DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-174 
 
Xxxxxxxxxxxxxxxxxxxx 
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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  May  23,  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). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  February  9,  2012,  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 June 7, 1990, for illegal use of cocaine, asked the Board to change the separation 
authority, separation code, and narrative reason for separation on his DD 214 in blocks 25, 26, 
and  28,  respectively.    His  DD  214  currently  shows  in  those  blocks  that  he  was  discharged  for 
“misconduct” with an HKK separation code (denoting an involuntary discharge for drug abuse) 
in accordance with Article 12-B-18 of the Personnel Manual. 
 
 
The applicant admitted that the discharge was his fault but stated that he was “young and 
stupid.”    He  stated  that  the  discharge  has  haunted  him  and  that  he  had  never  been  in  trouble 
before and has not been in trouble since his discharge from the Coast Guard.   
 
 
The applicant argued that it is in the interest of justice for the Board to excuse the untime-
liness of his application and to correct his DD 214 because he is applying for a State corrections 
job and was told that he would not be hired because his DD 214 shows that he was discharged 
for misconduct. 
 
 

 

 

 

SUMMARY OF THE RECORD 

 

 
On June 29, 1987, at age 18, the applicant enlisted in the Coast Guard as a seaman recruit 
(SR).    On  his  enlistment  application,  he  denied  ever  having  used  illegal  drugs.    On  the  day  he 
enlisted, he signed the following statement for his record: 
 

I  have  been  advised  that  the  illegal  use  or  possession  of  drugs  constitutes  a  serious  breach  of 
discipline which will not be tolerated.  Also, illegal drug use or possession is counter to esprit de 
corps,  mission  performance  and  jeopardizes  safety.    No  member  will  use,  possess  or  distribute 
illegal drugs or drug paraphernalia.     

 
 
 

During recruit training on July 7, 1987, the applicant signed another statement: 

Member  was  given  a  full  explanation  of  the  drug  and  alcohol  abuse  program  by  the  Command 
Drug and Alcohol Program Representative (D&A Rep) this date in compliance with Article 20-B-
1, CG PERSMAN COMDTINST M1000.6 (old CG-207). 

The  applicant  completed  recruit  training  and  advanced  to  fireman  apprentice  (FA)  on 

 
 
August 21, 1987.  He was assigned to work at the Coast Guard Yard in Baltimore. 
 
 
On October 14, 1987, the applicant was counseled about drinking alcohol in the barracks 
contrary to regulation and advised that a further violation would result in disciplinary action.  On 
the applicant’s first semiannual performance evaluation, he received primarily “standard” marks 
of 4 (on a scale of 1 (worst) to 7 (best)).  He advanced to fireman (FN/E-3), but on his perfor-
mance evaluation dated October 31, 1988, he received “below standard” marks of 3 for the per-
formance categories Loyalty and Integrity. 
 

The  applicant  remained  at  the  Yard,  and  on  his  performance  evaluation  dated  April  30, 
1989,  he  received  marks  of  3  for  Uniform,  Work  Habits,  Keeping  Supervisor  Informed,  and 
Motivation  Towards Advancement.   On his  performance  evaluation  dated  November 30, 1989, 
he received marks of 3 for Work Habits, Workmanship, Requiring Supervision, and Motivation 
Towards  Advancement.    On  December  11,  1989,  the  applicant  was  counseled  about  repeated 
tardiness for duty and advised that a further violation would result in disciplinary action. 
 
On  April  30,  1990,  the  day  after  the  applicant’s  21st  birthday,  a  random  urinalysis  was 
 
conducted at the Yard.  On May 17, 1990, the laboratory reported that the applicant’s urine had 
tested  positive  for  cocaine.    On  his  performance  evaluation  dated  May  31,  1990,  the  applicant 
received marks of 3 for Grooming, Conduct, Work Habits, Appearance, and Sobriety. 
 
