DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-150 
 
xxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx   

 

 
 

 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
This proceeding was conducted 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 
July  21,  2006,  upon  receipt  of  the  applicant’s  completed  application  and  military  and 
medical records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated May 11, 2007, is approved by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS  

The applicant, who was discharged on September 12, 2002, for “Alcohol Rehabi-
litation Failure,” pursuant to the recommendation of an Administrative Separation Board 
(ASB),  asked  the  BCMR  to  correct  his  record  to  show  that  he  was  retired  due  to  a 
physical disability.  The applicant alleged that the second “alcohol incident” in his record, 
which caused his discharge, was unrelated to his ingestion of alcohol.  He alleged that the 
alcohol incident was instead caused by a sleep disorder that itself resulted from his hear-
ing loss and tinnitus.   

 
The  applicant  stated  that  he  developed  total  right-side  hearing  loss  and  tinnitus 
while serving in xxxxxxxxxxxxxxxx, in 1995 and 1996.  However, at that station, and 
later as the Executive Officer of a station in xxxxxxxxx, he “was not put in compromising 
situations  where  [his]  hearing  would  be  put  in  question.”    However,  in  2000,  he  was 
transferred  to  a  buoy  tender  stationed  in  xxxxxxxxxx  to  fill  the  position  of  buoy  deck 
supervisor.  His job required constant attention to verbal orders and warnings because of 
the dangerous working conditions.  Therefore, he was relieved of his deck duties because 
his supervisors were concerned for his safety.   

 

The  applicant  alleged  that  following  his  first  alcohol  incident,  he  requested  a 
physical examination.  In August 2001, the doctor found him “not fit for duty and a safety 
hazard in [his] current position.”  The doctor also documented problems with his “sleep-
ing pattern” because of the tinnitus. 

 
The  applicant  alleged  that  while  stationed  in  xxxxxxxx,  he  was  identified  as  a 
potential  alcohol  abuser  and  referred  himself  to  a  rehabilitative  program.    However, 
shortly after completing the program and a 90-day aftercare support plan, he apparently 
urinated  one  night  in  the  ship’s  berthing  area.    The  applicant  alleged  that  he  has  no 
memory of having done this and that a “medical provider opined that it was unlikely to 
have  been  a  result  of  alcohol  abuse.”    He  alleged  that  there  was  no  evidence  that  his 
urination  in  the  berthing  area  was  related  to  alcohol  abuse  and  so  it  should  not  have 
counted as an alcohol incident.  However, his commanding officer (CO) ordered him to 
attend alcohol abuse training again during the Christmas holidays.  When the applicant 
objected to this scheduling and the location, which would have kept him away from his 
family over Christmas, the CO initiated his discharge for alcohol rehabilitation failure. 
 

The applicant stated that during the separation proceedings, he repeatedly request-
ed  processing  under  the  Physical  Disability  Evaluation  System  (PDES)  because  of  his 
hearing loss and tinnitus, but his request was denied.  The applicant stated that his hear-
ing loss and tinnitus clearly interfered with his performance of duty as a boatswain’s mate 
first class and that the Coast Guard should have initiated PDES processing as soon as it 
became clear that his hearing loss was a safety concern on deck.  The applicant alleged 
that his CO’s determination that his urination in the berthing area was an alcohol incident 
and her failure to initiate PDES processing, contrary to the opinion of the doctor, violated 
the Personnel Manual and his due process rights.  The applicant noted that the Depart-
ment of Veterans’ Affairs (DVA) has awarded him a 30% disability rating under the Vet-
erans’ Affairs Schedule for Rating Disabilities (VASRD). 

SUMMARY OF THE RECORD 

 

 

 

On January 14, 1992, the applicant enlisted in the Coast Guard.  On January 21, 
1992, during boot camp, the Service’s drug and alcohol abuse program was explained to 
him.  In 1995, the applicant’s right ear was injured while he was serving aboard a cutter.  
He was diagnosed with near total hearing loss and tinnitus in his right ear.  He was given 
a hearing aid.  By 1998, the applicant had advanced to the rate of boatswain’s mate first 
class (BM1). 

 
On April 5, 2000, a nurse at the Naval Addiction Treatment Facility in xxxxxxx, 
noted that the applicant had been referred for alcohol screening because colleagues at his 
command had complained that he was “coming into work smelling like EtOH [alcohol].”  
He told the staff at the  facility that he had not drunk alcohol for five days, but then a 
breathalyzer test showed his BAC to be 0.08.   When told the test result, the applicant 
stated that he had taken Dimetapp the night before, gargled with Scope that morning, and 
was chewing Icebreaker gum. 

On May 30, 2000, the applicant’s commanding officer (CO) at Group xxxxxxxxx 
entered a Page 7 (form CG-3307) in the applicant’s record, which he acknowledged by 
signature, to document the events of April 5, 2000, as his first alcohol incident.  The Page 
7 noted that the applicant had driven a Government vehicle to the treatment center and 
that two members had had to take time to retrieve him and the vehicle.  The applicant was 
advised that he should “continue with any treatment that is directed” and that any further 
alcohol incident could result in his discharge. 

 
In June 2000, the applicant was transferred to a buoy tender stationed in xxxxxxx.  
A Page 7 in his record shows that the he was late to muster twice in September 2000.  He 
was  again  screened  for  alcohol  abuse.    After  the  applicant  completed  all  of  the 
questionnaires for alcohol screening, Mr. L, a licensed social worker and substance abuse 
professional at xxxxxxx Mental Health Services, informed the command that “there was 
not sufficient evidence presented to diagnose chemical dependency or abuse.” 

 
On May 2, 2001, the applicant urinated on a chief petty officer asleep in his bunk.  
He did not deny that he had been drinking alcohol that evening.  His command told him 
to refer himself for alcohol screening but did not document it as his second alcohol inci-
dent, which would likely have resulted in his discharge. 

