of no drug incident and close the investigation. 

 

 

 

Article  12.B.18.b.4.  states  that  “[a]ny  member  involved  in  a  drug  incident  …  will  be 

processed for separation from the Coast Guard with no higher than a general discharge.” 

 
Article 12.B.31.a. states that an ASB is “a fact-finding body appointed to render findings 
based on the facts obtained and recommend either retention in the Service or discharge.  If rec-
ommending a discharge, the board also recommends a reason for discharge and the type of dis-
charge certificate to be issued.” 

Article  12.B.31.d.  states  that  Commander,  CGPC,  will  review  an  ASB  record  and 
“approve or disapprove the board’s findings of fact, opinions, and recommendations in whole or 
in part. Commander (CGPC-c) may disapprove findings and opinions if they were made based 
on incomplete evidence, contrary to the evidence the board considered or to law or regulation, a 
misunderstanding  or  misapplication  of  written  policy,  or  otherwise  clearly  in  error.”    Article 
12.B.31.e.2.  states  that  Commander,  CGPC  may  “[a]pprove  the  [ASB’s]  recommendation  for 
discharge,  but  change  its  type  either  to  one  more  favorable  than  recommended  if  the  circum-
stances warrant it or to one less favorable than recommended based on a determination the type 
of discharge recommended does not fall within Article 12.B.2. guidelines.”  Article 12.B.31.e.4. 
states that Commander CGPC may “[a]pprove a discharge, but suspend its execution for a speci-
fied probationary period. See Article 12.B.34.” 
 
 
 

Article 12.B.34.a. states the following:  

Before a member’s enlistment or period of obligated service expires, Commander (CGPC-c) may 
suspend executing an approved discharge for a specified period if the circumstances in a case indi-
cate a reasonable prospect for rehabilitation.  During this period of suspension, the member will be 
afforded  an  opportunity  to  demonstrate  proper  behavior  and  efficient  performance  of  assigned 
duties for an extended period under varying conditions. 

1. When the member satisfactorily completes the probationary period, the approved dis-

charge will be canceled automatically. 

 

 

2. The member’s further misbehavior, substandard performance of duty, or demonstrated 
inability to conform to the demands of a military environment during the probationary period may 
establish the basis for one of these actions: 

a. Punitive or new administrative action may be initiated despite the suspension 

of executing the approved discharge. 

b.  Suspension  of  the  approved  discharge  vacated,  and  the  approved  discharge 
executed, including discharging a member in absentia if he or she has been beyond mili-
tary control for 15 or more days. 

Under  33  C.F.R.  §  51.4,  the  DRB  is  a  “board  consisting  of  five  members  of  the  U.S. 
Coast Guard, appointed by the Commandant of the Coast Guard and vested with the authority to 
review the discharge of a former member.  The board is empowered to change a discharge or 
issue a new discharge to reflect its findings, subject to review by the Commandant or the Secre-
tary.”  Under 33 C.F.R. § 51.2(b)(4), the Commandant “[r]eview[s] and take[s] final action on all 
DRB decisions which are not reviewed by the Secretary.”  The Commandant has delegated this 
authority to the Vice Commandant. 
 
 
Under the SPD Handbook, a member involuntarily discharged for “miscellaneous/general 
reasons” with a JND separation code may be assigned a reenlistment code of RE-1 (eligible to 
reenlist),  RE-3  (eligible  to  reenlist  except  for  disqualifying  factor;  waiver  required),  or  RE-4 
(ineligible to reenlist).  Pursuant to Note 2 of ALCOAST 125/10, issued on March 18, 2010, the 
RE-3 is now the default reenlistment code for members discharged with a JND separation code.  
Note 5 under the ALCOAST, which applies to members separated with a JND, states that mem-
bers separated because of a second alcohol incident will normally receive an RE-3 code but that 
the RE-4 is prescribed for cases “involving DUI, associated alcohol-related misconduct, or mem-
bers who fail to complete or refuse treatment.” 
 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant’s 

 
 
submissions, the Coast Guard’s submissions, and applicable law: 
 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  

The application was timely. 

1. 

 
2.  

 
3. 

 
4. 

