DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-129 
 
Xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxx  

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  22,  2011,  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). 

 
This  final  decision,  dated  January  12,  2012,  is  approved  and  signed  by  the  three  duly 

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

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, who received a general discharge from the Reserve for involvement with 
illegal drugs, asked the Board to either reinstate him in the Reserve or upgrade his discharge to 
honorable and his reentry code to RE-1 so he may reenlist in another military service.  He also 
asked  the  Board  to  “have  any  entry  removed  from  the  National  Crime  Information  Center” 
(NCIC).  He stated that although he was never charged with an offense, much less tried or con-
victed, the Coast Guard entered a charge against him in the NCIC. 
 

The  applicant  alleged  that  he  never  intentionally  ingested  any  illegal  substance  but  was 
apparently a victim of innocent ingestion.  The applicant alleged that in his civilian work, he has 
clients who are severely mentally ill and after his urine tested positive for THC, a metabolite of 
marijuana,  he  “found  that  one  [of  his  clients]  in  particular  had  given  me  a  food  item  which  I 
consumed not knowing that it contained an illegal substance (marijuana).” 

 
The applicant alleged that he was not afforded any due process and is very disappointed 
that his “military career was cut short due to this unfortunate event.”  However, he is pursuing 
his second graduate degree, a master’s degree in social work, and wants to be able to work with 
veterans  and  their  families.    Therefore,  he  wants  his  record  corrected  to  negate  “any  potential 
negative  impact  on  my  future  employment  endeavors  and  for  my  own  peace  of  mind.”    The 
applicant also complained that he is unaware of his military status because he never received a 
discharge form DD 214. 

 

 

 

SUMMARY OF THE RECORD 

 
 
The applicant enlisted in the Reserve on May 2, 2003, and served on extended active duty 
from  June  28,  2004,  to  January  1,  2008,  when  he  was  released  into  the  Reserve.    Test  results 
show that in a random urinalysis conducted at the applicant’s Reserve unit on January 31, 2009, 
his urine was collected.  It tested positive for THC, at a level of 318 ng/ml1 on February 4, 2009.  
The result was verified by another test conducted on the sample.  On March 7, 2009, the appli-
cant  was  interviewed  by  agents  of  the  Coast  Guard  Investigative  Service  (CGIS)  regarding  the 
urinalysis results.   
 
 
On March 27, 2009, the applicant was notified by his commanding officer (CO) that the 
CO had initiated the applicant’s discharge pursuant to Article 12.B.18. of the Personnel Manual 
based  on  the  urinalysis  results.    The  CO  advised  the  applicant  that  he  could  object  to  the  dis-
charge and submit a statement in rebuttal, which would be forwarded with the CO’s recommen-
dation for discharge to  the Personnel  Command.  The applicant  acknowledged the notification, 
noted  that  he  objected  to  the  discharge,  and  noted  that  he  had  been  afforded  an  opportunity  to 
receive legal counsel and would exercise that right. 
 
 
The applicant submitted a statement objecting to the proposed discharge.  He called into 
question the procedures by which his urine sample was handled.  He stated that during previous 
urinalyses, the observer had handed him a piece of red tape and told him to put the red tape over 
the top of his sample, but during the test on January 31, 2009, the tape was not put on the sample 
until after he signed it and handed it to the yeoman who put the sample in the box with others.  
He suggested that the tape may have been placed over a sample which was not his.  He claimed 
that there must have been a mix-up because he was “in no way guilty of using any type of drug, 
including marijuana or anything containing THC.”  He offered to take a polygraph or hair drug 
test or to  go before a separation board or court  martial,  though he knew he  was not entitled to 
one.  The applicant  also  noted that as  a civilian  he worked with  clients  with  both  physical  and 
mental ailments and cancer and other debilitating diseases and that he was sometimes “exposed 
to  clients’  medical  marijuana  use,”  which  could  have  resulted  in  a  positive  test  result  due  to 
second-hand smoke. 
 
