UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs 

DARRELL ROBINSON 

Respondent 

Docket Number CG S&R 03-0613 

CG Case No. PA 1934860 

DECISION AND ORDER 

Issued by: Edwin M. Bladen, Administrative Law Judge 

Issued: March 31,2004 

Appearances: 

For the Coast Guard: 

LT Mark Randolph 

U.S. Coast Guard Marine Safety Office 

510 L Street, Suite 100 

Anchorage, AK 99577 

Respondent Appeared Pro Se 

PRELIMINARY STATEMENT 

Respondent was charged in a November 10,2003 complaint with violation of law and 

regulation as the result of filling out an application for a duplicate copy of his Merchant 

Mariner's Document (MMD) where he is alleged to have falsely stated he had never been 

convicted by any court including a military court of an offense other than a minor traffic 

Decision and Order - 1 
violation. The Coast Guard has requested Respondent's license No. 757055, and document be 

revoked. 

The Coast Guard asserts this proceeding is brought under the authority of 46 CFR Part 5, 

5 USC§§ 551-559, and 46 USC§ 7703 

Respondent answered the complaint in which he demanded a hearing on the proposed 

revocation order. 

The Chief Administrative Law Judge then assigned this matter to this judge on November 

12, 2003. 

A hearing was set for and held on February 19, 2004 at the Marine Safety Office, 510 L. 

Street, Suite 100, Anchorage, Alaska. 

The Coast Guard appeared at the hearing, and Respondent appeared pro se. 

At the February 19, 2004 hearing, the Coast Guard offered a First Amended Complaint in 

which the first factual allegation was changed to show that Respondent on May 20, 2000 made 

an application in which he requested a renewal of, instead of a duplicate copy of, his license. 

Also, the charge was changed to one asserting Misconduct instead of Violation of Law and 

Regulation. The Respondent had no objection and the amended complaint was allowed. 

The hearing was then held and :recorded. 

At the conclusion of the hearing, the parties elected to present oral closing arguments and 

waived the filing of either written closing arguments, or proposed findings of fact and 

conclusions of law as provided in 5 USC § 557( c )(1 ). On.March 24, 2004, the Coast Guard 

submitted to the court its Written Closing Argument. 

During the Coast Guard's closing argument, it was asserted the evidence showed 

Respondent committed fraud in the procurement of his initial license, as well as the renewal of 

Decision and Order - 2 
that license, by falsely stating he had not been convicted of any criminal offense other than a 

minor traffic violation. This assertion thus raised the question whether this judge had 

jurisdiction in light of Appeal Decision 2025 (Armstrong)(J975). The Coast Guard argued that 

Respondent had acquired a property interest in his license and that the jurisdiction lay with 

respect to the request for a renewal of his license citing language to that effect in Volume 3, 

Chapter 1, Paragraph F of the Marine Safety Manual. 

At that point, this judge recommended the parties' file written closing arguments 

particularly emphasizing the jurisdiction issue. 

There have not been any ex parte communications with this judge by any party or anyone 

representing a party. See 5 USC § 557(d)(1) et seq. 

The Coast Guard has now filed a written closing argument. The Respondent has not filed 

an argument. 

This matter is now ripe for decision. 

FINDINGS OF FACT 

1. Respondent was originally licensed in 1995, and subsequently renewed in 2000, as a 

Master of Steam or Motor V esse Is of not more than 100 Gross Registered Tons (Domestic) upon 

Near Coastal Waters, and has a Merchant Mariners Document which authorizes him to serve as 

an Able Seaman, Wiper and in the Steward's Department. The original issue of the license bears 

number 757055 and its second issue bears number 939448.1 

2. Respondent's original Application for a license shows a submission date of April13, 

1 Coast Guard Exhibit 1 [Original copy of license# 939448 retained by the Judge, but will be returned to the 

Anchorage, AK Marine Safety Office upon issuance of this order]. 

Decision and Order - 3 
1995, but also shows it was subscribed under oath on May 12, 1995.2 

3. Respondent has been serving as a Master since his original licensure in 1995 and its 

renewal in 2000. 

