DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1996-063 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section 
1552  of  title  10,  United  States  Code.    It  was  commenced  on  January  23,  1996, 
upon the BCMR’s receipt of the applicant’s application. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  January  28,  1999,  is  signed  by  the  three  duly 

REQUEST FOR RELIEF 

 
The applicant is a former xxxxxx and xxxxxxxxx who resigned from the 
 
Coast Guard on March 15, 19xx.  He asked the Board to “sit as the first competent 
medical board to determine whether I was disabled at the time of my separation 
from active duty . . . .”  He wants the Board to correct his military record to show 
that  he  was  placed  on  the  permanent  retired  list  or  the  Temporary  Disability 
Retired List (TDRL) based on diagnoses of chronic prostatitis and temporal man-
dibular  joint  syndrome  (TMJ).    The  applicant  asked  the  Board  to  serve  as  his 
medical board and award him a 50% combined disability rating (20% for his TMJ 
and 40% for his prostatitis).  He also asked the Board to consider rating him for 
chronic fatigue syndrome. 
 

The applicant also asked that the Board, if it decides to retire him, to do so 
as of the date of this Final Decision in the rank and pay grade of xxxxx because 
he was on the selection list to that rank at the time of his resignation.  If instead 
the Board decides to place him on the TDRL, he asked to be placed on it with the 
rank of xxxxxxxxx with a date of rank of July 1, 19xx, “in accordance with [his] 
signal status on the O-4 selection list in 19xx.”  In the alternative, the applicant 

BCMR Final Decision for Docket No. 1996-063                                                   p. 2 

asked the Board to correct his military record to show that he received a medical 
discharge  due  to  his  disabilities  on  the  date  of  this  Final  Decision.    He  further 
requested that he be awarded back pay from March 15, 19xx, to the date of this 
decision.  

 
Finally, the applicant asked the Board to order the Coast Guard to appoint 
him counsel from the Coast Guard Physical Disability Evaluation Board to repre-
sent him in this matter. 

 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that, when he was separated on March 15, 19xx, he 
suffered  from  chronic  prostatitis  and  TMJ,  both  of  which  had  been  diagnosed 
while he served in the Coast Guard.  The TMJ, he stated, caused significant pain 
and frequently prevented him from opening his mouth wide enough to speak or 
eat.  He alleged that at the time of his separation in 19xx, he had to take 800 mil-
ligrams of Motrin three or four times per day to relieve the pain and allow him to 
speak and eat.  In addition, he stated that he has been on antibiotics since 19xx 
for  his  chronic  prostatitis.    The  applicant  alleged  that  both  of  these  conditions 
have become much worse since his separation from service:  “My life since dis-
charge has been a living hell of pain and physical debilitation.”1 
 
 
The  applicant  alleged  that  both  conditions  are  ratable  disabilities  under 
the Department of Veterans Affairs (DVA) rating system.  However, at the time 
of his physical examination for discharge, he was not informed  that they were 
ratable disabilities.  Nor was he informed of his right to review the findings of 
the physical, to dissent from those findings, and to request a medical board.  The 
applicant also stated that, although he served as an xxxxx in the Coast Guard, his 
duties  never  touched  on  the  rights  of  members  with  medical  disabilities.  
Therefore, he was unaware of his rights at the time of his discharge. 
 

The applicant also alleged that “[a]t the time of my separation from active 
duty, I was unaware of either the serious nature of these conditions or the fact 
that my condition would deteriorate even further over time.” The Coast Guard’s 
negligence  in  this  regard,  he  alleged,  prevented  him  from  seeking  care  more 
promptly, which might have mitigated the rate or extent of his physical deterio-
ration. 
 
 
The applicant stated that, although he continued to perform active duty 
until the date of his discharge, he missed many days of work due to his medical 

                                                 
1      The  applicant  included  in  his  application  many  details  of  the  severe  pain  and  awkward 
inconveniences he now suffers because of the TMJ and chronic prostatitis. 

BCMR Final Decision for Docket No. 1996-063                                                   p. 3 

conditions and often went home early.  Therefore, he was not “fit for duty” at the 
time of his separation.  He believes that, had he been given a medical board, he 
would have been found unfit for duty.   
 

