DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2011-249 
 
Xxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxx 
   

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 September 6, 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  June  7,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 

The applicant, a former xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, asked the Board to correct 
his military record by upgrading his May 15, 2006, general discharge under honorable conditions 
to  an  honorable  discharge.    The  applicant  stated  that  he  was  discharged  following  a  positive 
urinalysis  result,  which  he  believes  was  a  false  positive.    He  stated  that  he  asked  for  the  urine 
sample to be retested but does not believe it was done.  The applicant alleged that at the time of 
the  urinalysis,  he  was  taking  four  medications  that  could  have  resulted  in  a  false  positive 
urinalysis  result.    He  alleged  that  following  the  positive  result,  he  was  tested  three  additional 
times with negative results.  The applicant  also alleged that the Tripler Army Medical Center’s 
drug  testing  division,  which  handles  Coast  Guard  urinalyses,  has  no  record  of  a  positive 
urinalysis for him. 

 
The  applicant  alleged  that  his  military  record  now  contains  no  evidence  of  misconduct 
and argued that there is  therefore no basis for his  general  discharge.  Therefore, he argued, the 
decision of the Discharge Review Board (DRB) not to upgrade his discharge is unjust. 
 

SUMMARY OF THE RECORD 

 
 
On July 5, 2000, the applicant enlisted in the Coast Guard.  The same day, he acknowl-
edged  by  signature  that  he  had  been  informed  of  the  Coast  Guard’s  drug  policy.    In  2004,  the 
applicant underwent training and became a xxxxxxxxxxxxxxxxx.   

 

 

On January 30, 2006, while attending more advanced training at the Naval xxxxxxxxxx 
xxxxxxxxxxxxxxxxxx, the applicant underwent  a random  urinalysis.  Print-outs  from  the Navy 
Drug  Screening  Laboratory  in  the  applicant’s  record  bear  his  Social  Security  Number,  but  the 
test result is blacked out.  Notes taken during the urinalysis show that the applicant advised the 
personnel  conducting  the  test  that  he  was  taking  eight  different  medications  and  supplements.  
The  applicant  completed  his  training  at  the  Navy  school  on  February  3,  2006,  and  was  trans-
ferred to a Coast Guard training center for duty. 

 
On  February  23,  2006,  the  applicant  was  notified  of  his  Miranda/Tempia  rights  and 
advised  that  he  was  suspected  of  having  used  ecstasy  (methylenedioxymethamphetamine  or 
MDMA).    He  waived  his  right  to  consult  an  attorney  and  indicated  that  he  would  answer  the 
investigator’s questions. 

 
On February 27, 2006, the applicant wrote a statement saying that on Saturday, January 

28, 2006, he went to Tijuana with three classmates to celebrate their graduation: 
 

During our trip, one of the locals invited one of my classmates and myself to join him for a drink.  
The man buying the drinks didn’t speak English so the bartender was translat[ing] for us.  At this 
time, [a Navy classmate] and I were on the dance floor.  The bartender came over and informed us 
the  gentlemen had bought a drink.   At first  we [were]  hesitant to [acc]ept the drink but later  we 
decided to have a drink with the gentleman.  After the first drink we left the gentleman and went 
back to the dance floor.  After 15 minute[s], the bartender came back over to us and said the gen-
tleman had bought us another drink.  After some convincing by the bartender, we joined the gen-
tleman for the second drink.  [My classmate] was unable to finish both drinks, however I finished 
them both.  After finishing the second drink the gentleman thanked us for joining him for a drink.  
At this point the gentleman became a little touchy feely with [the classmate].  At this time we both 
moved to the other side of the club and tried to avoid the gentleman for the remainder of the night.  
The gentleman continued to follow [the classmate].  About 30 minutes had passed and the other 2 
of our classmates joined us.  It’s hard to describe the way I was feeling.  It was hard to say but I 
felt as if I was starting to feel the effects of the drinks.  We finally left the club at 3:30 a.m. 
 
