UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STA TES COAST GUARD 

vs. 

MERCHANT MARINER DOCUMENT 

and 

MERCHANT MARINER LICENSE 

Issued to: HOW ARD C. MILLS 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

N0. 26 7 5 

This appeal is taken in accordance with 46 U.S.C. § 7701 et seq., 46 C.F.R. Part 

5, and the procedures set forth in 33 C.F.R. Part 20. 

By a Decision and Order (hereinafter "D&O") dated October 27, 2004, an 

Administrative Law Judge (hereinafter "ALJ") of the United States Coast Guard 

dismissed a Complaint against Mr. Howard C. Mills' (hereinafter "Respondent") 

merchant mariner license and document upon finding the charges of violation of law or 

regulation and misconduct not proved. 

PROCEDURAL HISTORY 

The Coast Guard filed its original Complaint against Respondent with the Coast 

Guard ALJ Docketing Center on May 13, 2004. [D&O at 2] On June 7, 2004, the Coast 

Guard filed an Amended Complaint (hereinafter "Complaint") which specifically 

amended the factual allegations for the violation of law or regulation charge with the ALJ 

Docketing Center. [Id.] Respondent's reply to the Complaint was received by the ALJ 

Docketing Center on the same day. [Answer] In his Answer, although Respondent failed 
MILLS N0.26 7 5 

to address the jurisdictional allegations, he expressly denied the factual allegations and 

requested a hearing in the matter. [Id.] 

The hearing in the matter was initially scheduled for August 17, 2004; however, 

pursuant to Respondent's request, the AU issued a continuance, setting the hearing date 

for September 30, 2004. (ALJ Scheduling Order dated June 30, 2004; AU Notice of 

Continuance dated July 21, 2004] 

The hearing in the matter convened in Morgan City, Louisiana, on September 30, 

2004. Respondent appeared personally and elected to represent himself. At the hearing, 

Respondent admitted all jurisdictional allegations, but denied that he had been drunk or 

incapacitated in any way, related to the violation of law or regulation charge, or that he 

had refused to submit a urine sample for drug testing, which related to the misconduct 

charge. The Coast Guard introduced the testimony of two witnesses and entered nine 

exhibits into the record during the hearing. Although Respondent did not call any 

witnesses or submit any exhibits, he testified on his own behalf and actively crossexamined the Coast Guard's wftnesses. 

At the close of the hearing, the ALJ informed the Coast Guard that it would have 

ten days to prepare a document that would "clarify their pleadings as to what laws or 

regulations they think ... [Respondent] ... has violated." [Transcript Record (hereinafter 

"TR") at l 09] The Coast Guard submitted its clarifying document on October 15, 2004. 

[D&O at 2] Thereafter, on October 27, 2004, the AU issued her D&O dismissing the 

Coast Guard's Complaint against Respondent and removing it from the docket. 

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MILLS NO. 267 5 

On November 2, 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 22, 2004. 

Therefore, this appeal is properly before me. 

APPEARANCES: Respondent appeared pro se. The Coast Guard was 

represented by Lieutenant Kathryn A. Kulaga and Chief Warrant Officer Jason A. Boyer 

of U.S. Coast Guard Marine Safety Office, Morgan City, Louisiana. 

FACTS 

On February 16, 2004, Respondent was acting under the authority of his Merchant 

Mariner credentials when he reported for duty, as Chief Engineer, aboard the M/V CARL 

F. THORNE, a vessel subject to Coast Guard inspection. [D&O at 3 & 5] At that time, 

Respondent was employed by the vessel's owner, Tidewater Marine Services (hereinafter 

"Tidewater"), an "offshore supply boat company" that used the vessel to provide 

services, including the carrying of supplies, to oil rigs. [TR at 17; IO Exhibit 3] 

On February 16, 2004, Tidewater's operations managers were infonned that 

because the vessel was going to "pick up a job" with Exxon, all of its crewmembers 

would be required to submit to "pre-access" drug and alcohol testing. [TR at 18-19] To 

conduct the testing, Tidewater's Safety Captain, Mr. Mark Dawson, who was responsible 

for assisting with drug screening and escorting third party vendors aboard Tidewater's 

vessels, and Mr. David Fournier, an employee of SECON (the company hired by · 

Tidewater for administering Tidewater's drug screening program) boarded the CARL F. 

