UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

MARK GLEN WAIN, 

Respondent. 

Docket Number CG S&R 03-0586 

CG Case No. 1792703 

DECISION AND ORDER 

Issued: May 4, 2004 

Issued by: Joseph N. Ingolia, Chief Administrative Law Judge 

~----------------------------------~pp~r~nc~~·-------------------------------------

Lt. Scott Baranowski 

Investigating Officer 

Unites States Coast Guard 

Activities Baltimore 

2401 Hawkins Point Road Bldg #70 

Baltimore, MD 21226 

For the Coast Guard 

Nicholas A. Sloan 

Attorney at Law 

For Respondent 
d 

I.· PRELIMINARY STATEMENT 

On October 14, 2003, the United States Coast Guard (Coast Guard), through the 

Marine Safety Office in Baltimore, Maryland, filed a Complaint against the Seafarer's 

Training, Certification and Watchkeeping Certificate (STCW Certificate) and Merchant 

Mariner's document (MMD) issued to Mark Glen Wain (Respondent). The Coast Guard 

alleges Respondent committed two incidents involving misconduct when acting under the 

authority of his mariner credentials. The first allegation states Respondent failed to 

report to the SEA LAND EXPLORER (SEA LAND) for its scheduled departure. The 

second allegation of misconduct arose from Respondent's application for a duplicate 

MMD and STCW Certi'ficate. It states that he failed to attach a statement fully disclosing 

his conviction history. The Coast Guard further alleged an arrest on August 26, 2001 for 

assault and an arrest on September 14, 2001 for battery would have prevented the 

issuance or renewal of a license, certificate of registry, or MMD under 46 CFR 10.20l(h) 

to Respondent. 1 The Coast Guard proposed revocation as the appropriate sanction. 

+----------R:es-pemdent-fi-lecl-an-A-ns-wer-datecl-eet<Jber-3-l--,4;0(&,--He-admi-ttecl-al-l-----------

jurisdictional allegations, admitted that he accepted a deck crew maintenance position 

aboard the vessel SEA LAND EXPLORER as a credentialed mariner, and admitted that 

he failed to meet the vessel at the time of departure. However, Respondent denied that he 

disobeyed the master's orders. Further, Respondent denied he wrongfully submitted a 

fraudulent Application by failing to disclose his conviction history. 

As to the alleged fraudulent application, the Respondent claims he submitted a 

truthful and accurate application and, by reference, that he included his prior criminal 

1 Both of these arrests resulted in convictions that served as the basis for misconduct allegations filed by the 

Coast Guard. 

2 
records in earlier Coast Guard applications. Respondent alleged that matters referred to 

concerning convictions detailed in the Complaint were all public documents and 

available to the office originally conducting the investigation. 

The Chief Administrative Law Judge (Chief Judge) scheduled the suspension and 

revocation hearing for January 27, 2004, at the ALJ Docketing Center Courtroom (4th 

Floor), United States Custom House, 40 S. Gay Street, Baltimore, Maryland. However, 

inclement weather affected the greater Baltimore, Maryland area on January 26 through 

January 28, 2004 with significant ice and snow accumulation. The weather resulted in 

the closure of the Federal Government in Baltimore on January 26 and further delayed 

business on January 27. As a result ofthe inclement weather the hearing was continued 

to February 19, 2004. 

The hearing commenced on February 19, 2004, and the Coast Guard presented the 

testimony ofthree (3) witnesses and admitted sixteen (16) exhibits into evidence. 

Respondent testified on his own behalf and through his attorney admitted one exhibit into 

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consideration prior to the issuance of this Decision and Order. 

II. FINDINGS OF FACT 

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

record including: documentary evidence and witness testimony. 

1. Respondent began his career as a merchant mariner in 1978. (Tr. 91). 2 

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.__). 

3 
2. At all relevant times mentioned herein and specifically on or about 

Septembe~ 25, 2002, and July 9, 2003, the above-captioned Respondent held 

and acted under his Coast Guard issued MMD and STCW Certificate as 

required by law or regulation. (Tr. 79-113). 

3. Respondent accepted employment as member of the riding gang aboard the 

vessel SEA LAND as a credentialed mariner. (Tr. 80-82; Gov't Ex. 1 0). 

4. On September 25, 2002, Respondent failed to be onboard for the SEA 

LAND's scheduled departure time of2100 hours while the vessel was 

docked in Naha Okinawa, Japan. (Tr. 81-82, 87-88; Gov't Ex. 10). 