4. On May 20,2000, Respondent submitted an application for renewal of his license in 

which he answered "NO" by placing his initials in the No column accompanying the question 

reading in relevant part: "Have you ever been convicted by any court- including military court 

-for an offense other than a minor traffic violation?"3 

5. On August 11, 2003 Respondent made an application for a duplicate copy of his 

Merchant Mariner's Document (MMD).4 

6. In the course of completing the August, 2003 application, Respondent answered "NO" 

by marking an "X" in the No column accompanying the question reading in relevant part: "Have 

you ever been convicted by any court- including military court- for an offense other than a 

minor traffic violation?"5 

7. When completing the May, 2000, and August 11, 2003 applications, Respondent 

consented to the Coast Guard accessing his driving records or history in the NDR. 6 

8. Respondent's Regional Examination Center license file does not contain any 

information, which shows that the Coast Guard obtained Respondent's driving history or record 

from the NDR. 

9. On May 22, 1989, Respondent was convicted in an Alaska District Court at Seward, 

2 Coast Guard Exhibit 4 

3 Coast Guard Exhibit 2 

4 Coast Guard Exhibit 6 

5 Coast Guard Exhibit 6 

6 Coast Guard Exhibits 2 and 6 

Decision and Order - 4 
AK driving while license suspended or revoked. 7 

10 On November 29, 1989, Respondent was convicted in an Alaska District Court of 

driving while license suspended resulting in his driver's license being revoked.& 

11. On May 22, 1989, Respondent was convicted in an Alaska District Court of driving 

while intoxicated and refusal to take a chemical test. 9 

12. On January 29, 1991, Respondent was convicted in an Alaska District Court of 

driving while intoxicated and refusal to submit to a chemical test.1 0 

13. Neither the May 22, 1989, November 29, 1989 convictions, nor the November 26, 

1990, and August 14, 1992 convictions were for minor traffic violations. 

14. None ofthe 1989, 1990, 1991 or 1992 convictions were disclosed on Respondent's 

renewal or duplicate Merchant Mariner's Credential applications. 

15. Respondent is an alcoholic and has attended nightly, for four months, Alcoholic 

Anonymous.11 

16. Respondent believed that consenting to the Coast Guard's access to his driving 

record in the National Driver's Registry would be followed up and his record of convictions 

would accordingly be disclosed.12 

17. Respondent received a "United States Merchant Marine Expeditionary Award" for 

service aboard the SS Cape Johnson as an Able Bodied Seaman (unlimited) in support of the 

7 Coast Guard Exhibit 3 

8 Coast Guard Exhibit 3 

9 Coast Guard Exhibit 3 

1 0 Coast Guard Exhibit 3 

11 Transcript p. 33 

12 Transcript p. 33 

Decision and Order - 5 
Operations Enduring Freedom and Iraqi Freedom.l3 

18. The Alaska Vocational Technical Center, Seward, AK has recommended Respondent 

for employment transitioning from commercial fishing to the maritime industry.14 

19. In January, 2004, Respondent completed training and education as an Emergency 

Trauma Technician.15 

20. Respondent consented and authorized the Coast Guard on March 15, 1995 to access 

his driving records with the National Driver Registry.16 

21. In the1995 application for initial licensure as a Master, Respondent answered "YES" 

to the question 1'Have you ever been convicted by any court- including military court- for an 

offense other than a minor traffic violation?, and disclosed a 1978 conviction for a "Bounced 

Check to pay Traffic Fine" or an insufficient funds check.17 

22. Respondent testified that his disclosure of the 1978 conviction and his later written 

consents to access his driving record in the National Driver Registry were sufficient compliance 

with the disclosure obligations concerning any convictions other than minor traffic offenses.18 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Jurisdiction is predicated on 46 CFR § 5.57(b) in that Respondent acted under the 

authority of his Coast Guard credentials when he applied for a renewal of his license in 2000 and 

when he applied for a duplicate copy of his Merchant Mariner's Document in 2003. Respondent 

13 Respondent Exhibit A 

14 Respondent Exhibit B 

15 Respondent Exhibit D 

16 Respondent Exhibit C 

17 Coast Guard Exhibit 4 

Decision and Order ~ 6 
had convictions for traffic or driving offenses in 1989, 1990, 1991 and 1992, which were for 

other than minor traffic violations. 

