DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2012-047 
 
Xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxx 
 

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 19, 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  August  16,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  upgrade  his  1983  general  discharge  under  honorable 
conditions for drug abuse to an honorable discharge.1  The applicant stated that he has been serv-
ing as a police officer for the past 13 years and has been promoted to the rank of lieutenant over 
the  Uniform  Patrol  Division  of  his  city’s  police  department.    The  applicant  alleged  that  he  has 
also served as a minister for the last 25 years. 
 
In  support  of  these  allegations,  the  applicant  submitted  a  certificate  showing  that  he 
 
received  a  degree  of  Associate  of  Divinity  in  Pastoral  Ministry  from  the  xxxxxxxxxxxxxx 
Theological Seminary in 1990; two certificates showing that he completed training to become a 
police officer in 1998; and a photocopy of his badge and identity card, identifying him as a lieu-
tenant in the police department. 
 

SUMMARY OF THE RECORD 

 
 
The applicant enlisted in the Coast Guard on April 3, 1979.  On January 22, 1981, he was 
found to be in possession of an ounce of marijuana aboard a cutter.  He was taken to mast and 

                                                 
1  The  five  authorized  types  of  discharge  are  Honorable,  General  Under  Honorable  Conditions,  Under  Other  than 
Honorable Conditions, Bad Conduct, and Dishonorable.  Bad conduct and dishonorable discharges are only awarded 
by court-martial.  Personnel Manual, Article 12.B.2.c. 

 

 

awarded  non-judicial  punishment  of  6  days  of  restriction  with  extra  duties  and  forfeiture  of 
$135.00 in pay. 
 
 
On  November  2,  1982,  the  applicant’s  unit  underwent  a  urinalysis  and  his  urine  tested 
positive for marijuana use.  On December 7, 1982, the applicant’s District Commander advised 
him  in  writing  that  he  had  initiated  the  applicant’s  discharge  for  drug  abuse  because  of  the 
urinalysis result.  He also mentioned the applicant’s prior NJP for possession of marijuana.  The 
District Commander advised the applicant that he had a right to object to the discharge, to con-
sult a lawyer, and to submit a statement that would be forwarded to the Commandant.   

 
On December 8, 1982, the applicant’s command informed him that his  urine had tested 
positive  for  marijuana  use;  that  under  ALCOAST  007/82  and  ALDIST  204/82,  the  District 
Commander  could  either  initiate  his  discharge  or  refer  him  for  rehabilitation;  and  that  because 
the applicant had previously been disciplined for possessing marijuana, the District Commander 
had  decided  to  initiate  his  discharge  and  recommend  a  general  discharge.    The  applicant 
acknowledged the notification and noted his intent to appeal the recommended discharge. 
 
 
On  January  14,  1983,  the  applicant  acknowledged  the  District  Commander’s  December 
7th  notification  and  objected  to  the  proposed  discharge.    The  applicant  hired  a  civilian  lawyer 
who submitted a statement for the applicant on January 28, 1983.  The attorney argued that the 
applicant “could have inhaled marijuana smoke in a room, a vehicle, or confined space, or even 
in an open air environment, known or unbeknownst to him, at any time prior to the drug screen-
ing process.  Positive results would generally show up in any drug screening undertaken at that 
time  or  during  the  lengthy  periods  of  detection  following  such  inhalation.”    The  attorney  also 
argued that mandatory, urinalyses were improper, that the command should not have considered 
the fact that the applicant had previously been found in possession of drugs, and that the appli-
cant  should  be  retained  because  other  members  whose  urine  had  tested  positive  were  retained 
pursuant to a “first incident rule.” 
 
On January 31, 1983, the District Commander sent a memorandum to the Commandant 
 
requesting authorization to discharge the applicant “by reason of misconduct due to use of illegal 
narcotic  substance.”    The  District  Commander  alleged  that  the  test  results  indicated  that  the 
applicant’s “use is frequent if not heavy.  It is felt that there is little hope for his rehabilitation.  
Although  performing  well  at  the  present  time,  he  is  a  poor  risk  if  permitted  to  remain  in  the 
Coast Guard.  This is evidenced by his poor initiative to become a petty officer after more than 
three years of service.” 
 
