DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 

Xxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxx 

 
BCMR Docket No. 2010-066 
 

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  December  18,  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). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  October  8,  2010,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  upgrade  his  November  25,  1987,  general  discharge 
under honorable conditions to  an honorable discharge.  He alleged that he received the  general 
discharge for possessing drug paraphernalia.  However, he states that he had purchased the item 
for his brother and never used it.  He alleged that the item still had the price tag on it when it was 
discovered.    In  addition,  he  alleged  that  he  was  unaware  at  the  time  that  having  such 
paraphernalia  was  illegal.    The  applicant  stated  that  he  has  never  had  a  positive  urinalysis  and 
has  subsequently  worked  as  a  federal  civilian  employee  without  any  problem.    The  applicant 
stated that the purchase of the item as a gift for his brother was a youthful mistake and that his 
general discharge was not justified. 
 

SUMMARY OF THE RECORD 

 
 
On April 4, 1983, the applicant enlisted in the Coast Guard as a seaman recruit (SR/pay 
grade E-1).  The applicant’s first performance evaluation contained several above average marks, 
but thereafter his evaluations contained very low to mediocre marks. 
 
 
On August 25, 1986, the applicant’s commanding officer (CO) notified him that he was 
initiating his discharge for misconduct due to drug abuse.  He advised the applicant of his right to 
consult  an attorney and to  submit a statement to  rebut  his  recommendation for discharge.  The 
applicant consulted counsel and submitted a statement in rebuttal in which he strenuously object-
ed to the proposed discharge.  He stated that the paraphernalia in question was a coke kit that he 

 

 

had intended to send to his brother as a joke.  He alleged that his actions were “without criminal 
intent,” though “in poor taste.”  The applicant argued that “drug abuse” as defined in Article 20-
A-3 of the Personnel Manual did not include the possession of drug paraphernalia.  He noted that 
the definition of a “drug incident” did include possession of drug paraphernalia and that a single 
“drug  incident”  was  grounds  for  separation.    However,  he  argued  that  “the  words  drug  abuse 
should not appear on any document associated with my discharge.”  He noted that no traces of 
drugs had been found on the coke kit and that the results of three urinalyses conducted after the 
discovery of the coke kit had all been negative.  The applicant argued that, if he had intended to 
use the coke kit, he “would not have been so stupid as to store it in my locker and to consent to a 
search of my room.  I felt then and I feel now that I have nothing to hide.  I do not believe that I 
should  be  discharged  from  the  service  because  of  a  joke  in  possibly  bad  taste,  and  I  definitely 
should  not  be  discharged  for  ‘drug  abuse.’    I  do  not  use  drugs  and  my  performance  within  the 
past year has been more than satisfactory.” 
 
On  September  8,  1986,  the  CO  recommended  that  the  applicant  receive  a  general  dis-
 
charge.  He noted that the applicant had been punished at captain’s mast on January 24, 1984, for 
absenting  himself  from  his  place  of  duty;  on  February  22,  1984,  for  signing  a  false  document 
about his date of birth; on September 11, 1984, for failing to obey an order to attend NASAPP 
classes; and on July 24, 1986, for possessing drug paraphernalia.  He also noted that in three and 
one-half years of service, the applicant had never advanced beyond seaman apprentice (SA; E-2). 
 
 
On September 17, 1986, the Commandant ordered the applicant’s command to award him 
a general discharge “by reason of misconduct due to drug abuse.”  However, the command there-
after  asked  to  retain  the  applicant  on  active  duty  while  his  disability  was  being  evaluated  by  a 
medical board.  The Commandant authorized the delay of the applicant’s discharge. 
 
 
On September 16, 1987, a medical board convened and recommended that the applicant 
be  discharged  with  a  10%  disability  rating  due  to  “mechanical  low  back  pain  with  mild  nerve 
root irritation,” which was incurred on active duty and was not a result of misconduct.  On Sep-
tember  28,  1987,  the  applicant  accepted  this  recommendation  and  waived  his  right  to  a  formal 
hearing. 
 
 
On November 3, 1987, the Commandant ordered the applicant’s command to award him 
a  general  discharge  based  on  a  “physical  disability  incident  to  service”  in  accordance  with  the 
recommendation of the medical board. 
 
On November 6, 1987, the applicant received a poor conduct mark on his final perform-
 
ance  evaluation.    On  November  25,  1987,  the  applicant  received  a  general  discharge  under 
honorable  conditions  from  the  Coast  Guard.    The  narrative  reason  for  separation  shown  at  the 
bottom of his DD 214 is “physical disability incident to service.” 
 

VIEWS OF THE COAST GUARD 

 
On  May  7,  2010,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  submitted  an 
 
advisory opinion in which he recommended that the Board deny relief in this case.  In so doing, 

 

 

the JAG adopted the findings and analysis of the case provided in a memorandum prepared by 
the Personnel Service Center (PSC).   
 