THORNE. [D&O at 2-3; TR at 18-22, 38-39] Messrs Dawson and Fournier boarded the 

vessel at approximately 3:00 p.m. and understood that their sole purpose in so doing was 

3 
MILLS NO. 267 5 

to conduct "pre-access" chemical testing of the CARL F. THORNE's crewmembers. 

[D&O at 7; TR at 18-22, 38-39] 

Upon boarding the vessel, Mr. Dawson informed the ship's Captain that he and 

Mr. Fournier where onboard to conduct the drug and alcohol testing customarily required 

prior to engaging in work with Exxon. [D&O at 8; TR at 21] In response, the vessel's 

Captain "rousted" the crew and instructed them to convene in the galley so that they 

could all be administered drug and alcohol tests. [Id.] Although Mr. Dawson remained 

in the galley while the crewmembers were tested, he was not responsible for conducting 

any of the tests and did not actively observe their administration. [D&O at 8; TR at 21-

23] Mr. Fournier was responsible for administering all of the tests required by Exxon on 

February 16, 2004. [TR at 44-46; D&O & 9] 

To conduct the requisite tests, Mr. Fournier collected a urine sample from, and 

administered a blood alcohol test (hereinafter "BAT") to, each of the CARL F. 

THORNE's crewmembers. [D&O at 9; TR at 53, 65] Respondent was the last 

crewmember to undergo chemical testing on February 16, 2004. [TR at 72] When 

Respondent was first asked to provide a urine sample, he was unable to provide a 

sufficient quantity of urine for testing. [D&O at 3] Respondent's first sample measured 

less than 45 mL and was discarded as invalid. [TR at 56, 67-68] Respondent was the 

only crewmember unable to provide a urine sample of sufficient quantity. [TR at 21] 

Moreover, when Mr. Fournier administered a BAT to Respondent, the machine registered 

a result of 0.175 g/210L. 1 [D&O at 3; IO Exhibit 8] Fifteen minutes later, when Mr. 

1 The record does not include a complete explanation of breath testing procedures or how to interpret the 

results. The ALJ cited to 33 C.F.R. § 95.010, noting that the standard unit of measurement for such tests in 

terms of grams of alcohol per 210 liters of breath. [D&O at 3, n. l] See 33 C.F.R. § 95.010 (Definition: 

"Alcohol concentration"). 

4 
MILLS NO. 267 5 

Fournier administered the confirmation test to Respondent, the test registered a result of 

0.158 g/21 OL. [Id.] Based on these test results, Respondent was advised that he had 

failed the alcohol test and would be required to leave the vessel. [D&O at 8; TR at 23-

24] Respondent then went to his stateroom to wait for a vehicle to arrive to transport him 

and his belongings away from the vessel. [TR at 92-92] Respondent did not provide a 

second urine sample. [D&O at 9; TR at 25] 

BASES OF APPEAL 

This appeal is taken from the ALJ's D&O which dismissed the Coast Guard's 

Complaint upon finding that the record contained insufficient evidence to support a 

conclusion that Respondent had either committed a violation of law or regulation or 

misconduct. The Coast Guard has raised and discussed numerous issues on appeal which 

I have consolidated and will address in the following: 

I The All erred by ruling that the Coast Guard failed to prove that 

Respondent was intoxicated when he reported for duty aboard the MIV 

CARL F. THORNE; and, 

II. The ALJ erred by ruling that the Coast Guard.failed to prove the 

Respondent refused to submit to a drug test. 

Opinion 

I. 

The AL.J erred by ruling that the Coast Guard failed to prove that Respondent was 

intoxicated when he reported for duty aboard the MIV CARL F. THORNE. 

The Coast Guard first argues that the ALJ committed error by ruling that the 

Coast Guard failed to prove that Respondent was intoxicated on the day in question. 

[Coast Guard Appellate Brief (hereinafter "Appellate Brief') at 1 & 3] Particularly, the 

Coast Guard insists that the ALJ improperly discounted the testimony of the alcohol 

5 
MILLS NO. 2675 

breath test collector as to the veracity of the alcohol tests and the effect of the 

Respondent's use of mouthwash prior to the tests, thereby leading the ALJ to determine 

that the tests were invalid. [Id.] Related to that finding, the Coast Guard takes issue with 

the failure of the ALJ to ask the Coast Guard for the calibration tests for the alcohol 

testing device, which would have further bolstered the accuracy of the tests. [Id. at 4] 

Finally, the Coast Guard noted that "[s]hould the ALJ have felt a factor [sic] needing 

clarification during the hearing, she could clarify that factor at that time, rather than 

surprising the Coast Guard with a D&O that states multiple times" that the Coast Guard 

failed to prove its case. [Id.] 