 
On June 5, 2001, the CO of the buoy tender entered a Page 7 in the applicant’s 
record to document the fact that on May 29, 2001, he had been screened again by Mr. L 
who  “determined  that  [he]  met  the  criteria  for  a  diagnosis  of  Alcohol  Abuser.”    After 
being screened again by Mr. V on July 3, 2001, with the same result, the applicant began 
a four-week outpatient alcohol rehabilitation program at the local clinic. 

 
On July 19, 2001, the CO entered a Page 7 in the applicant’s record to counsel 

him about having been late for muster a third time in a year. 

 
On August 1, 2001, the CO documented the applicant’s completion of the outpa-
tient rehabilitation program.  She advised him that he was required to abstain from con-
suming alcohol for three months and to attend an Alcoholics Anonymous meeting, or a 
similar  meeting,  twice  a  week.    She  also  advised  him  that  failure  to  comply  with  the 
aftercare program might result in an administrative discharge. 

 
On August 24, 2001, the applicant’s physician, Dr. K, signed a Report of Medical 
Examination, noting that the applicant had hearing loss and tinnitus in his right ear but 
finding him fit for duty, sea duty, and overseas duty. 

 
On November 1, 2001, the CO entered a Page 7 in the applicant’s record to con-

gratulate him for completing the 90-day aftercare support plan. 

 
On November 13, 2001, after drinking alcohol at a farewell party for a crewmate, 
the applicant urinated on a first class petty officer asleep in his bunk.  The CO removed 
his  access  to  classified  materials  and  his  qualification  as  inport  officer  of  the  deck; 

referred  him  for  further  alcohol  screening;  prepared  a  Page  7  documenting  his  second 
alcohol incident; and advised him that he would be processed for separation. 

 
On November 30, 2001, Dr. K noted that the applicant had reported that his hear-
ing loss made his work on the deck of a buoy tender unsafe.  The applicant told Dr. K 
that if the wind was blowing, it was harder to hear with his hearing aid in his ear, and that 
he was “having great difficulty sleeping because of the tinnitus.”  Dr. K diagnosed the 
applicant  with  tinnitus,  hearing  loss,  and  “possible  sleep  walking  aggravated  by  EtOH 
[alcohol].”  He also wrote that he had spoken to Mr. L, 

 
regarding three incidents apparently where the patient has had alcohol on board.  He once 
urinated on a sleeping shipmate and another time in the hall.  He has no memory of the 
above incidents.  The patient states that the last time this occurred recently he only had 
six to seven beers after being dry for 90 days.  He tried his best not to have this reoccur, 
but  then  again  had  no  memory  of  it  the  next  morning  when  it  was  reported.   There  is 
some question of whether we are dealing with substance abuse here, which I find some-
what unlikely, or possibly a sleep disorder.  I doubt that this patient, who presents a rela-
tively reliable history, could have had sufficient alcohol to push himself to a blackout.  It 
is unknown whether he has a real problem or whether he has some sleepwalking tenden-
cies, or other type of sleep disorder which could be contributing to the situation.  I am 
unsure of how to further evaluate the situation, but [Mr. L] seems to think that the xxxxx 
facility might be able to give the patient some help here. 
 
Also on November 30, 2001, Mr. L reported to the command that he had diag-
nosed the applicant as alcohol dependent due to the fact that he had apparently abused 
alcohol even though he had been through treatment and knew he was prone to urinating 
in an inappropriate place after consuming alcohol.  Mr. L recommended that the applicant 
be treated for alcohol dependency and tinnitus and assessed for a possible sleep walking 
disorder and depression. 

 
On December 7, 2001, the CO entered a Page 7 in the applicant’s record, which 
he refused to sign in acknowledgement.  It states that the applicant was screened by Mr. L 
on November 28, 2001, who found that he met the criteria for substance dependence.  It 
also  states  that  the  applicant  was  scheduled  to  attend  alcohol  dependency  treatment  at 
xxxx  Naval  Hospital.    In  addition,  the  CO  advised  him  that  “[m]embers  refusing  to 
undergo  treatment,  failing  to  complete  treatment,  or  violating  an  alcohol  rehabilitation 
aftercare plan normally will be separated from the Coast Guard.” 

 
On December 14, 2001, the applicant responded to the notification that his CO 
was initiating his discharge.  He stated that he was not fit for discharge because he had a 
ratable disability under the VASRD that prohibited him from safely accomplishing his 
duties on the buoy tender.  He also argued that he had not received proper rehabilitation 
treatment under the Wellness Manual. 

 
On January 1, 2002, the applicant received orders to report to a Navy hospital for 
in-patient alcohol rehabilitation treatment.  On January 3, 2002, the CO notified the appli-
cant again that she was initiating his separation.  She noted that after having agreed to 
begin treatment at xxxxx Naval Hospital beginning on January 8, 2002, he had stated on 

 
On January 14, 2002, the applicant asked to appear before an ASB.  He stated that 
he was not physically qualified for separation because his hearing loss rendered him unfit 
for duty as a boatswain’s mate.  The applicant complained that the person who diagnosed 
him  as  an  alcohol  abuser  was  not  a  physician  or  clinical  psychologist.    The  applicant 
admitted that he “urinated in an area not designated as a head.  It was inappropriate.  It 
was deemed serious enough to warrant an alcohol incident.”  The applicant complained 
that after his first alcohol incident in April 2000, he was not sent to IMPACT training, as 
a doctor at an alcohol abuse clinic had recommended, and that after he was diagnosed as 
an alcohol abuser in May 2001, he received an 8-hour course instead of the more inten-
sive  rehabilitative  treatment  recommended  under  the  Wellness  Manual.    The  applicant 
also denied having disobeyed a direct order to attend another in-patient rehabilitation pro-
gram  since  his  response  to  his  CO  had  been  that  he  would  “consider”  attending  the 
program after the holidays.  The applicant further stated that he  

 
chose  to  decline  the  treatment  offered  to  me  for  several  reasons.    I  am  seeking  more 
appropriate treatment.  I do not think that treatment away from my home for up to four 
weeks, in a military environment, knowing that I am being processed for separation, and 
the fact that other conditions exist that may be contributory vice perceived alcohol abuse, 
as evident in a narrative summary by [Dr. K], would be appropriate or beneficial. 
 