5. Respondent arrived at the empty dock at 2145; thereafter, Respondent 

returned to the United States at his own expense. (Tr. 88; Gov't Ex. 10). 

6. Timothy O'Laughlin, captain of the SEA LAND during the incident, testified 

that the standard policy for unlicensed personnel was to report to the vessel 

one hour before departure. (Tr. 80; Gov't Ex. 11 ). 

-:---------------+-. -R~pG-ndgnt-adm-i-ttgfl-in-hi.s-An.swgr-and-MgmGrcandum-£uppGTcti1±¥----------­

Respondent's Position that he committed misconduct by failing to be 

onboard for the vessel's scheduled departure. (Tr. 87-88). 

8. Sometime prior to July 9, 2003, Respondent attempted to file an application 

for duplicate documents with the Regional Exam Center (REC) in Baltimore, 

Maryland. (Tr. 89). However, the Coast Guard informed Respondent that 

his application could not be accepted because of an ongoing investigation in 

Long Beach, California, concerning his failure to be onboard for the 

scheduled departure of the SEA LAND in Naha Okinawa, Japan. (Tr. 103). 

4 
The investigation broadened to include infonnation affecting Respondent's 

background and past conviction records. (Tr. 103-104 ). 

9. On July 9, 2003, Respondent submitted an application for a duplicate MMD 

and STCW Certificate with the REC in Toledo, Ohio. (Tr. 13-15, 102-104; 

Gov't Ex. 1 ). 

10. Respondent applied for a duplicate MMD and STCW Certificate because his 

vehicle was stolen and his Coast Guard credentials, located inside the stolen 

vehicle at the time of the theft, were never recovered. (Tr. 89; Gov't Ex. 1). 

11. Respondent answered "yes" to three questions in Section III of the 

Application which inquired whether the applicant had ever been convicted 

by any court of an offense other than a minor traffic violation; whether he 

had ever been convicted of a traffic violation arising in connection with a 

fatal traffic accident, reckless driving or racing on highway, operating a 

vehicle under the influence of alcohol or a controlled substance; and whether 

-----------h~@-ver-h-ad--his-cl:riveF-s-1-i-censet evoked or suspendeaf'Offefusmg to submit 

to an alcohol or drug test. (Gov't Ex. 1). 

12. The application requires an attached statement for any questions answered in 

the affirmative under Section III. (Gov't Ex. 1). 

13. Respondent provided an attachment to his application explaining that he 

previously disclosed all infonnation to the best of his ability to the Coast 

Guard in Long Beach, California. Respondent further stated that he did not 

intend to deceive or mislead the Coast Guard by the absence of information. 

(Gov't Ex. 1). 

5 
14. On October 11, 2001, Respondent pled guilty to misdemeanor battery upon 

another person arising from an arrest on August 26, 2001, in Orange County, 

California. (Gov't Ex. 2). 

15. On October 11, 2001, Respondent pled guilty to misdemeanor assault and 

public intoxication stemming from an arrest on September 14, 2001. (Gov't 

Ex. 3). 

16. Scott Dow, Assistant Chief of the Regional Exam Center in Charleston, 

South Carolina, evaluates and reviews applications of merchant mariners 

including criminal conviction information. (Tr. 51-52). 

17. Previously, Mr. Dow held the same position in Long Beach, California. (Tr. 

52). During Mr. Dow's tenure with the Long Beach Office, Respondent 

submitted four applications: February 16, 1999, application for renewal of 

MMD; December 13, 1999, application for an endorsement on his MMD; 

March 13,2000, application for an endorsement on his MMD, and May 23, 

+--------------'+000;---appliea-ti-em-for-a-Heens-e:-(-'f~64-;-Genr2.t-E-x:-6;-9,&,---91-. -----------

18. Under Section VI ofthe four applications filed with the Long Beach Office 

entitled, Narcotics, DWI/DUI, and Conviction Record, Respondent replied 

"No" in response to the question whether he had ever "been convicted by 

any court, including military court, for an offense other than a minor traffic 

violation?" (Tr. 64; Gov't Ex. 6, 7, 8, 9). 

19. Respondent's application submitted on February 16, 1999, included an 

attachment disclosing a previous arrest and charge of driving under the 

influence in Lafayette, Louisiana on January 1, 1997. Respondent refused a 

breathalyzer and blood test and subsequently pled no contest to the charges. 

6 
Respondent further stated on his application, "Records on file Long Beach 

Coast Guard." (Tr. 59-60; Gov't Ex. 8). 