 
On March 2, 1983, the Commandant ordered the applicant’s command to discharge him 
with a general discharge for misconduct due to drug abuse in accordance with Article 12-B-18 of 
the  Personnel  Manual.    The  applicant  was  discharged  on  April  1,  1983,  pursuant  to  this  order.  
His  DD  214,  which  he  signed,  shows  that  he  was  discharged  “under  honorable  conditions”  (a 
general discharge) because of “misconduct” with an HKK separation code, which denotes drug 
abuse.  During his service, he had been awarded a Humanitarian Service Medal and an Achieve-
ment Medal with Operational Device for Cuban refugee operations, two Meritorious Unit Com-
mendations, and sharpshooter pistol and rifle ribbons. 
 

 

 

VIEWS OF THE COAST GUARD 

On  February  24,  2012,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  recom-

 
 
mended that the Board deny relief in this case.   
 

The JAG noted that the applicant is not alleging that his general discharge was erroneous 
or unjust but that it should be upgraded because he has been a model citizen.  He also noted that 
the  application  is  untimely  and  argued  that  it  should  be  denied  for  untimeliness  because  the 
applicant provided no excuse for his delay and his request lacks merit.   

 
The JAG also argued that past BCMR decisions dictate that the Board should not upgrade 
a discharge based on post-service conduct alone, but may take into account changes in commu-
nity mores and upgrade the discharge “if it is judged to be unduly severe in light of contempo-
rary  standards.”    The  JAG  stated  that  the  applicant’s  general  discharge  is  not  unduly  severe  in 
light  of  current  standards  because  under  current  policy  any  member  who  uses  or  possesses  an 
illegal drug must be discharged with no better than a general discharge. 

 
The JAG further argued that the use of illegal drugs “runs counter to the Service’s core 
values and is completely inconsistent with the Coast Guard’s maritime law enforcement mission 
whereby the organization conducts counter-drug operations each and every day of the year.” 

 
The JAG also adopted the findings and analysis in a memorandum prepared by the Per-
sonnel  Service  Center  (PSC).    PSC  stated  that  the  applicant  was  properly  discharged  for  drug 
abuse  and  that  his  applicant’s  post-discharge  conduct  is  commendable,  but  it  cannot  justify 
upgrading his Coast Guard discharge. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On March 21, 2012, 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 REGULATIONS 

 
 
 
Article 12-B-18(b)(4) of the Coast Guard Personnel Manual in effect in early 1982 stated 
a member could receive an administrative general discharge for misconduct due to “[t]he illegal, 
wrongful, or improper use, possession, sale, transfer, or introduction on a military installation of 
any  narcotic  substance,  intoxicating  inhaled  substance,  marijuana,  or  controlled  substance  … 
when supported by evidence not attributed to a urinalysis administered for identification of drug 
abusers or to a member’s volunteering for treatment.” 
 

 
On March 9, 1982, the Department of Defense revised 32 CFR  Part 41 to authorize the 

discharge of military members identified as drug abusers through mandatory urinalyses. 
 

The  Board  does  not  have  copies  of  ALCOAST  007/82  or  ALDIST  204/82,  which  the 
District Commander relied on in initiating the applicant’s discharge.  ALCOAST 016/84, issued 
by the Commandant on July 30, 1984, stated that “[e]ffective upon receipt, any member involved 

 

 

in a drug incident as defined by [the Personnel Manual] … will be processed for separation.”  It 
noted that the then-current drug policy had been in effect for more than two years and had been 
widely publicized through recruit training and required unit indoctrination.  It stated that in the 
Service’s attempt to rid itself of anyone who abused drugs, more than 700 members had received 
general discharges due to drug abuse since April 1982.   
 