On  January  19,  2002,  Dr.  K  noted  that  after  the  applicant  suffered  significant 
right-side hearing loss and tinnitus in 1995, hearing aids were found to be ineffective due 
to the interference of wind noise on the deck of a cutter.  Dr. K also noted that the appli-
cant reported that his “very loud tinnitus is markedly interfering with his sleep patterns, 
possibly even producing depressive symptoms.”  Dr. K concluded that the applicant had a 
significant permanent disability.  On February 1, 2002, Dr. K reported that the applicant’s 
hearing  loss  dangerously  interfered  with  his  performance  of  duty  as  it  involved  buoy 
tending and that the problem was not correctable with hearing aids. 

 
On January 23, 2002, the applicant’s CO ordered an ASB to convene and render 
factual findings and a recommendation as to whether the applicant should be discharged. 

January 2, 2002, that he was refusing treatment.  The CO informed the applicant of his 
right to submit a statement on his own behalf and of his right to counsel and to a hearing 
before  an ASB.  The  applicant acknowledged the notification on January  8, 2002, and 
requested counsel. 

 
On  February  12,  2002,  the  applicant  underwent  a  physical  examination.    Dr.  S 
found that the applicant had significant hearing loss in his right ear but “no disqualifying 
mental or physical defects for the purpose of this evaluation:  discharge from the Coast 
Guard.  His hearing loss while not disqualifying for the purpose of this physical may be a 
ratable  disability  under  the  Veterans’  Affairs  Schedule  for  Rating  Disabilities.”    Dr.  S 
found the applicant to be “physically and mentally fit for discharge.”   

 
On March 20, 2002, the ASB convened to hear the applicant’s case.  He was rep-
resented by military counsel.  According to the summary of the testimony prepared by the 
recorder, Dr. K testified that tinnitus “may result in severely affecting sleep patterns and 

result in sleep deprivation” but that he did not know if the applicant suffered from a sleep 
walking disorder.  Dr. K stated that he knew Mr. L and had no reason to disagree with 
Mr. L’s diagnosis.  He also stated that consumption of alcohol would exacerbate sleep 
problems.    The  Command  Drug  and  Alcohol  Representative  (CDAR)  testified  that  the 
applicant was first referred for alcohol screening after he was late to muster on September 
28, 2000.  The CDAR stated that, after the applicant urinated on someone in a rack in 
May 2001, the command had advised him to self-refer for treatment to avoid having a 
second  alcohol  incident  documented  in  his  record.    Upon  self-referral,  the  applicant 
underwent a “four-week intensive out-patient program” at a local clinic. 

 
On March 21, 2002, following eight hours of testimony, the ASB concluded that 
the applicant had been “involved in two separate, documented alcohol incidents and also 
refused required treatment.”  The ASB recommended that the applicant be separated with 
an honorable discharge for “unsuitability due to alcohol abuse.”  Their report included the 
following findings and opinions: 

 
6.  On August 1, 2001, [the applicant] successfully completed a four-week Alcohol and 
Other Drugs Awareness program provided by Counseling Associates of  … 

•  •  • 

8.  On November 12, 2001, 13 days after completing the support plan noted in Fact 7, 
[the applicant] was observed drinking alcohol. … 
 
9.  During the early morning hours of November 13, 2001, following the evening men-
tioned in Fact 8, [the applicant] urinated on [a first class petty officer], while they were 
sleeping in first class berthing aboard the [buoy tender].  This incident was documented 
as a second alcohol offense. … 
 
10.  [The applicant] was screened by [Mr. L], LICSW, and was found to meet the criteria 
for being substance dependent. … 
 
11.  [The applicant] was scheduled to attend alcohol dependency treatment at xxxxxxxx 
Naval  Hospital,  xxxxxxxx,  as  recommended  by  [Mr.  L]  and  [the  buoy  tender’s] 
Commanding Officer. … 
 
12.  [The applicant] initially refused treatment at xxxxxx Naval Hospital due to the dates 
coinciding with the Christmas and New Year holidays.  [His command] rescheduled the 
treatment to commence in January 2002.  He again refused treatment due to the location 
of the program.  He requested local treatment so that he could have the support of his 
family. … 
 
13.  [The applicant] has documented hearing loss and tinnitus in his right ear. … 

•  •  • 

4.  [The command] was reasonable in directing [the applicant] to attend xxxxxxx Naval 
Hospital for inpatient rehabilitation in that local treatment was not successful. … 
 
5.  [The applicant’s] refusal to attend required alcohol dependency treatment as xxxxxxxx 
Naval Hospital was a refusal under chapter 20.b.2 k. of [the Personnel Manual]. … 
 
6.    [The  applicant’s]  hearing  loss  and  tinnitus  did  not  contribute  to  the  two  alcohol 
incidents. … 
 

On March 25, 2002, the applicant sought redress from his CO under Article 138 
of  the  Uniform  Code  of  Military  Justice  (UCMJ).    He  requested  processing  under  the 
PDES based on his safety concerns about his hearing loss. 

