:-I 

UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

NATHANWAYNEJELM, 

Respondent. 

Docket Number CG S&R 03-0289 

CG No. 1779692 

DECISION AND ORDER 

Issued: December 5, 2003 

Issued by: Honorable Thomas E. McElligott, Administrative Law Judge 

Appearances: 

ENS C. Nicholas Parham, 

Investigating Officer 

CWO Raymond Colicci, 

Assistant Investigating Officer 

800 David Drive 

Room232 

Morgan City, Louisiana 70380 

For the Coast Guard 

Nathan Wayne Jelm, Pro Se 

For the Respondent 
PRELIMINARY STATEMENT 

The United States Coast Guard (Coast Guard) by Investigating Officers of the 

Marine Safety Office Morgan City, Louisiana initiated this administrative action seeking 

revocation of the Coast Guard License and Merchant Mariner's Document issued to 

Nathan Wayne Jelm (Respondent). This administrative action was brought pursuant to 

46 U.S.C. 7703 and 7704(c) and its underlying regulations codified at 46 CPR Part 5. 

On April30, 2003, the Coast Guard issued a Complaint alleging use of or addition 

to dangerous drugs as a result of Respondent's positive reasonable cause drug test on 

April 9, 2003. The Coast Guard also charged Respondent with misconduct for 

possession and intoxication of alcohol in violation of company policy. The 

Administrative Law Judge Docketing Center received an Answer dated May 13, 2003. 

Respondent admitted the jurisdictional and factual allegations but denied paragraph 5. 

Factual paragraph 5 alleged he tested positive for cocaine metabolite. Respondent 

explained in his Answer that Dr. Smith, from LaFourche Services, Inc., contacted him 

regarding a positive drug test for marijuana not cocaine metabolite. On July 7, 2003, the 

Coast Guard filed an Amended Complaint to correct paragraph 5. Respondent filed an 

Answer to the Amended Complaint and admitted all factual allegations and requested a 

hearing on the proposed order of revocation. 

The undersigned Administrative Law Judge (ALJ) scheduled the hearing for 

August 6, 2003, at the Marine Safety Office in Morgan City, Louisiana. 1 The hearing 

proceeded in accordance with the Administrative Procedure Act as amended and codified 

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This matter was originally assigned by order of the Chief Administrative Law Judge to The Honorable 

Archie Boggs. During the pendency of this case, ALJ Boggs announced his retirement and the Chief 

Administrative Law Judge re-assigned this matter to The Honorable Thomas E. McElligott, Administrative 

Law Judge. 

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at 5 U.S.C. 551-559, and Coast Guard procedural regulations set forth at 33 CFR Part 20. 

The Investigating Officer (IO) presented one witness and introduced seven exhibits. 

Respondent did not present witness testimony or testify on his on behalf; but did 

introduce and the Undersigned accepted eight exhibits into evidence. The witness and 

exhibit lists are located in Attachment A. 

After careful review of the factual allegations admitted by Respondent and 

applicable law in this case, I find the Coast Guard PROVED the charges that Respondent 

used or was addicted to marijuana and violated the Substance Abuse Policy issued by 

Kevin Gross Marine, Inc. resulting in misconduct. 

FINDINGS OF FACT 

The Findings of Fact are based on a thorough and careful analysis of the entire 

record including: documentary evidence; witness testimony; and Respondent's 

admissions. 

1. At all relevant times mentioned herein and specifically on or about Apri19, 2003 

through August 4, 2003, the above-captioned Respondent held and acted under 

his Coast Guard issued License and Merchant Mariner's Document as required by 

law or regulation. (Tr. 6-7; Gov't Ex. 8, 9).2 

2. Kevin Gross Marine, Inc. (Gross Marine), employed Respondent on April9, 

2003, to serve as captain (master) aboard the M/V ROSEANNA. (Tr. 42-45; 

Gov't Ex. 1 ). 