The applicant alleged that his discharge on September 26, 2007, was erroneous 
and unjust.  He asked the Board to reinstate him on active duty, to award him constructive ser-
vice credit and retire him with 20 years of service, or at least to upgrade his RE-4 reenlistment 
code to RE-1 so that he may reenter the military.  The Board begins its analysis in every case by 
“presuming administratively regularity on the part of Coast Guard and other Government offi-
cials.”4  The applicant bears the burden of proving the existence of an error or injustice by a pre-
ponderance of the evidence.5  Absent evidence to the contrary, the Board presumes that Coast 
Guard officials and other Government employees have carried out their duties “correctly, law-
fully, and in good faith.”6  For the reasons stated below, the Board finds that the applicant has 
failed to prove by a preponderance of the evidence that his either his separation per se or his 
honorable  discharge  for  “miscellaneous/general  reasons”  with  an  RE-4  reenlistment  code  are 
erroneous or unjust. 

The record shows that the applicant became opioid dependent upon prescription 
drugs after they were prescribed by military physicians on six occasions in 2002, six occasions in 
2003, and four occasions in 2004 when the applicant sought relief from back pain.  Apparently, 
the applicant began taking the drugs not only when he was suffering from back pain, which was 
the  legal  purpose  of  the  prescription,  but  also  when  he  was  not  suffering  from  back  pain  but 
wanted the narcotic effect of the drug (the “high”) and when he was suffering from withdrawal 
symptoms of the drugs themselves.  Instead of seeking help from the military physicians who 
had  prescribed  the  drugs  for  his  back  pain,  the  applicant  repeatedly  sought  the  drugs  through 
unauthorized sources over the internet and used a Government credit card to do so.  He began to 
take ten to twelve painkillers per day, and as an AET1 was apparently working on Coast Guard 
aircraft while “high.” 

The applicant alleged that his discharge was unjust because he became addicted 
when military physicians negligently failed to monitor his drug use.  The ASB’s report supports 
this allegation by stating that “[i]f he had been properly monitored, it is unlikely that he would 
have developed his dependency.”  However, most people who are prescribed opioid drugs do not 
become addicted, and the applicant has not submitted evidence showing that his military physi-
cians knew or should have known that he was becoming addicted to the drugs prescribed for his 
back pain.  Moreover, the applicant’s misconduct was not limited to his use of opioid drugs for 

                                                 
4 33 C.F.R. § 52.24(b). 
5 Id. 
6 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

other than their prescribed purpose of alleviating back pain.  He also committed serious miscon-
duct when he used a Government credit card to buy the drugs on-line. 

 
5. 

 
6. 

 
7. 

The record shows that after exhausting his family’s finances and incurring signifi-
cant debt to buy drugs from these unauthorized sources, the applicant and his wife came to the 
command and confessed his problems on December 7, 2004.  The applicant’s command handled 
his confession and addiction with great discretion in 2004 and 2005 because they did not want 
his career to be ruined.  In December 2004, to avoid creating documentation of illegal drug use 
that could result in his discharge, the command conducted an undocumented investigation and 
sent him to a Navy rehabilitation facility without documenting his addiction or treatment in his 
official records.  Upon release from the rehabilitation facility, he was placed in an aftercare pro-
gram requiring inter alia abstention and attendance at support group meetings.  The command 
did not punish the applicant for obtaining opioid drugs from unauthorized sources or for using a 
Government credit card to do so.  The Page 7 entered in his record on March 1, 2005, to docu-
ment his misuse of the Government credit card does not mention purchases of drugs.  The com-
mand went to great lengths to avoid creating any record that might have drawn the attention of 
the Personnel Command and resulted in the applicant’s discharge.  Instead, the command quietly 
reassigned him to administrative duties. 

