DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2008-153 
 
xxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx   

FINAL DECISION 

 

 
 

 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case on June 20, 2008, upon receipt 
of  the  applicant’s  completed  application,  and  assigned  it  to  staff  member  J.  Andrews  to  pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  April  16,  2009,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant asked the Board to correct his record by changing his date of commission 
and his signal number (position on the active duty promotion list (ADPL)) to the date and num-
ber he earned at the U.S. Coast Guard Academy with the graduating class of 2007.  He applicant 
alleged that his commissioning was unfairly delayed by four months because medical personnel 
at the Academy health clinic failed to warn him that a medication he was prescribed following 
PRK eye surgery was prohibited.   
 

The applicant explained that on March 2, 2006, he underwent photorefractive keratotomy 
(PRK) eye surgery having received permission to do so at his own expense from the Academy.  
Prior to the surgery his uncorrected vision was measured at 20/400.  Following the successful 
surgery,  the  surgeon  prescribed  him  Econopred,  a  steroidal  eye  drop  to  promote  healing.    In 
accordance with the surgeon’s instructions, he used the eye drops for more than a year.  “During 
this time, and consistent with the directions given by the Academy, [he] applied for the required 
medical waiver to get [his] commission.  The initial commissioning recommendation was sent to 
USCG HQ on 12 April 2007.” 
 

On May 17, 2007, however, six days before graduation day, May 23, 2007, he was told 
that his request for a waiver had been denied because all of his eye examinations had been per-
formed while he was still using the eye drops.  Although he had had several meetings with the 
Academy’s medical clinic staff pursuant to his need for a medical waiver to be commissioned, he 

had never been warned that the eye drops would be a problem.  He alleged that if he had known 
using the eye drops would prevent him from being commissioned with his class, he would have 
asked his surgeon to “wean [him] off the drops.” 

 
The  applicant  alleged  that  because  he  was  never  warned  that  the  steroidal  eye  drops 
would  prevent  him  from  being  commissioned  with  his  class,  he  was  not  commissioned  until 
September 17, 2007, although he was allowed to graduate with the class on May 23, 2007. 

 
The applicant stated that he met with the eye surgeon on May 29, 2007, who set a sched-
ule that weaned him off the eye drops as of June 19, 2007.  The Academy clinic staff told him to 
wait two weeks after being weaned from the eye drops before undergoing another eye examina-
tion.  At an examination on July 3, 2007, the surgeon found that the healing process was com-
plete and that he did not have to restart the Econopred eye drops. 

 
The applicant faxed the results of this eye examination to the Academy but was told that 
“the differences in his intra-ocular pressures were too great and outside the Coast Guard’s stan-
dards.”  He had never heard of this standard and asked for instructions.  A Coast Guard doctor 
told him to wait another 30 days before having another examination because “the Coast Guard 
wanted to be assured that [his] vision was stable.”   

 
On  July  13,  2007,  he  went  to  an  opthamologist  who  advised  him  that  his  intra-ocular 
pressures were 17/26 in both eyes, which was outside the Coast Guard standard, and who attrib-
uted the problem to his recent discontinuation of the Econopred drops. 

 
On August 6, 2007, his eyes were tested again and his vision was found to be stable.  On 
August 16, 2007, he submitted his final waiver requests for a commission:  One request con-
cerned his eyesight and successful PRK surgery; the other was a request for a temporary waiver 
for his intra-ocular pressures.  Both waivers were granted and he was commissioned on Septem-
ber 17, 2007.  At a follow-up eye examination on December 27, 2007, his intra-ocular pressures 
were down to 11/13. 
 
 
waiver requests, and official documents concerning his waivers. 
 

In  support  of  his  allegations,  the  applicant  submitted  copies  of  his  medical  records, 

VIEWS OF THE COAST GUARD 

 

On October 14, 2008, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion adopting the findings and analysis provided in a memorandum on the case 
prepared by the Coast Guard Personnel Command (CGPC).   

