Once again, the United States Coast Guard has decided to branch out into new territory with its administrative separation policy, and further reduce the due process rights and protections afforded to Coast Guard members. Even before this latest change, Coast Guard members facing administrative separation already found themselves lacking many of the substantive rights and protections which were provided to their DoD brethren. As older examples, DoD service members become entitled to an Administrative Separation Board (Adsep Board) once they obtained 6 years of service. Coast Guard policy set that number at 8 years. When DoD service members face an Adsep Board, if the Board determined that no misconduct occurred (also referred to as a “no basis” finding), that finding is largely binding on the separation authority and the service, and the member usually must be retained. Not so in the Coast Guard. All “findings” of a Coast Guard Adsep Board, even the determination of no misconduct/no basis is advisory only, and the separation authority is free to discharge the Coast Guard member for misconduct anyway.
Separation Authorities in general are another unique policy irregularity in the Coast Guard. Within the DoD, most senior flag and general officers serve as their own separation authority and have the authority to determine separations of enlisted members within their chain of command. This authority usually attaches at the general court-martial convening authority level within the chain of command. Across all the services we see 1, 2, 3, and 4 star admirals and generals exercising general court-martial convening authority and in all services except the Coast Guard we see those same positions able to exercise separation authority for enlisted members. Within the Coast Guard, however, all enlisted separations are vested entirely to the Personnel Service Command (PSC) a one-star command, which is further delegated down to epm-1, a division of PSC with an O-6 serving as its office chief. Within the Coast Guard, this policy has effectively created a situation where the O-6 division chief of epm-1 makes all decisions on enlisted members’ retention or separation across the entire Coast Guard. This remains true even when a multi-star admiral is involved with other disciplinary UCMJ decisions regarding a given Coast Guard member. In this situation, the wishes of the admiral regarding retention or separation become subservient to the decision of the O-6 at epm-1.
One could spend many pages writing about all of the policy-based procedures within the USCG which differ from DoD. Perhaps one more worth mentioning surrounds the administrative separation of members who have been found Not Guilty by a court-martial. In large part, within the DoD, when an enlisted person is found Not Guilty by a court-martial the DoD considers that to be the end of the matter. There is no option to find someone “innocent” at a court-martial or any other criminal proceeding, but for the most part the DoD usually considers that to be the equivalent of a finding of innocence and policy largely prohibits any further punitive action, including processing the member for involuntary admin separation. Like other policies which tend to give some protections to the service member, the Coast Guard does not follow this policy and as a result, can, will, and does process enlisted members for separation for the same very thing they just stood trial for and were found Not Guilty. And, due to the Coast Guard policies discussed above, if they do not have 8 years of service, they will not even be entitled to an Adsep Board unless the Coast Guard is seeking an Other Than Honorable characterization of service.
The newest addition in the stripping away of rights for members of the Coast Guard is the deprivation of all rights to an administrative board for drug related incidents. This includes occurrences as common as testing positive for anything on a random urinalysis test. Before this change, historically members of the Coast Guard were entitled to Adsep Boards for alleged drug incidents just as they were for nearly any basis for separation if they had over 8 years of service or if the service was seeking an Other Than Honorable characterization of service. Now, only the Other Than Honorable entitlement to an Adsep Board remains.
To state the worst case scenario, you could be an active duty Coast Guard member with ANY amount of years of service, test positive on a drug test for anything, and you can have your retirement taken away without your case being heard and decided by a board. One might say, what good was a Coast Guard board anyway if it was entirely advisory? And the answer is, at least it was something. At least there was some process to attempt to give the member some procedural rights.
So you could have 19.75 years of service, test positive, and be kicked out of the USCG with no board? Its actually worse than that. The Coast Guard has no 20 year retirement safe-haven, vesting, or protections for enlisted service members that have hit this milestone. Unlike DoD, retirement is not a right earned at 20 years within the Coast Guard, rather you must apply to retire, however, the service is free to separate you for other grounds even if you have over 20 years of service, provided those grounds arguably exist.
No one is advocating that the military should have a service culture which promotes or excuses drug use. It is well known that in general all uniformed services have a “zero-tolerance” policy on drug use. The question, however, is inside the details of each service’s policy which seeks to address the extent to which each service wants to accept the reality that mistakes do occur. What kind of mistakes? Mistakes in the urine specimen collection certainly occur. Mistakes within the drug laboratory testing facility have occurred. Anyone who has been around military drug testing for any length of time has seen the drug laboratories have to mandatorily report errors. They have seen specimen samples reported incorrectly, and they have seen collection procedures conducted improperly. Along the same lines, with the legalization of marijuana at the state level across many locations where active duty serve, the opportunity for unknowing innocent ingestion is significant. The Coast Guard specifically has been undertaking efforts for years to have the laboratories lower their drug detection cutoff levels to an unreliably low level—one prior commandant even tried unsuccessfully to lower certain drug cutoffs all the way down to zero. Fortunately, many of those changes have been opposed by the DoD controlled labs.