The next afternoon I went to eat lunch with my brother and sister-in-law and I had a bad headache.  
I felt dizzy and some nausea.  To the best of my knowledge this is the only time I could have come 
in  contact  with  this  drug.    As  I  stated  earlier,  I  would  never  knowingly  use  any  drugs  not  pre-
scribed by a medical doctor or physician. 
 
On  February  28,  2006,  a  lieutenant  junior  grade  who  was  appointed  to  investigate  the 
matter reported that upon being told on February 23, 2006, that his urine had tested positive for 
ecstasy,  the  applicant  appeared  surprised  and  then  confused.    The  applicant  told  him  that  he 
expected the urinalysis to show only the prescription drugs he was taking.  The applicant stated 
that  he  knew  of  only  one  way  he  could  have  come  in  contact  with  ecstasy.    The  applicant 
described to the investigator how, when he went to a club in Tijuana, there was a gentleman who 
insisted on buying them drinks.  He stated that the “mixed drinks were delivered from the gen-
tleman himself, not  the  bartender, and [the applicant] did  not  see them being  prepared.”   After 
accepting two drinks from the gentleman, the applicant only drank bottled water that he bought 
at the bar for the rest of the night.  He got back to the barracks at about 0400 and felt nauseous 
and somewhat dizzy and had a headache the rest of the day but attributed it to having had strong 
drinks the night before. 

 

 

 

The investigator reported that the level of MDMA in the applicant’s urine was 599 ng/ml, 
“which is only slightly above the 500 ng/ml threshold necessary for a positive test.  This would 
be  roughly  consistent  with  timing  of  the  possible  exposure  in  Tijuana.  …  MDMA  is  typically 
cleared  quickly  from  the  body,  usually  within  24-72  hours.”    The  investigator  stated  that  the 
applicant “was taking several prescription medications, over-the-counter medications, and dieta-
ry supplements at or around the time of the urinalysis,” but “[a]ll of the medications and supple-
ments that were disclosed are not known to cause a false positive urinalysis for MDMA.” 

 
The investigator noted that the applicant’s superiors asserted that he was an excellent per-
former and that the allegations “are grossly inconsistent with his reputation.”  He also noted that 
MDMA “is an inexpensive and widely used substance inside and out of the United States, espe-
cially in clubs and bars, and is known as a ‘date rape’ drug.”  The investigator included his opi-
nion that the applicant had not willingly used ecstasy and noted that the story the applicant pro-
vided  “has  such  a  degree  of  plausibility  as  to  cause  reasonable  doubt  that  his  exposure  to  this 
substance was truly wrongful.”   The investigator also  stated his  opinion that  the applicant  “did 
not  display  willful  ignorance  in  accepting  the  drinks  provided  to  him  in  Tijuana,  and  he  had  a 
reasonable  expectation  that  these  drinks  did  not  contain  a  contraband  substance.”    He  recom-
mended that the applicant be “cleared of all charges.” 

 
On March 4, 2006, the applicant wrote a letter to his command asking that the decision to 
discharge him for drug abuse be reconsidered.  The applicant stated that he understood the Coast 
Guard’s  policy  but  that  his  case  was  “highly  different  and  difficult.”    He  noted  that  he  had 
undergone urinalysis upon reporting to the command and been found drug free and that he was 
willing to undergo a six-month urinalysis program as provided in Article 20.C.2. of the Person-
nel Manual.  He asked for his original urine specimen to be retested.  The applicant stated that 
his performance marks showed that he did “not fit the pattern of a person who takes drugs.”  He 
noted  that  some  people  had  been  drugged  unwittingly  in  clubs  and  other  social  settings.    He 
stated that he had been in the Coast Guard for six years but “with one questionable decision of 
accepting a drink from a stranger, all that is coming to an end. … I don’t believe that’s fair to me 
nor is that fair to the potential patients I have the ability to help … I am aware a piece of paper 
states I used an illegal drug; to me this is merely the underline condition.  The true facts to me as 
I read them are, I [am] being punished for the actions of another …” 