 
The PSC stated that the application should be denied for untimeliness because the appli-
cant did not explain his long delay in applying to the Board.  The PSC also stated that the appli-
cant  received  due  process  even  under  today’s  standards.    The  PSC  noted  that  under  Article 
12.B.2.f.2.a.  of  the  current  Personnel  Manual,  a  general  discharge  is  warranted  whenever  the 
member “[h]as been identified as a user, possessor, or distributor of illegal drugs or parapherna-
lia.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  May  13,  2010,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast  Guard 

 
 
and invited her to respond.  No response was received.    
 

SUMMARY OF THE REGULATIONS 

 

Under Article 12-B-18.b.(4) of the Personnel Manual in effect in 1987, the Commandant 

could separate a member for misconduct due to drug abuse as follows:  
 

Drug abuse.  The illegal, wrongful, or improper use, possession, sale transfer, or introduction on a 
military  installation of any  narcotic substance, intoxicating inhaled substance,  marijuana, or con-
trolled substance, as established be 21 U.S.C. 812.  Any member involved in a drug incident will 
be  separated  from  the  Coast  Guard  with  no  higher  than  a  general  discharge.    However,  in  truly 
exceptional situations, commanding officers may recommend retention of members E-3 and below 
involved in only a single drug incident. …  

 
 
Under Article 12-B-18.e.(1), a member with less than eight years of active service who 
was being recommended for a general discharge for misconduct was entitled to (a) be informed 
of the reasons for the recommended discharge, (b) consult an attorney, and (c) submit a state-
ment in his own behalf. 
 
 
Under Article 20.C. of the current Personnel Manual, any member involved in any “drug 
incident” is subject to an administrative discharge with no greater than a general discharge under 
honorable conditions. 
 

FINDINGS AND CONCLUSIONS 

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

 
 
military record and submissions, the Coast Guard’s submission, and applicable law: 
 
 
 

1. 

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

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 discov-
ered, the alleged error or injustice.  The applicant received his discharge papers in 1987 and so 

 

 

knew or should have known of the alleged error in his record in 1987.  Thus, his application is 
untimely. 
 

3. 

Pursuant  to  10  U.S.C.  §  1552(b),  the  Board  may  excuse  the  untimeliness  of  an 
application  if  it  is  in  the  interest  of  justice  to  do  so.    In  Allen  v.  Card,  799  F.  Supp.  158,  164 
(D.D.C. 1992), the court stated that to determine whether the interest of justice supports a waiver 
of  the  statute  of  limitations,  the  Board  “should  analyze  both  the  reasons  for  the  delay  and  the 
potential merits of the claim based on a cursory review.”  The court further instructed that “the 
longer the delay has been and the weaker the reasons are for the delay, the more compelling the 
merits would need to be to justify a full review.”  Id. at 164, 165; see also Dickson v. Secretary 
of Defense, 68 F.3d 1396 (D.C. Cir. 1995).   

 
4. 

5. 

6. 

The applicant did not provide any reason for his delay in applying for an upgrade 

 
of his general discharge. 
 
 
A cursory review of the merits of the case shows that the applicant submitted no 
evidence to support his allegation that his general discharge was erroneous or unjust. Absent evi-
dence to the contrary, the Board presumes that Coast Guard officers and other Government offi-
cials have carried out their duties “correctly, lawfully, and in good faith.” Arens v. United States, 
969 F.2d 1034, 1037 (Fed. Cir. 1992) (citing Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979).    The  applicant  must  prove  that  his  discharge  was  unjust  by  a  preponderance  of  the  evi-
dence.  33 C.F.R. § 52.24(b).   
 
 
The  applicant  alleged  that  he  only  possessed  drug  paraphernalia  because  he 
intended to play a joke on his brother.  This argument apparently did not persuade his CO or oth-
ers  in  his  chain  of  command  that  he  was  not  involved  with  illegal  drugs,  and  they  were  well 
placed  to  assess  the  credibility  of  his  claim.    The  applicant  admitted  in  his  rebuttal  to  the  dis-
charge recommendation that the Coast Guard’s definition of a “drug incident” at the time includ-
ed the possession of drug paraphernalia and that a member could be discharged for a single drug 
incident.    The  applicant  complained  in  his  rebuttal  to  the  discharge  that  he  should  not  be 
discharged for drug abuse because he did not actually use drugs.  Ultimately, the narrative reason 
for  his  discharge  entered  on  his  DD  214  was  not  misconduct  or  drug  abuse  but  “physical 
disability incident to service.”  Although the applicant complained that his general discharge was 
too  harsh  under  the  circumstances,  the  character  of  his  discharge  is  strongly  supported  by  his 
numerous  low  performance  marks  and  several  punishments  at  mast.    The  Board  finds  that  the 
applicant has submitted insufficient evidence for his claim to prevail on the merits. 
 
 
applicant’s request should be denied. 
 
 
 
 

Accordingly, the Board will not excuse the untimeliness of the application.  The 

7. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 

 

 

 

ORDER 

The  application  of  former  SR  xxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Patrick B. Kernan 

 

 

 
 Erin McMunigal 

 

 

 
 Kathryn Sinniger 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
of his military record is denied.