Under Article 1.B.17.b.(4) of the current Separations Manual, “[a]ny member involved in 
a drug incident … will be processed for separation from the Coast Guard with no higher than a 
general discharge.”   
 

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 

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

1. 
 
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 
received his general discharge in 1983.  Therefore, his application is untimely. 

 
3. 

Under 10 U.S.C. § 1552(b), the Board may excuse the untimeliness of an applica-
tion 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.”3   

 
4. 
discharge. 

The  applicant  did  not  explain  or  justify  his  long  delay  in  seeking  an  upgrade  of 

 
5. 

A cursory review of the merits of this case indicates that the applicant was prop-
erly awarded a general discharge for misconduct after his urine tested positive for marijuana use 
during a unit urinalysis.  Although the Personnel Manual then in effect did not authorize miscon-
duct discharges based on unit urinalyses, the preponderance of the evidence shows that in April 
1982 the Commandant issued a new policy in ALCOAST 007/82 that authorized misconduct dis-
charges for members whose urine tested positive for marijuana.  The District Commander cited 
ALCOAST 007/82 and ALDIST 204/82 when initiating the applicant’s discharge, and the Com-
mandant approved the discharge.  Their actions are presumptively correct.4  

 

                                                 
2 10 U.S.C. § 1552(b); 33 C.F.R. § 52.22. 
3 Allen v. Card, 799 F. Supp. 158, 164-65 (D.D.C. 1992); see also Dickson v. Secretary of Defense, 68 F.3d 1396 
(D.C. Cir. 1995). 
4 33 C.F.R. § 52.24(b); 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.”). 

 

 

6. 

The applicant,  however,  is  not  alleging that his  general discharge was erroneous 
or unjust when he received it but that it is now unjust because he is a minister and police officer.  
In  addition,  the  Board  notes  that  the  applicant  was  young  when  he  committed  the  offense  for 
which  he  was  discharged  and  he  has  borne  the  consequences  of  his  drug  use  for  a  long  time.  
However, on July 7, 1976, the delegate of the Secretary provided the Board with the following 
guidance, which has not been countermanded:  

 
[T]he Board should not upgrade discharges solely on the basis of post-service conduct.  The situa-
tion in which a man is granted a less than honorable discharge under circumstances all agree were 
just,  and  then  goes  on  to  become  Albert  Schweitzer,  is  one  that—if  it  ever  occurs—is  properly 
handled by an exemplary rehabilitation certificate or a Presidential pardon. 
 
This  emphatically  does  not  mean  that  the  justness  of  a  discharge  must  be  judged  by  the  criteria 
prevalent at the time it  was rendered.  The Board is entirely free to take into account changes in 
community  mores,  civilian  as  well  as  military,  since  the  time  of  discharge  was  rendered,  and 
upgrade  a  discharge  if  it  is  judged  to  be  unduly  severe  in  light  of  contemporary  standards.  …. 
[T]he  Board  should  not  upgrade  [a]  discharge  unless  it  is  convinced,  after  having  considered  all 
the evidence [in the record], that in light of today’s standards the discharge was disproportionately 
severe vis-à-vis the conduct in response to which it was imposed.[5] 
 
Under  Article  1.B.17.  of  the  Separations  Manual  in  effect  today,  members  whose  urine 
tests  positive  for  marijuana  are  discharged  for  misconduct  with  no  better  than  a  general  dis-
charge.  Therefore, the Board is not persuaded that the applicant’s general discharge for miscon-
duct 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. 

 
 
 
 
 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

                                                 
5 Memorandum of the General Counsel to J. Warner Mills, et al., Board for Correction of Military Records (July 7, 
1976). 

 

 

 

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction 

of his military record is denied.   
 

 

 
 Marion T. Cordova 

 

 

 

 
 
 Anthony C. DeFelice 

 

 

 
 Rebecca D. Orban