DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1999-161 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This  proceeding  was  conducted  under  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  The application was 
received  on  August  11,  1999,  and  completed  upon  the  BCMR’s  receipt  of  the 
applicant’s military records on September 14, 1999. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  August  24,  2000,  is  signed  by  the  three  duly 

RELIEF REQUESTED 

 
 
The  applicant,  a  former  xxxxxxx  who  was  discharged  on  May  17,  199x, 
asked  the  Board  to  correct  his  record  by  eliminating  the  words  “alcohol 
rehabilitation  failure”  as  the  narrative  reason  for  separation  shown  on  his 
discharge form (DD 214); by removing the JPD separation code, which indicates 
that  he  was  involuntary  discharged  when  he  failed  to  successfully  complete 
alcohol  rehabilitation  treatment;  and  by  removing  his  RE-4  reenlistment  code, 
which means he is not eligible for reenlistment.  The applicant did not indicate 
which codes or narrative reason for separation he wants to be assigned instead.  
He  asked  to  be  paid  “separation  compensation  and  wages  for  [the]  period  he 
would have served but for his discharge.” 
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that he was wrongfully discharged after the Coast 
Guard determined that a “traffic infraction” for which he was stopped by police 
on February 11, 199x, constituted his second “alcohol incident.”  The applicant 

alleged that the Coast Guard did not conduct its own investigation of the infrac-
tion but relied upon the reports of the xxxxxx police.  Moreover, he alleged that 
the prosecutor did not find any evidence that he was impaired by alcohol at the 
time of the accident and that as punishment for his traffic violation he received 
only  a  $50  fine.    He  alleged  that  the  report  of  the  Coast  Guard’s  investigation 
“consists  of  irrelevant  or  immaterial  information  and  hearsay”  and  does  not 
prove his involvement in an alcohol incident.  He argued that the Coast Guard 
should  not  have  discharged  him  for  a  second  alcohol  incident  without  hard 
evidence that he had been driving under the influence of alcohol.  He argued that 
the  Coast  Guard  should  not  have  accepted  the  hearsay  of  the  police  without 
actual proof. 
 
 
The  applicant  alleged  that  he  was  discharged  without  ever  having  a 
chance to defend himself or face his accusers.  He alleged that as a result of the 
words and codes on his DD 214, he has been “branded” as an “alcohol rehabili-
tative failure” in the eyes of potential employers for he rest of his life. 
 

SUMMARY OF THE RECORD 

 
 
On  January  19,  199x,  the  applicant  enlisted  in  the  Coast  Guard  for  four 
years.  He had previously served three years and nine months in the U.S. Navy.  
On  January  26,  199x,  he  signed  a  document  acknowledging  that  the  Coast 
Guard’s rules regarding drug and alcohol abuse had been fully explained to him.  
On  March  11,  199x,  he  attended  mandatory  civil  rights  and  sexual  harassment 
prevention training. 
 
 
On  January  26,  199x,  his  commanding  officer  (CO)  made  a  negative 
administrative entry (page 7) in the applicant’s record warning him that a formal 
investigation had concluded he committed offensive conduct.  The page 7 further 
warned him that sexual relations with a nonconsenting or incapacitated person 
constitute rape; that providing alcohol to minors is illegal; and that verbal com-
ments,  physical  contact,  and  gestures  of  a  sexual  nature  constitute  sexual  har-
assment if they are offensive, intimidating, or repeated despite being unwelcome.  
The CO ordered that he be evaluated for alcohol abuse and referred for training 
in social skills. 
 
 
Also  on  January  26,  199x,  the  applicant’s  commanding  officer  entered  a 
page  7  in  his  record  documenting  the  applicant’s  involvement  in  an  “alcohol 
related situation” and his subsequent counseling regarding Coast Guard policy 
with respect to alcohol. 
 
