DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2003-046 
 
XXXXXX, XXXXX X. 
xxx xx xxxx, XXXX 
   

 

 
 

FINAL DECISION 

 
GARMON, Attorney-Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on March 7, 2003 upon the 
BCMR’s receipt of the applicant’s request for correction. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  December  18,  2003,  is  signed  by  the  three  duly 

 

APPLICANT’S REQUEST  

 

The applicant asked the Board to correct his record to show that, prior to being 
retired due to a physical disability, he was advanced to xxxxx, thereby entitling him to 
the corresponding difference in disability retirement pay.   
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged  that he was eligible to be advanced to xxx on October 1, 
19xx but never received this promotion because he was retired on September 13, 19xx 
due to a physical disability.  He asserted that at the time he retired, he had 21 days of 
unused  leave,1  which  he  believes  he  “should  have  been  afforded  the  opportunity  to 
use….”  He alleged that had he been allowed to use the available leave, he would have 
been promoted to xxx and retired at the higher rank and pay grade.   
 
                                                 
1 The applicant had previously sold 60 days of annual leave, the maximum amount allowed by law, but 
on the date of his retirement, he still had an unused leave balance. 

 
With respect to the untimeliness of his application, the applicant asserted that the 
Board  should  find  it  in  the  interest  of  justice  to  consider  his  claim  because  he  only 
recently learned that “there was an avenue for [him] to seek justice in this matter.”  In 
support of his application, the applicant provided a copy of his medical records.   
 
 
Applicant’s Statement 
 

The  applicant  also  submitted  a  six-page  statement,  dated  May  18,  19xx, 
describing  what  transpired  on  the  day  he  had  a  heart  attack,  March  21,  19xx.    The 
applicant stated that when he arrived at XXXXX at 7:00 a.m., he felt “a sharp pain right 
in the center of [his] chest.”  He stated that as the pain increased, he decided to visit the 
medical  clinic  for  assistance.    There,  he  stated,  a  nurse  took  his  vital  signs,  which 
appeared to be normal.  He stated that he was given Mylanta (an anti-acid medicine) 
and advised to return to the clinic in one hour if he felt no relief from his symptoms.  He 
stated  that  he  returned  to  the  clinic  about  15  minutes  later,  in  more  pain  and 
complaining  that  “something  was  wrong.”    At  that  time,  he  stated,  he  informed  the 
nurse that he had a family history of heart disease.   
 
 
The  nurse  telephoned  Dr.  T  in  the  XXXX  clinic  who  stated  that  the  applicant 
should have an EKG at the doctor’s location.  The applicant told the nurse that he was 
incapable of driving, and in response, he was advised to take the shuttle bus.  He stated 
that  in  hindsight,  he  should  have  been  transported  by  ambulance  but  at  that  time 
believed that a person his age could not have heart problems.  When he arrived at the 
DOT  clinic,  he  was  immediately  seen  by  Dr.  T  and  instructed  to  proceed  to  the  EKG 
laboratory.  There, the applicant stated, he was required to wait until the lab technician 
finished a test in progress and tested another member of higher rank who had arrived 
before him.  He stated that he waited for approximately 30 minutes.  By the time he was 
connected to the EKG machine, he stated, pain had radiated to his shoulders and arms.  
He stated that the readings taken showed that he was having a myocardial infarction (a 
heart  attack).    He  stated  that  the  technician  ran  for  the  assistance  of  Dr.  T,  who 
confirmed the readings and told her to call 911 for an ambulance.   
 
The applicant stated that he was started on an IV and given a nitroglycerin pill 
 
but  it  had  no  effect.    An  ambulance  crew  arrived;  gave  him  nitroglycerin  that  was 
effective; and transported him to XXXX Medical Center.  He arrived at about 9:50 a.m., 
and was taken to the Catheter Lab for an angioplasty procedure.  During the procedure, 
treating  cardiologists  found  it  necessary  to  insert  three  stents  into  his  left  anterior 
descending artery to keep the artery open.   
 