 
On May 9, 2002, the applicant’s counsel asked the CO to reconsider and disap-
prove the ASB’s recommendation.  He noted that Dr. K has testified that the applicant’s 
tinnitus could have caused sleep walking and so “it is not unreasonable to conclude that 
[the applicant’s] urinating in the berthing areas could have likely been caused by a sleep 
deprivation disorder, and not a direct result of consuming alcohol the evening before.”  
The  counsel  noted  that  none  of  the  witnesses  who  observed  the  applicant  during  the 
evening testified that he appeared to be intoxicated and that none of the witnesses who 
observed his urination in the berthing area testified that he smelled of alcohol.  The coun-
sel stated that because the Personnel Manual does not require intoxication for conduct to 
be considered an “alcohol incident,” the applicant’s separation would be unfair since a 
sleep disorder may have contributed to his conduct.  The counsel alleged that the appli-
cant’s  refusal  to  attend  rehabilitation  treatment  was  reasonable  since  he  had  not  been 
diagnosed as alcohol dependent by a physician or psychologist, as required by the Well-
ness Manual.  The counsel argued that the applicant should have been processed under 
the PDES because he was not fit for duty. 

 
On May 24, 2002, the CO forwarded the ASB’s report and the letter dated May 9, 
2002,  from  the  applicant’s  counsel  to  the  District  Commander  with  a  recommendation 
that  the  applicant  be  honorably  discharged  “for  unsuitability  due  to  alcohol  abuse  and 
refusing medical treatment.”  On June 25, 2002, the District Commander forwarded the 
CO’s recommendation to the Coast Guard Personnel Command (CGPC), noting that he 
had carefully reviewed the discharge package and recommended that it be approved. 

 
On July 31, 2002, the Chief Counsel reported to Commander, CGPC that the pro-
ceedings  had  been  reviewed  and  were  in  substantial  compliance  with  the  regulations.  
The Chief Counsel agreed with the applicant that “only a physician or a psychologist may 
diagnose a member as alcohol dependent,” and Mr. L was neither.  However, the Chief 
Counsel stated, Commander, CGPC could still approve the applicant’s separation based 
on his two alcohol incidents.  He also advised Commander, CGPC to consider the appli-
cant’s claim that the second alcohol incident resulted from sleep deprivation.   

 
On August 12, 2002, Commander, CGPC approved the ASB’s findings, opinions, 
and recommendation and ordered that the applicant be honorably discharged.  On August 
15, 2002, CGPC issued orders for the applicant to be honorably discharged on September 
12, 2002, with separation code GPD and “Alcohol Rehabilitation Failure” as the narrative 
reason for separation on his DD 214. 

 
On August 26, 2002, the applicant underwent another physical examination pur-
suant to his pending discharge.  Dr. K found him fit for discharge but noted that he was 
not fit for sea duty.  The applicant objected to the finding that he was fit for discharge. 

 

On September 6, 2002, a Navy audiologist wrote a letter stating that the type of 
hearing aid recommended for people with the unilateral, near-total hearing loss did “not 
allow  reduction  of  background  noise  with  enhanced  speech  range  or  enhanced  speech 
recognition,”  which  would  be  needed  aboard  a  cutter.    The  audiologist  stated  that  the 
applicant  had  reported  “extreme  difficulty  localizing  sound  sources,  discerning  the 
desired signal from background noise, and correctly understanding speech in background 
noise.”  She concluded that he was “putting himself and his crew in great danger when 
called upon to work in a noise hazardous environment where it is imperative to under-
stand spoken communications. … A Medical Evaluation Board should  be convened to 
place  permanent  medical  restrictions  on  his  duties.”    The  audiologist  also  prepared  a 
similar report dated August 20, 2002.  

 
On September 12, 2002, the applicant received an honorable discharge for “alco-
hol rehabilitation failure” under Article 12.B.16. of the Personnel Manual.  He had com-
pleted 10 years, 7 months, and 29 days of active duty. 

 
On February 27, 2003, the DVA awarded the applicant a 10% disability rating for 
hearing loss and a 10% rating for tinnitus, for a combined rating of 20%.  On September 
26, 2003, the DVA also awarded the applicant a 10% rating for degenerative disc disease 
in the lumbar spine, which increased his combined rating to 30%. 
 

VIEWS OF THE COAST GUARD 

 
 
On December 7, 2006, the Judge Advocate General (JAG) submitted an advisory 
opinion in which he recommended that the Board deny relief in this case.  In so doing, he 
adopted the facts and analysis provided in a memorandum on the case by CGPC. 
 
 
CGPC noted that the application was untimely and that the applicant had not justi-
fied  his  delay  in  seeking  the  requested  correction.    Moreover,  CGPC  argued  that  the 
Coast Guard committed no error or injustice in discharging the applicant for alcohol reha-
bilitation  failure  since  he  incurred  two  alcohol  incidents,  refused  further  rehabilitation 
treatment, and received due process through the ASB. 
 
 
CGPC argued that although the applicant contends that his hearing loss interfered 
with his performance of duty, “[u]p until discharge proceedings were initiated for unsuit-
ability  due  to  alcohol  abuse,  the  Applicant  had  been  performing  his  duties  of  rate  and 
grade.”   CGPC noted that the applicant had successfully  completed tours of duty after 
losing hearing in his right ear in 1995, completed buoy deck supervisor training in March 
2001, and achieved his competencies as a small boat crewman and buoy deck supervisor 
and in aids to navigation in December 2001.  CGPC alleged that there “is no evidence 
that  the  applicant’s  hearing  loss  impacted  his  performance  of  duty  until  his  assertion 
during the ASB process.”  CGPC stated that the applicant was found fit for separation 
despite  his  hearing  loss  and  that  his  hearing  loss  did  not  constitute  grounds  for  PDES 
processing under applicable provisions of the PDES and Medical Manuals.   
 

CGPC  also  reported  that  the  applicant  requested  transfer  to  several  different 
operational units in February and March 2002 and  that the Direct Access database shows 
that he was transferred early to an aids to navigation station for “disciplinary/derogatory 
performance”  reasons—not  because  of  his  hearing  loss.    CGPC  stated  that  it  “is  not 
uncommon for Coast Guard personnel being processed for administrative separation to be 
relieved  of  significant  duties”  and  that  the  record  shows  that  after  the  second  alcohol 
incident the command of the buoy tender lost confidence in the applicant “based upon his 
alcohol abuse and the nature of his conduct, not his hearing loss.” 
 
