UNITED STATES OF AMERICA 

DEPARMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

ANDREW A. KORSAK 

BEFORE: 

ARCHIE R. BOGGS 

Administrative Law Judge 

Eighth Coast Guard District 

APPEARANCES: 

FOR THE COAST GUARD 

LTJG Erin G. Cantwell and 

LT Michael J. Simbulan 

Res ondent 

United States Coast Guard 

Marine Safety Office Honolulu 

433 Ala Moana Boulevard, Room 1 

Honolulu, Hawaii 96813-4909 

FOR THE RESPONDENT 

Richard Gronna, Esq. 

820 Miliani Street, Suite 812 

Honolulu, Hawaii 96813 

Docket No. CG S&R 01-0023 

Case No. P A00002294 

DECISION AND ORDER 
KORSAK 

PRELIMINARY STATEMENT 

The United States Coast Guard initiated this administrative action seeking 

revocation of license number 782176 and merchant mariner's document number 575 84 

1252, both issued to Respondent Andrew A. Korsak. 

This action is brought pursuant to the legal authority contained in 46 U.S.C. § 

7704,46 C.P.R. Parts 5 and 16, and 49 C.P.R. Part 40. 

In a Complaint dated December 29,2000, and as amended and incorporated by 

reference on February 5, 2001, the Coast Guard charged Respondent with being a user 

of a dangerous drug in violation of 46 U.S.C. § 7704(c) after he tested positive for 

cocaine following a post accident drug test. 

The Respondent filed an answer to the Complaint in which he admitted the 

jurisdictional allegations, and, with respect to the factual allegations, he: 

(1) admitted he took a post accident drug test on December 4, 2000; 

(2) admitted, at the hearing, that the urine specimen was collected at Pier 1 in 

Hilo, Hawaii; 1 

(3) admitted he signed a DOT Federal Drug Testing Custody & Control Form; 

(4) admitted the urine specimen was tested by LabOne, Inc.;l 

(5) affirmatively asserted that there was insufficient information to answer 

whether the urine specimen subsequently tested positive for Cocaine; and 

2 

(6) affirmatively asserted that there was insufficient information to answer 

whether the Medical Review Officer, Dr. Paul Teynor of Intermountain MRO 

Services, Inc., determined the test to be positive for cocaine following an 

interview conducted on or about December 8, 2000. 

1 This factual allegation was amended on February 5, 2001. 
KORSAK 3 

A hearing was held in this matter on 26 February 2001 at Honolulu, Hawaii. The 

hearing was conducted in accordance with the Administrative Procedure Act, as 

amended and codified at 5 U.S.C. § § 551-559, and Coast Guard procedural regulations 

located at 33 C.P.R. Part 20. 

Lieutenant (junior grade) Erin G. Cantwell and Lieutenant Michael J. Simbulan 

entered appearances on behalf of the Coast Guard. The Respondent was repesented by 

professional counsel, Richard Gronna, Esq., who requested a continuance to enable Mr. 

Korsak, who had enrolled in a drug rehabilitation program, an opportunity to satisfy 

the requirements of cure as enunciated in Appeal Decision 2535 (SWEENEY). 

Respondent's motion for continuance was taken under advisement, and the hearing 

proceeded as scheduled. 

The Coast Guard introduced the testimony of three (3) witnesses: 

1) Timothy Holman, owner of Safe Tech, who collected Respondent's urine 

specimen on 4 December 2000, and who shipped the specimen to LabOne in 

Lenexa, Kansas, for testing; 

2) John Joseph Skuban, Jr., certifying scientist and custodian of record for 

LabOne, who testified that the specimen.was received in tact; the specimen 

was tested in accordance with applicable regulations; and the specimen 

tested positive for cocaine; and 

3) Dr. Paul Teynor, Medical Review Officer for Intermountain MRO Services, 

Inc., who served as MRO for the specimen. 
KORSAK 

The Coast Guard introduced three (3) exhibits, which were admitted into 

evidence: 

IO Exhibit 1-the collector's copy of the Federal Drug Testing Custody and 

Control Form for Mr. Korsak's specimen. 