The applicant stated that as a result of the length of time it took for him to receive 
 
treatment, a large portion of his heart went into shock.  He stated that because his heart 

rate  was  about  165  beats  per  minute  and  was  not  pumping  enough  blood,  an  aortic 
balloon pump was used to assist his heart in pumping blood.   
 
The applicant stated that shortly after midnight, “on Sunday morning [March 24, 
 
19xx] … it was like someone threw a switch.”  He stated that his blood pressure, heart 
rate, and the rest of his vital signs started to return to normal.  
 

SUMMARY OF THE APPLICANT’S RECORD 

 

On  October  22,  19xx,  the  applicant  enlisted  in  the  Coast  Guard  as  a  seaman 

recruit.  He was advanced to xxxx on July 1, 19xx.   

 
On March 21, 19xx, the applicant sustained an acute myocardial infarction (heart 
attack).    On  the  same  date,  he  was  admitted  to  xxxxxx  Medical  Center  for  an  urgent 
coronary  angiogram  and  coronary  intervention.    He  spent  eight  days  at  the  medical 
center  for  treatment  of  his  condition  and  was  subsequently  referred  to  the  xxxxx 
Medical Center for follow-up care and cardiac rehabilitation.   

 
On  April  26,  19xx,  a  xxxxx  Medical  Center  medical  board  convened  in  the 

applicant’s case.  That board diagnosed the applicant with the following: 

 
1.  Coronary artery disease 
2.  Status post anterior wall myocardial infarction 
3.  Congestive heart failure resolved 
4.  Status post PTCA with stent placement 
5.  Hypertriglyceridemia 
6.  Indigestion 

 

The medical board recommended that the applicant be found fit for limited duty 
for a period of six months, expiring on October 23, 19xx, with the following limitations:  
no heavy lifting, no PRT, and only routine exercise.   
 
 
On  June  6,  19xx,  a  senior  medical  officer  of  the  Coast  Guard  concurred  in  the 
medical board findings.  On June 10, 19xx, the applicant returned to work on light duty 
status while still enrolled in a cardiac rehabilitation program.   
 

By  memorandum  dated  February  27,  19xx,  the  Commander  of  Coast  Guard 
Personnel  Command  (CGPC)  published  the  names  of  all  personnel  “eligible  for 
advancement to pay grade E-5 through E-9, as determined by final multiple rankings 
which include the May and November 19xx Servicewide Exam (SWE).”  The eligibility 
list  for  xxxxx  was  effective  from  January  1,  19xx  through  December  31,  19xx.    The 
memorandum went on to explain the following: 
 

a.    …  Cutoff  points  on  each  list  will  be  indicated  by  an  asterisk  to  the  left  of  the  last 
person placing above the cutoff.  Those personnel at or above the asterisk are expected to 
be advanced during the calendar year 19xx.   

 

b.  Personnel whose names appear at or above the cutoffs … will not have to recompete 
in the same examination … 

 
The  above-noted  cutoff  point  listed  on  the  xxxxx  eligibility  list  was  number  xx.    The 
applicant placed at number xx on the list, below the cutoff.   
 

On June 12, 19xx, the Central Physical Evaluation Board (CPEB) considered the 
applicant’s medical board held on January 10, 19xx and found him unfit to perform the 
duties  of  his  grade  or  rate  due  to  “arteriosclerotic  heart  disease:  following  typical 
coronary occlusion, ordinary manual labor feasible.”  The CPEB assigned him a thirty 
percent  disability  rating  and  recommended  that  the  applicant  be  temporarily  retired.  
The applicant concurred in the CPEB findings. 

 
On July 21, 19xx, the Coast Guard released a general announcement which stated 
that  members  who  placed  at  numbers  xx  and  xx  on  the  xxx  eligibility  list  would  be 
advanced on August 1, 19xx. 

 
On  August  6,  19xx,  the  findings  and  recommendations  of  the  CPEB  were 

approved by the Commander of CGPC.   

 
On  September  13,  19xx,  the  applicant  was  placed  on  the  temporary  disability 
retired  list  (TDRL)  and  retired  honorably  from  the  Coast  Guard  for  a  “temporary 
physical  disability.”    He  was  assigned  an  RE-3P  reenlistment  code  (eligible  for 
reenlistment  except  for  disqualifying  factor  (e.g.,  physical  disability))  and  an  SKF 
separation  code,  which  denotes  a  “mandatory  retirement  required  by  law  due  to 
temporary physical disability.”   

