UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

MERCHANT MARINER LICENSE 

Issued to: AUBREY ADAM THOMPSON, JR. 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

NO. 2 66_Z 

This appeal is taken in accordance with 46 USC§ 7701 et seq., 46 C.F.R. Part 5, and the 

procedures in 33 C.F.R. Part 20. 

By a Decision and Order (hereinafter "D&O") dated October 13, 2004, an Administrative 

Law Judge (hereinafter "ALJ") of the United States Coast Guard at New Orleans, Louisiana, 

dismissed a Complaint brought by Coast Guard Marine Safety Office Morgan City, Louisiana 

(hereinafter "MSO Morgan City") against the merchant mariner license of Mr. Aubrey A. 

Thompson, Jr., (hereinafter "Respondent") after finding not proved two charges: 1) that 

Respondent was a user of or was addicted to the use of dangerous drugs and 2) that Respondent 

committed an act of misconduct. 

PROCEDURAL HISTORY 

On May 21, 2004, the Coast Guard filed a Complaint against Respondent's mariner 

credential alleging both use of, or addiction to the use of, dangerous drugs and misconduct. The 

Complaint was properly served on the Respondent on May 21 , 2004, and was filed with the ALJ 

Docketing Center on June 16, 2004. Respondent filed his Answer to the Complaint on June 16, 

2004, admitting all jurisdictional allegations and denying all factual allegations. 
THOMPSON N0.2 6 6 7. 

The hearing was held on August 17, 2004, at MSO Morgan City, Louisiana. [D&O at 2] 

Respondent appeared pro se. During the hearing, the Coast Guard introduced four exhibits into 

the record, but did not call any witnesses. Respondent introduced two exhibits into evidence and 

testified on his own behalf. 

The ALJ issued the D&O, dismissing both charges in the Coast Guard's Complaint, on 

October 13, 2004. [D&O at 16] Thereafter, on October 25, 2004, the Coast Guard filed its 

notice of appeal in the matter. The Coast Guard perfected its appeal by filing its Appellate Brief 

on December 13, 2004. Therefore, this appeal is properly before me. 

APPEARANCE: Respondent appeared pro se. The Coast Guard was represented by 

Lieutenant Commander Ron Patrick and Chief Warrant Officer Jason Boyer ofMSO Morgan 

City, Louisiana. 

FACTS 

In February of 2000, Respondent was the holder of a Coast Guard issued merchant 

mariner license authorizing him to serve as master aboard steam or motor vessels of not more 

than 100 gross registered tons upon inland waters. [1.0. Exhibit 3] Respondent's license was 

issued on November 1, 1995, and was to expire on November 1, 2000. [Id.] 

On February 22, 2000, Respondent submitted to a post-accident Department of 

Transportation drug test. [Transcript (hereinafter "Tr.") at 14; 10. Exhibit 1] The test results 

were positive for marijuana. [Id.] Respondent's employer, Caillou Island Towing, then informed 

the Coast Guard of the positive drug test result. [Tr. at 14] 

On April 2, 2001, Respondent submitted an application to renew his Merchant Mariner 

License to the Coast Guard Regional Exam Center (hereinafter "REC") in New Orleans, 

2 
THOMPSON NO. 2 6 6 7 

Louisiana1

• [Tr. at 15; LO. Exhibit 3] On his license renewal application, Respondent indicated 

that he had never been convicted of violating a dangerous drug law of the United States, District 

of Columbia, or of any state or territory of the United States. [1.0. Exhibit 3] Respondent also 

indicated that he had never been a user of or addicted to a dangerous drug (including marijuana). 

[Id.] On April 5, 2001, the REC denied Respondent's application for a renewed license, citing 

Respondent's prior conviction for possession of marijuana in 1999. [LO. Exhibit 4] Despite this 

written denial, Respondent was mistakenly issued a renewed license by REC New Orleans on 

May 1, 2001. [Tr. at 17-18, 23, 37, 49; 1.0. Exhibit 2] 

The Coast Guard then issued a Complaint to Respondent on May 21, 2004, alleging use 

of, or addiction to the use of, dangerous drugs based on the positive drug test result of February 

22, 2000. [LO. Exhibit 1] The Complaint also alleged misconduct based on Respondent's false 

statement that he had never been a user of, or addicted to, a dangerous drug on his application for 

renewal of his merchant mariner license. [Id.] The subsequent hearing and D&O dismissing 

both charges resulted in the Coast Guard's appeal which is now properly before me. 