 
On March 16, 2006, the Navy classmate who, according to the applicant, had danced with 
him in the bar in Tijuana and accepted drinks from a stranger, was questioned by a Navy investi-
gator about the incident and stated the following: 
 

I … took a trip to Tijuana, Mexico with [the applicant].  The trip began at 2200 [10:00 p.m.] and 
ended approximately 0300 [a.m.].  The initial plan was to go to a friend’s party at a hotel (name 
unknown), but later  moved to Club  Animae.  The  night consisted of a couple of drinks,  which I 
observed  the  bartender  open  and  hand  to  us.    An  unknown  gentleman  offered  myself  and  [the 
applicant]  a  strong  drink,  some  type  of  liquor  but  no  strange  side  effects  were  present.    [We] 
returned to the United States and school the following morning.  [The applicant] contacted me on 
13th of March 2006 to give me a warning of the investigation. 

 
 
The Navy classmate further stated that the applicant did not ask him to fabricate a story, 
that he did not see anyone put anything in their drinks while at the club, that the gentleman at the 
club bought two drinks for each of them and “was gay, acting like he was trying to pick someone 

 

 

up”; that the applicant did not act out of the ordinary after drinking at the club; and that he was 
unaware of the applicant taking any drugs. 

 
On May 1, 2006, the applicant’s commanding officer (CO) formally notified him that he 
was initiating the applicant’s discharge for misconduct due to illegal drug use and would recom-
mend  that  he  receive  a  general  discharge.    The  CO  stated  that  the  applicant’s  urine  had  tested 
positive for MDMA during the urinalysis on January 30, 2006.  The CO advised him of his right 
to consult counsel and to submit a statement on his own behalf.  On May 2, 2006, the applicant 
acknowledged  the  CO’s  notification  and  his  opportunity  to  consult  an  attorney.    The  applicant 
objected  to  the  proposed  discharge  and  attached  his  statements  of  February  27  and  March  4, 
2006. 

 
On May 2, 2006, the CO sent the Personnel Command a recommendation that the appli-
cant receive a general discharge for illegal drug use.  The CO stated that he found that the appli-
cant had been involved in a “drug incident” pursuant to Article 20.C. of the Personnel Manual.  
He included copies of the applicant’s statements and the investigation with his recommendation.  
He also noted that the applicant had reported taking prescription medications.  On May 8, 2006, 
Commander, Personnel Command ordered that the applicant be awarded a general discharge for 
misconduct due to involvement with drugs in accordance with Article 12.B.18. of the Personnel 
Manual.  The applicant received the general discharge on May 15, 2006. 

 
On June 13, 2008, the applicant applied to the Discharge Review Board (DRB) and asked 
for  an  honorable  discharge.    The  DRB  stated  that  it  could  not  properly  adjudicate  the  case 
because  the  applicant’s  separation  documents  were  not  in  his  record.    The  DRB  stated  that 
because the applicant claimed he was discharged because of a positive urinalysis result, the DRB 
had asked the Tripler Army Medical Center to search their records, but Tripler had found no evi-
dence of a positive urinalysis result.  The DRB recommended that, in the absence of any docu-
mentation corroborating the general discharge for drug abuse documented on the applicant’s DD 
214, his discharge be upgraded to honorable and the reason for discharge be changed from mis-
conduct to “general/miscellaneous reasons.” 