In all military services, a finding of “drug abuse” or a “drug incident” can be made by the command based upon nothing more than a positive urinalysis drug test. In most instances, the command does not do a thorough review of the collection procedures, testing procedures, or other facts surrounding the positive result before they make such a finding.
Making a finding of a “drug incident” requires a degree of permissive legal fiction. This is because “drug abuse” or a “drug incident” legally requires the use of a controlled or prohibited substance to have been done knowingly and intentionally. The saving grace for the Government in these cases has long been the so called “presumptive inference” doctrine. Under the presumptive inference doctrine, a positive drug test alone can be sufficient evidence of a knowing and intentional drug use absent evidence to the contrary. The question then becomes, what forum, process, or procedures does the particular service entitle to the member to present their “evidence to the contrary.”
In all services, a positive drug test or other evidence of a drug incident is grounds for processing a service member for administrative separation. By and large, service policies require the commanding officer to process the member for separation unless the commanding officer is willing to make a written finding explaining why the situation was not a drug incident.
When a commanding officer initiates administrative separation processing service members have certain rights within that process. These rights depend on the particular service but they generally are controlled by (1) how long the person has been in the military, and (2) what type of characterization of service the command is seeking.
The rights due to the particular service member then involve some combination of the ability to consult with an attorney, the ability to have an attorney detailed to actually represent them, the ability to submit a statement on their behalf, and the right to full administrative separation board hearing. Often times junior service members who are not facing an Other Than Honorable characterization of service are not offered an attorney or the right to an administrative separation board. Any administrative separation process, no matter the rights or procedures involved is meaningful to the service member because it will determine whether they are able to remain in the service, and equally as important it will impact their eligibility for veteran’s benefits, future government jobs, and even civilian employment opportunities.
The army handles its drug offenses under the guidance of AR 600-85 the Army Substance Abuse Program (ASAP). ASAP directs those found to be using drugs to be subjected to UCMJ action or to administrative separation procedures. Any soldier who tests positive for illegal drugs is to be screened for a substance abuse disorder, then subject to any disciplinary action and considered for separation (AR 600-85 Chapt. 4-2 (J)). When going through the administrative separation process soldiers are entitled to have counsel during the process.
The Air Force considers drug use to be misconduct and the consequences can include UCMJ prosecution or administrative separation under less than honorable conditions. AFI44-121 Chap. 3 3.2 When an Air Force commander obtains information that a member under their command has engaged in drug abuse (such as through a positive urinalysis test) they are required to promptly begin the administrative discharge process or request a waiver, considering the circumstances around the situation. DAFI36-3211 7.43.4.1. A waiver of discharge is available if the commander thinks that in light of the totality of circumstances the service member should be retained. DAFI36-3211 8.58. Somewhat uniquely, Air Force policy also contains certain “retention criteria” such that an airman can be retained notwithstanding a proven drug incident if they meet certain criteria and retention is in the best interest of the Air Force.
The Navy and Marine Corps drug policy is provided in SECNAVINST 5300 28E. In the Navy and Marine Corps, any member found to be using illegal drugs will be subject to disciplinary actions and must be processed for administrative separation. SECNAVINST 5300 28E 4 (d). When sailors and marines are facing administrative separation, they may consult with legal counsel. If they have more than six years of service, they may request a hearing before an administrative separation board. In the Department of the Navy, when the CO believes that the circumstances of the situation warrant a classification of service as other than honorable administrative board procedures must be followed. MILPERSMAN 1910-146 (3)(a). The Navy policy thus entitled all sailors with 6 years or more of service to a board hearing, and all sailors with any amount of service to a board hearing when an other than honorable is a possibility.
The Coast Guard handles their separations through their separations manual COMDTINST 1000.4B. The policy manual lists drug incidents as a basis for separation. It states that members accused of drug incidents will face separation with a characterization of service no higher than a general discharge. A general discharge is considered to be an unfavorable characterization of service and in many circumstances will cause a loss of certain Veteran’s benefits. More troubling, however, under the newest policy change no Coast Guard member is entitled to a board hearing for an alleged drug incident unless they are facing a separation under other than honorable conditions. COMDTINST 1000.4B Q 2. D. (1). This newest policy change only compounds the already service friendly policy which did not entitle Coast Guard members to boards until they had eight years of service.
There are certain legal processes and challenges that can be made to the Coast Guard’s new policy. If you are in the Coast Guard and facing potential administrative separation for an alleged drug incident you may be a good candidate to challenge this new policy.
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