Applicable Coast Guard regulations prohibit a merchant mariner, such as the 

Respondent in this case, from operating a vessel (including being a crewmember), other 

than a recreational vessel, with an alcohol concentration of .04 percent or higher, or, if 

"the effect of the intoxicant(s) consumed by the individual on the person's manner, 

disposition, speech, muscular movement, general appearance or behavior is apparent by 

observation." 33 C.F.R. §§ 95.020(b) & (c); See, also, Appeal Decision 2551 

(LEVENE). The regulations further provide: 

Acceptable evidence of when a vessel operator is under the 

influence of alcohol or a dangerous drug includes, but is 

not limited to: 

(a) Personal observation of an individual's manner, 

disposition, speech, muscular movement, general 

appearance, or behavior, or, 

(b) A chemical test. 

33 C.F.R. § 95.030. A "chemical test" is defined as "a test which analyzes an 

individual's breath, blood, urine, saliva and/or other bodily fluids or tissues for evidence 

of drug or alcohol use." 33 C.F.R. § 95.0 I 0. 

6 
MILLS NO. 26 7 O 

In order to prove Respondent was intoxicated, or under the influence of alcohol, 

the Coast Guard called the SECON collector who measured Respondent's alcohol level 

using a breathalyzer, and introduced a document from SECON as an exhibit on which the 

results of the breathalyzer were recorded. [D&O at 9-13; Investigating Officer's 

(hereinafter "IO") Exhibit 8] The breathalyzer indicated a reading of .175 g/21 OL for the 

first test and .158 g/21 OL for the second test. (IO Exhibit 8] 

After introducing a Certificate of Training showing the SECON collector was 

certified in specimen collection procedures, the Coast Guard IO questioned the collector 

regarding the calibration of the breathalyzer machine. [TR at 38-42; IO Exhibit 6] The 

collector testified that the machine was calibrated, that it is checked weekly, and that a 

safety officer for SECON does a complete calibration every six months. [TR at 42-43] 

The collector elaborated that after the machine returns a reading of alcohol above .02, it 

is again subjected to calibration once the collector returns to the home office. [Id. at 43] 

The collector further testified that he had the records for the calibration with him and 

offered them to the IO for introduction into evidence if he wanted. [Id. at 44] The IO did 

not further question the collector regarding calibration, nor ask the collector for any 

calibration documents for entry into the record. 

Next, the SECON collector testified that the initial breathalyzer test result from 

Respondent was positive for alcohol, which necessitated the blanking out of the 

breathalyzer machine, therefore triggering a mandatory 15 minute waiting period before 

the device could be utilized and the second confirmation test administered. [TR at 47-53] 

The second test was administered, and once again the Respondent tested positive for 

alcohol. [Id.; IO Exhibit 8] Subsequent to this testimony, the ALJ admitted the "Breath 

7 
MILLS NO. 2675 

Alcohol Testing Form" as IO Exhibit 8 and gave notice to the Coast Guard that she 

would ''need some more information so I can judge the validity of the test results that are 

indicated on [the] form .. .. " [TR at 50] The Coast Guard IO affirmatively acknowledged 

the direction from the ALJ, however, the Coast Guard did not conduct any further 

examination of the SECON collector regarding the validity of the tests other than asking 

the SECON collector to recite the results of the breathalyzer tests that were indicated on 

IO Exhibit 8. [TR at 50-53] The ALJ noted that the Coast Guard did not seek any 

testimony from the collector "about the calibration supposedly done at the office after the 

positive test.. .. " [D&O at 9] 

Findings of fact will not be disturbed on appeal unless inherently incredible. 

Appeal Decisions 2395 (LAMBERT), 2357 (GEESE), 2333 (AYALA), 2302 

(FRAPPIER). "It is the function of the Administrative Law Judge to resolve conflicts in 

testimony and issues of credibility. The question of what weight to accord the evidence is 

committed to the discretion of the Administrative Law Judge, and will not be set aside 

unless it is shown that the evidence he relied upon is inherently incredible." Appeal 

Decision 2357 (GEESE). "The trier of fact, by virtue of his unique opportunity to 

observe witnesses and weigh their testimony, is assigned the duty of assessing the 

evidence adduced and making credibility detenninations. Appeal Decision 2279 

(LEWIS). His conclusions on the weight to be given any particular evidence and 

ultimate findings of fact deserve a degree of deference. Appeal Decision 2214 

(CHRISTENSEN)." Appeal Decision 2654 (HOWELL). 