 
The applicant submitted a second statement to his command stating that after consulting 
legal counsel, he had questioned his clients about “whether they, at any point, had given me any 
type  of  food  or  drink  containing  marijuana.”    One  of  his  clients  “came  forth  after  some  ques-
tioning and admitted that he had in fact given me a banana bread loaf containing marijuana in the 
latter part of January, which I recalled.”  The applicant stated that this client is mentally ill but 
did not know that the applicant was in the Coast Guard and had no malicious intent.  “Recalling 
this event, I can remember consuming the entire loaf, and feeling sick for the next couple of days 
leading up to the random [urinalysis], which took place on 31 January 2009.  I thought nothing 
of this at the time, being that some of my clients and family members were also sick about the 
same time.  After reviewing my work calendar, I confirmed that I had last seen this client on 29 
January 2009, during which this client had given me the banana bread loaf.  My visit with this 

                                                 
1 The Coast Guard’s minimum cut-off level of THC for a “positive” urinalysis result is 15 ng/ml. 

 

 

client  is  documented  in  my  progress  notes,  which  are  kept  on  record  with  North  Shore  Mental 
Health  administration.”    The  applicant  attached  to  this  statement  the  following  notarized  state-
ment: 
 

It has come to my attention that my case manager … has come into some trouble at his job (North 
Shore Mental Health).  He asked me if I had put any kind of type of marijuana into something I 
had given to him.  I have a medical marijuana card, and license to grow.  I had put some bud into 
butter and made banana bread.  I took a bite but felt little effect.  I thought it would be okay to give 
some away.  I would not have given it to my case manager if I [had] known he was going to get 
into trouble.  I apologize … this was my mistake.  [The applicant] has been a great case manager.  
I should know; I fired 2 before him.  He is an expert in the mental health field. 

 
The applicant’s employer submitted a statement to his command, dated March 17, 2009, 
 
noting  that  as  part  of  his  job  the  applicant  worked  with  clients  who  had  medical  marijuana 
licenses “and is therefore potentially exposed.” 
 
 
On May 8, 2009, the Reserve Personnel Management Branch issued orders for the appli-
cant to receive a general discharge for misconduct due to his involvement with drugs.  The appli-
cant was separated with  a general discharge for misconduct on June 9, 2009.  No DD 214 was 
issued. 
 

VIEWS OF THE COAST GUARD 

 
 
On June 23, 2011, the Judge Advocate General  (JAG) of the Coast Guard submitted an 
advisory  opinion  in  which  he  recommended  that  the  Board  grant  partial  relief  by  ordering  the 
Coast Guard to issue the applicant a DD 214.   
 

The  JAG  stated  that  the  applicant  is  entitled  to  a  DD  214  even  though  he  was  not  on 
active duty  when he was separated from  the Reserve because he was separated for cause.   The 
JAG cited DoDI 1336.01, Enclosure 3, paragraph 2.d., which states that “[p]ersonnel being sepa-
rated from a period of active duty for training, full-time training duty, or active duty for special 
work  will  be  furnished  a  DD  Form  214  when  they  have  served  90  days  or  more  …  Personnel 
shall be furnished a DD Form 214 upon separation for cause or for physical disability regardless 
of the length of time served on active duty.” 

 
The  JAG  also  stated  that  the  Coast  Guard  “has  not  provided  any  information  regarding 
the applicant to the National Crime Information Center (NCIC)” so his request for removal is not 
applicable.  The JAG also argued that the applicant has not provided any information that war-
rants granting the rest of the relief he requested. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On August 9, 2011, the Board received the applicant’s response to the views of the Coast 
Guard.    The  applicant  stated  that  his  CO  erred  by  finding  that  he  had  been  involved  in  a  drug 
incident  because  he  did  not  knowingly  ingest  marijuana.    He  also  argued  that  the  sworn  state-
ment of his client that he gave the applicant a loaf of banana bread containing marijuana without 
divulging that it contained marijuana overcomes the presumption of regularity accorded his CO’s 
finding  and  proves  by  a  preponderance  of  the  evidence  that  he  did  not  knowingly  ingest  mari-

 

 

juana.    The  applicant  also  stated  that  the  CGIS  agents  did  not  interview  his  client  and  that  his 
civilian  employers  did  not  fire  him  because  they  knew  his  client  and  knew  that  the  applicant’s 
ingestion  of  marijuana  was  not  intentional.    Therefore,  he  stated,  his  discharge  should  be 
reversed. 
 