2. Respondent's answer of"YES" to the question "Have you ever been convicted by 

any court- including military court- for an offense other than a minor traffic violation?" in his 

1995 original Master's license application together with his consent and authorization to access 

his driving record from the NDR constituted a functional equivalent to the disclosure of all of his 

convictions in 1989, 1990, 1991, and 1992 for violations which were other than minor traffic 

offenses. 

3. Respondent's answer of"NO" to the question "Have you ever been convicted by any 

court- including military court- for an offense other than a minor traffic violation?" in his 

application for renewal of his Master's license in May, 2000 and his August 13,2003 application 

for duplicate MMD was false, but Respondent did not know that answer was false, because he 

believed he had disclosed all of the 1989, 1990, 1991 and 1992 convictions in 1995 and again 

when he consented to access to his driving record in May, 2000 and August, 2003. 

4. Respondent's consent to the Coast Guard for access to his driving records or history in 

the NDR constituted substantial compliance with his obligation of full disclosure of his driving 

history or records to the Coast Guard. 

5. Respondent's Regional Examination Center license file does not contain information 

derived from the NDR. 

6. Respondent should not suffer adverse consequences on account of the absence of any 

information in his Regional Examination Center licensing file relating to his driving record 

including convictions for other than minor traffic offenses in 1989, 1990, 1991 and 1992. 

18 Transcript pp. 35-36 

Decision and Order - 7 
7. The Coast Guard's First Amended Complaint is not proven as to fraud. 

8. The evidence demonstrates the Respondent engaged in Misconduct in completing the 

May, 2000 renewal application, and the August, 2003 duplicate credential application by falsely 

stating "NO" to the question "Have you ever been convicted by any court- including military 

court- for an offense other than a minor traffic violation?" 

DISCUSSION 

Jurisdiction 

During the Coast Guard's closing argument, it was asserted the evidence showed 

Respondent committed fraud in the procurement of his initial license, as well as the renewal of 

that license, by falsely stating he had not been convicted of any criminal offense other than a 

minor traffic violation. If the Respondent had indeed answered NO and the truth was that he had 

been so convicted and he knew that, but still answered NO, such constituted fraud and would 

have rendered the original license void. Appeal Decision 2025 (Armstrong) (1975). 

The Coast Guard Investigating Officer (IO) argued, this judge had jurisdiction predicated 

on 46 CPR§ 5.57(b) and Volume 3, Chapter 1, Paragraph F, Marine Safety Manual which reads 

as follows: 

The S&R process should also be sought when it is discovered upon reissue of 

a license that the applicant's original license was initially issued by fraudulent means. 

Licensed mariners holding second and later issuance licenses have acquired 'property 

interest' in the license. This 'property interest' is protected by the due process clause 

of the Fifth and Fourteenth Amendments of the Constitution. In such cases the Coast 

Guard Senior Investigating Officer (SIO) shall be notified by the Chief Regional 

Exam Center. 

The 10 emphasized the property interest aspect of this instruction. I am not persuaded by 

the property interest argument. See O'Neill and Caldwellv. Town o[Nantucket, 545 F. Supp 449 

Decision and Order - 8 
(D.C. Mass, 1982) [holding that a license initially issued which was fatally defective was a 

nullity, and applicants were not entitled to any due process nor did they have any property 

interest in the void license]. 

Additionally, the provision of the Marine Safety Manual cited is directed to the 

Investigating Officer and not to an Administrative Law Judge. 

I, am however, more persuaded by the facts that Respondent had relied upon his license 

for almost eight years serving as a Master on various motor vessels. The Coast Guard renewed 

his license and did not bring this action until 2003 when he sought a duplicate copy of his 

Merchant Mariners credential. 