20. Respondent's application dated December 13, 1999, included an attachment 

with similar information regarding his DUI arrest and a statement that 

records were on file with the Coast Guard in Long Beach. (Tr. 61-62; Gov't 

Ex. 8). 

21. John Cassady, Chief of the Regional Exam Center in Baltimore, Maryland 

conducted an investigation regarding Respondent's prior applications. (Tr. 

11, 36-44). Mr. Cassady testified that he contacted the Marine Safety Office 

in Long Beach, California, and inquired about Respondent's prior conviction 

records. 

22. Mr. Cassady stated no records were on file with Long Beach to indicate prior 

convictions or violations. (Tr. 45-46). 

23. Mr. Cassady further explained that upon receipt of an application he 

+------------,eenduet-s-a-baelfg-rettlltl-i-nves-ti-gat-iefl-;-l-f-an--appl-ieant-f-a-Hs-te-cl-i-s-e-1-es-e-their'---------

prior conviction history, he will determine the appropriate assessment period. 

However, if the Coast Guard has already issued the document and the REC 

subsequently discovers an applicant's conviction history, Mr. Cassady will 

void the document and seek its return. (Tr. 23-24). 

24. Mr. Cassady explained, given Respondent's prior undisclosed conviction 

history, he would not have issued a license or MMD to respondent (Tr. 23-

24). 

25. The following convictions were not disclosed nor was an explanation 

provided on prior applications filed with the Coast Guard as required: 

7 
State of California 

January 1, 2003 Case No. SH02SM04029 pled guilty to public 

intoxication 

January 1, 2003 Case No. 03SM00041 pled guilty to possession of 

alcoholic beverage where prohibited 

State ofFlorida 

March 10, 1992 Case No. 92-10636 pled nolo contendere and served jail 

time for Resisting Arrest Without Violence 

January 14, 1993 Case No. 92-14299 pled nolo contendere and to battery 

and criminal mischief. Respondent served jail time for the battery charge 

and was place on six months of probation for the criminal mischief charge. 

January 14, 1993 Case No. 92-23093 pled nolo contendere and served jail 

time for resisting arrest with violence and public intoxication. 

January 14, 1993 Case No. 92-23821 pled nolo contendere and paid a fine 

for making repeated telephone calls for the sole purpose of harassing a 

person. 

(Tr. 100-102, 108-113, 122;Gov't Ex. 4, 5, 12, 13, 14, 15, 16). 

26. Respondent did not provide an explanation on his application submitted to 

the REC in Toledo, Ohio, on July 9, 2003, for convictions that resulted from 

+-----------~-rres-t-s-Em-Augus-t~00-l,-ancl-8-eptemher-1~00-1--;-(--Cf-:r.--43-46t-Gev-!-t-B--:x:c-, -------

1 ). 

III. 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. 

2. At all relevant times, Respondent held and acted under the authority of his 

United States Coast Guard License and Merchant Mariner's Document as 

required by law or regulation. 

8 
3. The Coast Guard PROVED by a preponderance of reliable, probative, and 

substantial evidence that on September 25, 2002, Respondent committed the 

act of misconduct by failing to follow the master's orders to be on board the 

SEA LAND EXPLORER for the vessel's scheduled departure from Naha 

Okinawa, Japan. 

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

substantial evidence that on July 9, 2003, Respondent committed misconduct 

by failing to fully disclose his conviction history and submitted a fraudulent 

application to the Coast Guard, Regional Exam Center, Toledo, Ohio. 

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

substantial evidence that Respondent's conviction history prevents the 

issuance or renewal oflicense, certificate, or merchant mariner's document. 

IV. 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, certificate, or merchant mariner's document 

for violations arising under 46 U.S.C. 7703 and 7704. See 46 CPR 5.19. Here, the Coast 

Guard charged Respondent with two allegations of misconduct arising under 46 U.S.C. 

7703. See also 46 CPR 5.27. The Coast Guard seeks revocation of Respondent's 

merchant mariner's document. 