2 The citations in this Initial Decision and Order are as follows: Transcript followed by the page number, 

(Tr. __); Agency Exhibit followed by number (Gov't Ex. __); and Respondent Exhibit followed by a 

letter (Resp Ex. __). 

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3. The M/V ROSEANNA is an offshore supply vessel, which carries dry bulk such 

as cement, liquid mud, fuels, water, and deck cargo for the offshore oilfield 

industry. The M/V ROSEANNA operates with a four person crew and is certified 

to carry up to 14 passengers. (Tr. 36-37). 

4. On Apri19, 2003, the Coast Guard and Harbor Police in Fouchon, Alabama, 

contacted Bruce Kennedy, Port Engineer and Health Safety Coordinator for Gross 

Marine. The authorities informed Mr. Kennedy of a report concerning possible 

drug activity on the MN ROSEANNA. Mr. Kennedy along with the Coast Guard 

and Harbor Police boarded the vessel and performed "a walk through." (Tr. 29-

30). 

5. Mr. Kennedy immediately contacted LaFourche Services to arrange for a 

specimen collector to perform alcohol and drug testing of the entire crew. (Tr. 

30-31). 

6. The crew assembled in the galley and Mr. Kennedy explained that a search of the 

vessel rooms would commence. The search included removal of bunks and 

lockers. During the search of their rooms, crewmembers were allowed to 

accompany Mr. Kennedy. (Tr. 33). 

7. Mr. Kennedy notified the crew that drug and alcohol tests would be performed 

contemporaneously with the vessel search. (Tr. 34). 

8. During the vessel search, Mr. Kennedy discovered a fifth of vodka and marijuana 

cigarette residue in Respondent's room. Respondent did not share the room with 

another crewmember, and Mr. Kennedy testified that alcohol was missing from 

the bottle of vodka. (Tr. 35). 

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9. Craig Hendrix, representative from LaFourche Services, collected urine from 

Respondent for a drug test. Mr. Hendrix also performed a blood alcohol content 

breath test. (Tr. 31-36; Resp Ex. B and C). 

10. Respondent's breath tested positive for alcohol. The blood alcohol content test 

measured .069 and a confirmation test measured .066. (Tr. 17-18, 35; Gov't Ex. 

3). 

11. Respondent submitted to a reasonable suspicion/cause drug test on April9, 2003. 

The specimen tested positive for marijuana metabolite. (Tr. 17, 20; Gov't Ex. 2, 

4, 5, 6 and 7). 

12. Mr. Kennedy immediately removed Respondent from the vessel after testing 

positive for alcohol. (Tr. 36). 

13. Respondent admitted all factual allegations detailed in the Complaint, Amended 

Complaint and facts presented at the hearing. (Tr. 14-15, 46, 49-50; Resp Ex. 1-

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent and the subject matter of this hearing are within the jurisdiction 

vested in the Coast Guard under 46 U.S.C. 7703 and 7704. 

2. At all relevant times, Respondent held and acted under his United States Coast 

Guard License and Merchant Mariner's Document as required by law or 

regulation. 

3 After the Coast Guard rested, the Undersigned ALJ asked whether Respondent desired to testifY and 

Respondent volunteered the following statement, "No, Your Honor ... I've already made the statement of 

guilt and everything-all the allegations are ttue I was completely out of control and misconduct one 

hundred percent." (Tr. 49-50). 

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3. The Coast Guard PROVED by a preponderance of reliable, probative, and 

substantial evidence that on April9, 2003, Respondent used or was addicted to 

the use of dangerous drugs. 

4. The Coast Guard also proved by a preponderance of reliable, probative, and 

substantial evidence that on Apri19, 2003, Respondent committed misconduct by 

possessing alcohol and being intoxicated aboard the MN ROSEANNA which 

constitutes a violation of company policy. 