On February 14, 2006, however, the command convened a documented, informal 
investigation based upon suspicions that the applicant was again abusing prescription drugs.  In 
addition to documenting the facts that had gone undocumented in December 2004, the investi-
gator found that on several occasions in 2005 and 2006, the applicant had accepted and filled 
prescriptions for opioid drugs without informing the prescribing physician of his addiction and 
had  accepted  and  filled  a  prescription  from  another  unauthorized  source.    The  report  of  the 
investigation led the CO to find that a drug incident had occurred.  Under Article 20.C.4.1. of the 
Personnel Manual, a member involved in a drug incident must be processed for separation.  The 
applicant argued that his command should have exercised additional discretion and not initiated 
his discharge.  However, the command exercised great discretion in 2004, giving the applicant a 
second chance.  The fact that the command later took action against the applicant after receiving 
evidence that he was accepting and filling prescriptions for opioid drugs without informing the 
prescribing physician of his addiction does not shock the Board’s sense of justice.7 

The applicant alleged that his discharge was erroneous because his conduct did 
not meet the definition of a drug incident.  However, the definition of a drug incident under Arti-
cle 20.A.2.k. of the Personnel Manual includes the “intentional use of … prescription medica-
tions to obtain a ‘high,’ contrary to their intended use.”  The record clearly supports the finding 
of the CO and the ASB that the applicant had used prescription drugs to obtain a “high,” rather 
than for their prescribed purpose.  Members involved in a drug incident are processed for sepa-

                                                 
7 Under 10 U.S.C. § 1552, the Board is authorized not only to correct errors but to remove injustices from any Coast 
Guard  military record.  For the purposes of the BCMRs,  “‘[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 Board has authority  to determine  whether an injustice exists on a  “case-by-case basis.” 
Docket No. 2002-040 (DOT BCMR, Decision of the Deputy General Counsel, Dec. 4, 2002).   

ration.8  Moreover, the applicant was diagnosed as opioid dependent, which is disqualifying for 
enlistment or retention on active duty.9 

The  applicant  alleged  that  he  was  denied  due  process  because  the  ASB  only 
recommended his discharge because Coast Guard policy requires the separation of all members 
involved in a drug incident.  He argued that the policy rendered the ASB proceedings a “proce-
dural  sham.”    While  the  ASB  members  acted  in  accordance  with  the  Coast  Guard’s  policy 
regarding drug incidents in recommending the applicant’s discharge and noted that they would 
not have done so if the policy had been more flexible, the convening authority expressly stated in 
his October 3, 2006, memorandum that the ASB could recommend the applicant’s retention on 
active duty.  In addition, the record shows that the ASB carefully considered the evidence and 
reached a reasonable decision to determine that a drug incident had occurred and to recommend 
discharging the applicant.  He has not shown that he was denied due process in the ASB proceed-
ings. 

 
8. 

 
9. 

The applicant argued that the Personnel Command should have suspended his dis-
charge and given him a second chance under Article 12.B.34. of the Personnel Manual.  How-
ever, the applicant’s command had already given him a second chance in December 2004 and 
throughout  2005  by  keeping  quiet  about  his  addiction,  getting  him  treatment,  and  refusing  to 
issue a drug incident finding or initiate his discharge.  The Board is not persuaded that the Coast 
Guard committed error or injustice by refusing to give the applicant a third chance under Article 
12.B.34. 
 
10. 

The applicant alleged that he was denied due process because the Coast Guard did 
not discharge him until almost three years after he admitted to his addiction.  It is true that the 
applicant admitted to his addiction on December 7, 2004, and was not discharged until Septem-
ber 26, 2007.  However, for most of that period, the applicant was being given a second chance 
to remain on active duty by his command.  There is no evidence that he did not want that second 
chance or that he was unaware that evidence of renewed misconduct could result in discharge 
proceedings.  The record shows that the command began an official investigation on February 
14, 2006, based upon suspicions of renewed drug abuse; completed the investigation on June 11, 
2006, after accumulating evidence of  continuing  misconduct; and advised the applicant of the 
discharge proceedings on June 22, 2006.  The actual discharge proceedings took approximately 
fifteen months, from June 22, 2006, to September 26, 2007.  Given the applicant’s request for an 
ASB and the issues involved, the Board is not persuaded that the Coast Guard unduly delayed 
the applicant’s discharge contrary to his best interest. 