The ALJ engaged in a significant discussion in the D&O regarding the credibility 

of the SECON collector as it related to his recollection of events, demeanor before the 

8 
MILLS NO. 2675 

ALJ, his level of knowledge and experience related to conducting alcohol breathalyzer 

testing, and whether the breathalyzer machine was properly calibrated. [D&O 9-13] In 

particular, the ALJ found that the collector demonstrated a tenuous demeanor while 

testifying, and that he was "not able to recall the specifics of other procedures or 

conversation [sic] that occurred that day ([i]n fact, he responded that he "did not know" 

the answer to questions along those lines on at least twenty-three occasions)." [D&O at 

12-13] In addition, the ALJ noted that the collector did not recall smelling the odor of 

alcohol on the Respondent's breath, neither did he notice any other overt signs of 

intoxication such as glassy eyes or slurred speech. [TR at 69; D&O & 17] Moreover, the 

ALJ noted that the Respondent, who testified that he was not intoxicated at the time and 

had used mouthwash prior to the breathalyzer tests, provided the most credible version of 

events that took place onboard the vessel that day. [TR at 93, 107; D&O at 12-13] 

Finally, the ALJ was not satisfied that sufficient evidence was presented for her to 

determine that the breathalyzer machine was properly calibrated. [D&O at 4, 9] 

The ALJ detennined that the Respondent was not intoxicated at the time of the 

breathalyzer test and reasoned as follows: 

If the Respondent was almost two times over the legal limit 

established by the State of Lousiana as a level of 

"intoxicated",[ sic] then why didn't any person observe 

overt signs of intoxication? Where is the evidence that the 

Respondent's manner, speech, muscular movement, general 

appearance, or behavior was that of an intoxicated 

person?[D&O footnote SJ The testimony in the record that 

establishes the Respondent did not appear intoxicated puts 

the lie to the test results .... I cannot overlook these conflicts 

as they go to an ultimate finding of fact and conclusion of 

law. Clearly, the burden is on the USCG to present 

evidence that overcomes these conflicts. And, the record as 

a whole indicates the USCG failed to resolve these 

conflicts in their presentation of evidence. I am not 

9 
MILLS NO. 2675' 

persuaded to accept these test results as evidence of 

intoxication when there is ( 1) no evidence in the record that 

the machine was operating properly, (2) the tester was 

inexperienced and did not appear to remember the events of 

the day; rather he appeared to base his testimony on what 

the procedures called for, rather than what actually took 

place; and, (3) abundant conflict between the test results 

and the eye witness testimony of Respondent's appearance 

on February 16, 2004. 

[D&o footnote 51 When there is a high alcohol content detected 

in the breath, one would expect to see overt signs of 

intoxication, as in Appeal Decision 2609 (DOMANGUE) 

(1999). While some variances between individuals is not 

unusual, in this case, the indication of intoxication between 

the chemical test results versus the testimony about 

Respondent's appearance and his ingestion of alcohol 

(which ended some 12 hours before the testing) is 

diametrically opposed, calling into question the chemical 

test results. 

[D&O at 17] The ALJ perceived conflicts in the testimony and determined that certain 

issues were unresolved. [Id.] Even though I may have decided differently, as has been 

stated previously: 

While there may be some conflicts in the evidence 

presented, I will not substitute my judgment for that of the 

Administrative Law Judge. It has been consistently held 

that it is a function and responsibility of the Administrative 

Law Judge to observe the demeanor of the witnesses and 

evaluate the credibility of their testimony; see for example, 

Decision on Appeal No. 2017. Unless Appellant sets forth 

some reason to justify a determination that the 

Administrative Law Judge's findings are in error, I will not 

substitute my judgment for that of the Administrative Law 

Judge. A mere conflict in testimony is not sufficient. 

Appeal Decision 2226 (DAVIS). In addition, the findings of the ALJ will be upheld so 

long as they arc buttressed by substantial evidence, that is, "evidence which a reasoning 

mind would accept as sufficient to support a particular conclusion .... consist[ing] of more 

than a mere scintilla of evidence but may be somewhat less than a preponderance." [Id. 