 
On June 6, 1990, the commanding officer (CO) of the Yard notified the applicant in writ-
ing  that  he  was  recommending  that  the  applicant  receive  a  general  discharge  for  misconduct 
because of the urinalysis result.   The CO advised the  applicant  that he had a  right to  consult  a 
lawyer,  to  disagree  with  the  CO’s  recommendation,  and  to  submit  a  written  statement.    The 
applicant signed a form  acknowledging the notification of discharge and noted that he objected 
to being discharged and would submit a statement.  In his statement, the applicant wrote that he 
had learned a great deal during his three years in the Coast Guard and was striking (performing 
on-the-job  training)  to  become  and  electrician’s  mate.    He  stated  that  just  as  “everything  was 
coming  together,”  he  had  made  a  foolish  and  critical  mistake  that  would  cost  him  his  job  and 

 

 

possibly  his  career.    He  noted  that  he  had  let  himself  and  the  Coast  Guard  down  and  that  he 
deeply regretted his error. 
 
 
On June 7, 1990, the applicant was punished at mast because of his use of cocaine.  His 
non-judicial punishment (NJP) was reduction in rate from FN/E-3 to FA/E-2.  On a disciplinary 
performance  evaluation,  he  received  a  mark  of  2  for  Conduct  and  marks  of  3  for  Grooming, 
Work Habits, Appearance, and Sobriety.   His chief noted in this evaluation that the applicant’s 
abuse  of  alcohol  had  “contributed  to  the  experimental  use  of  a  controlled  substance,”  but  also 
that the applicant “is cheerful and highly cooperative.  Exhibits a good application of skills.  Has 
been known to waste time in the work factor.” 
 

On June 20, 1990, the laboratory reported that the applicant’s urine sample had been re-

tested and the result was positive for cocaine at a level of 760 ng/ml.1 
 
On June 22, 1990, the Commandant ordered the CO of the Yard to discharge the appli-
 
cant within 30 days with a general discharge for misconduct due to his involvement with drugs in 
accordance with Article 12-B-18 of the Personnel Manual. 
 

On July 20, 1990, the applicant was awarded a general discharge “under honorable con-
ditions”  for  misconduct  in  accordance  with  Article  12-B-18  of  the  Personnel  Manual  with  an 
HKK separation code and an RE-4 reentry code.  He was counseled about his discharge and his 
rights under Article 12-B-53 of the Personnel Manual. 
 

VIEWS OF THE COAST GUARD 

 

On August 25, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion recommending that the Board deny relief in this case.  He stated that the appli-
cation should be denied because it is untimely and lacks merit because the Coast Guard commit-
ted no error or injustice in discharging the applicant. 

 
The JAG also adopted the findings and analysis provided in a memorandum on the case 
prepared  by  the  Personnel  Service  Center  (PSC).    The  PSC  pointed  out  that  the  application  is 
untimely since the applicant was discharged in 1990 and noted that under the Personnel Manual, 
any member involved in a drug incident is discharged “with no higher than a general discharge.”  
The PSC stated that nothing the applicant wrote on his application “negate[s] the cause that led 
to his separation.”  The PSC argued that the applicant’s record “is presumptively correct, and the 
applicant has failed to substantiate any error or injustice” in his record.  Therefore, the PSC rec-
ommended that the application be denied. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

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

On  September  12,  2011,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast 

                                                 
1 The U.S. military’s current threshold level for a positive urinalysis result for cocaine use is just  100 ng/ml.  U.S. 
DEPARTMENT  OF  DEFENSE,  ARMY  CENTER  FOR  SUBSTANCE  ABUSE  PROGRAMS,  COMMANDER’S  GUIDE  &  UNIT 
PREVENTION LEADER (UPL) URINALYSIS COLLECTION HANDBOOK (1 June 2006), para. 2-4-1.E.6.e. 