 
On  March  8,  199x,  the  applicant  was  screened  for  alcohol  abuse.    The 
screening  revealed  that  he  met  the  criteria  for  alcohol  dependency.    He  was 

advised  to  attend  meetings  of  Alcohol  Anonymous  and  referred  for  inpatient 
rehabilitative treatment.  On April 7, 199x, the applicant was admitted to an alco-
hol  rehabilitation  center  in  San  Diego.    He  completed  treatment  and  began  an 
aftercare program on May 5, 199x. 
 
 
On March 28, 199x, a negative page 7 was entered in the applicant’s record 
documenting  an  unauthorized  overnight  departure  from  his  duty  section.    On 
April 11, 199x, a negative page 7 was entered in the applicant’s record regarding 
his  illegal  possession  of  an  unregistered  “modified  automatic  weapon”  and  a 
machine pistol that constituted an “assault weapon” under the xxxxx Weapons 
Code.  The page 7 noted that the matter was under criminal investigation.  On 
June 1, 199x, a negative page 7 was entered in the applicant’s record concerning 
his failure to support his dependents. 
 
 
On  June  8,  199x,  the  applicant’s  CO  documented  his  “first  alcohol  inci-
dent” with a page 7 in his record.  The page 7 states that on May 14, 199x, he was 
apprehended by police with a blood alcohol level of 0.18.  The page 7 noted that 
the  applicant  had  placed  himself  in  an  alcohol  aftercare  program  on  April  26, 
199x,  and  that  indefinite  abstinence  from  drinking  alcohol  is  part  of  that  pro-
gram.  In the page 7, the CO also ordered the applicant placed in a second after-
care program and warned him that “[f]ailure to comply with this aftercare plan 
or involvement in any alcohol related incident will result in your separation from 
the U.S. Coast Guard.” 
 
 
On Sunday, February 11, 199x, at 10:18 p.m., the applicant was stopped in 
his car by a police officer.  The officer wrote on the citation that the applicant was 
driving  “[w]hile  subject  to  an  impairing  substance.  x.S.  20-138.1”    He  further 
wrote  that  he  was  stopped  for  “display[ing]  an  expired  license  or  registration 
plate on vehicle knowing same to be expired. x.S. 20-111(2).”  The citation indi-
cates  that  the  applicant  refused  to  submit  to  a  breathalyzer  test  or  to  sign  the 
citation.  The applicant submitted a photograph of his license plate, which clearly 
shows  that  his  car  was  registered  through  February  199x,  and  of  his  driver’s 
license, which shows an expiration date of May 9, 199x. 
 
 
On February 12, 199x, the applicant’s CO documented his “second alcohol 
incident”  with  a  page  7  in  his  record.    The  page  7  states  that  on  February  11, 
199x, he was cited by the xxxxxx police for driving while intoxicated and that he 
was  therefore  being  processed  for  separation.    The  CO  also  suspended  his 
driving privileges at all Coast Guard installations in accordance with the provi-
sions  of  COMDTINST  5100.46,  due  to  the  applicant’s  “refusal  to  submit  to  an 
intoxilizer.” 
 

 
On February 14, 199x, the CO formally notified the applicant that he had 
initiated action to discharge him from the Coast Guard based on his continued 
abuse  of  alcohol.    The  applicant  signed  the  notification  and  indicated  that  he 
wished to make a statement in his own defense.  On March 4, 199x, the applicant 
submitted his statement.  In the statement, he alleged that he was not guilty and 
he requested a hearing.  The applicant included with his statement a note from 
his supervisor stating that he was “an exceptional worker” and that he “warrants 
further  consideration”  for retention  in  the  Coast  Guard.    The  supervisor  noted 
that the applicant was burdened by the knowledge that his loss of driving privi-
leges had caused extra work for the unit’s personnel and had caused an addition-
al member to be assigned to his duty section to drive the emergency vehicle. 
 
 
On March 6, 199x, the CO sent the Military Personnel Command his rec-
ommendation that the applicant be discharged for unsuitability due to his “con-
tinued alcohol abuse which has led to two alcohol incidents.”  He attached to his 
recommendation copies of the page 7s in the applicant’s record and copies of the 
applicant’s statement and medical examination report. 
 