10 
MILLS NO. 2675 

quoting Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)] It is apparent from the record 

that the ALJ's findings that the Respondent was not intoxicated and that the results of the 

breathalyzer were not fully reliable is supported by substantial evidence and will not be 

disturbed. 

II. 

The ALI erred by ruling that the Coast Guard failed to prove the Respondent re.fused to 

submit to a drug test. 

The Coast Guard's Complaint charged Respondent with misconduct for refusing 

to submit to a "pre-access" drug screen that was required by Tidewater. [Complaint at 2] 

In order for this type of refusal to be construed as misconduct, the "pre-access" drug 

testing requirement must be "a formal duly established rule" which can be "found in, 

among other places, statutes, regulations, the common law, the general maritime law, a 

ship's regulation or order, or shipping articles and similar sources." 46 C.F.R. § 5.27. 

Although there was disagreement in the record whether the drug test at issue in this case 

was in fact properly established company policy that could constitute "a formal duly 

established rule," the ALJ assumed (to the benefit of the Coast Guard) that it was 

properly established company policy and then proceeded to evaluate the merits of the 

purported refusal. [D&O at 19] 

The ALJ's determination that Respondent did not refuse a drug test is at the heart 

of this basis of appeal. There are numerous Coast Guard drug testing requirements for 

merchant mariners in 46 C.F .R. Part 16, including pre-employment, post-casualty, 

random, and reasonable cause drug testing. These types of testing represent the 

"minimum standards, procedures, and means to be used to test for the use of dangerous 

drugs." 46 C.F.R. § 16. 101 (b ). Therefore, a marine employer may require further drug 

11 
MILLS NO. 26 75, 

testing, such as in this case, where Tidewater required "pre-access" drug testing prior to 

engaging in operations with Exxon. [D&O at 18-19] For the purposes of this appeal, I 

will assume, as did the ALJ, that Tidewater's requirement for "pre-access" drug testing 

prior to engaging in operations with Exxon is a legitimate additional form of drug testing 

and "a formal duly established rule." [Id.] & 46 C.F.R. § 5.27. 

As the AU ultimately concluded, the regulations in 46 C.F.R. Part 16 establish 

the minimum drug testing requirements and incorporate the Department of 

Transportation's (hereinafter ~'DOT) testing procedures delineated in 49 C.F.R. Part 40, 

therefore, Tidewater's pre-access drug screen, in order to serve as a basis for a claim 

against a merchant mariner credential, must be conducted in accordance with the 

procedures set forth in 49 C.F.R. Part 40. [D&O at 15 & 20] As a consequence, in order 

to show that Respondent refused to submit to a drug test, the Coast Guard must establish 

that the Respondent refused a drug test within the meaning of 49 C.F.R. § 40.191, as 

specifically incorporated by 46 C.F.R. § 16.105. The regulations describe several 

scenarios which may constitute a refusal. 49 C.F.R. § 40.191. Even though the ALJ 

generically determined that Respondent did not refuse the drug test, there are essentially 

only two pertinent regulatory refusal considerations relevant to this case, which are 

whether Respondent: (1) "[failed] to provide a sufficient amount of urine when directed, 

and it has been determined, through a required medical evaluation, that there was no 

adequate medical explanation for the failure," and (2) he "[failed] to undergo a medical 

examination or evaluation, as directed by the [Medical Review Officer] as part of the 

verification process, or as directed by the [Designated Employer Representative] under 

§ 40.193(d)." 49 C.F.R. §§ 40.191(a)(5) & (7). 

12 
MILLS NO. 2675 

Respondent provided an insufficient amount of urine for the drug testing; only 

producing 30mL of urine whereas the minimum amount for a valid test is 45mL. [TR at 

22, 54 & 56; IO Exhibit 8; D&O at 5 & 19] When there is an insufficient amount of 

urine produced, 49 C.F.R. § 40.193 outlines a series of requirements that are placed on 

the collector, the Designated Employer Representative (hereinafter "DER"), the Medical 

Review Officer (hereinafter "MRO"), and the "referral physician" before Respondent's 

failure to provide a sufficient sample may be deemed a "refusal." In this regard, the 

conduct of the collector and the DER are at issue. 49 C.F.R. § 40.193. 