 
CGPC stated that the applicant was unable to receive a commission on May 23, 2007, 
because he had not completed all of the required physical evaluations to substantiate his fitness 
for commissioning, as required by 14 U.S.C. § 211(b), which states that the fitness standards for 
commissioning are determined by the Secretary.  CGPC further stated that Chapter 3.D.2.c.(2)(c) 
of the Medical Manual states that a 

 

history  of  refractive  surgery  including,  but  not  limit  to:    photorefractive  keratectomy  (PRK),  is 
disqualifying [for commissioning] if any of the following conditions are met: 

 

a.  Pre-surgical refractive error in either eye exceeded +8.00 to -8.00 diopters. 
b.  At least 6 months recovery period has not occurred between the last refractive surgery or aug-

menting procedure and accession medical examination. 

c.  There have been complications and/or need for ophthalmic medications. 
d.  Post-surgical refraction in each eye is not stable as demonstrated by: 

i.  At least two separate refraction at least one month apart, the most recent of which 
demonstrates more than +/- 0.50 diopters difference for spherical vision and/or more 
than +/- 0.25 diopters for cylinder vision; and 

ii.  At least 3 months recovery has not occurred between last refractive surgery or aug-

menting procedure and one of the comparison refractions. 

 
CGPC stated that on November 10, 2005, the applicant was counseled about the risks of 
PRK surgery and advised that it was disqualifying and required a waiver for commission.  CGPC 
stated that following the applicant’s PRK surgery on March 2, 2006, he “failed to adhere to post-
surgical procedures for PRK, to wit, the use of lubricant eye drops for three weeks following 
surgery.  Subsequently, he developed corneal abrasions which are disqualifying for commission-
ing [under Chapter 3.D.3. of the Medical Manual] without a waiver.  His civilian medical pro-
vider  prescribed  ECONOPRED  …  steroidal  eye  drops  to  treat  the  abrasions,  specifying  a 
requirement for twice daily treatment with the steroid drops through 29 May 2007, and once per 
day until mid-June.” 

 
CGPC stated that the applicant underwent eye examinations on March 1, 2007, and April 
5, 2007, and the tests results of his visual acuity and refraction were satisfactory for commis-
sioning.    However,  the  applicant’s  request  for  a  waiver  was  denied  because  the  examinations 
were  conducted  while  he  was  still  using  the  steroidal  eye  drops,  which  invalidated  the  test 
results.    Therefore,  after  the  applicant  was  weaned  from  the  eye  drops,  he  underwent  another 
examination on July 3, 2007, but his intra-ocular pressures were disqualifying for commission-
ing, so he was instructed to wait another 30 days.  On August 6, 2007, the applicant underwent 
another examination, which “showed satisfactory stability of his visual acuity and refraction, as 
well as satisfactory intra-ocular pressures.”  Therefore, his subsequent request for a waiver for 
PRK surgery and a temporary waiver for intra-ocular pressures were approved on September 7, 
2007, by the Chief of CGPC’s Officer Personnel Management Division. 

 
CGPC  stated  that  “[h]ad  the  applicant  followed  the  post-operative  procedures,  it  is 
unlikely  that  he  would  have  required  the  steroidal  treatment  for  corneal  abrasions.”    His  pre-
graduation eye examinations test results were invalidated because he was still using the steroidal 
eye drops until June 19, 2007.  CGPC stated that the applicant did not demonstrate full physical 
qualification for commissioning until August 6, 2007, and then his request for a waiver for his 
PRK surgery had to be processed and approved, which occurred on September 7, 2007. 

 
CGPC argued that the applicant’s allegation that his commissioning was delayed because 
of an error by the Academy medical clinic staff “is without merit.”  His “lack of medical fitness 
to commission on 23 May 2007 was a direct consequence of his own failure to adhere to post-
operative instructions to apply lubricating drops to his eyes.  All other delays in commissioning 
stem from this initial action, and the consequences of that action are the applicant’s to bear.” 

 

CGPC stated, however, that there was a delay in the communication between CGPC and 
the Academy concerning his fitness for commissioning, and so CGPC recommended that partial 
relief be granted by adjusting the applicant’s date of rank from September 19, 2007, to Septem-
ber 7, 2007, and that he receive corresponding back pay and allowances because of the adjust-
ment.  In support of these allegations and recommendation, CGPC submitted copies of the appli-
cant’s eye test results and the following documents: 