A. Burden of Proof 

The Administrative Procedure Act (APA), 5 U.S.C. 551-559, governs Coast 

Guard suspension and revocation hearings. 46 U.S.C. 7702(a). The APA authorizes 

9 
imposition of sanctions if, upon consideration of the record as a whole, the charges are 

supported by reliable, probative, and substantial evidence. 5 U.S.C. 556(d). Under Coast 

Guard procedural regulations, the burden of proof is on the investigating officer to prove 

the charges made by a preponderance of the evidence. 33 CFR 20.701, 20.702(a). "The 

term substantial evidence is synonymous with preponderance of the evidence as defined 

by the Supreme Court." Appeal Decision 2477 (TOMBARI) (1988). The burden of 

proving a fact by a preponderance of the evidence "simply requires the trier of fact 'to 

believe that the existence of a fact is more probable than its nonexistence before [he] may 

find in favor of the party who has the burden to persuade the [judge] of the fact's 

existence."' Concrete Pipe and Products of California, Inc. v. Construction Laborers 

Pension Trust for Southern California, 508 U.S. 602, 622 (1993) (citing In re Winship, 

397 U.S. 358, 371-372 (1970). (Harlan, J., concurring) (brackets in original)). Therefore, 

the Coast Guard must prove with reliable and probative evidence that Respondent more 

likely than not committed the violations charged. 

B. Misconduct 

Misconduct is defined as "human behavior which violates some formal, duly 

established rule. Such rules are found in, among other places, statutes, regulations, the 

common law, the general maritime law, or a ship's regulation or order or shipping articles 

and similar sources." 46 CFR 5.27. 

1. Failure to Report to the SEA LAND on September 25, 2002 for its 

Scheduled Departure 

The first count of misconduct alleges Respondent failed to be onboard the SEA 

LAND on September 25, 2002 for its scheduled departure at 2100 hours in Naha 

Okinawa, Japan. Essentially, he is charged with failure to join the vessel. Section 38 of 

10 
the Seafarer's International Union Agreement provides the Sailing Board Time for 

unlicensed personnel shall be one hour prior to vessel departure. (Tr. 74-76; Gov't Ex. 

11). On September 25, 2002, the SEA LAND's scheduled departure time was 2100 

hours. The official logbook shows that Respondent arrived to an empty dock at 2145. 

(Gov't. Ex. 10). The Captain of the vessel testified that Respondent was late for the 

vessel's departure. (Tr. 80-82). Respondent, serving as a member of the ride-alonggang, also admits he failed to be onboard for the vessel's departure in Naha Okinawa, 

Japan. (Tr. 87-88). 

Under Coast Guard common law, a failure to join a vessel constitutes Misconduct. 

Appeal Decision 399 (TATE) (1950). The logbook entry documenting a respondent's 

failure to join the vessel at the scheduled departure time establishes a prima facie case of 

Misconduct. Appeal Decision 2068 (REED) (1976). A respondent's admission also 

constitutes a waiver of all non-jurisdictional defects and defenses and is sufficient to 

support a finding that the charges are proved. Appeal Decision 2376 (FRANK) (1985). 

-------Cf-htts-;--in-this-eas-e,-the-lt}goo0k--entry;-Resp0ndettFs-ad-m-is-s-i0n-,antHhe-tes-Hmt}ny---<')f-the,--------

Captain of the vessel that Respondent was late for the vessel's departure on September 

25, 2002 in Naha Okinawa, Japan is sufficient to establish misconduct. 

2. Failure to Fully Disclose Conviction History 

The second count of misconduct alleges Respondent wrongfully submitted a 

fraudulent Application Forn1 (719B) for a duplicate MMD and STCW Certificate on July 

9, 2003 by failing to fully disclose his conviction history. Title 46 CPR 12.02-23(b) 

provides that in the event a mariner loses his MMD in a manner other than a shipwreck or 

casualty, a duplicate document shall be reissued upon application by the mariner and 

11 
payment of the appropriate fee. 46 CFR 12.02-23(b), (c)? To initiate this process, the 

mariner may proceed to any Regional Exam Center (REC) to complete an application. 

46 CFR 12.02-23( c). Coast Guard regulations further require the mariner to provide 

"written disclosure of all prior convictions at the time of application" and failure to 

comply with this regulation serves as the basis for denial of a document. 46 CFR 12.02-

4(c) (emphasis added). 

Here, Respondent submitted an application at the REC in Toledo, Ohio, on July 9, 

2003, for a duplicate MMD and STCW Certificate. Respondent explained that his car 

and all of his documents were stolen while in Laguna Beach, California. (Tr. 89-90; 

Resp Ex. A). Respondent had previously attempted to file an application for duplicate 

documents with the REC in Baltimore, Maryland. (Tr. 89). However, the Coast Guard 

REC in Baltimore, Maryland informed Respondent his application could not be accepted 

because of an ongoing investigation in Long Beach, California, concerning his failure to 

be onboard for the scheduled departure of the SEA LAND in Naha Okinawa, Japan. (Tr. 