 

 

 

APPLICABLE LAW 

 

 Under Article 12-B-18.b.(4) of the Personnel Manual in effect in 1990, the Commandant 

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

Involvement with drugs.  Any member involved in a drug incident as defined in article 20-A-2h., 
…  will  be  processed  for  separation  from  the  Coast  Guard  with  no  higher  than  a  General  Dis-
charge.   

 
 
Under  Article  12-B-18,  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 
reason for the recommended discharge, (b) consult an attorney,  (c) object to the discharge, and 
(d) submit a statement in his own behalf. 
 
 
Guard Separations Manual.  

These regulations remain essentially the same under Article 1.B.17. of the current Coast 

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. 

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.2  The applicant 
was discharged in 1990 and was informed of the reasons for his discharge at that time.  There-
fore, 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.”3  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.”4   

 
4. 

The  applicant  did  not  explain  his  delay  in  seeking  an  upgrade  of  his  separation 
code  and  narrative  reason  for  separation,  but  argued  that  it  is  in  the  interest  of  justice  for  the 
                                                 
2 10 U.S.C. § 1552; 33 C.F.R. § 52.22. 
3 Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992). 
4 Id. at 164, 165; see also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995).   
 

 

 

Board to waive the statute of limitations because he has been denied a job opportunity at a State 
correctional  department  because  of  his  misconduct  discharge.    The  Board  does  not  find  this 
argument compelling because it does not explain why he could not have applied for the correc-
tion of his DD 214 much sooner. 

 
5. 

A cursory review of the merits of this case indicates that the applicant was prop-
erly awarded a general discharge for misconduct, in accordance with Article 12-B-18 of the Per-
sonnel Manual then in effect, with an HKK separation code and an RE-4 reentry code after his 
urine tested positive for cocaine use during a random urinalysis.  He received due process as pro-
vided in Article 12-B-18.  The applicant did not allege that the Coast Guard committed any error 
but argued that his misconduct discharge on his DD 214 is unjust because it has caused him to be 
denied a job with a civilian employer.  The Board notes that the applicant submitted no evidence 
to  support this claim, but  even  assuming  his  claim  is  true, the  strict  employment policy  of  one 
civilian  employer  does  not  render  the  applicant’s  misconduct  discharge,  or  the  Coast  Guard’s 
regulations mandating that discharge, unjust.5  The record contains no evidence that substantiates 
the applicant’s allegations of injustice in his official military record, which is presumptively cor-
rect under 33 C.F.R. § 52.24(b).6   

 
6. 

The  Board  notes  that  the  applicant  also  argued  that  his  misconduct  discharge 
should  be  changed  because  he  was  young  at  the  time  (21  years  old)  and  he  had  never  been  in 
serious trouble before and has not been in trouble since his discharge.  The urinalysis was con-
ducted the day after the applicant’s 21st birthday, and his chief noted in his record that his con-
sumption of alcohol had contributed to his poor decision-making regarding drug use.  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.”7  Under Article 1.B.17. of the Separations Manual 
in effect today, members involved in a drug incident are discharged for misconduct with no bet-
ter than a general discharge.  Therefore, the Board is not persuaded that the applicant’s general 
discharge for misconduct is disproportionately severe in light of current standards. 

 
7. 

Based on the record before it, the Board finds that the applicant’s request for cor-
rection  of  his  general  discharge  for  misconduct  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. 

 
 

 

 

                                                 
5 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).   
6 See 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),  for  the  required  presumption,  absent  evidence  to  the  contrary,  that  Government  officials  have 
carried out their duties “correctly, lawfully, and in good faith.”). 
7 Memorandum of the General Counsel to J. Warner Mills, et al., Board for Correction of Military Records (July 7, 
1976). 

 

 

The  application  of  former  FA  xxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction 

of his military record is denied.   
 

ORDER 

 

  

 
 
 Troy D. Byers 

 

 
 Dana Ledger 

 

 

 
 Donna A. Lewis