 
A captain and doctor serving as the Chief of the Health Service Division at the Academy 
signed a sworn declaration stating that after the applicant “failed to use lubricant drops as pre-
scribed after his [PRK] surgery.  Due to improper lubrication of the eyes he developed lesions of 
the cornea.  At this point in time use of steroid drops was not optional … to ensure healing of the 
corneas.    This  regimen  of  medication  as  prescribed  by  the  ophthalmologist  was  necessary  to 
ensure proper healing.  As a side effect of steroid drops, [the applicant] developed an increase of 
intraocular pressure. … After the drops were discontinued in a safe manner, a waiting period was 
required for the intraocular pressures to normalize.  On 11 September 2007, [he] was granted a 
temporary medical waiver [of his intraocular pressure] for one year.”  The doctor submitted a 
copy of a fax he had sent to CGPC in May 2007, in which he wrote that the applicant “is cur-
rently using Prednisone acetate solution 1%.  The temporary need for these drops was not due to 
a problem directly related to the surgical procedure but due to the patient not using his lubricant 
drops for several weeks post-op.” 

 
A lieutenant, now retired, serving as the Clinic Administrator at the Academy stated that 
the  applicant  “was  properly  counseled  on  PRK  procedures  IAW  Coast  Guard  regulations.  … 
[He] failed to inform the clinic’s staff that he had not completely followed the instructions of his 
surgeon which included the use of lubrication drops daily.  Subsequently, he developed lesions 
of the cornea which required steroid drops to heal.  I only learned that he was using steroid drops 
after receiving an email from [a chief petty officer] at HQ dated 10 May 2007.  Once [the appli-
cant] confirmed the use of the drops he was advised of it disqualification [sic] for commissioning 
and advised of the waiver process. … In addition, [he] was disqualified for commissioning due 
to having trouble with obtaining two stable eye examinations at least 30 days apart; as well as 
having very high intraocular pressure (IOP) which was believed to be from the steroid use.” 
 
 
A Page 7 (form CG-3307) dated November 10, 2005, signed by the Clinic Administrator 
and  the  applicant,  who  acknowledged  the  information  on  the  form  and  that  he  had  read  and 
understood Chapter 2.A.7. of the Medical Manual and ALCOAST 285/05.  The Page 7 states 
that  the  decision  to  undergo  PRK  “has  an  impact  on  the  command,  your  commissioning,  and 
possibly on your access to the Physical Disability Evaluation System (PDES). …  Furthermore, 
you must comply with all requirements of ALCOAST 285/05.  I have listed a copy here in that 
you must produce documentation of refractive stability over two separate examinations at least 
three months apart.  The PRK is disqualifying for commissioning.  Therefore, a waiver request 
must be completed by you no sooner than one year after the procedure was completed.” 

 
An email from CGPC dated May 25, 2007, stating that the applicant was using steroidal 
eye drops because he had not used lubricating eye drops in the weeks after his surgery and that 
under Chapter 3.D.8.c.(2)(d) of the Medical Manual, he could not be commissioned without two 

 

eye examination, performed at least one month apart, showing stability after he was weaned off 
the eye drops. 

 
An email from the Chief of the Officer Personnel Management Division of CGPC, dated 
September 7, 2007, in which he reported to Commander, CGPC that he had “approved a tempo-
rary waiver [for the applicant] subject to medical conditions/follow-up to allow his commission-
ing today.” 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On December 29, 2008, the applicant responded to the views of the Coast Guard.  The 
applicant objected to CGPC’s implication that he had willfully failed to use lubricant eye drops 
following his PRK surgery.  He stated that his post-operative therapy included a mild steroidal 
drop as a lubrication fluid and that he followed the regimen.  However, in the summer of 2006, 
while he was deployed on the USCGC EAGLE, he ran out of drops and “unfortunately assumed 
my healing therapy was complete.  Ultimately, it was not, and as my surgeon later explained to 
me, suddenly stopping the steroidal drops accelerated the growth of lesions on my cornea, which 
the steroids were prescribed to heal.”  When he left the EAGLE in late July 2006, he went to the 
surgeon because he realized his vision was worsening, and the surgeon prescribed the stronger 
steroidal  eye  drops.    The  applicant  stated  that  the  cause  of  his  need  for  long-term  use  of  the 
stronger drops “may very well have been ignorance, but it was not willful negligence.” 