The  applicant  explained  that  his  military  medical  records  are  sparse 
because the Coast Guard failed to keep adequate records.  In addition, from 19xx 
until his discharge in 19xx, he was assigned to a circuit defense team.  His duty 
on the team took him to remote locations, “thus making it impossible to receive 
consistent, regular medical treatment either inside the military system or outside 
the military system at [his] own expense.” 
 
 
of medical and DVA records to support his allegations (see below). 
 

The applicant submitted four affidavits of Coast Guard officers and copies 

VIEWS OF THE COAST GUARD 

 
Advisory Opinion of the Chief Counsel 
 
 
On June 6, 1997, the Chief Counsel of the Coast Guard recommended that 
the Board deny the applicant the requested relief.  The Chief Counsel stated as 
follows: 
 
 While we are sympathetic to Applicant’s medical problems, the laws and 
regulations governing service disability benefits and other benefits do not 
entitle him to disability benefits from the Coast Guard.  The law that pro-
vides for  physical  disability  retirement  or  separation  .  .  .  is  designed  to 
compensate members whose military service is terminated due to a serv-
ice connected disability. . . .  Applicant was not separated due to disabil-
ity,  was  not  entitled  to  disability  processing  through  the  Coast  Guard 
Physical Disability Evaluation System [PDES] at the time of his discharge, 
and is not now entitled to disability benefits from the Coast Guard.  The 
Coast Guard acknowledges that it erred by not requiring him to complete 
CG-4057 indicating his agreement or disagreement with the finding that 
he was fit for duty at his discharge physical.  Nevertheless, Applicant was 
provided other notice of his right to object to the finding.  He is not enti-
tled to relief because he has not shown that he was prejudiced or harmed 
by this error. 
 
The  Chief  Counsel  stated  that,  on  December  17,  19xx,  the  applicant 
requested expedited separation from the Service based on a recent adverse per-
sonnel action, family problems, and educational and employment opportunities 
he wanted to pursue.  He did not mention his medical conditions as a factor. 

 

BCMR Final Decision for Docket No. 1996-063                                                   p. 4 

The Chief Counsel stated that the applicant was not entitled to disability 
benefits  because  he  was  fit  for  duty  at  the  time  of  his  separation from  service.  
“DVA ratings are not determinative of the issues involved in military disability 
retirement cases.  Lord v. United States, 2 Ct. Cl. 749, 754 (1983).”  In addition, 
the Chief Counsel noted that “the information available through the [DVA] was 
based in large part on physical examinations of Applicant that occurred through 
August of 19xx—more than two years after Applicant was discharged . . . .”  The 
Chief  Counsel  attached  to  his  advisory  opinion  a  copy  of  a  memorandum 
regarding the applicant’s case from the Chief of the PDES Branch (see below).  

 
The Chief Counsel admitted that the Coast Guard had apparently “erred 
by failing to ensure that [the applicant] indicated his agreement or disagreement 
with the assumption  of fitness for duty at separation on form CG-4057, and to 
provide him copies of medical documents, as required by Article 4.B.27.c. of the 
Coast Guard Medical Manual, COMDTINST M6000.1B.”  He argued, however, 
that the applicant had received notice of his right to object to the finding of fit-
ness in a letter to him dated February 7, 19xx.  In addition,  the Chief Counsel 
alleged that a letter the applicant wrote on February 23, 19xx, “a week before the 
physical examination, indicates that he received the letter and considered it care-
fully, that he was fully involved with his discharge proceedings.  Thus, Appli-
cant was at least constructively—and most likely actually—aware that he had a 
right to contest the finding of fitness.”  The Chief Counsel also alleged that, con-
trary to the applicant’s allegation, the Coast Guard had no duty to inform him 
that his chronic conditions constituted ratable disabilities under the DVA system. 

 
 The Chief Counsel argued that even assuming the applicant was unaware 
of his right to object to the finding of fitness, he had not shown that he would 
have exercised his right to object.  The Chief Counsel alleged that the applicant 
wanted  to  be  discharged  as  soon  as  possible  and  had  “strong  reason  to  avoid 
delaying his separation by contesting [the finding of fitness].”  But even assum-
ing  the  applicant  had contested  the  finding,  the  applicant  still  would  not  have 
received PDES processing for disability benefits for all the reasons stated by the 
Chief of the PDES Branch in his memorandum (see below).  “[T]he test [for fit-
ness for duty] is not whether he could perform all duties that could be required 
of  a  Coast  Guard  xxxxx  at  any  time,  but  whether  he  was  unfit  to  perform  his 
assigned duties at the time of separation.” 