 
CGPC also argued that the fact that the applicant received 10% disability ratings 
from  the  DVA  for  his  hearing  loss  and  tinnitus does  not  prove  that  he was  entitled  to 
PDES processing because the  “military  disability system determines unfitness for duty 
whereas  the  VA  ratings  are  based  on  an  evaluation  of  the  whole  person,  including  an 
evaluation of the evaluee’s employability status and earning capacity.” 
 
 
The JAG concluded that the applicant’s request should be denied for untimeliness 
since he failed to provide any reason why his delay should be excused.  In addition, the 
JAG argued that a cursory review of the merits of the case shows that no error or injustice 
was committed since the applicant incurred two alcohol incidents. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On December 8, 2006, the Chair sent the applicant the views of the Coast Guard 
and invited him to respond within 30 days.  The applicant was granted an extension and 
submitted responses on January 29 and February 5, 2007.   
 
 
The  applicant’s  attorney  argued  that  although  the  applicant  was  discharged  on 
September 12, 2002, and his application was received by the Board on April 10, 2006, 
the Board should consider the application to be timely.  He alleged that the application 
was  signed  by  the  applicant  on  February  28,  2005,1  and  first  mailed  to  the  Board  on 
March 15, 2005.  The attorney stated that the applicant asked him about the status of his 
case  in  late  2005  because  he  had  not  heard  anything,  and  the  attorney  advised  him  to 
check with the Board.  The applicant contacted him again on March 2006 and told him 
that the Board had not received his application.  Therefore, the attorney sent the Board a 
copy of the application on March 24, 2006. 
 
The  attorney  argued  that  the  Board  should  consider  the  case  timely  and  on  the 
 
merits because it was first mailed in a timely manner and because “justice and equity for 
the former member are better served by adjudicating the case on the facts rather than on a 
disputed  issue  of  timeliness.”    He  argued  that  a  review  on  the  merits  “is  necessary  to 
bring closure to this portion of the applicant’s life.” 
 
 
Regarding the merits of his case, the applicant repeated his argument that since 
Mr. L did not have the proper credentials to refer him for further alcohol rehabilitation, 
                                                 
1 The signature date on the applicant’s DD 149 is somewhat illegible as it could be read as February 28, 
2005 or 2006. 

his refusal to accept this treatment was not a proper basis for his discharge.  The applicant 
also repeated his argument that he was not fit for duty and that his duties aboard the buoy 
tender had been reduced and adjusted because of his hearing loss. 
 

APPLICABLE LAW 

 

 

Regulations Regarding Separation for Unsuitability 

 
Article 12.B.16.b. of the Personnel Manual in effect in 2002 authorizes the Com-
mander of CGPC to discharge members for unsuitability by reason of alcohol abuse in 
accordance with Article 20.B.   

 
Article 12.B.16.d. states that when a member is being discharged for unsuitability, 
“commanding  officers  shall:    1.  Advise  the  member  in  writing,  using  the  letter  and 
endorsement described in Article 12.B.9., to inform the member of the reason(s) he or 
she is being considered for discharge. Specifically state one or more of the reasons listed 
in Article 12.B.16.b.  2. Afford the member the opportunity to make a written statement 
on his or her own behalf. … 3. Afford the member an opportunity to consult with a law-
yer  …  if  the  member’s  character  of  service  warrants  a  general  discharge.”    Article 
12.B.16.i. states that a “member with more than eight years’ military service under con-
sideration for discharge for unsuitability is entitled to an administrative discharge board.” 

 
Article 12.B.16.h. states that a member being considered for discharge for unsuit-
ability must have a physical examination performed by a military or contract physician 
and that, “if it appears a mental or physical disability causes the unsuitability, a medical 
board  will  be  requested.”    Article  12.B.6.a.  states  that  “[a]ll  physical  examinations  for 
separations are good for 12 months.” 

 
Article 12.B.6.c. states that, if a member is found physically qualified for separa-
tion and objects to that finding, “Form 88 together with the member’s written objections 
shall be sent immediately to Commander, (CGPC-epm-1) for review.” 

Regulations Regarding Alcohol Abuse and Rehabilitation 

 
Article  20.A.2.d.1.  defines  an  “alcohol  incident”  as  “[a]ny  behavior,  in  which 
alcohol is determined, by the commanding officer, to be a significant or causative factor, 
that  results  in  the  member's  loss  of  ability  to  perform  assigned  duties,  brings  discredit 
upon the Uniformed Services, or is a violation of the Uniform Code of Military Justice, 
Federal, State, or local laws. The member need not be found guilty at court-martial, in a 
civilian court, or be awarded non-judicial punishment for the behavior to be considered 
an  alcohol  incident.”    Article  20.B.2.h.2.  states  that  “[e]nlisted  members  involved  in  a 
second  alcohol  incident  will  normally  be  processed  for  separation  in  accordance  with 
Article 12.B.16.”   

 
Article  20.B.2.k.  states  that  “[m]embers  refusing  to  undergo  the  treatment  the 
commanding  officer  and  competent  medical  authority  deem  necessary,  failing  to  com-

plete  this  treatment,  or  violating  an  alcohol  rehabilitation  aftercare  plan  normally  are 
processed for separation.”   