FINDINGS AND CONCLUSIONS 

 

 
 
military record and submissions, the Coast Guard's submissions, and applicable law: 

The Board makes the following findings and conclusions on the basis of the applicant's 

1. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552. 
The applicant has exhausted his administrative remedies, as required by 33 C.F.R. § 52.13(b), 
because there is no other currently available procedure provided by the Coast Guard for correct-
ing the alleged error or injustice. 

2. 

3. 

The application is timely because it was filed within three years of the applicant’s 

discovery of the alleged error or injustice in his record, as required under 10 U.S.C. § 1552(b).   
 

Under 33 C.F.R. § 52.24(b), the Board begins its analysis in every case by pre-
suming that the disputed information in the applicant’s military record is correct as it appears in 
his record, and the applicant bears the burden of proving by a preponderance of the evidence that 
the disputed information is erroneous or unjust.  Absent evidence to the contrary, the Board pre-
sumes that Coast Guard officials and other Government employees have carried out their duties 
“correctly, lawfully, and in good faith.” Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 
1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979). 
 

The applicant alleged that he was unfairly denied commissioning on the day of his 
graduation from the Academy, May 23, 2007, because the staff at the Academy medical clinic 
failed to warn him that steroidal eye drops he had been prescribed were disqualifying.  However, 
the Clinic Administrator has stated that the applicant did not timely inform the staff of the clinic 

4. 

that he was still using steroidal eye drops.  The Clinic Administrator learned about the prescrip-
tion on May 10, 2007, by which time it was too late to wean the applicant off the drops and have 
him undergo two eye examinations a month apart so that he could receive a commission with his 
classmates.   

The applicant has admitted that he ran out of eye drops while aboard the EAGLE 
in  the  summer  of  2006;  mistakenly  thought  that  he  did  not  need  them  any  more;  and  did  not 
understand the danger of suddenly stopping his use of the eye drops.  When he left the EAGLE, 
he apparently consulted his private eye surgeon because he thought his eyesight was worsening.  
The surgeon diagnosed corneal abrasions and prescribed long-term use of stronger steroidal eye 
drops.  There is no evidence that the Academy’s clinical staff knew of this prescription or had 
any reason to think that someone who underwent PRK surgery on March 2, 2006, would still be 
using steroidal eye drops in the spring of 2007.   

 
5. 

 
6. 

 
7. 

 
8. 

 
 
 
 

The record indicates that the eye drops were unexpectedly, medically necessary 
and could not be stopped suddenly without causing adverse effects.  Moreover, the applicant has 
not proved that if he had been warned that the eye drops were disqualifying and had asked the 
surgeon if he could stop using them, the surgeon would have authorized weaning him off the eye 
drops early enough that the applicant’s eyes could have stabilized and allowed him to pass the 
two eye examinations in time to receive a commission with his classmates.  Therefore, the appli-
cant has not shown that he was unfairly denied a commission on May 23, 2007, even if someone 
on the Academy’s clinical staff knew about the prescription prior to May 2007. 

The Board finds that the applicant has not proved by a preponderance of the evi-
dence that he was erroneously or unfairly denied his commission on May 23, 2007, since he had 
not been physically qualified for a commission in accordance with the regulations in the Medical 
Manual by that date.  Physical qualification is a fundamental requirement for an officer’s com-
mission.  CGPC has admitted, however, that the applicant’s commissioning was authorized as of 
September 7, 2007; that the Chief of the Officer Personnel Management Division intended the 
commissioning to occur on that date; and that a delay in communications delayed the commis-
sioning from September 7 to September 17, 2007.   

Accordingly, the Board agrees with CGPC that partial relief is warranted in that 
the applicant’s date of commissioning should be backdated to September 7, 2007, and that he 
should receive corresponding back pay and allowances and an adjusted signal number and posi-
tion on the ADPL if necessitated by the change in his date of rank. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The application of Ensign xxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his 

military record is granted in part as follows:   
 

ORDER 

 

 
 

The Coast Guard shall pay him any back pay and allowances he may be due as a result of 

The Coast Guard shall correct his record to show that he received his commission as an 
ensign on September 7, 2007.  The Coast Guard shall also make a corresponding correction to 
his signal number and position on the ADPL, if warranted by his new date of rank.   
 
 
these corrections. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 Robert S. Johnson, Jr. 

        

 
 
 Diane Donley 

 

 
 Kathryn Sinniger