 
Finally,  the  Chief  Counsel  argued  that  any  procedural  relief  denied  the 
applicant has been remedied by the Personnel Command’s review of his applica-
tion. 

Memorandum of the Chief of the PDES Branch 

 

 

BCMR Final Decision for Docket No. 1996-063                                                   p. 5 

The Chief of the PDES Branch stated that, because the Coast Guard could 
find no relevant original medical records, he was relying on records supplied by 
the applicant.  He concluded that the applicant’s petition “falls far short of over-
coming presumption of fitness, let alone actual finding of fitness in March 19xx.  
Applicant received adequate notification of his right to object to a finding of fit-
ness.  The due process allegedly denied—arguably surrendered—has now been 
provided by the Personnel Command.” 

 
The  Chief  of  the  PDES  Branch  quoted  Paragraph  2-C-2-b  of  the  PDES 
Manual (COMDTINST M1850.2), which states that PDES is not to be “misused” 
to  provide  benefits  to  persons  who  are  voluntarily  separating  and  have  been 
drawing pay “on unlimited active duty status while tolerating physical impair-
ments  that  have  not  actually  precluded  Coast  Guard  service.”    He  also  cited 
Paragraph 2-C-2-b(2) of the PDES Manual, which “prohibits convening an Initial 
Medical Board for a member separating voluntarily, unless the member is unable 
to  perform  assigned  duties,  or  the  member  suffers  an  acute,  grave  illness  or 
injury.”    The  Chief  stated  that  the  applicant  had  been  diagnosed  with  “some 
degree of  chronic  medical  problems”  at  the  time  of  his  discharge,  but  he  “suf-
fered no acute, grave illness or injury.”  The Chief pointed to the incongruity of 
the applicant’s argument that, while he himself was unaware of the seriousness 
of his medical problems, he should have been found unfit for duty by the Coast 
Guard. 
 
In response to the affidavits of the applicant’s co-workers, the Chief of the 
PDES  Branch  stated  that,  while  they  support  his  contention  that  his  medical 
problems  “hampered  his  performance  of  duties,”  the  applicant’s  performance 
evaluations “indicate superior performance in almost all dimensions.”  He noted 
that the applicant received scores of 6 (on a scale of 1 to 7, with 7 being highest) 
for the category “stamina” on his last two regular evaluations.  

 
Regarding  the  applicant’s  due  process  rights,  the  Chief  of  the  PDES 
Branch stated that in a letter dated February 7, 19xx, the applicant was ordered to 
“[c]omply  immediately  with  Article  12-A-10,  Personnel  Manual  (COMDTINST 
M1000.6A)  regarding  physical  examinations.”    That  article,  the  Chief  stated, 
clearly  entitles  officers  to  object  to  findings  of  fitness  and  outlines  the  proper 
procedures.  The applicant acknowledged his receipt of the letter on February 23, 
19xx.  The Chief also stated that the applicant’s “letter of 23 February 19xx dem-
onstrated scrupulous attention to Coast Guard’s letter of 7 February 19xx.”  The 
Chief pointed out that in his letter of February 23, 19xx, the applicant “vigorously 
disputed”  the  discharge  code  he  had  been  assigned  and  suggested  three 
alternatives.  None of the suggested alternatives was a disability-related code. 

 

BCMR Final Decision for Docket No. 1996-063                                                   p. 6 

Furthermore, the Chief of the PDES Branch stated that Paragraph 3-B-5 of 
the Medical Manual gives the Commander of the Personnel Command authority 
to evaluate findings of fitness after an officer’s objection.  The Chief stated that, 
upon  review  of  the  applicant’s  application  and  medical  records,  the  Personnel 
Command “now determines that the finding of fitness on Applicant’s separation 
was appropriate.” 

 
The Chief of the PDES Branch asked the BCMR to further consult the Per-
sonnel  Command  “in  order  to  identify  possible  technical  defects  in  proposed 
remedies” if it should decide to grant the applicant relief. 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On June 9, 1997, the Chairman sent copies of the Chief Counsel’s advisory 
opinion and the memorandum of the Chief of the PDES Branch to the applicant 
and invited him to respond within 15 days.  The applicant requested an indefi-
nite extension and stated that he would be submitting more medical evidence as 
he was soon to undergo further evaluations.  The Chairman granted two exten-
sions and then placed the case on indefinite hold pending further submissions 
from the applicant.  However, the applicant failed to submit any more evidence.  
In response to a telephone call from the BCMR on December 18, 1998, the appli-
cant wrote a letter to the Board.  The letter, dated December 21, 1998, indicated 
that the applicant would not be submitting further evidence and wanted his case 
presented to the Board.   