 
On September 16, 19xx, the Coast Guard released a general announcement which 
stated  that  members  who  placed  at  numbers  xx,  xx,  xx,  xx,  xx,  and  xx  on  the  xxx 
eligibility list would be advanced on October 1, 19xx.   

 
In  January  19xx,  the  applicant  was  evaluated  for  his  first  periodic  physical 
reevaluation on the TDRL.  The TDRL examination report states that the applicant “was 
asymptomatic”  and that “[m]yocardial perfusion imaging revealed evidence of scarring 
in  the  anterior  wall  which  was  unchanged  from  his  previous  thallium  treadmill  test 
performed  on  15  May  19xx.”    The  applicant  was  diagnosed  with  coronary  artery 
disease, status post wall myocardial infarction in 19xx; hyperlipidemia; and psoriasis. 

 
On  May  17,  19xx,  the  CPEB  considered  the  applicant’s  first  periodic  physical 
reevaluation and found him unfit for duty due to “arteriosclerotic heart disease.”  The 

CPEB  assigned  him  a  thirty  percent  disability  rating  and  recommended  that  the 
applicant  be  permanently  retired.    On  June  15,  19xx,  the  applicant  concurred  in  the 
CPEB findings. 

 
On  July  7,  19xx,  the  Commander  of  CGPC  approved  the  findings  and 
recommendations  of  the  CPEB.    He  ordered  that  the  applicant  be  removed  from  the 
TDRL and permanently retired, effective August 4, 19xx.  At the time of his separation, 
the applicant was serving in the grade of XX and was credited with 17 years, 6 months, 
and 3 days of active duty service.   
 

APPLICABLE LAW 

 
Personnel Manual (COMDTINST M1000.6A) 
 
 
Article 12.C.15.f. of the Personnel Manual in effect in 19xx governs the grade or 
rate in which a Coast Guard member having a physical disability retires.  It states that 
members  who  retire  because  of  a  physical  disability  or  are  placed  on  the  TDRL  are 
entitled to the grade or rate equal to the highest of the following: 
 
 

1.  The grade or rate in which the member served on the date his or her name was placed 
on  the  TDRL  or,  if  his  or  her  name  was  not  carried  on  that  list,  on  the  date  when  the 
member retires. 
 
2.    The  highest  grade  or  rate  in  which  the  member  served  satisfactorily,  as  the 
Commandant determines. 
 
3.    The  permanent  regular  or  Reserve  grade  or  rate  to  which  the  member  would  have 
been promoted had it not been for the physical disability for which he or she retired and 
which was found to exist as a result of the member’s physical examination for promotion.   
 

*  *  * 

 
 
Article 17.B.6.a. of the Personnel Manual provides the following with respect to 
the effective date of a member’s disability retirement or separation.  It states as follows: 
 

When temporary or permanent disability retirement or disability separation is directed, 
the effective date of such retirement or separation normally is 20 working days following 
the  date  of  Commander,  Coast  Guard  Personnel  Command’s  action.    However,  the 
separation or retirement date may be delayed for not more than 24 months if a member 
has requested, retention on active duty in accordance with the provisions of Article 17.A. 
and  the  member’s  request  has  been  approved.    In  all  other  areas  in  which  requests  for 
retention on active duty have been approved, final action will be held in abeyance until 
there  has  been  final  reconsideration  of  recommended  findings  and  disposition  as 
provided for in Article 17.A.1.g. 

 

VIEWS OF THE COAST GUARD 

 
 
On July 18, 2003, the Chief Counsel of the  Coast Guard submitted an advisory 
opinion  to  which  he  attached  a  memorandum  on  the  case  prepared  by  CGPC.    In 
adopting the analysis of CGPC, the Chief Counsel recommended that the Board deny 
the applicant’s request for relief.   
 