 
Chapter 2.C.8. of the Health Promotion (Wellness) Manual in effect in 2002 states 
that alcohol abuse is a “maladaptive pattern of alcohol use that meets the following crite-
ria as published in the  Diagnostic and Statistical Manual,  Fourth  Edition (DSM),  code 
number 305.0.”  Chapter 2.C.9. states that “alcohol dependence” is a “diagnosis made by 
a physician or psychologist using the criteria as published in DSM, code number 303.9.”  
Chapter 2.C.25. states that a “licensed individual practitioner (LIP)” is a “qualified physi-
cian  or  licensed  psychologist  who  can  provide  an  appropriate  diagnostic  screening  for 
substance  abuse  or  dependency.    To  be  qualified,  the  physician  or  psychologist  must 
attend  a  formal  addictions  oriented  training  program  provided  by  U.S.  Navy,  DoD  or 
other MLC(kma) recognized addiction programs.” 

 
Chapter 2.F.1. states that if a member is involved in an alcohol incident or alco-
hol-related situation but treatment is not recommended, the member should be ordered to 
attend an alcohol awareness education program  such as  the Navy’s PREVENT course, 
the  Coast  Guard’s  IMPACT  course,  or  a  similar  community-based  program.    Chapter 
2.F.2. states that personnel involved in an alcohol incident who are diagnosed as alcohol 
abusive  and  are  recommended  for  outpatient  treatment  will  normally  be  referred  to  a 
military facility for such treatment but that approved local facilities may also be used for 
outpatient  treatment.    Chapter  2.F.3.  states  that  “[p]ersonnel  diagnosed  as  an  alcohol 
abuser or alcohol dependent (DSM codes 305.0 and 303.9) and requiring a greater level 
of  care  than  that  provided  at  outpatient  treatment  will  normally  be  referred  to  a  more 
intensive  outpatient/partial  hospitalization  program  at  a  Navy  ATF.”    Chapter  2.F.4. 
states that “[a]ctive duty Coast Guard personnel diagnosed as alcohol dependent (DSM 
code 303.9) will be primarily referred to ATF or equivalent treatment facilities when the 
member requires monitoring to abstain from the use of alcohol or other substances. Inpa-
tient rehabilitation is an intensive residential treatment program that provides treatment 
and berthing on site.” 

 
Chapter 2.G.9.a. states that to receive permission from CGPC to send a member 
to outpatient or inpatient rehabilitation treatment, a CO must submit a request for authori-
zation for the treatment along with 

  
(1) an alcohol/drug abuse or alcohol/drug dependency determination by a Navy CAAC or 
equivalent screening facility; 
(2) a medical diagnosis by a physician or licensed clinical psychologist based on DSM 
criteria and a brief explanation of the diagnosis, including any secondary diagnosis; 
(3) a copy of an SF-600 indicating that an HIV-1 screening was performed. The confi-
dentiality of the patients who test positive for HIV-1 is to be respected and safeguarded; 
and 
(4) pertinent information from supporting documents such as Page 7 entries, marks for 
the  last  three  years,  evaluations  by  the  CAAC,  a  qualified  physician,  licensed  clinical 
psychologist, and supervisor, and health record entries. 
 

Chapter  2.G.3.  states  that  “[m]embers  diagnosed  as  alcohol  abusive  or  alcohol 
dependent (DSM codes 305.0 or 303.9) who refuse treatment will normally be separated 
from the Coast Guard.” 
 
Regulations Regarding PDES Processing 
 

Article 3.B.6. of the Medical Manual in effect in 2002 provides that “[w]hen a 
member  has  an  impairment  (in  accordance  with  section  3-F  of  this  Manual)  an  Initial 
Medical Board shall be convened only if the conditions listed in paragraph 2-C-2.(b) [of 
the PDES Manual] are also met.  Otherwise the member is suitable for separation.” 

 
Article  3.F.  provides  that  members  with  medical  conditions  that  “are  normally 
disqualifying” for retention in the Service shall be referred to an IMB by their commands.  
Article 3.F.6.b. states that the retention of members with hearing loss “will be determined 
on the basis of ability to perform duties of grade or rating.” 

 
Chapter 2.C.2. of the PDES Manual states the following: 
 
The law that provides for disability retirement or separation (10 U.S.C., chapter 
b. 
61)  is  designed  to  compensate  members  whose  military  service  is  terminated  due  to  a 
physical disability that has rendered him or her unfit for continued duty.  That law and 
this disability evaluation system are not to be misused to bestow compensation benefits 
on those who are voluntarily or mandatorily retiring or separating and have theretofore 
drawn pay and allowances, received promotions, and continued on unlimited active duty 
status while tolerating physical impairments that have not actually precluded Coast Guard 
service.  The following policies apply. 
 
   (1) 
Continued performance of duty until a service member is scheduled for separa-
tion or retirement for reasons other than physical disability creates a presumption of fit-
ness for duty.  This presumption may be overcome if it is established by a preponderance 
of the evidence that: 
 
 
adequately in his or her assigned duties; or 
 
 
acute,  grave  illness  or  injury,  or  other  deterioration  of  the  member’s 
physical condition occurred immediately prior to or coincident with processing for sepa-
ration or retirement for reasons other than physical disability which rendered the service 
member unfit for further duty. 
 
    (2)  A  member being processed for separation or retirement for reasons other than 
physical disability shall not be referred for disability evaluation unless the conditions in 
paragraphs 2.C.2.b.(1)(a) or (b) are met. 
 
If a member being processed for separation or retirement for reasons other than 
c. 
physical  disability  adequately  performed  the  duties  of  his  or  her  office,  grade,  rank  or 
rating, the member is presumed fit for duty even though medical evidence indicates he or 
she has impairments. 

the  member,  because  of  disability,  was  physically  unable  to  perform 

(b) 

(a) 

f. 
The following standards and criteria will not be used as the sole basis for mak-
ing  determinations  that  an  evaluee  is  unfit  for  continued  military  service  by  reason  of 
physical disability. 

•  •  • 

 
   (1) 
geographic location and under every conceivable circumstance. … 

Inability to perform all duties of his or her office, grade, rank or rating in every 

•  •  • 

The presence of one or more physical defects that are sufficient to require refer-

Pending  voluntary  or  involuntary  separation,  retirement,  or  release  to  inactive 

   (5) 
ral for evaluation … . 
 