On March 11, 199x, the same police officer who had arrested the applicant 
on  February  11,  199x,  obtained  a  warrant  for  the  applicant’s  arrest  for  driving 
“while his driver’s license was revoked” on February 11th.  He was arrested and 
released upon posting bond. 

 
On April 3, 199x, the Military Personnel Command ordered that the appli-
 
cant be discharged within 30 days for unsuitability under Article 12-B-16 of the 
Personnel Manual, with a JPD separation code and the corresponding narrative 
reason for separation shown in the Separation Program Designator (SPD) Hand-
book. 
 
 
On May 17, 199x, the applicant was honorably discharged from the Coast 
Guard  with  a  JPD  separation  code,  an  RE-4  reenlistment  code,  and  “Alcohol 
Rehabilitation Failure” as a narrative reason for separation.  He signed a page 7 
entry acknowledging that he had read and been counseled about Article 12-B-53 
of the Personnel Manual and his rights upon separation.  He also signed a page 7 
stating that the provisions of Article 12-B-3, concerning the content and effect of 
various types of DD 214s, had been explained to him. 
 
 
On  June  3,  199x,  an  assistant  district  attorney  for  the  State  of  xxxxxxx 
signed  a  Misdemeanor  Statement  of  Charges  regarding  the  citation  issued  on 
February 11, 199x.  The statement indicates that the applicant was charged with 
“failing to yield right of way in obedience to a duly erected (stop sign) (flashing 
red light) (yield sign) in violation of x.S. 20-158.1.”  At the bottom of this state-
ment,  the  assistant  district  attorney  wrote  the  following:    “Very  questionable 

probable cause.  Def. stopped for an expired plate which was not expired & no 
bad driving was observed.  Def. refused test.”  A Magistrate’s Order issued the 
same day indicates that the applicant pled guilty to “unsafe movement,” instead 
of “driving while impaired,” and paid a fine of $50.  The charge of driving with 
an expired registration was dismissed.  There is no document in the record indi-
cating the outcome of the applicant’s March 11, 199x, arrest for driving with a 
revoked license. 
 

VIEWS OF THE COAST GUARD 

On  April  19,  2000,  the  Chief  Counsel  submitted  an  advisory  opinion  in 

 
 
which he recommended that the Board deny relief in this case. 
  
The Chief Counsel stated that the Personnel Manual requires command-
 
ing  officers  to  process  members  for  separation  after  a  second  alcohol  incident.  
Articles 12.B.16.b.(5) and 20.B.2.h.2.  He argued that in making a decision regard-
ing  what  constitutes  an  alcohol  incident  and  whether  to  discharge  a  member, 
Coast Guard officers must be “accorded a presumption that they carry out their 
duties  correctly,  lawfully,  and  in  good  faith.”    Arens  v.  United  States,  969  F.2d 
1034,  1037  (1992);  Sanders  v.  United  States,  594  F.2d  804,  813  (Ct.  Cl.  1979).    He 
further  argued  that  the  Board  should  only  grant  relief  if  the  applicant  demon-
strates  by  a  preponderance  of  the  evidence  that  his  discharge  resulted  from  a 
clear violation of a substantial procedural right, a clear error of material fact, or a 
clear abuse of the broad discretion accorded by law to the discharge authority.” 
 
 
The Chief Counsel alleged that the applicant failed to prove that the Coast 
Guard committed an error of material fact or abused its discretion when it docu-
mented his second alcohol incident.  He alleged that a conviction for drunk driv-
ing  was  not  required  for  the  Coast  Guard  to  document  the  February  11,  199x, 
traffic stop as an “alcohol incident” under Article 20.A.2.d. of the Personnel Man-
ual.   
 