 
The Chief Counsel argued that the applicant submitted an untimely application 
and has provided the Board with no reason why it is in the interest of justice to excuse 
the  delay.    He  alleged  that  the  applicant’s  request,  dated  January  18,  2003,  was 
submitted more than five years after he was placed on the TDRL.  He argued that the 
three-year filing requirement under 33 C.F.R. § 52.22 should not be waived because the 
applicant asserted that he “just recently learned” about the BCMR.   
 
The  Chief  Counsel  argued  that  a  service  member  “has  no  absolute  right  to 
 
remain  in  the  service”  and  “may  be  appropriately  and  administratively  discharged” 
prior  to  the  end  of  his  or  her  enlistment,  provided  that  all  applicable  laws  and 
regulations are complied with.  Giglio v. United States, 17 Cl. Ct. 160, 166 (1989); Rowe 
v.  United  States,  167  Ct.  Cl.  468,  472  (1964),  cert.  denied,  380  U.S.  961  (1965);  Keef  v. 
United States, 185 Ct. Cl. 454, 463 (1963); McAuley v. United States, 158 Ct. Cl. 359, 364 
(1962).   
 
 
The Chief Counsel argued that although the applicant claims that he would have 
been promoted to an XX on October 1, 19xx, that date is irrelevant to the determination 
of his proper disability retirement pay grade.  He argued that in order to ensure that a 
disabled  member  is  given  the  highest  possible  grade  on  retirement,  the  Personnel 
Manual provides several means for determining a member’s pay grade on retiring due 
to  a  physical  disability.    However,  he  argued,  neither  of  the  applicable  alternative 
methods justifies the applicant’s promotion to an XX.   
 
 
The Chief Counsel stated that under Article 12.C.15.f.1. of the Personnel Manual, 
the dispositive date that should be used to determine the applicant’s disability rank is 
September  14,  19xx—the  date  his  name  was  placed  on  the  TDRL.    He  argued  that 
because the applicant’s name was placed on the TDRL before the Coast Guard decided 
to  advance  members  on  the  advancement  eligibility  list  below  the  “expected”  cutoff 
point  of  xx  on  September  16,  19xx,  the  applicant  was  never  selected  for  promotion 
before his separation.   
 
 
The  Chief  Counsel  argued  that  the  provisions  of  Article  12.C.15.f.3.  are 
inapplicable to the applicant’s case because the last phrase in that article which requires 
that  the  disability  have  been  discovered  as  the  result  of  a  “physical  examination  for 
promotion.”  He stated that the article is inapplicable because the applicant’s disability 
was  not  discovered  during  a  promotion  physical.    He  asserted  that  CGPC  has 
consistently interpreted the phrase “at the grade or rated to which the member would 

have  been  promoted,”  found  in  Article  12.C.15.f.3.,  to  mean  those  members  whose 
names  appear  at  or  above  the  cutoff  for  advancement  on  the  advancement  eligibility 
list.    Consequently,  he  argued,  the  relevant  date  for  determining  the  applicant’s 
retirement pay grade is August 8, 19xx—when the applicant was “below the cut on the 
relevant promotion list.”   
 

The Chief Counsel concluded by arguing that even under Article 12.C.15.f.1. of 
the  Personnel  Manual,  the  applicant  was  never  selected  for  promotion  prior  to  his 
separation.    He  asserted  that  because  the  applicant’s  name  was  placed  on  the  TDRL 
prior  to  the  date  on  which  the  Coast  Guard  decided  to  advance  members  below  the 
expected cutoff, the applicant has not proved any error in the grade in which he was 
retired.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On July 21, 2003, the Chair sent a copy of the views of the Coast Guard to the 
applicant and invited him to respond within 30 days.  The Board received no response.   
 

FINDINGS AND CONCLUSIONS 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law: 
 
 
1. 
§ 1552.   
 
 
The applicant was retired from the Coast Guard on August 4, 19xx.  The 
alleged error or injustice was or with reasonable diligence should have been discovered 
in August 19xx, when the final action in his case became effective.  The application for 
correction in this case is dated January 18, 2003.  Title 10 U.S.C. § 1552(b) provides that 
applications for correction of military records must be filed within three years after the 
discovery of the alleged error or injustice.  Therefore, the application was untimely. 
 
