DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-125 
 
Xxxxxxxxxxxxx 
xxxxxxxxxxxxx 

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  March  4,  2010,  and  assigned  it  to  staff  member  J.  Andrews  to  pre-
pare 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 November 5, 2010, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  who  received  a  general  discharge  under  honorable  conditions  from  the 
Coast Guard on May 16, 1988, for illegal drug abuse, asked the Board to correct his record by 
upgrading his discharge to honorable.  The applicant stated that he “made a foolish mistake by 
being with the wrong people at the wrong place and time” and by using drugs.  He stated that his 
mistake has been “a source of great pain and regret” because he was unable to continue in his 
planned career of service in the Coast Guard.  He apologized and asked for forgiveness.  He did 
not explain his delay in applying to the Board. 
 

The applicant stated that upon leaving the Service, he entered a six-month spiritual drug 
treatment program run by the Salvation Army and became a role model for others in the pro-
gram.  He has “spent the last nineteen years as a mentor to recovering addicts, carrying the spiri-
tual message of hope and redemption.”  He alleged that he has led an exemplary life and now 
works  as  the  Purchasing  Manager  for  a  digital  equipment  company.    The  applicant  asked  the 
Board to consider not only his post-discharge conduct but also his marks, awards, and nine years 
of military service.  In support of his allegations, he submitted the following: 
 

•  Several documents from the Salvation Army showing that he entered their Adult Reha-
bilitation  Center  Command  on  September  3,  1991,  “made  an  outstanding  amount  of 
progress since entering” and attended all required activities, and graduated on February 
26, 1992. 

 

 

 

•  A letter from a controller at the digital equipment company stating that the applicant was 

an employee in 1991 and was “a very conscientious and extremely efficient worker.” 

• 

In a letter dated September 4, 2009, the office manager of the applicant’s company stated 
that the applicant had worked for the company for 19 years and been promoted several 
times.  He has shown outstanding judgment and great organizational skills.  The applicant 
told him that he “made a life-changing decision in 1991 and turned his life around, went 
into a substance abuse treatment facility and graduated, and [has] been clean and sober 
ever  since.”    He  noted  that  his  company  hired  the  applicant  in  1991  because  although 
they understand the military policy on drug use, they “believe in second chances.”  He 
stated that the company is grateful to have the applicant on staff. 

SUMMARY OF THE RECORD 

 

 
On November 20, 1978, at age 19, the applicant enlisted in the Coast Guard as a seaman 
recruit (SR).  On his performance evaluations, he regularly received average to good marks.  On 
May 3, 1982, he signed the following statement for his record: 
 

I have read and understand ALCOAST 007/82.  Specifically, I am aware that the Coast Guard has 
taken a hard line on the use of illegal drugs, that the drug exemption program has been cancelled, 
that detection methods such as urinalysis and dogs may be utilized and that use or possession of 
illegal drugs can result in disciplinary action and discharge.   

 
 
On May 27, 1986, the applicant received a  Letter of Appreciation from the CO of the 
POLAR STAR regarding his performance of duty during Operation Deep Freeze, when the cut-
ter delivered supplies to two Antarctic stations during severe ice conditions. 
 
 
On February 11, 1988, the applicant’s Group Commander notified him that he was initi-
ating his discharge because following a urinalysis at the command on January 21, 1988, his urine 
had tested positive for metabolites of cocaine.  He advised the applicant that he had a right to 
consult an attorney, to submit a statement on his own behalf, and to appear before and be heard 
by an Administrative Discharge Board (ADB).  He also stated that he intended to recommend 
that the applicant receive a general discharge by reason of misconduct due to drug abuse but that 
the final decisions about his discharge would be made by Commandant.  The applicant acknowl-
edged receiving this notice and noted his desire to consult an attorney and to submit a statement 
on his own behalf. 
 
 
On March 22, 1988, after consulting the attorney, the applicant signed a memorandum on 
which he agreed to waive his right to an ADB if he would receive an honorable discharge.  On 
March 28, 1988, he submitted a statement requesting an honorable discharge.  He noted that he 
had  nine  years  and  five  months  of  service  and  that  he  loved  the  Coast  Guard  and  would  be 
“willing to do anything the Coast Guard asks of me if I could be retained on active duty.” 
 
 
 
On March 28, 1988, the Group Commander recommended to the Commandant that the 
applicant be discharged for drug abuse.  The Group Commander noted that the applicant had no 
record  of  other  military  offenses  and  had  received  a  Coast  Guard  Unit  Commendation  Medal 

with “O” Device, Sea Service Ribbon, Arctic Service Medal, Antarctic Service Medal, and three 
Coast Guard Good Conduct awards.  He recommended that the applicant receive an honorable 
discharge in accordance with his conditional waiver of the ADB.  However, the District Com-
mander recommended that the applicant receive a general discharge. 
 
 
On April 8, 1988, the Commandant sent the Group Commander a message stating that the 
conditional waiver signed by the applicant was “unacceptable” and that the Group should con-
vene an ADB unless the applicant executed an unconditional waiver for a general discharge. 
 
 
On April 13, 1988, the Group command informed the Commandant that the applicant had 
elected to have his case heard by an ADB and that “board action [was] to follow.”  However, on 
April 18, 1988, the applicant signed an “Unconditional Waiver of a Hearing Before an Adminis-
trative Discharge Board.”  On the waiver, he acknowledged having been advised of his right to 
appear  before  and  be  heard  by  an  ADB  and  to  be  represented  by  counsel.    He  noted  that  he 
understood that he would receive a general discharge. 
 