 
The  Chief  Counsel  stated  that  under  xxxxxx  law,  any  officer  who  has 
reasonable  grounds  to  believe  a  person  may  be  driving  while  impaired  may 
administer  a  breathalyzer  test.  xxx  x.S.  §  20-16.2.    He  stated  that  if  a  person 
refuses to take the test, the officer may charge the person with any offense for 
which the officer has probably cause to believe the person has committed.  Id. at 
§ 20-16.2.(h)(I)(3).    The  Chief  Counsel  stated  that  in  light  of  the  police  officer’s 
decision to charge the applicant with driving while impaired and in light of the 
applicant’s  refusal  to  submit  to  a  breathalyzer  test,  it  was  reasonable  for  his 
command to conclude that he had consumed alcohol and that this consumption 
had led to his arrest.  The Chief Counsel also pointed out that although the appli-
cant stated he is “not guilty,” he never specifically denied driving while impaired 

on  February  11,  199x.   The  applicant,  he  argued,  has  not  proved  that  his  CO’s 
conclusion that he had been driving while impaired was wrong. 
 
The Chief Counsel argued that the State’s decision to permit the applicant 
 
to  plead  guilty  to  “unsafe  movement”  instead  of  trying  him  for  driving  while 
impaired is “insufficient as a matter of law to overturn a federal administrative 
action especially where the federal action was predicated on a different standard 
of proof.”  The command’s determination that an alcohol incident had occurred 
was sufficient to justify the applicant’s discharge, and the lack of a civilian con-
viction for the underlying conduct is irrelevant, he alleged.    
 

The Chief Counsel further argued that the applicant was afforded all due 
process  he  was  owed  prior  to  being  separated.    He  stated  that  only  members 
with eight or more years of military service are entitled to a hearing before an 
Administrative Discharge Board.  Personnel Manual, Article 12.B.5.  He alleged 
that on the day of his separation, the applicant had seven years and one month of 
military service. 

 
Finally,  the  Chief  Counsel  argued  that  given  his  record,  the  applicant 
could have been discharged for “[f]requent, discreditable involvement with civil 
or military authorities” under Article 12.B.18. of the Personnel Manual. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On April 21, 2000, the Chairman sent the applicant a copy of the advisory 
opinion and invited him to respond within 15 days.  The applicant requested a 
40-day extension and responded on June 16, 2000.  
 
 
The applicant responded at length, reiterating all of the arguments made 
in his original application.  He denied that he had “committed a second alcohol 
incident” several times.  He stated that he “had not been drinking and was not 
impaired.” He also submitted a statement from his father, who wrote that he had 
personally investigated the circumstances of this case and could find no evidence 
that  the  applicant  had  been  drinking  prior  to  the  traffic  stop  on  February  11, 
199x. 
 

The applicant argued that he should have been presumed innocent by the 
Coast Guard and his case should have been investigated.  Instead, he was pre-
sumed  guilty  based  on  the  hearsay  of  the  police.    He  also  argued  that  no  dis-
credit was brought on the Coast Guard by the February 11, 199x, traffic stop. 
 

The applicant also objected to the Chief Counsel’s references to negative 
page 7 entries in his file that are “not relevant to the discharge, prejudicial and 

self  serving  declarations.”    He  alleged  that  he  has  been  given  no  chance  “to 
admit, deny, or refuse them.”    
 
The applicant alleged that he has rebutted the presumption that the Coast 
 
Guard acted lawfully and in good faith when it documented his second alcohol 
incident and discharged him.   
 

APPLICABLE REGULATIONS 

 
 
Article 12.B.16 of the Personnel Manual  (COMDTINST M1000.6A) author-
izes enlisted personnel to be discharged by reason of unsuitability at the direc-
tion of the Commandant for inaptitude, personality disorders, apathy, defective 
attitudes,  inability  to  expend  effort  constructively,  unsanitary  habits,  alcohol 
abuse, financial irresponsibility, or sexual harassment.  
 

Article  12.B.18.b.  authorizes  the  Commander  of  the  Military  Personnel 
Command to discharge an enlisted member for misconduct upon civilian convic-
tion for an offense involving moral turpitude; for frequent involvement of a dis-
creditable nature with civil authorities; or for sexual perversion, including inde-
cent exposure. 
 