-------l-03-j:-'F-he-i-nves-t-ig-at-ien-ul-t-i-m-at-el-y-broatlened-tc-ind-ud-e-in-f(Jrmttt-it)n---a-ffeet-inff-------------

Respondent's background and past conviction records. (Tr. 103-104). 

On the application submitted in Toledo, Ohio, Section III entitled Narcotics, 

DWIIDUI, and Conviction Record, Respondent marked the "Yes" box which inquired 

whether the Applicant had ever been convicted by any court of an offense other than a 

minor traffic violation; whether he had ever been convicted of a traffic violation arising 

in connection with a fatal traffic accident, reckless driving or racing on highway, 

3 "The Phrase or other casualty as used in this section is interpreted to mean any damage to a ship caused 

by collision, explosion, tomado, wreck or flooding of the ship, such as a tidal wave or a ground of the ship 

on a sand bar, or a beaching of the ship on a shore or by fire or other causes in a category with these 

mentioned." 46 CPR 12.02-(23)(a) (emphasis in original). 

12 
operating a vehicle under the influence of alcohol or a controlled substance; and whether 

he had ever had his driver's license revoked or suspended for refusing to submit to an 

alcohol or drug test. (Gov't Ex. 1). Following each of the three questions, the applicant 

is instructed to attach a statement for any questions answered in the affirmative. (Gov't 

Ex. 1). Here, Respondent's attachment claimed he previously disclosed all information 

to the best ofhis ability to the Coast Guard in Long Beach, California. Respondent 

further stated, he did not intend to deceive or mislead the Coast Guard by the absence of 

information. (Gov't Ex. 1). 

The Coast Guard's investigation of Respondent's July 2003 application revealed 

that he failed to disclose his prior convictions as required by 46 CFR 12.02-45(c).4 (Tr. 

46, 116). Prior to Respondent's July 2003 application, he filed an application for an 

original license on May 22, 2000, in Long Beach California and an application for a 

MMD on March 9, 2000, also in Long Beach, California. (Gov't Ex. 6, 7). However, 

neither application disclosed prior conviction records as claimed by Respondent in his 

+---------~ttaehmenH-o-t-he-Jul-y-2003-appl-i-eat-ion:-F-urthermore;--t-wo-conviet-io-ns--b-y--the-&t-a-te--o--t------------

California, involving arrests on August 26, 2001 for battery and September 14, 2001 for 

assault on a person and disorderly conduct, occurred during the time period between 

applications submitted in Long Beach, California, and Toledo, Ohio. Respondent never 

disclosed these two convictions to the Coast Guard. (Tr. 46, 53-66; Gov't Ex. 6). 

Given the overall evidence of record, it is clear that, at best, Respondent was both 

inaccurate and cavalier when he filed both the application that was referred to in the 

4 The Investigating Officer incorrectly cited to 46 CFR 10.201 (h) in paragraph 9 of the Complaint as the 

underlying regulatoty authority for supporting an allegation of misconduct. Here, Respondent applied for a 

duplicate MMD, therefore the appropriate underlying regulation for an allegation of misconduct is 46 CFR 

12.02-4(c). See Appeal Decision 2581 (DRIGGERS) (1996) (error does not occur when specifications cite 

incorrect law). 

13 
complaint and when he filed other similar applications on prior occasions where he failed 

disclose his criminal convictions. Indeed, the former Assistant Chief of the REC in Long 

Beach testified that four convictions, including the two October 11, 2001 convictions set 

forth in the complaint and two January 1, 2003 convictions, occurred after Respondent 

filed his May 23, 2000 application for a license in Long Beach.5 Consequently, whatever 

may have been Respondent's intent in referring the examiner to the Long Beach records 

as an explanation for his "yes" answers, the reference was untruthful and fraudulent. 

Respondent further alleges that his prior convictions were public record and that 

the responsibility for finding prior convictions was on the Coast Guard. The 

Commandant, in Appeal Decision 2456 (BURKE) (1997), rejected a similar argument. 