IO Exhibit 2- a curriculum vitae for John J. Skuban, Jr. 

IO Exhibit 3- a laboratory report and litigation package for the specimen. 

The Respondent testified in his own behalf and he introduced itwo (2) exhibits, 

which were admitted into evidence: 

Respondent's Exhibit A- a typkalpla§lic specimen cup, which is used to collect 

urine specimens. 

Respondent's Exhibit B- a Federal Drug Testing Custody and Control Form. 

The Coast Guard and the Respondent stipulated to the following: 

1) There is no acceptable medical reason for the positive drug test result for 

cocaine; and 

2) The Respondent is currently undergoing rehabilitation. 

The Coast Guard has established the allegations in the Complaint by a 

preponderance of the reliable and credible evidence. Respondent's license and 

4 

document are both subject to revocation. The Respondent's motion for a continuance is 

denied. 
KORSAK 5 

RULINGS ON COAST GUARD PROPOSED FINDINGS OF FACT2 

ACCEPTED AND IN CORPORA TED 

1. Respondent is currently the valid holder of the following United States Coast 

Guard credentials: Me.rchant Mariner's Document No. 575 84 1252 and License No. 

782176. The license expires on April25, 2002. Respondent was the valid holder of 

the aforementioned license and document on or about December 4, 2000. 

Respondent's license and document is currently in the possession of the Coast 

Guard. 

ACCEPTED AND IN CORPORA TED 

2. A copy of the test results from a post-accident drug test taken by the Respondent 

on December 4, 2000 has been submitted as CG Exhibit 1. The results indicate that 

the Respondent tested positive for cocaine. Furthermore, the testimony from Mr. 

Tim Holman (collector), and Mr. John Skuban (certifying scientist for LabOne) 

established that the test results were accurate and valid. 

ACCEPTED AND IN CORPORA TED 

3. While testifying, the Respondent stated that as part of his drug rehabilitation 

program he has admitted to being a user of cocaine. 

ACCEPTED AND IN CORPORA TED 

4. Aggravating these facts, the Coast Guard recognizes the following: 

a. In November of 1992, the Respondent tested positive for cocaine. 

Subsequently, he went through cure and his License and MMD were 

reinstated. 

b. In both instances where the Respondent failed a drug test, the Respondent 

tested positive for cocaine. 

ACCEPTED AND IN CORPORA TED 

5. Mitigating these facts, the Coast Guard recognizes the following: 

a. The Respondent admitted he has a drug problem. 

b. Prior to the hearing, the Respondent entered a bona fide substance abuse 

treatment facility, and enrolled in a rehabilitation program. 

RULING: ACCEPTED AND IN CORPORA TED 

2 During the hearing, the parties were instructed to file post-hearing briefs, including proposed findings offact and 

conclusions of law. The Coast Guard filed enumerated proposed findings offact together with conclusions of law on 

April24, 2001. The Respondent, however, elected not to file any post-hearing submissions. As such, rulings were 

made only on the Coast Guard's enumerated proposed findings offact. 
KORSAK 

OPINION 

The law governing Coast Guard suspension and revocation proceedings 

involving drugs is well settled. Section 7704(c) of Title 46 of the United States Code 

specifically provides: 

If it is shown that a holder has been a user of, or addicted to, a dangerous drug, 

the license, certificate of registry, or merchant mariner's document shall be 

revoked unless the holder provides satisfactory proof that the holder is cured. 

In other words, absent proof of cure by a Respondent who has been found to be a user 

of, or addicted to, a dangerous drug, the "Administrative Law Judge is without 

discretion to issue an order less than revocation." Appeal Decision 2535 (SWEENEY). 

However, in cases where a Respondent has "demonstrated substantial 

involvement in the cure process by proof of enrollment in an accepted rehabilitation 

program," a judge may grant a continuance enabling the Respondent to establish cure. 