 
In  his  letter  dated  December  21,  1998,  the  applicant  responded  to  the 
Coast Guard’s advisory opinion.  The applicant alleged that the Chief Counsel 
had  not  rebutted  any  of  the  medical  evidence  or  affidavits  he  had  provided 
which show that he was unfit for duty at the time of his discharge.  In this letter, 
the applicant made his first request to be rated for chronic fatigue syndrome. 

 
The  applicant  also  submitted  a  copy  of  a  letter  to  him  from  xxxxxxxxx 
dated October 21, 1998.  The letter stated that he had received an “AV” rating as 
a “highly respected, ethical member of the xxxxxxxxx.” 

 

 

SUMMARY OF THE APPLICANT’S PERSONNEL RECORDS 

 

On  July  27,  19xx,  the  applicant  was  commissioned  a  xxxxx  in  the  Coast 
Guard  Reserve  after  passing  the  xxxxxxxxxxxxxxxxxx.    He  began  work  as  an 
assistant  xxxxxxxxx  in  the  xxx  District,  where  he  served  as  an  advisor  for  the 
xxxxxxxxxxx.    On  December  1,  19xx,  the  applicant  was  assigned  to  serve  as  a 
xxxx and xxxxxxx and an advisor for the xxxxxxx divisions in the xxx District.  
On June 1, 19xx, he began serving as the primary xxxxx and xxxxx for all military 

BCMR Final Decision for Docket No. 1996-063                                                   p. 7 

xxxxxxx and the primary xxxxxxx for xxxxxxxxxx matters to all commands in the 
xxxx District.  On August 3, 19xx, the applicant received an Achievement Medal 
for exercising his “outstanding xxxxxx skills” on behalf of the xxx District xxxxx 
xxxxxx  from  October  19xx  to  August  19xx.    On  all  but  one  of  his  evaluations 
completed for the time from July 27, 19xx, through August 3, 19xx, he received 
the equivalent of a mark of 4 on the comparison scale.  All of his marks for the 
category  “Health  and  Well-Being”  were  5s.    He  received  all  5s  except  for  one 
mark of 6 for the category “Stamina.” 
 

On  August  10,  19xx,  the  applicant  began  serving  as  xxxxxxxxxx  for 
military justice proceedings and administrative boards for all commands in the 
xxxxxxxxx.    On  June  1,  19xx,  he  was  appointed  Director  of  the  xxxxxxxxx  for 
xxxxxxxxxxx.  On the evaluation he received covering August 10, 19xx, to May 
31, 19xx, he received primarily marks of 6, the equivalent of a mark of 5 on the 
comparison scale,2 a mark of 5 for “Health and Well-Being,” and a mark of 6 for 
“Stamina.”  On the evaluation he received covering June 1, 19xx, to November 
30, 19xx, he received primarily marks of 6, the equivalent of a mark of 5 on the 
comparison scale, a mark of 4 for “Health and Well-Being,” and a mark of 6 for 
“Stamina.” 
 

On December 16, 19xx, the applicant was taken to mast, where he admit-
ted having xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx from about August 
19xx to January 19xx.  He was fined $1000, and the next day a letter of reprimand 
to this effect was entered in his record.  Because of this incident, the applicant 
also received a special evaluation report with a mark of 1 for the category “Judg-
ment.”  All other marks in the evaluation report were “not observed,” except that 
on  the  comparison  scale,  he  received  the  equivalent  of  a  mark  of  5  as  a 
“distinguished performer.” 
 
 
On December 17, 19xx, the applicant sent a letter to the Commander of the 
Personnel Command requesting to resign his commission.  His active duty con-
tract with the Reserve was scheduled to expire in June 19xx.  The reasons he cited 
for his request were (1) “recent adverse personnel action”; (2) family problems 
that necessitated his presence in xxxxx; (3) an opportunity to complete a masters 
of  xxxxxx  in  xxxxxx  at  xxxxxxx;  and  (4)  an  “opportunity  to  become  associated 
with a private xxxxxx specializing in xxxxxxxxxx.” 
 