When Respondent provided an insufficient amount of urine for a sample, the 

collector was subsequently required by the regulations to discard the insufficient 

specimen, urge the Respondent to drink up to 40 ounces of fluid dispersed over a 

reasonable amount of time, inform Respondent that he has up to three hours to provide an 

adequate specimen, and then document and inform the Respondent of the time at which 

the three hour period begins and ends. 49 C.F.R. §§ 40.193(b)(l) & (2). The relevant 

times for the three hour period are to be documented on the DOT Custody Control Form. 

IO Exhibit 9 is the form that was used to record this information for Respondent's 

sample. The form indicates that the first attempt to collect a sample occurred at 4:25 PM 

and further indicates that the "[Respondent] refused at 7:30 PM." [IO Exhibit 9] There 

is no data recorded on the form that explicitly memorializes that the Respondent was 

informed of when the three hour period begins and ends. In addition, as the ALJ noted, 

there is significant conflicting testimony in the record concerning whether Respondent 

was told that he could drink up to 40 ounces of fluid and that he had up to three hours to 

13 
MILLS NO. 2675 

provide another sample. [TR 25, 27-30, 54-55, 59-61, 64, 68, 70, 76, 83-85, 92-93, 95-

96, 103, & 106; D&O at 10-11] 

In addition, the ALJ discussed a significant discrepancy regarding whether 

Respondent was directed, as required by regulation, to seek a medical evaluation by the 

DER, which in this case was Mr. Dawson, regarding any potential inability to provide an 

adequate sample. [TR at 18, 34 & 78; D&O at 7] In particular, the regulations require: 

As the DER, when the collector informs you that the 

employee has not provided a sufficient amount of 

urine .... you must, after consulting with the MRO, direct the 

employee to obtain, within five days, an evaluation from a 

licensed physician, acceptable to the MRO, who has 

expertise in the medical issues raised by the employee's 

failure to provide a sufficient specimen. (emphasis added) 

49 C.F .R. § 40.193( c ). During the hearing, the ALJ questioned the DER regarding what 

the Respondent was told: 

ALJ: Did you or anyone in your presence ever inform Mr. 

Mills of his rights to a get a doctor's exam for a medical 

reasonDER: No ma'am. 

ALJ: --for giving an insufficient sample? 

DER: No ma'am, I was not aware of his rights. Like I said 

before, I have no formal training for this. 

ALJ: Have you become aware of those rights since 

February 16t11? 

DER: No ma'am. 

ALJ: Do you know what the regulations say about a person 

who can't give a sufficient sample? 

DER: No ma'am. 

14 
MILLS NO. 267 5 

[TR at 34] In addition, the collector testified that he never informed the Respondent of 

these rights. [TR at 78] Therefore, the ALJ's ultimate conclusion that Respondent did 

not refuse a drug test because it was never shown that he "[failed] to provide a sufficient 

amount of urine when directed, and it has been determined, through a required medical 

evaluation, that there was no adequate medical explanation for the failure," and that he 

"[failed] to undergo a medical examination or evaluation, as directed by the MRO as part 

of the verification process, or as directed by the DER under § 40.193(d)," as required in 

the regulations, is supported by substantial and credible evidence in the record. (D&O at 

221-22] & 49 C.F.R. §§ 40.19l(a)(5) & (7). 

Given the broad inconsistencies in the record regarding whether Respondent was 

actually informed of his rights in the drug testing process as required in the re&111lations 

and discussed supra, it was reasonable for the ALJ to conclude that the Respondent did 

not refuse a drug test as prescribed in 49 C.F .R. § 40.191, thus not constituting 

misconduct. The Coast Guard's second issue on appeal is denied and the finding of the 

ALJ in this regard will not be disturbed. Appeal Decisions 2654 (HOWELL), 2395 

(LAMBERT), 2357 (GEESE), 2333 (AYALA), 2302 (FRAPPIER), 2226 (DA VIS) and 

2214 (CHRISTENSEN). 

CONCLUSION 

The findings of the ALJ had a legally substantial basis. The ALJ's decision was 

not arbitrary, capricious, or clearly erroneous. I find the Coast Guard's bases of appeal 

without merit. 

15 
MILLS NO. 2675 

ORDER 

The order of the ALJ, dated at New Orleans, Louisiana, on October 27, 2004, is 

AFFIRMED. 

16