The applicant alleged that he was denied due process because the Coast Guard has 
no rational basis for having different regulations for alcohol abuse and prescription drug abuse 
since both substances can be used legally and can be addictive.  However, alcohol and prescrip-
tion drugs do not have the same physiological effects, and alcohol is not a controlled substance 
in the same sense that prescription drugs are controlled substances.  Moreover, drug interdiction 

 
11. 

                                                 
8 Personnel Manual, Article 20.C.4. 
9 Medical Manual, Chapters 5.B.5.b. and 3.D.31.o. 

is one of the Coast Guard’s major missions.  The Board is not persuaded that the Coast Guard 
lacks a rational basis for treating alcohol abuse and prescription drug abuse differently. 

The  applicant  alleged  that  he  has  been  the  subject  of  “selective  prosecution” 
because he knows of two petty officers who committed multiple alcohol-related offenses at his 
unit who were not discharged.  He also pointed out that Captain xxxxxxxxxxxxxxxx was allowed 
to retire after he tested positive for cocaine and argued that he should be granted constructive ser-
vice credit so that he will have enough time in service to retire.  The applicant has not shown that 
his  own  misconduct  was  comparable  to  that  of  the  petty  officers  or  Captain  xxxxxxxxxxx.  
Unlike Captain xxxxxxxxxx, the applicant unfortunately did not have sufficient years of service 
to  retire  when  his  misconduct  was  discovered.    Twenty  years  of  service  are  required  for 
retirement, and while the applicant’s addiction and discharge are very unfortunate, the Board is 
not persuaded that the applicant’s separation from active duty was per se erroneous or unjust or 
that he should otherwise be entitled to reinstatement on active duty or constructive service and 
retirement for twenty years of duty.  

The  applicant  alleged  that  the  Vice  Commandant’s  action  in  disapproving  the 
DRB’s  recommendation  that  his  reenlistment  code  be  upgraded  was  arbitrary  and  capricious.  
The applicant’s record now shows that he was discharged for “miscellaneous/general reasons” 
with separation code JND.  Under ALCOAST 125/10, the RE-3 separation code is the default for 
members being discharged for “miscellaneous/general reasons,” but both the RE-1 and RE-4 are 
also authorized.  Note 5 in the ALCOAST indicates that the type of misconduct committed by 
the member should determine whether he receives an RE-3 or RE-4.  In this case, the applicant 
repeatedly sought drugs from unauthorized sources and charged their purchase on a Government 
credit  card contrary to  policy.   The JAG cited this misconduct in the explanation of the Vice 
Commandant’s decision in the advisory opinion, and in light of the misconduct, the Board finds 
that the RE-4 reenlistment code is neither erroneous nor unjust. 

 
12. 

 
13. 

 
14. 

The  applicant  has  not  proved  by  a  preponderance  of  the  evidence  that  he  was 
erroneously  or  unjustly  discharged  or  that  his  RE  code  should  be  upgraded.    Therefore,  his 
requests for relief should be denied.  However, the Board notes that following the decision of the 
DRB, as approved by the Vice Commandant, the Coast Guard corrected the applicant’s DD 214 
by issuing a DD 215 correction form.  The DD 215 leaves the prejudicial information on the DD 
214 visible to all to whom the applicant must show his discharge papers.  Therefore, the Board 
finds that the Coast Guard should issue the applicant a new DD 214 with the information on the 
DD 215 included therein. 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

ORDER 

 

 

The  application  of  former  xxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 
military  record  is  denied,  except  that  the  Coast  Guard  shall  issue  him  a  new  DD  214 
incorporating the corrections made on the DD 215 dated May 13, 2009, following the decision of 
the Discharge Review Board, so that  

 

•  block 24 of his DD 214 shall show an honorable discharge;  
•  block 25 shall show Article 12-B-12 of the Personnel Manual as the separation authority; 
•  block 26 shall show JND as the separation code; and  
•  block  28  shall  show  “Miscellaneous/General  Reasons”  as  the  narrative  reason  for 

separation.   
 
The following notation may be made in Block 18 of the DD 214:  “Action taken pursuant 

to order of BCMR.” 

 
No other relief is granted. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Philip B. Busch 

 

 
 Dorothy J. Ulmer 

 

 

 
 Kenneth Walton