APPLICABLE REGULATIONS 

 

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.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  evi-
dence of drug abuse.”   

 
Article 20.A.2.k. defines a “drug incident”  as the intentional  use of drugs, the wrongful 
possession of drugs, or the trafficking of drugs.  It further states that “[t]he member need not be 
found guilty at court-martial, in a civilian court, or be awarded NJP for the conduct to be consid-
ered a drug incident” and that “[i]f the conduct occurs without the member’s knowledge, aware-
ness, or reasonable suspicion or is medically authorized, it does not constitute a drug incident.” 
 

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” and that  a positive confirmed urinalysis 
result may by itself be “sufficient to establish intentional use and thus suffice to meet this burden 
of proof.”  Article 20.C.4.1. states that if a CO determines that a drug incident did occur, the CO 
should process the member for separation by reason of misconduct.  
 
 
Article 12.B.18. of the Personnel Manual governs administrative discharges for miscon-
duct.  Article 12.B.18.b.4. states that “[a]ny member involved in a drug incident … will be proc-
essed  for  separation  from  the  Coast  Guard  with  no  higher  than  a  general  discharge.”    Article 
12.B.18.e. states that when recommending that a member with less than eight years of service be 
administratively discharged for misconduct, the CO must do the following: 
 

1. Inform the member in  writing of the reason(s) for being considered for discharge (specifically 
state one or more of the reasons listed in Article 12.B.18.b. supported by known facts). 
 
2. Afford the member an opportunity to make a written statement. … 
 
3.  Afford  the  member  an  opportunity  to  consult  with  a  lawyer  as  defined  by  Article  27(b)(1), 
UCMJ, if contemplating a general discharge. … 

 

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: 
 

 

 

1. 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10 U.S.C.  § 1552.  
The application was timely because it was filed within three years of the applicant’s discharge. 
10 U.S.C. § 1552(b). 

 
2. 

The applicant requested an oral hearing before the Board.  The Chair, acting pur-
suant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case without 
a hearing.  The Board concurs in that recommendation.  See Armstrong v. United States, 205 Ct. 
Cl. 754, 764 (1974) (stating that a hearing is not required because BCMR proceedings are non-
adversarial and 10 U.S.C. § 1552 does not require them).  

 
3.  

The applicant alleged that  his  general discharge for drug abuse on June 9, 2009, 
following  a  positive  urinalysis  conducted  on  January  31,  2009,  was  erroneous  and  unjust.    He 
asked to be reinstated in the Reserve or, in the alternative, to have his discharge and reentry code 
upgraded.  The Board begins its analysis in every case by presuming that the disputed informa-
tion in the applicant’s military record is correct as it appears in his record, and the applicant bears 
the burden of proving by a preponderance of the evidence that the disputed information is erro-
neous or unjust. 33 C.F.R. § 52.24(b).  Absent evidence to the contrary, the Board presumes that 
Coast Guard officials and other Government employees have carried out their duties “correctly, 
lawfully, and in good faith.” Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sand-
ers v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979). 

 
4. 

The  applicant  alleged  that  on  January  29,  2009,  he  was  given  a  loaf  of  banana 
bread  containing  marijuana  as  a  present  from  a  client  who  uses  medical  marijuana;  he  did  not 
suspect  or  ask  whether  the  loaf  contained  marijuana  and  his  client  did  not  inform  him;  he  can 
recall  eating  the  whole  loaf  sometime  before  reporting  for  drill  on  January  31,  2009,  when  his 
urine  sample  was  taken;  and  he  felt  sick  for  a  couple  of  days  after  he  ate  the  loaf  but  was  not 
suspicious because some family members and clients were also sick at the time.  To support his 
allegations,  the  applicant  submitted  evidence  from  his  civilian  employer  showing  that  some  of 
his clients use medical marijuana.  In addition, he submitted a notarized statement from a person 
who said that he baked banana bread containing marijuana, “took a bite and felt little effect” and 
so he “thought it would be okay to give some away,” and gave it to the applicant, his case man-
ager from North Shore Mental Health.  The client stated that he would not have given the appli-
cant the banana bread if he had known the applicant was going to get in trouble.  However, the 
client did not state that he did not tell the applicant that the banana bread contained marijuana. 