 
On April 19, 1988, the Group notified the Commandant that the applicant had “reconsi-
dered his decision to have his case heard by an [ADB] and has elected to execute an uncondi-
tional waiver for general disch[arge].” 
 
 
 
 
with a General discharge by reason of misconduct due to drug abuse within 30 days. 
 
 
tions” by reason of misconduct in accordance with Article 12-B-18 of the Personnel Manual. 
 

On  May  6,  1988,  the  Commandant  directed  the  applicant’s  command  to  separate  him 

On May 16, 1988, the applicant received a General discharge “under honorable condi-

On April 28, 1988, a doctor noted that the applicant was addicted to cocaine. 

VIEWS OF THE COAST GUARD 

 

On June 16, 2010, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion recommending that the Board deny relief in this case.  In so doing, he adopted 
the findings and analysis provided in a memorandum on the case prepared by the Personnel Ser-
vice Center (PSC).  The PSC pointed out that the application is untimely since the applicant was 
discharged in 1988.  The PSC argued that his record “is presumptively correct, and the applicant 
has failed to substantiate any error or injustice” in his record.  Therefore, the PSC recommended 
that the application be denied for untimeliness. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On June 25, 2010, the Chair sent the applicant a copy of the views of the Coast Guard 

 
 
and invited him to respond within 30 days.  No response was received. 
 
 

 

 

APPLICABLE LAW 

 

 

 Under Article 12-B-18.b.(4) of the Personnel Manual in effect in 1988, 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, a member with more than eight years of active service who was 
being recommended for a general discharge for misconduct was entitled to (a) be informed of the 
reason for the recommended discharge, (b) consult an attorney, (c) submit a statement in his own 
behalf, and (d) be heard by an ADB represented by counsel. 
 
 
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 

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

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

1. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552. 
The Board finds that the applicant has exhausted his administrative remedies, as required by 33 
C.F.R. § 52.13(b), because there is no other currently available forum or procedure provided by 
the Coast Guard for correcting the alleged error or injustice. 

 
2. 

 
3. 

 
4. 

An application to the Board must be filed within three  years after the applicant 
discovers,  or  reasonably  should  have  discovered,  the  alleged  error  in  his  record.  10  U.S.C.  
§ 1552; 33 C.F.R. § 52.22.  The applicant was discharged in 1988.  Therefore, his application is 
untimely. 

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).   

The applicant did not explain his delay in seeking an upgrade of his discharge.  
However,  his  request  is  based  on  alleged  long-term  post-service  good  conduct,  not  on  any 
alleged error or injustice committed during his years of service.   

The applicant argued that his discharge should be upgraded in the interest of jus-
tice because he has been drug-free and a good, hard-working citizen since 1991.  However, the 
delegate of the Secretary informed the Board on July 7, 1976, by memorandum that it “should 
not upgrade a discharge unless it is convinced, after having considered all the evidence … that in 
light of today’s standards the discharge was disproportionately severe vis-à-vis the conduct in 
response to which it was imposed.”1  Under Article 20.C. of the current Personnel Manual, mem-
bers discharged for drug abuse may receive no higher than a general discharge.  Therefore, the 
Board is not persuaded that the applicant’s general discharge is disproportionately severe in light 
of current standards. 

The Board does not, however, construe the delegate’s guidance as prohibiting it 
from exercising clemency even if the discharge was neither disproportionately severe compared 
to the misconduct, nor clearly inconsistent with today’s Coast Guard standards.  Such a construc-
tion would be inconsistent with the very nature of clemency, which means “mercy or leniency.”2   
Clemency does not require that a punishment have been unjust or overly harsh; on the contrary, 
it can be (and often is) forgiveness of punishment that was otherwise appropriate.  An analysis 
under the 1976 guidance3 primarily considers whether the past discharge was unjust at the time 
or would be unjust if applied to a similarly situated member today; a clemency analysis considers 
whether it is appropriate today to forgive the past offense that led to the punishment and to miti-
gate the punishment accordingly. 

 
5. 

 
6. 

 
7. 

 
8. 

 
 

The factors in the record weighing in favor of clemency are the applicant’s good 
performance marks, his duty aboard the ice cutter during Operation Deep Freeze, his long-term, 
successful  employment,  and  the  22  years  he  has  borne  the  burden  of  the  general  discharge.  
Although he alleged that he has worked as a mentor for recovering addicts and been a role model 
for others since 1991, he did not submit evidence supporting these allegations.  Moreover, the 
record shows that the applicant was 28 years old when his urine tested positive for metabolites of 
cocaine, and drug interdiction was and is one of the Coast Guard’s major missions.  In addition, 
contrary to his allegation that he was discharged because of one foolish mistake by being “with 
the wrong people at the wrong place and time,” the record shows that he was already an addict 
while serving on active duty in 1988, not a one-time user.  Therefore, the Board finds that cle-
mency is unwarranted, and the applicant’s claim cannot prevail on the merits. 

Accordingly, the Board will not excuse the application’s untimeliness or waive the 

statute of limitations.  The applicant’s request should be denied.  

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
1 Memorandum of the General Counsel to J. Warner Mills, et al., Board for Correction of Military Records (July 8, 
1976). 
2 BLACK’S LAW DICTIONARY 288 (9th ed., 2009) 
3 Memorandum of the General Counsel to J. Warner Mills, et al., Board for Correction of Military Records (July 8, 
1976). 

The  application  of  former  xxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

  

 
 Donna M. Bivona 

 

 

 
 
 Evan R. Franke 

 

 
 
 Darren S. Wall 

 

 

 

 

 

 

 

 

 

 

 

 

military record is denied.