The Commandant held, "Appellant's reasoning would lead to a situation in which 

applicants could falsify their applications but escape any sanction if the false information 

is not immediately discovered." Id. As the Commandant recognized in Appeal Decision 

2569 (TAYLOR) (1995), "information concerning the criminal background of an 

+----------4'tppliea-nt-i-s-a-eruei-a:l-f-aete-r-ft>·r-the-Gelast-6tt-ard-i-n-deei-eH-ng-whether-t-eri-s-s-ue-seam-a:n'«---------

papers because an applicant's character relates to the risk he may pose to the seafaring 

world. Consequently, the truth of information provided by applicants for licenses and 

documents is essential to the Coast Guard's ability to discharge its mission of protecting 

life and property at sea." The regulations at 46 CFR 12.02-4(c) clearly places the burden 

of truthfully disclosing all prior convictions on the applicant seeking merchant mariner's 

credentials. Given the vast number of applications the Coast Guard receives on a daily 

5 The two Januaty 1, 2003 convictions occurred in the State ofCalifonia and involved the following cases: 

Case No. SH02SM04029 pled guilty to public intoxication 

Case No. 03SM00041 pled guilty to possession of alcoholic beverage where prohibited 

14 
basis, it would prove to be unduly burdensome for the onus to be placed on the agency to 

discover prior convictions of all its applicants. Especially since most of these convictions 

are violations of State laws. 

It should also be noted that, in the Respondent's post-hearing brief, he raises four 

additional arguments in response to the Coast Guard's position in this case. The first 

argument is that the relevant questions in Section III are all answered "Yes," which 

ultimately discloses Respondent's conviction record. Answering "Yes" to the questions, 

however, is insufficient. As previously stated, Respondent had a duty to provide a 

written disclosure of all prior convictions at the time of his application. See 46 CFR 

12.02-4(c); see also (Gov't Ex. 1). When an application is made for Coast Guard 

credentials, the Coast Guard must rely on the applicant to supply information that is both 

accurate and truthful in order to effectively evaluate the applicant's character to serve on 

board a vessel. The fact that Respondent's explanation to the questions in Section III did 

not include all ofhis convictions potentially deprived the Coast Guard of its ability to 

+--------a,ee-ur-atel-y-svaluate--Res-pe-nEloot+fitnes-s--te-sewe--en-beaf<i--a-vesss-1-.--. ---------------

The second argument is that certification for Section III is not signed and that 

should have triggered a discussion with Respondent instead of forwarding the case to the 

Investigating Officer (IO) for an S&R proceeding. The fact that the certification of 

Section III was not signed is not relevant to the issues in this case. It may well be that if 

all that was lacking was a signed certification a simple inquiry rather than reference to an 

IO would have sufficed. However, more than just a missing signature is involved in this 

case. Hence, one cannot reasonably question the referral of the case to an IO. 

The third argument is that the Coast Guard submitted into evidence an incomplete 

application that did not contain the page involving the Privacy Statement. The portion of 

15 
the statement of greatest interest to Respondent sets forth the principle purpose for which 

the infonnation is intended to be used. See Memorandum Supporting Respondent's 

Position, Attachment.6 It in no way affects the issues involved in this proceeding. 

Respondent also asserts that he should be able to rely on the testimony ofLCDR John 

Passero, who testified that the policy of Long Beach REC is to forward all documents 

pertaining to an investigation to the investigation station if the investigation were 

transferred. Respondent totally misses the point. The record reveals that the two 

convictions that are referenced in the Coast Guard's complaint were never disclosed by 

Respondent and thus were not part of the record in Long Beach. Moreover, there were 

other convictions that were not mentioned in the complaint, which never became part of 

his Coast Guard record in Long Beach. There is nothing in the Privacy Statement or 

LCDR Passero's testimony that supports Respondent's position. Indeed, it explains why 

an applicant should be careful to supply accurate information. 

Given all of the above, based on the entire record made in this case, I find that the 

;---------l:J-ni-ted-£tat8S-Gea-s-t-G'I:l-a-Fd-ha-s-J3F0Ved-13y--a-]3fSJ30fl:d-er-anee--ef-th-e-evidsnee--that-tht:l-----------

Respondent's July 9, 2003 application failed to disclose two convictions from the State of 

California in violation of 46 CPR 23.02-4(c) resulting in misconduct as defined in 46 

CPR 5.27 and the failure to disclose the convictions was fraudulent. 

6 The relevant portion of the Privacy Statement provides as follows: 

2. Principle purposes for which information is intended to be used. 

A. To establish eligibility for a Merchant Mariner's Document, duplicate documents, or 

additional endorsements issued by the Coast Guard. 

B. To establish and maintain a continuous record of the persons documentation transactions. 

C. Part of the information is transfened to a file management computer system for a 

permanent record. 