 
On February 7, 19xx, the Commander of the Personnel Command author-
ized  the  applicant  to  be  honorably  discharged  as  of  February  28,  19xx,  with  a 
separation code of BNC.  BNC is the code for “unacceptable conduct--resignation 

                                                 
2   Although the comparison scale is not numbered, the marks the applicant received correlate to 
a mark of 5 (out of 7). 

BCMR Final Decision for Docket No. 1996-063                                                   p. 8 

allowed in lieu of further administrative separation proceedings or board actions 
when member performs acts of unacceptable conduct (i.e., moral and/or profes-
sional dereliction) not otherwise listed.”  The letter included the following order:  
“Comply  immediately  with  Article  12-A-10,  Personnel  Manual  (COMDTINST 
M1000.6A) regarding physical examinations.” 
 
 
On February 23, 19xx, the applicant replied to the Commander of the Per-
sonnel Command.  He stated that he had reviewed COMDTINST M1900.4 series 
(the Separation Program Designator Handbook) and found that BNC was a sepa-
ration code “which does not comport with my request to resign my commission 
and I hereby request your assistance in remedying this situation.”  He explained 
that  because  he  had  never received  notice  that  board  action  was contemplated 
against  him,  he  could  not  “be  considered  to  have  resigned  in  lieu  of  further 
action.”  The applicant suggested that he be assigned one of the following codes 
instead: FFF (discharged under honorable conditions), MFF (convenience of the 
government), or MND (by request). 
 

According to the applicant’s DD Form 214, on March 15, 19xx, the appli-
cant was honorably discharged with “completion of required service” as the nar-
rative reason for separation and MBK (voluntary release) as his separation code.  
On March 31, 19xx, he married a fellow officer, who provided an affidavit on his 
behalf (see below). 
 

SUMMARY OF THE APPLICANT’S MEDICAL RECORDS 

 
 
The file of the applicant’s medical records provided by the Coast Guard 
was essentially empty.  The  following medical records, including  copies of the 
applicant’s DVA records, were provided by the applicant. 
 
5/11/xx  The applicant sought treatment for pain on the right side of his jaw.  
Dr.  x,  a  dentist  for  the  Coast  Guard,  diagnosed  TMJ  and  ordered  a 
night guard for the applicant to wear. 

 
9/27/xx  The  applicant  sought  treatment  for  painful  and  frequent  urination.  
Dr. x, a civilian urologist, found his prostate to be enlarged and pre-
scribed antibiotics. 

 
11/9/xx  The  applicant  again  sought  treatment  from  Dr.  x,  who  diagnosed 

prostatitis. 

 
2/23/xx  Because the applicant had worn through his soft night guard, Dr. x, a 
dentist  for  the  Coast  Guard,  ordered  an  acrylic  one  for  him.    Dr.  x 
found that the applicant suffered from TMJ. 

BCMR Final Decision for Docket No. 1996-063                                                   p. 9 

 
3/1/xx 

 
 

The applicant underwent a RELAD physical prior to discharge.  The 
dentist noted that he had “limited opening continued masseter pain” 
due to TMJ. 

A  physician’s  assistant  filled  out  a  Chronological  Record  of  Medical 
Care,  on  which  he  noted  that  the  applicant  was  under  the  care  of  a 
civilian doctor for prostatitis and took antibiotics for it.  He also noted 
that he was unable to examine the applicant’s throat because of jaw 
pain due to TMJ.  He prescribed 800 milligrams of Motrin for the pain. 

 
3/15/xx  The applicant was discharged. 
 
3/22/xx  A  chief  warrant  officer  signed  a  form  CG-4057,  on  which  a  member 
being  discharged  is  supposed  to  indicate  whether  he  agrees  or  dis-
agrees  with  the  findings  of  his  RELAD  physical  examination  and 
whether he will submit a statement.  At the bottom of the form, the 
officer wrote “Member departed without signing CG-4057.”  The form 
included the following information: 

You  have  been  examined  and  found  physically  fit  for  separation 
from  active  duty.    Any  defects  noted  during  the  examination  are 
recorded in block #74 of the attached Report of Medical Examination 
(SF-88). 
 
The defects listed on the Report of Medical Examination do not dis-
qualify you from performing your duties or entitle you to disability 
benefits from the Coast Guard.  To receive a disability pension from 
the  Coast  Guard,  you  must  be  found  unfit  to  perform  your  duties 
before you are separated. 
 