 
5. 

The Board finds the applicant’s allegations and evidence insufficient to overcome 
the presumption that the CO’s determination that the applicant was involved in a “drug incident,” 
as defined in Article 20.A.2.k. of the Personnel Manual, is correct.  In particular, the Board does 
not  find  credible  the  client’s  claim  that  he  took  a  bite  of  banana  bread  containing  marijuana, 
which he presumably  needed  to  alleviate the symptoms  of a medical  condition; judged it to  be 
ineffective based on that bite; and gave the loaf away as a present to his case manager, the appli-
cant,  without  mentioning  that  it  contained  marijuana.    Nor  does  the  Board  find  credible  the 
applicant’s  own  claim  that  he  took  the  banana  bread  from  his  medical  marijuana-using  client 
without  any  suspicion  or  question  about  whether  it  contained  marijuana  even  though  banana 
bread is a common vehicle for medical marijuana; ate the whole loaf at once; and had no suspi-
cion  that  he was high but  felt only  a bit  sick  (not sick enough to  miss  drill) although his  urine 

 

 

tested positive for THC at a level of 318 ng/ml.  The Board concludes that the applicant has not 
proved  by  a  preponderance  of  the  evidence  that  his  CO  erred  in  determining  that  he  had  been 
involved  in  a  “drug  incident”  and  was  therefore  subject  to  an  administrative  discharge  for 
misconduct pursuant to Article 12.B.18. of the Personnel Manual. 

 
6. 

The  applicant  alleged  that  he  did  not  receive  due  process.    However,  the  appli-
cant’s  signature  on  his  acknowledgement  of  rights  dated  March  27,  2009,  shows  that  he  was 
advised of his right to object to the discharge, to consult legal counsel, and to submit a written 
statement.  His own statements show that he exercised those rights.  Therefore, the Board finds 
that the applicant received all due process under Article 12.B.18.e. of the Personnel Manual as a 
member with less than eight years of service receiving a general discharge for misconduct. 

 
7. 

The Board finds that the applicant has not proved by a preponderance of the evi-
dence that the Coast Guard committed any error or injustice in discharging him from the Reserve 
for misconduct with a general discharge under honorable conditions and an RE-4 reentry code. 

 
8. 

The applicant asked the Board to order the Coast Guard to remove any entry it has 
made in the NCIC.  The Coast Guard denied providing the NCIC with any information about the 
applicant.    In  the  absence  of  any  evidence  that  the  Coast  Guard  has  provided  the  NCIC  with 
information  about  the applicant,  the Board finds  no grounds  for ordering  any  correction in  this 
regard. 
 
9. 

The  applicant  complained  that  the  Coast  Guard  failed  to  notify  him  of  his  dis-
charge  or  to  issue  him  a  discharge  form  DD  214.    Reservists  serving  on  inactive  duty  do  not 
normally receive DD 214s when they are discharged, but the Coast Guard has noted that DoDI 
1336.01, Enclosure 3, paragraph 2.d., states that “[p]ersonnel shall be furnished a DD Form 214 
upon  separation  for  cause  or  for  physical  disability  regardless  of  the  length  of  time  served  on 
active  duty.”    Because  the  applicant  was  discharged  “for  cause”—i.e.,  misconduct—the  Board 
agrees with the Coast Guard that he should receive a DD 214. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

 

 
 

 

 

 

ORDER 

 

The  application  of  former  xxxxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his 
military  record  is  granted  in  part  in  that  the  Coast  Guard  shall  issue  and  send  him  a  properly 
prepared DD 214 documenting his general discharge for misconduct in 2009.  All other requests 
for relief are denied.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 Dorothy J. Ulmer 

 
 Reagan N. Clyne 

 
 

  

 
 Philip B. Busch