Thus, over those years he relied upon the validity of his license to serve as a Master on 

various vessels, and is accordingly entitled to a due process hearing before the license or 

document may be affected by a disciplinary proceeding such as this .. 

It would be a clear violation of the due process principles set out in the Fifth and 

Fourteenth Amendment of the U.S. Constitution to deny Respondent the right to be heard in a 

meaningful time and manner. This hearing satisfies that right. 

I conclude there is jurisdiction to hear this matter.l9 

Merits of the Charge of Fraud 

The Coast Guard has alleged that because Respondent answered "NO" to the question 

"Have you ever been convicted by any court- including military court- for an offense other 

than a minor traffic violation?" in both his May, 2000, and August, 2003 applications, he 

19 As discussed later, an additional basis for finding jurisdiction exists because ofthe absence of any likelihood 

that Respondent committed fraud in procuring his initial1995 license. In such circumstances, Appeal Decision 

Decision and Order - 9 
committed fraud for which his license and document must be revoked. 

Fraud in these circumstances requires a person to make a false statement or 

representation in connection with an application to the Coast Guard for a license or MMD, 

knowing the statement or representation is not true. Appeal Decision 809 (MARQUES) (1955). 

I must determine whether the Respondent's answers of "NO" to the question "Have you 

ever been convicted by any court - including military court - for an offense other than a minor 

traffic violation?" in his May, 2000 and August, 2003 applications, was made knowing the 

answers to be untrue. If so, this constitutes fraud. 

Respondent contends that he did not answer the question with a "YES" because he 

believed he had truthfully disclosed his prior driving record to the Coast Guard in his initial 

application and his renewal applications. This disclosure came, he says, in his 1995 original 

application for his Master's license when he answered "YES" to the question and disclosed a 

1978 Florida conviction for an insufficient funds check together with his consent and 

authorization the Coast Guard's access to his records in the NDR. He believed that the question 

called for a disclosure of convictions other than traffic related ones, and that the traffic related 

convictions would be disclosed with a National Drivers Registry inquiry. When viewed 

together, he believed he had made the appropriate disclosure and did not intend to hide the 

record. All of the traffic related convictions occurred prior to 1995 and were of the kind, which 

would be expected to be found in the NDR. 

The record here is devoid of any evidence in Respondent's Regional Examination Center 

license file that the Coast Guard actually accessed the Respondent's driving record. The evidence 

is more consistent with a finding, that the Regional Examination Center did not access the NDR. 

2025(Armstrong) would not apply. Thus, Respondent's initial license was likely not not void ab initio. 

Decision and Order - 1 0 
For if it had done so, Respondent's comments upon the driving record likely would have been in 

the file, together with the results of the records inquiry. Again, there is no such material in the 

file.20 

Additionally, when Respondent completed the May, 2000 and August, 2003 applications 

he again consented and authorized the Coast Guard to access his records in the NDR. Again, the 

record contains no evidence of any such records. 

Respondent says, and I believe him, that he truly thought that he had made a truthful 

answer in 1995 and again in May, 2000 and August, 2003. The Coast Guard had a "YES" 

answer to the pertinent question in 1995 together with a completed National Driver Registry 

consent. The Coast Guard had Respondent's consents to access the National Driver Registry in 

May, 2000, and again in August, 2003. 

The fact that Coast Guard may not have actually accessed Respondent's driving records 

in 1995, 2000, or 2003 should not penalize him. Respondent should not suffer some adverse 

consequence because the Coast Guard failed to access the National Driver Registry in May, 2000 

and August, 2003. 

For those reasons, I believe Respondent did not form the requisite intent to lie about his 

prior driving history when he completed his 1995, 2000 and 2003 applications. Stated otherwise, 

I believe Respondent did not know that his answer of "NO" was false. 

I must conclude the charge of fraud in the procurement of the renewal ofRespondent's 

Master's license and the application for a duplicate MMD fails for the lack of an essential 

element of knowledge. 

20The lack of such material information was confirmed at the hearing when this Judge inquired on the subject, of 

the 10, who looked in the file at the hearing. 