After you are separated or retired, any claims for disability benefits 
must be submitted to the Veterans Administration. . . . 

 
7/28/xx  Dr. x noted that the applicant had a tender prostate and continued his 

prescription for antibiotics for the prostatitis. 

 
1/11/xx  Dr.  x  noted  that  the  applicant  “has  had  some  intermittent  problems 
with prostatitis since last seen” and refilled the prescription for antibi-
otics. 

 
3/8/xx  Dr. x, a dentist, noted that the applicant was experiencing increasing 

muscle spasms due to his TMJ. 

 

 

BCMR Final Decision for Docket No. 1996-063                                                   p. 10 

3/11/xx  The applicant applied for disability benefits from the DVA. 
 
10/11/xx  The DVA granted service connection for both prostatitis and TMJ.  He 
was awarded a 10% disability rating for each and a combined disabil-
ity rating of 20% as of May 1, 19xx. 

 
2/26/xx  The DVA increased the applicant’s disability rating for prostatitis to 

 
 
The  applicant  provided  many  medical  records  indicating  that  his condi-
tions have worsened considerably since his discharge, causing severe pain and 
tremendous inconvenience. 
 

40%. 

AFFIDAVITS OF THE APPLICANT’S COLLEAGUES 

 
Affidavit No. 1 
 
 
The following statements were signed by an xxxxxxx who is currently a 
xxxx on active duty in the Coast Guard and who met the applicant in October 
19xx and married him on March 31, 19xx: 
 

. . . I was aware of the fact that [the applicant] had been suffering from 
both prostatitis and TMJ prior to his discharge from active duty.  I was 
very  surprised  when  he  informed  me  of how  the  Coast  Guard  Support 
Center xxxx Health Clinic seemed to summarily conduct his exit physical.  
However,  at  this  time,  we  were  both  hoping  that  his  physical  situation 
would  improve.    Neither  one  of  us  was  aware  of  the  fact  that  he  was 
entitled to review his medical record prior to discharge from active duty. . 
. . 
 
From [the applicant’s] date of discharge, his physical condition deterio-
rated at a rapid rate. . . .  From the last couple of months that he was on 
active duty, to the present, his conditions have dramatically deteriorated. 
. . .  
 
Since [the applicant’s discharge from active duty until the present, I have 
observed the following: 
 
TMJ – 
 
1. 
day of the week. . . .  He complains to me of blinding headaches . . . . 
 

[The applicant] can barely open his mouth to speak almost every 

BCMR Final Decision for Docket No. 1996-063                                                   p. 11 

2. 
There are days in which I observe him taking an entire bottle of 
Motrin (when his prescriptions have run out) in order to be able to speak 
or eat . . . 
 
PROSTATITIS: 
 
1. 
burning pain while urinating. . . . 
 
2. 
He audibly groans in pain while urinating. . . .  

Since  before  [the  applicant]  left  active  duty,  he  complained  of  a 

Over the course of the past two years, his condition has worsened.  

 
Affidavit No. 2 
 
The  following  statements  were  signed  by  an  xxxxxx  who  is  a  lieutenant 
 
commander  on  active  duty  in  the  Coast  Guard  and  who  met  the  applicant  in 
19xx. 
 

. . .  I reported to the xxx District xxxx in August of 19xx.  I recall that [the 
applicant]  had  complaints  of  frequent  pain  associated  with  TMJ  and 
prostatitis.  He did not complain often but he seemed to frequently be in 
discomfort.  In retrospect, there were times when I had difficulty under-
standing what he had to say that could have been related to his TMJ. 
 
I was never his supervisor but I do recall that he was frequently not at 
work and/or left work early.  Again, he was not a chronic complainer but 
these absences could have been health related. 
 
Our duties as members  of the xxxx kept us constantly on the road and 
this could have hampered his ability to receive regular consistent medical 
care. . . . 
 
I believe that [the applicant] should have been afforded an opportunity to 
have his medical status reviewed by a medical board.  I spent a number 
of years as counsel for evaluees who were processed through the Coast 
Guard  Physical  Disability  Evaluation  System;  based  on  my  knowledge 
and that experience, I believe that [the applicant] would have been found 
not fit for duty. . . . 