 
Failure to file within three years may be excused by the Board, however, if 
it finds that it would be in the interest of justice to do so.  The Board’s regulations state 
that  “[i]f  an  application  is  untimely,  the  applicant  shall  set  forth  reasons  in  the 
application why its acceptance is in the interest of justice.  An untimely application shall 
be denied unless the Board finds that sufficient evidence has been presented to warrant 
a finding that it would be in the interest of justice to excuse the failure to file timely.”   
33 C.F.R. § 52.22.  The applicant asked that the Board waive the statute of limitations 
because he “only recently discovered” that there was an avenue available to correct the 
alleged error or injustice in his record.  However, the Board is not persuaded that his 

2. 

3. 

4. 

5. 

8. 

6. 

reason  satisfactorily  demonstrates  by  competent  evidence  that  it  would  be  in  the 
interest of justice to excuse the failure to apply within the time allotted. 
 
In  addition  to  examining  the  length  of  delay  and  the  reasons  for  it,  the 
 
Board must also perform a cursory review of the merits to determine the likelihood of 
success on the merits of the claim.   See Dickson v. Secretary of Defense, 68 F.3d 1396 
(D.D.C. 1995).   
 
 
The  applicant  asked  that  his  record  be  corrected  to  show  that  he  was 
advanced to xxx because he “was to be advanced” to that rank on October 1, 19xx, and 
would have been retired in that higher rank and pay grade.  Under Article 12.C.15.f. of 
the Personnel Manual, the grade in which a member with a physical disability is retired 
is  the  highest  grade  to  which  a  member  is  entitled  according  to  the  alternatives 
provided under this provision.   
 
 
In the applicant’s case, the Board notes that he was eligible for promotion 
to EMC.  However, the Board finds that the applicant was not a member “who would 
have been promoted” because when he was placed on the TDRL on September 14, 19xx, 
he was not at or above the established cutoff for xxx.  Moreover, because the physical 
examination that the applicant received in connection with his medical board did not 
constitute a “physical examination [for the purpose of qualifying for] promotion,” the 
record fails to support a finding that the applicant’s disability was “found to exist” as a 
result of a physical examination for promotion within the meaning of Article 12.C.15.f.3. 
of the Personnel Manual.   
 
 
With respect to Article 12.C.15.f.2. of the Personnel Manual, the applicant 
would have to show that he actually served as an xxx.  Given that the applicant never 
served  as  an  xxx  prior  to  being  retired,  advancement  to  that  rank  under  Article 
12.C.15.f.2. would be inappropriate.  Furthermore, the applicant cited no regulation or 
statute  that  would  otherwise  entitle  him  to  a  higher  grade.    Therefore,  in  accordance 
with Article 12.C.15.f.1., the Board finds that the highest grade to which the applicant is 
entitled  is  xxx  (pay  grade  xx),  the  grade  in  which  he  was  retired  and  served  until 
September 14, 19xx, when his name was placed on the TDRL.   
 
 
The applicant’s allegation that he should have been allowed to use his 21 
days of available leave is likewise not persuasive.  According to the Personnel Manual, 
a  separation  or  retirement  date  is  normally  established  as  20  working  days  following 
the date of CGPC’s action but “may be delayed … if a member has requested retention 
and the member’s request has been approved.”  However, the record fails to indicate 
that  the  applicant  requested  such  a  delay  or  that  such  a  request  would  have  been 
approved.  Consequently, the Board finds no evidence in the applicant’s record to prove 
that  the  Coast  Guard  erred  in  not  promoting  him  to  xxx  before  he  was  retired  for  a 
physical disability.   

7. 

9. 

 
 
Accordingly, the Board finds that it is not in the interest of justice to waive 
the  statute  of  limitations  in  this  case.    The  applicant’s  request  should  be  denied  for 
untimeliness because it lacks merit.   
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

 

ORDER 

The application of XXX XXXXX X. XXXXX, xxx xx xxxx, USCG, for the correction 

 
 

 
 

 
 

 
 

 
 

 
 
of his military record is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Julia Andrews 

 

 

 
 George J. Jordan 

 

 

 
 Kathryn Sinniger