 
Article 12.B.5. states that members being discharged who are not recom-
mended for reenlistment have a right to a hearing before an Administrative Dis-
charge  Board  if  they  have  eight  or  more  years  of  “total  active  and/or  Reserve 
military service.”  Members with less than eight years of service have the right to 
submit a statement appealing their CO’s decision. 
 

Article  20  contains  the  regulations  regarding  alcohol  abuse  by  Coast 

Guard members.  Article 20.A.2.d. defines an “alcohol incident” as follows: 

 
Any behavior in which the use or abuse of alcohol is determined to be a signifi-
cant or causative factor and which results in the member’s loss of ability to per-
form assigned duties, brings discredit upon the Uniformed Services, or is a vio-
lation of the Uniform Code of Military Justice (UCMJ) or federal, state, or local 
laws.  The member need not be found guilty at court martial, in a civilian court, 
or be awarded non-judicial punishment (NJP) for the behavior to be considered 
an alcohol incident.  However, the member must actually consume alcohol for an 
alcohol incident to have occurred. 
 
According to Article 20.B.2.e., “[a]ny member who has been involved in 
alcohol incidents or otherwise shown signs of alcohol abuse shall be screened in 
accordance with the Alcohol Abuse Treatment and Prevention Program . . . .  The 
results of this alcohol screening shall be recorded and acknowledged on a [page 
7] . . . .”  According to Article 20.B.2.l., the commanding officer of any member 

who  drinks  alcohol  after  being  diagnosed  and  treated  for  alcohol  dependence 
shall “reinstitute” the member’s aftercare program and document this in a page 
7.    “A  second  episode  of  alcohol  consumption  after  completing  any  aftercare 
program by members who have been diagnosed as alcohol-dependent will result 
in separation from the Coast Guard.”  Article 20.B.2.l. 

 
According to Article 20.B.2.h.2., “[e]nlisted members involved in a second 
alcohol  incident  will  normally  be  processed  for  separation  in  accordance  with 
Article 12.B.16.” 

 
Under the Military Rules of Evidence, Rule 304(h)(4), if a member refuses 
a lawful order to submit to a breathalyzer test, the “evidence of such refusal may 
be admitted into evidence on … [a]ny other charge on which the results of the 
chemical analysis would have been admissible.” 
 
 
The Separation Program Designator (SPD) Handbook states that persons 
involuntarily  discharged  after  failing  alcohol  rehabilitation  shall  be  assigned  a 
JPD separation code, an RE-4 reenlistment code, and “alcohol rehabilitation fail-
ure” as the narrative reason for separation shown on their DD 214s. 

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 sec-

tion 1552 of title 10 of the United States Code. 
 

2. 

The  applicant  requested  an  oral  hearing  before  the  Board.    The 
Chairman,  acting  pursuant  to  33  C.F.R.  § 52.31,  denied  the  request  and  recom-
mended  disposition  of  the  case  without  a  hearing.    The  Board  concurs  in  that 
recommendation. 
 

An application to the Board must be filed within three years after 
the  applicant  discovers  the  alleged  error  in  his  record.  10  U.S.C.  §  1552.    The 
record indicates that the applicant signed and received his discharge papers on 
May 17, 199x, but he did not submit his application to the Board until August 9, 
1999.  Therefore, his application was not filed until after the Board’s three-year 
statute of limitations expired. 

3. 

Pursuant to 10 U.S.C. § 1552, the Board may waive the three-year 
statute  of  limitations  if  it  is  in  the  interest  of  justice  to  do  so.    To  determine 

 
4. 

5. 

whether it is in the interest of justice to waive the statute of limitations, the Board 
should conduct a cursory review of the merits of the case.  Allen v. Card, 799 F. 
Supp. 158, 164 (D.D.C. 1992).  
 
 
A  cursory  review  of  the  applicant’s  record  indicates  that  he  was 
discharged  on  May  17,  199x,  after  his  commanding  officer  determined  that  he 
had been involved in two alcohol incidents.  The first incident was documented 
after the applicant’s apprehension by police on May 14, 199x, with a blood alco-
hol level of 0.18.  The second incident was documented after the applicant was 
stopped  by  police  on  February  11,  199x,  and  cited  for  driving  while  impaired.  
According to Article 20.B.2.h.2., “[e]nlisted members involved in a second alco-
hol incident will normally be processed for separation in accordance with Article 
12.B.16.” 
 