 
Affidavit No. 3 
 
 
The  following  statements  were  signed  by  an  xxxxx,  a  now-retired 
commander in the Coast Guard who met the applicant in 19xx and served as his 
supervisor during 19xx and 19xx: 
 

BCMR Final Decision for Docket No. 1996-063                                                   p. 12 

. . . [The applicant] was a solid performer and fine xxxxxx. . . .  During the 
period  from  19xx  to  19xx,  I  recall  [the  applicant]  missing  work  rather 
often,  either  coming  in  late  some  days  or  not  at  all.    At  the  time,  [the 
applicant] explained that his inability to come to work was a result of his 
TMJ syndrome and his prostatitis.  During this same period, [the appli-
cant] was in a travelling billet that required him to be “on the road” sev-
eral times a month.  Having been in a similar billet myself, I can attest to 
the  inconvenience  and  difficulty  such  duty  creates  when  it  comes  to 
obtaining consistent medical care. . . . 

 
Affidavit No. 4 
 
 
The  following  statements  were  signed  by  an  xxxxxx  who  is  a 
lieutenant commander in the Coast Guard and who met the applicant in 
19xx and served on the same xxxxxx team during 19xx and 19xx: 
 

. . . It was during April of 19xx that [the applicant] informed me that he 
was experiencing frequent pain and discomfort due to TMJ and prostati-
tis.    Over  time,  [the  applicant]  complained  of  his  conditions  becoming 
more frequent and severe.  [The applicant] would frequently leave early 
or not come to work at all which he attributed to the worsening symp-
toms of the TMJ and prostatitis.  I had no reason to doubt [the applicant’s] 
claims that he was ill on any of those occasions. . . . 

 

APPLICABLE REGULATIONS 

 
Provisions of the Personnel Manual (COMDTINST M1000.6A) 
 

Article 12-A-10 requires officers to undergo a physical examination prior 
to discharge if they have not had one during the prior year.  Article 12-A-10.e. of 
the Personnel Manual provides the following: 

 
(1) 
If an officer is found qualified for separation/release and agrees 
with the finding, the officer shall be processed for separation/release as 
scheduled. 
 
(2) 
If  an  officer  is  found  qualified  for  separation/release  and  dis-
agrees with the finding, . . . [t]he officer shall then be processed in accor-
dance with Chapter 3 of the Medical Manual . . . . 
 
(3) 
If there is a question about the unfitness of an officer to perform 
duties and the officer agrees with the condition, . . . [t]he officer shall then 
be  processed  in  accordance  with  Chapter  3  of  the  Physical  Disability 
Evaluation System Manual. . . . 

 
Provisions of the Medical Manual (COMDTINST M6000.1B) 

BCMR Final Decision for Docket No. 1996-063                                                   p. 13 

 
The  Medical  Manual  governs  the  disposition  of  members  with  physical 
disabilities.    According  to  Article  3.B.3.a.,  during  the  medical  examination  a 
member  must  undergo  prior  to  separation,  “the  examiner  shall  consult  the 
appropriate standards of this chapter to determine if any of the defects noted are 
disqualifying for the purpose of the physical examination.” 

 
Article 3.F. lists medical conditions that “are normally disqualifying” for 
administrative discharge in the Service.  Persons with such disqualifying condi-
tions “shall be referred to an Initial Medical Board.”  Prostatitis and TMJ are not 
listed.  Article 3.F.17. lists “[d]iseases and abnormalities of the jaws or associated 
tissues  when,  following  restorative  surgery,  there  remain  residual  conditions 
which are incapacitating or interfere with the individual’s satisfactory perform-
ance of military duty. . . .”  Article 3.F.19.c. lists miscellaneous conditions “which 
individually or in combination, not elsewhere provided for in this section, if: (1) 
the  individual  is  precluded  from  a  reasonable  fulfillment  of  the  purpose  of 
employment in the military service; . . . .” 

 
According to Article 3.B.6., which is entitled “Separation Not Appropriate 

by Reason of Physical Disability,” 
 

[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 condi-
tions  listed  in  paragraph  2-C-2.(b)  [of  the  PDES  Manual]  are  also  met.  
Otherwise the member is suitable for separation. 
 
Article 3.F.1.c. of the Medical Manual states the following: 
 
Fitness for Duty.  Members are ordinarily considered fit for duty unless 
they have a physical impairment (or impairments) which interferes with 
the performance of the duties of their grade or rating.  A determination of 
fitness  or  unfitness  depends  upon  the  individual’s  ability  to  reasonably 
perform those duties.  Members considered temporarily or permanently 
unfit for duty shall be referred to an Initial Medical Board for appropriate 
disposition. 
 