DISCUSSION 

The purpose of Coast Guard suspension and revocation proceedings is to promote 

safety at sea. 46 U.S.C. 7701. The Commandant delegated to Administrative Law 

Judges the authority to suspend or revoke a license or certificate for violations arising 

under 46 U.S.C. 7703 and 7704. See 46 CFR 5.19. Here, the Coast Guard charged 

Respondent with the use of or addiction to the use of dangerous drugs and misconduct 

arising under 46 U.S.C. 7703 and 7704(c). See also 46 CFR 5.35 and 5.27. The Coast 

Guard seeks revocation of Respondent's License and Merchant Mariner's Document. In 

contrast, Respondent requests the opportunity to prove cure as established by Appeal 

Decision 2535 (SWEENEY) (1992) (rev 'don other grounds); see also Appeal Decision 

2546 (SWEENEY) (1992) (holding that the definition of cure established in Appeal 

Decision 2535 (SWEENEY) will remain in effect). 

Generally, the Coast Guard bears the burden of proving charges by a 

preponderance of the evidence. See 33 CFR 20.701 and 20.70l(a). Preponderance of 

evidence requires reliable, probative and substantial evidence. 5 U.S.C. 556(d); see also 

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Appeal Decision 2477 (TOMBARI) (1988) ("The term substantial evidence is 

synonymous with preponderance of the evidence as defined by the Supreme Court."). 

However, an admission of all facts by a respondent constitutes a waiver of all nonjurisdictional defects and defenses and is sufficient to support a finding of charges 

proved. Appeal Decision 2376 (FRANK) (1985). Here, the Coast Guard satisfied the 

burden of proof because Respondent admitted to all factual and jurisdictional allegations. 

The only remaining issue is determination of the appropriate sanction. 

SANCTION 

The authority to impose sanctions at the conclusion of a case is exclusive to the 

Administrative Law Judge (ALJ). Appeal Decision 2362 (ARNOLD) (1984). Title 46 of 

the Code of Federal Regulations Part 5 Section 569 provides the Table of Suggested 

Range of Appropriate Orders for various offenses. The purpose of the Table is to provide 

guidance to the ALJ and promote uniformity in orders rendered. Appeal Decision 2628 

(VILAS) (2002). The offense of misconduct, possession of intoxicating liquor, is a 1-4 

month suspension and dangerous drug use under 46 U.S.C. 7704 is revocation. See Table 

46 CFR 5.569. However, the ALJ is not bound by the Table and is given discretion to 

exceed the suggested range or impose a sanction less severe depending on the presence of 

aggravating or mitigating factors. Id. 

The appropriate sanction for use of a dangerous drug alleged under 46 U.S.C. 

7704 (c) is revocation unless the holder can provide satisfactory proof the holder is 

"cured." Appeal Decision 2634 (BARRETTA) (2002). The respondent carries the 

burden of establishing "cure". Appeal Decision 2526 (WILCOX) (1991). In Appeal 

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Decision 2535 (SWEENEY), a two step cure process was established. First, a mariner 

must prove completion of a bona fide drug abuse rehabilitation program. Second, a 

mariner must demonstrate complete non-association with drugs for at least one year. And 

participate in a drug abuse monitoring program. This includes random unannounced drug 

testing. Id. at 4-5. Further, a Medical Review Officer must make a determination 

whether an individual who fails a drug test is drug-free and risk of subsequent drug use is 

low. 46 CFR 16.201(±). 

Although Appeal Decision 2535 (SWEENEY) was reversed on other grounds, the 

Commandant held the definition of cure stated in the first SWEENEY decision was to 

remain in effect for all future drug related cases. Appeal Decision 2546 (SWEENEY). 

When a Respondent has demonstrated substantial involvement in the cure process, an 

ALJ has the authority to grant a continuance. Appeal Decision 2535 (SWEENEY). The 

purpose of effectuating a continuance allows the ALJ to stay the revocation of a license 

or other document while Respondent completes the SWEENEY two-step cure process. 

Appeal Decision 2634 (BARRETTA). In contrast, the opportunity to prove cure is not 

appropriate if respondent merely promises to commence steps for the cure process. 

Appeal Decision 2535 (SWEENEY). 