Decision of the Vice Commandant on Review No. 18 (CLAY). The decision to grant a 

continuance and provide the Respondent an opportunity to establish cure is solely the 

discretion of the presiding judge. Appeal Decision No. 2557 (FRANCIS). 

The evidence adduced at the hearing in this case established that Respondent 

had previously avoided a hearing and gone through the cure process after testing 

positive for cocaine, albeit some nine years ago in 1992. Based upon this prior drug 

related offense and in accordance with 46 C.P.R. § 5.201, the Coast Guard did not offer 

Respondent a second opportunity to seek cure. Section 5.201 of the Code of Federal 

Regulations allows a merchant mariner to voluntarily deposit his license or document 

6 
K'.ORSAK 

and enter into a written agreement with the Coast Guard for return of said credentials 

if, among other things 

(1) [The merchant mariner] is enrolled in a drug abuse rehabilitation program; 

[and] 

* * * 

(4) [The merchant mariner] has not voluntarily deposited or surrendered a 

license, certificate, or document, or had a license, certificate, or document 

revoked for a drug related offense on a prior occasion. 

46 C.F.R. § 5.201(a), (b)(1), and (b)(3) establishes that the Coast Guard will only 

allow each merchant mariner one opp_oJJJ.mity,jn cases involving use or addition to a 

dangerous drug, to establish cure. Thus, to grant a continuance in this case for the sole 

purpose of allowing Respondent a second opportunity to establish cure would be 

7 

directly inconsistent with 46 U.S.C. § 7704 and its underlying regulations set forth in 46 

C.F.R. § 5.201. Therefore, Respondent's motion for continuance for the sole purpose of 

establishing cure is hereby DENIED. 

ULTIMATE FINDINGS 

1. Respondent Andrew A. Korsak and the subject matter of this hearing are within 

the jurisdiction of the United States Coast Guard in accordance with Title 46, 

United States Code 7704. 

2. At all relevant times on December 4, 2000, Respondent Korsak was the holder of 

license Number 782176, and merchant mariner's document No. 575 84 1252, which 

are both currently in the possession of the Coast Guard. 
~ORSAK 8 

3. Respondent Korsak admitted that he submitted to a post-accident drug test, the 

urine specimen was collected at Pier 1 in Hilo, Hawaii, and LabOne tested the urine 

specimen. 

4. Respondent's urine specimen, which was tested in accordance with applicable drug 

testing regulations codified at 46 C.P.R. Part 16 and 49 C.ER. Part 40, tested 

positive for cocaine. 

5. The parties have stipulated that there is no medically acceptable reason for the 

positive test result for cocaine and have also stipulated that Respondent is 

currently enrolled in a bona fide drug rehabilitation program. 

6. The Respondent previously underwent the cure process following a positive test 

result for cocaine in November 1992, and his license and document were reinstated. 

CONCLUSION 

The Coast Guard has established through his own admission that the 

Respondent, Andrew A. Korsak, holder of license number 782176 and merchant 

mariner's document number 575 84 1252 tested positive for cocaine following a post 

accident drug test in Hilo, Hawaii on December 4, 2001. This constitutes a violation of 

46 U.S.C. § 7704(c) for which revocation is the only appropriate order. 

ORDER 

License number 782176 and merchant mariner's document number 575 841252, 

and all other licenses, documents, or certificates issued to you by the United States 

Coast Guard are hereby revoked. 
KORSAK 9 

Delivery of this Decision and Order on you or your counsel will constitute 

service and will serve as notice to you of your right to appeal, the procedures for which 

are set forth in Attachment A and made part of this Order. 

Absent an appeal taken by either party, this decision shall become the final 

action of the Coast Guard 30 days after the date of issuance as provided in 33 C.P.R. § 

20.1101. 

Dated -L June 2001 

New Orleans, Louisiana 

---ARCHIE ~j: R. 

... 

BOGGS ~.B.~~ Administrative Law Judge