BASES OF APPEAL 

The Coast Guard appeals the decisions of the AU dismissing the Coast Guard's 

administrative action against Respondent. Although the Coast Guard does not contest the ALJ's 

dismissal of its misconduct charge, it does appeal the ALJ's decision to dismiss the use of, or 

addiction to the use ot: dangerous drugs charge. On appeal, the Coast Guard argues that the ALJ 

erred in holding that the record contained substantial evidence to support a conclusion that 

Respondent proved cure. 

1 Because 46 C.F.R. § 10.209(e) allows mariners to apply for renewal of their licenses up to 12 months after the 

credential expires, Respondent committed no error in applying for renewal of his mariner license (which was valid 

3 
THOMPSON NO. 2 6 6 7 

OPINION 

A mariner credential issued by the Coast Guard must be revoked if it is shown that the 

holder has been a user of dangerous drugs. 46 U.S.C. § 7704(c). Pursuant to Coast Guard 

regulation, if a mariner fails a drug test, he is presumed to be a user of dangerous drugs. 46 

C.F.R. § 16.20l(b); Appeal Decisions 2584 (SHAKESPEARE) and 2529 (WILLIAMS). 

In this case, the record shows that Respondent admitted that he failed a post-accident 

drug test ,administered on February 22, 2000. (Tr. at 17-18) In so doing, Respondent did not 

argue that the test was either improperly conducted or analyzed. As such, the ALJ was correct to 

conclude that Respondent was a user of dangerous drugs. Accordingly, the ALJ properly turned 

her attention to the issue of cure. 

In Coast Guard suspension and revocation proceedings, the burden of establishing "cure" 

is on the Respondent. See Appeal Decisions 2638 (PASQUARELLA) and 2526 (WILCOX). 

Prior Commandant Decisions on Appeal make clear that to establish cure under 46 U.S.C. 

§ 7704(c), a mariner must: (1) successfully complete a bona fide drug abuse rehabilitation 

program, and (2) demonstrate a complete non ~sociation with drugs for a minimum of one year 

following the successful completion of the drug abuse program. See Appeal Decisions 2638 

(PASQUARELLA) and 2546 (SWEENEY). In addition, pursuant to 46 C.F.R. § 16.201(t), 

"[b ]efore an individual who has failed a required chemical test. .. may return to work aboard a 

vessel, the MRO must determine that the individual is drug-free and the risk of subsequent use of 

dangerous drugs by that person is sufficiently low to justify his or her return to work." Finally, 

because a mariner is not authorized to sail under the authority of bis or her credential until all of 

the requirements of cure are satisfied, the Coast Guard must retain a mariner's credential during 

for 5 years upon issuance) after the credential's expirntion date. 

4 
THOMPSON N0. 2667 

the cure process. See Appeal Decisions 2638 (PASQUARELLA) and 2634 (BARETT A); 

Commandant Decision on Review #18 (CLAY). 

The ALJ's D&O spends: considerable time discussing the issue of cure. Therein, 

although the ALJ properly states the elements of cure delineated in Sweeney, she nonetheless 

concludes that the third element of cure established by Appeal Decision 2638 

(P ASQUARELLA)- requiring a mariner to obtain a "return to work" letter from an MRO as 

part of the cure process-was not required in this case because the record did not contain 

evidence to indicate either that the testing of Respondent was conducted in accordance with the 

requirements set forth at 46 C.F.R. Part 16, or that Respondent's urine sample was collected and 

analyzed in accordance with the procedures set forth in 49 C.F.R. Part 40. After a thorough 

review of the record, I believe that the ALJ erred in so concluding. 