   (6) 
status. 
 
i. 
The existence of a physical defect or condition that is ratable under the standard 
schedule for rating disabilities in use by the [DVA] does not of itself provide justification 
for, or entitlement to, separation or retirement from military service because of physical 
disability.    Although  a  member  may  have  physical  impairments  ratable  in  accordance 
with the VASRD, such impairments do not necessarily render him or her unfit for mili-
tary duty … Such a member should apply to the [DVA] for disability compensation after 
release from active duty. 
 

FINDINGS AND CONCLUSIONS 

 
 
The Board makes the following findings and conclusions on the basis of the appli-
cant's  military  record  and  submissions,  the  Coast  Guard's  submissions,  and  applicable 
law: 
 

The Board has jurisdiction concerning this matter pursuant to section 1552 

1. 

of title 10 of the United States Code.   
 

2. 

An  application  to  the  Board  must  be  filed  within  three  years  after  the 
applicant discovers the alleged error in his record. 10 U.S.C. § 1552(b).  The applicant 
was discharged for alcohol rehabilitation failure on September 12, 2002, and his appli-
cation was not received until April 10, 2006.  The applicant alleged that he first mailed 
his application on March 15, 2005, but the Board did not receive the alleged mailing, and 
the applicant did not exercise due diligence to ensure that his application was received.  
Therefore, the Board finds that his application was untimely. 

Pursuant to 10 U.S.C. § 1552(b), the Board may excuse the untimeliness 
of an application if it is in the interest of justice to do so.  In Allen v. Card, 799 F. Supp. 
158, 164 (D.D.C. 1992), the court stated that to determine whether the interest of justice 
supports a waiver of the statute of limitations, the Board "should analyze both the reasons 
for the delay and the potential merits of the claim based on a cursory review."  The court 
further instructed that "the longer the delay has been and the weaker the reasons are for 
the delay, the more compelling the merits would need to be to justify a full review."  Id. 
at 164, 165.   See also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995). 

The  applicant  explained  the  untimeliness  of  his  application  by  alleging 
that he assumed that his application had been timely received by the Board.  Because the 
applicant  did  not  exercise  due  diligence  in  ensuring  that  his  application  was  timely 
received, the Board finds that his explanation for the delay is not compelling.   

 
3. 

 
4. 

 

(a) 

 
 

 

5. 

The applicant alleged that he was disabled and entitled to PDES process-
ing prior to his discharge and that he should have received a disability retirement.  The 
Board,  however,  has  reviewed  the  applicant’s  records  and  finds  that  he  has  submitted 
insufficient  evidence  to  prove  that  the  Coast  Guard  committed  error  or  injustice  by 
refusing to process him under the PDES and by discharging him due to alcohol rehabilita-
tion failure.  In this regard, the Board notes the following facts: 

(b) 

The  applicant  did  not  seek  PDES  processing  based  on  his  claim 
 
that his hearing loss and tinnitus interfered with his performance of duty until after his 
second alcohol incident occurred on November 13, 2001, which under Article 20.B.2.h.2. 
of the Personnel Manual would trigger his CO’s initiation of his discharge  for  alcohol 
rehabilitation failure.  Indeed, on August 24, 2001, Dr. K found that the applicant was fit 
for duty, sea duty, and overseas duty despite his hearing loss and tinnitus.  There is no 
evidence that the applicant’s hearing loss worsened between that date and November 30, 
2001,  when  Dr.  K  first  noted  that  the  applicant  was  complaining  that  his  hearing  loss 
made his work unsafe.   
 
 
Although the applicant had significant hearing loss, under Article 
3.F.6.b.  of  the  Medical  Manual,  his  CO  was  not  required  to  initiate  PDES  processing 
unless she believed that he was unable to perform the duties of his grade and rating.  The 
record indicates that the applicant continued to perform his duties aboard the buoy tender 
as  a  BM1  until  he  was  transferred  for  disciplinary  reasons  in  April  2002.    Chapter 
2.C.2.b.(1)  of  the  PDES  Manual  states  that  “[c]ontinued  performance  of  duty  until  a 
service member is scheduled for separation or retirement for reasons other than physical 
disability creates a presumption of fitness for duty.”  Subparagraph (a) states that the pre-
sumption may be overcome if the member is unable to perform adequately in his assigned 
duties.  However, there is insufficient evidence to prove that the applicant was unable to 
perform his assigned duties adequately.  The fact that Dr. K changed his finding of fitness 
after the applicant began claiming that he could not work safely, even though there had 
been no significant deterioration in his hearing since August 2001, does not persuade the 
Board that the applicant was unable to perform his duties adequately.  The Board finds 
that  the  applicant  has  not  overcome  the  presumption  that  he  was  fit  for  duty  and, 
therefore, for an administrative discharge. 
 
 
Chapter  2.C.2.b.(2)  of  the  PDES  Manual  states  that  a  “member 
being  processed  for  separation  or  retirement  for  reasons  other  than  physical  disability 
shall  not  be  referred  for  disability  evaluation  unless  the  conditions  in  paragraphs 
2.C.2.b.(1)(a) or (b) are met.”  Likewise, Article 3.B.6. of the Medical Manual states that 
even if a member has an impairment, he is fit for separation unless the conditions cited 
under Chapter 2.C.2.b. of the PDES Manual are met.  The applicant has not proved by a 
preponderance of the evidence that he was unable to perform his duties adequately or that 
an acute deterioration of his hearing rendered him unfit for further duty.  Therefore, he 
has not met the criteria under either paragraph 2.C.2.b.(1)(a) or (b) of the PDES Manual. 
 
 
The applicant’s CO initiated his discharge after his second alcohol 
incident in accordance with Articles 12.B.16.b. and 20.B.2.h.2. of the Personnel Manual.  