 
The  applicant  argued  that  the  only evidence  of  his  impairment  is 
the  hearsay  of  the  officer  who  stopped  his  car  on  February  11,  199x.    He  also 
argued that his refusal to take a breathalyzer test cannot be considered an admis-
sion of guilt.  The applicant’s command was not bound by the Military Rules of 
Evidence in determining whether the traffic stop constituted an alcohol incident.  
However,  under  the  Military  Rules  of  Evidence,  a  member’s  refusal  to  take  a 
breathalyzer test can be considered evidence that he was driving while impaired 
in a court martial.  See Military Rules of Evidence, Rule 304(h)(4).  Although the 
applicant was not being court martialed, the Board finds this rule instructive as 
to  the  reasonableness  of  the  documentation  of  the  applicant’s  second  alcohol 
incident by his command. 

6. 

 
7. 

 
8. 

The applicant alleged that the police officer had no probable cause 
to  stop  his  car  and  that  the  State’s  failure  to  convict  him  of  driving  while 
impaired  proves  he  was  not  actually  driving  while  impaired  by  alcohol.    The 
Board finds that whether the police had probable cause to stop his car is immate-
rial as to whether he was in fact driving while impaired and is therefore irrele-
vant to the correctness of the Coast Guard’s actions.  In addition, the Board finds 
that the State’s failure to convict the applicant of driving while impaired does not 
prove that Coast Guard erred in concluding that he had driven while impaired.   

Any arrest by local police is likely to bring discredit upon the Coast 
Guard.  In addition, the applicant’s refusal to take the breathalyzer test caused 
his driving privileges on Coast Guard installations to be revoked.  Therefore, the 
incident prevented him from performing his assigned duties because other mem-
bers had to drive the unit’s emergency vehicle in his stead.  In light of these facts 
and findings 6 and 7, above, the Board finds that the applicant has not proved by 
a preponderance of the evidence that his command erred in concluding that he 
had  driven  while  impaired  or  in  documenting  the  traffic  stop  on  February  11, 

199x, as his second “alcohol incident” as defined in Article 20.A.2.d. of the Per-
sonnel Manual. 

The  record  indicates  that  the  applicant  was  properly  referred  for 
alcohol  rehabilitation  treatment  by  the  Coast  Guard  but  failed  to  abstain  from 
drinking alcohol in accordance with the terms of his aftercare program.  More-
over, under Article 20.B.2.l. of the Personnel Manual, any consumption of alcohol 
at that time made him subject to separation for rehabilitation failure because the 
applicant had been diagnosed as alcohol-dependent and had already failed one 
aftercare program and had his aftercare program reinstituted on June 8, 199x.  

The  applicant  alleged  that  the  Coast  Guard  should  have  granted 
him a hearing.  However, the applicant was not entitled to a hearing because he 
did not have eight or more years of military service.  Personnel Manual, Article 
12.B.5.  He had a right to submit a statement on his behalf.  The record shows 
that he did submit a statement and that statement was forwarded by his  com-
mand to the Military Personnel Command for consideration. 

 
9. 

 
10. 

 
11. 

The applicant has not proved by a preponderance of the evidence 
that the Coast Guard committed any error or injustice in documenting his alco-
hol incidents or in discharging him with an RE-4 reenlistment code, a JPD sepa-
ration code, and “alcohol rehabilitative failure” as his narrative reason for sepa-
ration. 
 
 
basis of its untimeliness and for lack of merit. 
 
 
 
 
 

12.  Accordingly, the applicant’s request should be denied both on the 

[ORDER AND SIGNATURES APPEAR ON THE NEXT PAGE] 

The application of XXXXXXXX, USCG, for correction of his military record 

ORDER 

 

 
 

is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
Gareth W. Rosenau 

 

 

 
Coleman R. Sachs 

 

 

 
Mark A. Tomicich