As is stated above, the Coast Guard charged Respondent with use of, or addiction to the 

use of, dangerous drugs based upon the fact that Respondent failed a post-accident drug test 

administered to him on February 22, 2000. The record shows, as I have already stated, that 

Respondent does not deny providing a urine sample on that date or that a sample was required 

due to an accident. [Tr. at 17-19] In addition, Respondent docs not contend either that his urine 

sample was collected or analyzed improperly or that his sample was certified as positive in error. 

[Id.] In her D&O, the ALJ found, based on Respondent's admissions in this regard, that 

Respondent was a user of dangerous drugs. [See D&O at 9] As such, Respondent is "an 

individual who failed a required chemical test for dangerous drugs" and, pursuant to 46 C.F.R. 

§ 16.20l(f), is required to obtain a "return to work letter" from an MRO as part of the cure 

process. Accordingly, the ALJ' s conclusion that the third element of cure set out in 

Pasquarella- requiring the mariner to obtain a "return to work" letter from a MRO as part of the 

5 
THOMPSON N0. 2 66 7 

cure process-does not apply to this case is in error and, because Respondent did not provide 

such a letter, the ALJ's conclusion that Respondent demonstrated cure is in error. 

That being said, even if the ALJ's conclusions with regard to the application of the 

Pasquarella case were correct, her ultimate findings with respect to cure would, nonetheless, 

also be in error. Addressing the Sweeney elements of cure, the ALJ stated as follows: 

... Having concluded that the two-prong test of SWEENEY applies to this case, 

the evidence ofrecord shows cure. As a result of his conviction, Respondent 

completed a drug rehabilitation program and was subject to drug testing for 

approximately two and a half years. Respondent was also subject to random drug 

tests between November 13, 2000 and November 13, 2001 from his marine 

employer, and Respondent did not refuse or fail any of those tests. 

[D&O at 12-13] 

Decision on Appeal 253 5 (SWEENEY) expressly states that the first two elements of 

cure involve the following: 

1. The respondent must have successfully completed a bona fide drug abuse 

rehabilitation program designed to eliminate physical and psychological 

dependence. This is interpreted to mean a program certified by a 

governmental agency, such as a state drug/alcohol abuse administration, or in 

the alternative, certified by an accepted independent professional association, 

such as the Joint Commission on Accreditation of Health Care Organizations 

(JCAHO). . 

2. The respondent must have successfully demonstrated a complete nonassociation with drugs for a minimum period of one year following successful 

completion of the rehabilitation program. This includes participation in an 

active drug abuse monitoring program which incorporates random, 

unannounced testing during the year. 

The record shows, as the ALJ notes, that Respondent completed some type of drug rehabilitation 

program in February, 2001. [Respondent's Exhibit 1] The record is silent as to what, exactly, 

the rehabilitation program entailed and, moreover, shows that it was not undertaken in response 

to the drug charge at issue here. Even if the drug rehabilitation program were found to comply 

with the first element of Sweeney, Respondent did not submit any evidence to show that he had 

6 
THOMPSON N0. 2 66 7 

successfully completed a one-year non-association with drugs after completion of the 

rehabilitation program. Therefore, Respondent has failed to satisfy the requirements for cure set 

forth in Sweeney. 

CONCLUSION 

Under 33 C.F.R. § 20.l 004, I am authorized to affirm, modify, or reverse the decision of 

the ALJ or to remand the case for further proceedings. Given my conclusion that the ALJ erred 

in finding that Respondent demonstrated cure, the Coast Guard's appeal is granted. 

ORDER 

The order of the ALJ, dated October 13, 2004, at New Orleans, Louisiana, with respect to 

the drug use charge, is REVERSED and REMANDED for further proceedings consistent with 

this opinion. Respondent shall be directed to immediately deposit his merchant mariner license 

at Coast Guard Marine Safety Office Morgan City, Louisiana. 

, 1 l~ ----~·- s. &A--,_-

Signed at Washington, D.C. this /'cf'' of kc.~.;:c: , 2007. 

V.S.CREA 

Vice Admiral, U.S. C08lt Guard 

Vice Commandant 

7 

•