16 
V. SANCTION 

The predominant issue in this case is whether the Coast Guard's request for 

revocation should be granted. The law and regulations are clear that "where fraud in the 

procurement of a license [or document] is proved in a suspension and revocation hearing, 

revocation is the only appropriate sanction." Appeal Decision 2613 (SLACK) (1999). 

See also Appeal Decision 2570 (HARRIS) (1995) (revocation appropriate sanction where 

fraud in procurement of license proved); Appeal Decision 2569 (TAYLOR) (1995) 

(revocation appropriate sanction for fraudulent application submitted for MMD); Appeal 

Decision 2346 (WILLIAMS) (1984) (revocation affirmed for wrongful and fraudulent 

application submitted to Coast Guard); Appeal Decision (ROBLES) (1980) (fraud in 

procurement of license, revocation only appropriate disposition). In essence, the 

Administrative Law Judge has no discretion. 

It is also true that where false statements are involved in the application, rather 

than fraudulent statements, an ALJ has discretion and may consider mitigating and 

aggravating factors when considering the appropriate sanction. See Appeal Decision 

2607 (ARIES) (1999); Appeal Decision 2456 (BURKE) (1987). The exercise of that 

discretion on an ad hoc basis may range from suspension to revocation being imposed by 

the ALJ in a given case. 

The definition of fraudulent statement and false statement in Coast Guard law is 

quite subtle. The applicable case law establishes that a statement on an application is 

fraudulent if it is made with actual or constructive knowledge that the representation is 

17 
false. Appeal Decision 809 (MARQUES) (1955).7 On the other hand, a false statement 

is a lesser-included offense of fraud and does not require knowledge as an element of 

proof. See Appeal Decision 2608 (SHEPHERD) (1999); BURKE. The essential 

difference between fraudulent statement and false statement may affect the severity of the 

sanction. 

A. Revocation is Mandated 

The facts and surrounding circumstances of this case indicate that much more 

than an unintentional error or inadvertent inaccuracy occurred. In arriving at the 

sanction, I considered the testimony ofMr. John Cassady, the Chiefofthe REC in 

Baltimore Maryland. He stated that Long Beach had no record of the two convictions by 

way of a plea of guilt to the two separate incidences of battery and assault resulting from 

arrests in August and September 2001. During the hearing, Mr. Cassady was referred to 

46 CFR 12.02-4 which enumerates convictions and assessment periods for different 

offenses giving minimum and maximum assessment periods. When asked what the 

assessment period would be for a person having both an assault conviction and a battery 

conviction in 2001, Mr. Cassady replied, "The minimum, maximum is 1 to 5 years and 

given the circumstances, probably five years looking at the totality of the offenses." 

So here, if the REC knew of Respondent's convictions, Respondent most likely 

would have had to wait 5 years (the assessment period in the regulations) before he could 

reapply for a license or document or their renewal. In other words, under the 

regulations and REC practices, the existence of the prior convictions, even without a 

7 A statement is made with actual knowledge if the statement is made without belief in its truth or with 

reckless disregard of the truth. MARQUES. Constructive knowledge exists if the person had a reason to 

know the representation was false. Id. 

18 
fraudulent statement, would, of themselves, warrant denial of the application for five 

years. 

Here, Respondent's actions regarding his prior convictions and the manner, 

timing and content ofhis application all lead to a rather transparent attempt toward 

knowingly submitting a misleading application and his actions were fraudulent within the 

meaning of Appeal Decision 809 (MARQUES). Respondent acted in a fraudulent 

manner by failing to provide written disclosure of the prior convictions as required by 46 

CFR 12.02-4(c). His statement in Section III of the application to the questions 

concerning his prior convictions and direction to the records in Long Beach only served 

to mislead the reviewer rather than to explain and clarify. 

After the date of his application in Long Beach, California, and prior to 

submitting his application in Toledo, Ohio, Respondent was convicted by pleading guilty 

to two separate incidences of battery and assault resulting from arrests in August and 

September 2001. Respondent actively participated in the court proceedings regarding 

+-----------'pr-ebatioo--i-ssues---in-13et-h-ea-ses---unt-i-l-M-ay-£(}~-;--I--:f:ina-Res-pende-nt-oould--net-ha¥B-----------

truthfully believed his answer that prior convictions were on file with Long Beach, 

California knowing that the last application filed in Long Beach was in May 2000. 