Decision and Order ~ 11 
However, a distinction needs to be made between fraud and a false statement. Here 

Respondent answered "N011 to the pertinent question. That answer was objectively false since 

Respondent had been convicted of several traffic violations which were other than minor 

offense['his constitutes misconduct based on a false statement. Appeal Decision 2608 

(SHEPHERD) (1999) andAppeal Decision 1381 (CLINTON) (1963). In SHEPHARD the 

Commandant stated that submitting a false license renewal application is a lesser~ included 

offense of submitting a fraudulent license renewal application. 

Based on Appeal Decision 1381 (CLINTON) (1963), a "false statement11 is an incorrect 

statement of material fact. This definition is also consistent with the statement in SHEPHERD 

that Misconduct based on a "false statement// is a lesser-included offense of Misconduct based on 

a "fraudulent statement," because the definitions of"fraudulent" and "false statements" share the 

element of materiality but not the element of knowledge. A truthful answer to the question was 

material to the Coast Guard's evaluation of Respondent's character and living habits.21 

Accordingly, I will find Respondent made a false statement in his May, 2000 and 

August, 2003 applications based on his answer of"N011 to the question, "Have you ever been 

convicted by any court - including military court - for an offense other than a minor traffic 

violatioB.iafce I have not found proof of fraud, revocation according to Appeal Decision 2613 

(SLACK) (1999) will not be ordered. 

21 See 46 CFR § 12.02-4 et seq. 

Decision and Order - 12 
I will consider the factors in 46 CFR § 5.569(b) in determining the sanction to be 

imposed. 

SANCTION 

At the hearing, Respondent was apologetic and contrite. Had he known, he said, that the 

Coast Guard had not obtained his driving record, or that he had not truly believed that his driving 

record was a settled matter,22 he would have done things differently. He has been commended 

in his work and has endeavored to improve his education and skills. 

Respondent has taken remedial action to deal with his alcoholism. He is an Alcoholics 

Anonymous attendee. From my examination of the driving record at issue here, these appear to 

be the kind that arise from drinking alcoholic beverages and driving a motor vehicle. 

Respondent appears to have cleaned up his driving habits. There is nothing in this record 

which shows any major driving violation after 1992. Indeed, the Coast Guard could easily have 

evaluated his driving record had it originally been obtained. 23 

According to the table of Guidelines for Evaluating Applicants for Merchant Mariner's 

Documents who have Criminal Records,24 the more severe vehicular crimes (e.g conviction 

involving a fatality, reckless driving, and racing on the highway) allow for a one year to 5 years 

assessment period. All of Respondent's convictions were none of those, although still serious 

(e.g. driving under the influence, and refusal of a chemical test), they occurred more than five 

years prior to the May, 2000 and August, 2003 applications. Essentially, they were beyond the 

22 Transcript pp. 35 ff 

23 If it was obtained, I can only presume a favorable evaluation was made given the issuance ofthe license and 

MMD. 

24 46 CFR § 12.02-4(c) 

Decision and Order - 13 
maximum assessment period which authorized the Coast Guard to exercise its discretion to issue 

a license or document in very severe cases.25 

Based on my findings, the 1995 application also serves to mitigate any sanction, for that 

application actually shows Respondent had in fact truthfully answered 'YES" to the pertinent 

question. 

Accordingly, I will suspend Respondent's license and document outright for 3 months.26 

ORDER 

IT IS ORDERED the Respondent's license No. 939448, and his Merchant Mariner's 

Document is suspended outright for three (3) months commencing on February 19, 2004 the 

date Respondent's license was verified and retained pursuant to 46 CPR§ 5.521. 

Service of this Decision upon you serves to notify you of your right to appeal as set forth 

in 33 CFR Subpart J, §20.1001. (Attachment A) 

Dated: March 31, 2004 

Edwin 

~'?n.~ M Bladen 

Administrative Law Judge 

25 46 CFR § 12.02-4(c)(6) 

26 In Appeal Decision 2607 (ARIES) (1999) a Judge's order of revocation was found too harsh when the Judge 

concluded the Appellant committed Misconduct by making false statements in a renewal application. 

Decision and Order - 14