The Coast Guard seeks revocation of Respondent's License and Merchant 

Mariner's Document. In support of revocation, the Coast Guard requests the undersigned 

to take notice of Appeal Decision 2539 (HARRISON) (1992) and Appeal Decision 2098 

(CORDISH) (1977). These decisions are unpersuasive and irrelevant. HARRISON was 

a negligence case involving an allision. Here, Respondent was not charged with 

negligence, and an allision did not occur. Therefore, HARRISON does not apply to the 

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law or facts. In CORDISH, the respondent refused to obey the chief mate's orders. Here, 

Respondent cooperated with authorities conducting the search. Again, CORDISH does 

not apply to the facts or law in this case. 

Respondent submitted documentation supporting his steps to effectuate cure in 

accordance with SWEENEY. Worth Wilkinson, MD, is licensed to practice medicine 

and surgery in the State of Louisiana. In a letter dated August 31, 2003, Dr. Wilkinson 

explained Respondent would be meeting with him on a weekly basis to progress in his 

drug rehabilitation program. Further, a second letter from Liz O'Connor filed with the 

Undersigned ALJ, explained Respondent would be provided with treatment for his 

chemical dependency.4 Ms. O'Connor prescribed the following treatment: daily AA/NA 

meetings (with signed attendance sheet), obtain a sponsor in the above 12-step program, 

work the 12 steps of AA/NA, develop a relapse prevention plan, meet with Ms. 

O'Connor on a weekly basis, and participate in random drug screens. 

Respondent requested an order implementing the SWEENEY cure process; this 

request will be granted. Respondent accepted full responsibility for his actions, does not 

have a prior record of violations of Coast Guard laws and regulations, and immediately 

sought counseling for his chemical and personal problems. I conclude Respondent is 

substantially involved in the cure process and sufficient mitigating facts support my 

decision of cure. See Resp Ex. A- H. 

4 Several designations followed Ms. O'Connor's name: MA, BCSAC, AADC, and CCGC. 

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WHEREFORE, 

ORDER 

IT IS ORDERED that the United States Coast Guard License, Merchant 

Mariner's Document, and all other valid unexpired Coast Guard documents, licenses, 

certificates and authorizations issued to Nathan Wayne Jelm are herby REVOKED. 

Revocation is effective August 6, 2003; date of the suspension and revocation hearing. 

However, the revocation is STAYED and this hearing is continued in order to allow 

Respondent to complete the cure two-step process as detailed by Appeal Decision 2535 

(SWEENEY). 

Respondent is ordered to attend a substance abuse monitoring program and drug 

rehabilitation program that shall be completed no later than August 5, 2004. These 

programs shall include Respondent's participation in random, unannounced drug-testing 

program during the one year monitoring program. Following Respondent's successful 

completion of rehabilitation and monitoring program, a letter from a Medical Review 

Officer is required. The MRO letter must indicate that Respondent is drug-free and the 

risk of Respondent's future use of dangerous drugs is sufficiently low to justify his return 

to work. Successful completion of the SWEENEY cure conditions described above will 

SUSPEND the order of revocation. 

IT IS FURTHER ORDERED, if Respondent fails to complete the conditions of 

cure, his License, Merchant Mariner's Document, all duplicate and other valid and 

unexpired Coast Guard documents, licenses, certificate and authorizations will be 

REVOKED. 

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IT IS FURTHER ORDERED that Respondent's License, Merchant Mariner's 

Document, and all valid unexpired Coast Guard documents, license, certificates and 

authorizations are hereby suspended for four months for possession and intoxication of 

alcohol in violation of Gross Marine Substance Abuse Policy. The four month 

suspension for the aforementioned misconduct charge shall run contemporaneously with 

the cure process ordered in this matter. 

---A'\ f ~0',~(/,. 

V Thomas E. McElligott 

Administrative Law Jud 

United States Coast Guard 

Done and dated this 5th day of December, 2003 

Houston, Texas 

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