Further aggravating facts were admitted regarding seven additional conviction records 

which Respondent never disclosed on four prior applications filed with Long Beach 

between March 1999 and May 2000. 8 I find Respondent's failure to disclose his lengthy 

8 Respondent did not disclose the following convictions: 

State of California 

Case No. SH02SM04029 pled guilty to public intoxication 

Case No. 03SM00041 pled guilty to possession of alcoholic beverage where prohibited 

19 
conviction history further demonstrates his reckless disregard of submitting truthful 

applications. I further find that Respondent did not act in good faith when he submitted 

the application to the Toledo, Ohio, REC following rejection ofhis application for 

duplicate documents in Baltimore, Maryland because ofthe ongoing investigations that 

led to a review ofhis criminal convictions. Based on the foregoing, I find Respondent's 

statement attached to his application was made with knowledge of its untruthfulness and 

that his application statement was fraudulent. Thus, revocation is mandated. 

In so holding, the undersigned is aware of the fact, that Respondent's difficulties 

are related to alcoholism and that he is participating in rehabilitation. However, ensuring 

safety at sea weighs heavily against considerations that may involve a respondent's 

personal circumstances. In any event, with or without a holding of fraud, the appropriate 

sanction here is revocation. While it is severe, it is not necessarily permanent and 

Respondent's attention is directed to 33 CFR 20.904, which allows a respondent to 

reopen a matter when he can show specific and significant progress. Respondent's 

-+-------~-ttenti-on--is-atS"o-direet-ed-to--4-6-€-F-.R:--5-;-90-1.,-whi-eh-a-H-ows-a!egpon-dent-to-apply---fer'~"----------

administrative clemency after revocation. 

B. The Order Applies to All Coast Guard Credentials 

In addition, although not raised by the parties, the boiler plate language in the 

complaint notifies respondent that the "Coast Guard has initiated an administrative 

proceeding against [his] license, certificate, and/or merchant mariner's document 

State of Florida 

Case No. 92-10636 pled nolo contendere and served jail time for Resisting Arrest Without Violence 

Case No. 92-14299 pled nolo contendere and to battery and criminal mischief. Respondent served jail time 

for the battery charge and was place on six months of probation for the criminal mischief charge. 

Case No. 92-23093 pled nolo contendere and served jail time for resisting arrest with violence and public 

intoxication. 

20 
(MMD)." However, the jurisdictional allegations of the complaint only reference 

Respondent's MMD and the factual allegations of the complaint reference Respondent's 

MMD and STCW Certificate. There is no reference to Respondent's license authorizing 

him to serve as a Third Mate. Having found misconduct proved and that revocation is 

warranted, the next question is whether the order should be directed against all licenses, 

certificates, or any document issued to Respondent. For the reasons stated below, I find 

that the Order should affect all ofRespondent's Coast Guard credentials. 

Title 46 CFR 5.567(b) describes the pennissible scope of an order by an 

Administrative Law Judge in a suspension and revocation hearing, stating that "[t]he 

order is directed against all licenses, certificates or documents, except that in cases of 

negligence or professional incompetence, the order is made applicable to specific 

licenses, certificates or documents .... " In Appeal Decision 2593 (MOWBRAY) (1997), 

the Commandant rejected the argument that an order of revocation directed against all of 

respondent's credentials constituted a denial of due process where the Notice of Hearing 

+--------->~ncl-8harges-i-s-s-tted-b-y-t-he-8oos-t-6uard--cnly--spo-ke-o-f-po-t-ent-i-al-aetion--agai-nst--------------

Respondent's license. The Commandant held that 46 CFR 5.567 is "clear that an order 

by an Administrative Law Judge in suspension and revocation hearings is to be directed 

against all licenses, certificates, and documents, except in limited cases where someone is 

charged with negligence or incompetence." The Commandant found that the publication 

of 46 CFR 5.567 provided respondent with sufficient notice of its content. As such, there 

was no due process violation or a violation of the clear language of 46 CFR 5.567 when 

the ALJ directed the order against all Respondent's Coast Guard credentials. 

Case No. 92-23821 pled nolo contendere and paid a fine for making repeated telephone calls for the sole 

purpose of harassing a person. 

21 
In this case, since allegation in this case does not fall under the exceptions set 

forth in 46 CPR 5.567, revocation of all licenses, certificates, or documents issued to 

Respondent Mark Glen Wain is required. 

WHEREFORE, 

VI. ORDER 

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

Document, and STCW Certificate are hereby REVOKED and shall be immediately 

surrendered to Lt. Scott Baranowski, Investigating Officer, United States Coast Guard, 

Activities Baltimore, 2401 Hawkins Point Road, Building #70, Baltimore, Maryland. 

Dated May 4, 2004 

Baltimore, Maryland 

22