(d) 

(c) 

 

 

(f) 

 

 

 

(e) 

Although the applicant alleged that his urination on a sleeping FS1’s bunk on November 
13, 2001, was caused by tinnitus-induced sleep deprivation instead of intoxication, he did 
not deny that he had drunk many beers that evening.  Article 20.A.2.d.1. of the Personnel 
Manual does not require a member to be intoxicated for his conduct to count as an “alco-
hol incident.”  The ingestion of alcohol must only be a “significant or causative factor,” 
and the applicant has not proved that his CO erred in finding that his ingestion of many 
beers that evening was a “significant or causative factor” in his urination on the sleeping 
FS1.  Moreover, because of a prior occurrence on May 2, 2001, the applicant knew that 
his ingestion of alcohol could lead to such an incident.   
 

Dr. K reported on November 30, 2001, that he doubted that sub-
stance abuse was involved in the applicant’s “three incidents,” based on the “relatively 
reliable  history”  that  the  applicant  himself  presented  to  him,  and  that  sleepwalking  or 
another  sleep  disorder  might  be  the  cause  of  the  second  documented  alcohol  incident.  
However, Dr. K’s speculations—reported without any mention of the applicant’s history 
of serial alcohol abuse screenings due to tardiness, coming to work smelling of alcohol, 
and  repeated  inappropriate  urination—are  insufficient  to  overcome  the  presumption  of 
regularity2 afforded his CO that his ingestion of many beers was a “significant or causa-
tive factor” in the applicant’s urination on the sleeping FS1 on November 13, 2001. 
 
 
The CO initiated that the applicant’s discharge  before he refused 
further rehabilitation treatment.  The applicant alleged that he was entitled to refuse fur-
ther treatment because he had not been diagnosed as alcohol dependent by a physician or 
psychologist  pursuant  to  Chapter  2.C.9.  of  the  Health  Promotion  (Wellness)  Manual.  
However, the applicant had already been found to abuse alcohol—a determination which 
Chapter 2.C.8. does not require to be made by a physician or psychologist—and Chapter 
2.F.3. states that members who abuse alcohol may be referred for an “intensive outpa-
tient/partial  hospitalization  program  at  a  Navy  ATF,”  such  as  xxxxx  Naval  Hospital, 
where he was ordered to go.  Therefore, the Board is not persuaded that the applicant’s 
refusal  to  obey  his  CO’s  order  was  reasonable.    Moreover,  since  she  had  already 
informed him that she would initiate his administrative separation for alcohol abuse, his 
refusal clearly did not factor into her decision. 
 
 
The ASB found that the applicant’s CO acted reasonably in order-
ing him to go to xxxxxxx  Naval Hospital for further treatment since he had incurred an 
alcohol  incident  soon  after  completing  his  four-week  outpatient  treatment  and  three-
month aftercare plan at a local clinic.  Even if the CO should have gotten the recommen-
dation from a physician or psychologist, rather than a licensed social worker trained in 
addiction treatment, however, any misunderstanding of the issue was cured by the Chief 
Counsel, who noted in his review of the ASB proceedings that the applicant was correct 
in alleging that “only a physician or a psychologist may diagnose a member as alcohol 
dependent.”  The Chief Counsel did not conclude that the applicant was legally entitled to 
refuse alcohol treatment and pointed out that the lack of a diagnosis of alcohol depend-
                                                 
2  Absent  evidence  to  the  contrary,  the  Board  presumes  that  Coast  Guard  officers  have  performed  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); 33 C.F.R. § 52.24(b). 

(g) 

(i) 

 

 

 

(h) 

ence by a physician or psychologist did not negate the fact that the applicant had incurred 
two documented alcohol incidents. 
 
 
The applicant did in fact fail alcohol rehabilitation treatment since 
in the interim between his two alcohol incidents he underwent at the command’s instiga-
tion (although he was allowed to self-refer) a four-week outpatient rehabilitation program 
followed by a three-month aftercare plan.  Therefore, it was not unfair for the reason for 
his discharge to be characterized as “alcohol rehabilitation failure.” 
 
 
The fact that the DVA has awarded the applicant a 10% disability 
rating for tinnitus, a 10% rating for hearing loss, and a 10% rating for degenerative disc 
disease of the lumbar spine does not prove that the Coast Guard committed error or injus-
tice by not processing him under the PDES and separating him with a disability rating.  
As stated in Chapter 2.C.2.i. of the PDES Manual, having a DVA disability rating is not 
justification for PDES processing because not every ratable disability renders a member 
unfit for military duty.3 
 

The applicant received due process during his processing for dis-
charge.  He was informed about the Service’s policy regarding alcohol abuse during boot 
camp.  After his first alcohol incident, he was notified that a second such incident could 
result in his discharge.  He was screened and provided alcohol rehabilitation treatment.  
After the second documented alcohol incident, he was notified of the reason for his CO’s 
action; he was allowed to and did submit a statement on his own behalf; he was allowed 
to consult an attorney; he appeared before an ASB represented by the attorney; and his 
rebuttal to the ASB was considered by the reviewing authorities. 
 

6. 

Accordingly, because of the lack of a compelling reason for the applica-
tion’s untimeliness and the apparent lack of merit of his claim, the Board finds that it is 
not in the interest of justice to waive the statute of limitations in this case.  His request 
should be denied because it is untimely and lacks merit. 
 
 
 

(j) 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

                                                 

3  See Lord v. United States, 2 Ct. Cl. 749, 754 (1983) (holding that disability ratings awarded by the DVA 
are not determinative of the issues involved in military disability retirement cases).  

The  application  of  former  xxxxxxxxxxxxxxxxxx,  xxxxxxxxxx,  USCG,  for 

ORDER 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

correction of his military record is denied. 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Toby Bishop 

 

 

 
 James E. McLeod 

 

 

 
 
 Adrian Sevier