 
On January 6, 2010, the Commandant disapproved the recommendation of the DRB.  The 
Commandant  noted  that  the  DRB’s  decision  was  based  “on  portions  of  the  applicant’s  official 
records (separation package) not being available for review.”  The Commandant noted that in his 
DRB application, the applicant acknowledged the drug incident and did not dispute it.  The Com-
mandant noted that the applicant’s separation package (which had been obtained) showed that he 
had received due process under the Personnel Manual and that even in the absence of such evi-
dence, the applicant would be presumed to have been discharged in accordance with policy.  The 
Commandant  noted  that  block  24  of  the  applicant’s  DD  214  should  be  corrected  to  show  the 
character of service  “under honorable conditions,” rather than the type of discharge, “general,” 
and denied all other relief. 
 

VIEWS OF THE COAST GUARD 

 
 
On January 11, 2012, the Judge Advocate General (JAG) submitted an advisory opinion 
in which he recommended that the Board deny the requested relief.  In so doing, he adopted the 

 

 

findings and analysis provided in a memorandum on the case prepared by the Personnel Service 
Center (PSC). 
 
 
The PSC stated that the evidence of record shows that the applicant was discharged due 
to  a  drug  incident  in  accordance  with  policy  and  that  the  applicant  has  submitted  insufficient 
evidence  to  overcome  presumption  of  regularity  accorded  the  drug  incident  and  the  general 
discharge for misconduct.   The PSC noted that the Personnel  Manual  requires that anyone dis-
charged because of a drug incident receive “no higher than a general discharge.”  Therefore, the 
PSC recommended that the Board deny the request for relief. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  January  18,  2012,  the  applicant  responded  to  the  views  of  the  Coast  Guard.    The 
applicant  disagreed  with  the  Coast  Guard.    He  again  alleged  that  his  urine  sample  was  never 
retested, that the results of subsequent urinalyses were negative, that two of the medications he 
was taking could generate a false positive test result, including sudifed and an antipsychotic, and 
that the CO had other options than to discharge him.  
 

APPLICABLE REGULATIONS 

 
 
Article 20 of the Personnel Manual in effect in 2006 (COMDTINST M1000.6A contains 
most of the regulations regarding suspected illegal drug use by members.  Article 20.C.1.a. states 
that  “Coast  Guard  members  are  expected  not  only  to  comply  with  the  law  and  not  use  illegal 
drugs, but also, as members of a law enforcement agency, to maintain a life-style which neither 
condones  substance  abuse  by  others  nor  exposes  the  service  member  to  accidental  intake  of 
illegal drugs.  Units shall conduct random urinalysis tests throughout the fiscal year on a consis-
tent basis.” 
 

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.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.3.d. states that 
 

a  commanding  officer  should  consider  all  the  available  evidence,  including  positive  confirmed 
urinalysis  test  results,  any  documentation  of  prescriptions,  medical  and  dental  records,  service 

 

 

record (PDR), and chain of command recommendations.  Evidence relating to the member’s per-
formance of duty, conduct, and attitude should be considered only in measuring the credibility of a 
member’s statement(s).  If the evidence of a possible drug incident includes a positive urinalysis 
result,  the  command  should  also  determine  whether  the  urinalysis  was  conducted  in  accordance 
with  this  article  and  whether  the  collection  and  chain  of  custody  procedures  were  properly  fol-
lowed.    The  commanding  officer  may  delay  final  determination  to  pursue  any  of  these  options 
deemed appropriate: 
 
1.  Ask the member to consent to a urinalysis test as outlined in Article 20.C.2.a. 
2.  Direct  the  member  to  participate  in  a  urinalysis  evaluation  program  for  a  maximum  of  six 

months as outlined in Article 20.C.2.a. 

3.  Request the laboratory reexamine the original documentation for error. 
4.  Request the laboratory retest the original specimen. … 
 
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. … 
 
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. … 

 

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.2.f.2.a. states that a general discharge will be awarded when a member “has been identified 
as a user, possessor, or distributor of illegal drugs or paraphernalia.” 

 
 
Article 20.C.2.a.5. states that when a member receives a positive urinalysis result but the 
CO “remains doubtful whether the member has used drugs wrongfully,” the CO may order eval-
uation testing for a period of two to six months, during which time up to 16 urine specimens may 
be taken at irregular intervals.  In such situations, however, 
 

the original positive urinalysis result may still be used as a basis for disciplinary action under the 
UCMJ,  administrative  separation,  and  characterization  of  discharge  depending  on  the  basis  for 
ordering the original test; e.g., probable cause, administrative inspection, consent or competence-
for-duty test ([see] Article 20.C.2.a.8.).   

 

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 submissions, and applicable law: 
 

1. 

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

The application was timely filed within three years of the decision of the DRB.1   

 

                                                 
1 Ortiz v. Secretary of Defense, 41 F.3d 738, 743 (D.C. Cir. 1994). 

 

 

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.2   

 
3. 

 The  applicant  alleged  that  his  general  discharge  under  honorable  conditions  is 
erroneous and unjust.  The Board begins its analysis in every case by presuming that the disputed 
information in the applicant’s military record is correct as it appears in his record, and the appli-
cant bears the burden of proving by a preponderance of the evidence that the disputed informa-
tion  is  erroneous  or  unjust.3    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.”4  

 
4. 

The  record  shows  that  after  interviewing  the  applicant,  a  lieutenant  junior  grade 
concluded that his ingestion of ecstasy was unknowing and that a friend in the Navy later corro-
borated some of the applicant’s explanation of how he might have unknowingly ingested ecstasy.  
Nevertheless, the applicant’s commanding officer apparently found that the applicant’s explana-
tion  lacked  credibility  and  concluded  that  the  applicant  had  incurred  a  drug  incident  in  accor-
dance with Article 20.A.2.k. of the Personnel Manual.  The applicant has submitted no evidence 
to cast doubt on his CO’s conclusion, which is accorded the presumption of regularity.   

 
5. 

The  applicant  alleged  that  because Tripler Army  Medical  Center  reported  to  the 
DRB  that  it  has  no  record  of  a  positive  urinalysis  result  for  the  applicant,  his  urinalysis  report 
must be erroneous.  However, the record shows that the Navy conducted the applicant’s urinaly-
sis and used its own facility to test the applicant’s urine.  Although the result of that test is not in 
the  record,  the  record  shows  that  the  result  was  reviewed  and  that  the  applicant’s  urine  tested 
positive for ingestion of ecstasy.  The record further shows that the applicant’s command prop-
erly investigated the incident and accorded the applicant all due process.  Although the applicant 
argued that his CO had options other than to discharge him, the Personnel Manual allows a CO 
to order a retest of a urine sample or to place members in a six-month urinalysis program at the 
CO’s discretion when the CO is in doubt about whether a drug incident occurred.  The applicant 
has not proved that the CO abused his discretion in this regard. 

 
6. 

7. 

 
The Board finds insufficient evidence  in  the record to  overturn the CO’s finding 
that the applicant incurred a drug incident in accordance with Article 20.A.2.k. of the Personnel 
Manual.  Under Article 12.B.18., all members who incur a drug incident must be separated with 
no better than a general discharge due to misconduct. 
 
 

Accordingly, the applicant’s request should be denied. 

                                                 
2 See Steen v. United States, No. 436-74, 1977 U.S. Ct. Cl. LEXIS 585, at *21 (Dec. 7, 1977) (holding that “whether 
to grant such a hearing is a decision entirely within the discretion of the Board”); Flute v. United States, 210 Ct. Cl. 
34,  40  (1976)  (“The  denial  of  a  hearing  before  the  BCMR  does  not  per  se  deprive  plaintiff  of  due  process.”); 
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 33 C.F.R. § 52.24(b). 
4 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

 

 

 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, for correction of his 

military record is denied.   

ORDER 

 

 

 
 Donna M. Bivona 

 

 

 
 Randall J. Kaplan 

 

 

 
 
 Paul B. Oman