Article 4.B.27.c. provides that “[m]embers not already in the physical dis-
ability evaluation system, who disagree with the assumption of fitness for duty 
at separation shall indicate on the reverse of form CG-4057.  They shall then pro-
ceed as indicated in paragraph 3-B-5. of this manual. 

 
According to Article 3.B.5., which is entitled “Objection to Assumption of 

Fitness for Duty at Separation,” 

 

BCMR Final Decision for Docket No. 1996-063                                                   p. 14 

[a]ny  member  undergoing  separation  from  the  service  who  disagrees 
with the assumption of fitness for duty and claims to have a physical dis-
ability  as  defined  in  section  2-A-38  of  COMDTINST  M1850.2  (series), 
Physical  Disability  Evaluation  System,  shall  submit  written  objections, 
within 10 days of signing the Chronological Record of Service (CG-4057), 
to Commander [Military Personnel Command]. . . . 
 
. . . Commander [Military Personnel Command] will evaluate each case 
and,  based  upon  information  submitted,  take  one  of  the  following 
actions: 
 
(1)  find  separation  appropriate,  in  which  case  the  individual  will  be  so 
notified and the normal separation process completed: 
 
(2)  find separation inappropriate, in which case the entire record will be 
returned and appropriate action recommended; or 
 
(3)  request additional documentation before making a determination. 

 
Provisions of the PDES Manual (COMDTINST M1850.2B)  
 
 
disability.   Article 2-C-2 of the PDES Manual states the following: 

The  PDES  Manual    governs  the  separation  of  members  due  to  physical 

 
b. 
The  law  that  provides  for  disability  retirement  or  separation 
(Chapter  61,  Title  10,  U.S.  Code)  is  designed  to  compensate  members 
whose military service is terminated due to a physical disability that has 
rendered  the  member  unfit  for  continued  duty.    That  law  and  this  dis-
ability evaluation system are not to be misused to bestow compensation 
benefits on those who are voluntarily or mandatorily retiring or separat-
ing  and  have  theretofore  drawn  pay  and  allowances,  received  promo-
tions,  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 sched-
uled for separation or retirement for reasons other than physical disabil-
ity creates a presumption of fitness for duty.  This presumption may be 
overcome if it is established by a preponderance of the evidence that: 
 
 
the  service  member,  because  of  disability, was physically 
unable to perform adequately the duties of office, grade, rank or rating; or 
 
acute, grave illness or injury, or other deterioration of the 
 
member’s physical condition occurred immediately prior to or coincident 

(b) 

(a) 

BCMR Final Decision for Docket No. 1996-063                                                   p. 15 

with processing for separation or retirement for reasons other than physi-
cal disability which rendered the service member unfit for further duty. 
 
    (2)  Service  members  who  are  being  processed  for  separation  or 
retirement for reasons other than physical disability shall not be referred 
for  disability  evaluation  unless  their  physical  condition  reasonably 
prompts doubt that they are fit to continue to perform the duties of their 
office, grade, rank or rating. 
 
c. 
If the evidence establishes that service members adequately per-
formed the duties of their office, grade, rank or rating until the time they 
were  referred  for  physical  evaluation,  they  might  be  considered  fit  for 
duty even though medical evidence indicates they have impairments. 

• • • 

i. 
The  existence  of  a  physical  defect  or  condition  that  is  ratable 
under the standard schedule of rating disabilities in use by the [Depart-
ment  of  Veterans  Affairs]  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 neces-
sarily render the member unfit for military duty. . . . 
 

FINDINGS AND CONCLUSIONS 

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

1. 

The Board has jurisdiction concerning this matter pursuant to sec-

tion 1552 of title 10 of the United States Code.  The application was timely. 
 

2. 

The  applicant  requested  an  oral  hearing  before  the  Board.    The 
Chairman, acting pursuant to 33 C.F.R. § 52.31, denied the request and recom-
mended  disposition  of  the  case  without  a  hearing.    The  Board  concurs  in  that 
recommendation. 

The  applicant  alleged  that  he  should  have  been  evaluated  by  a 
medical board prior to his discharge on March 15, 19xx.  He asked the Board to 
sit as his medical board and place him on either the permanent retired list or the 
TDRL.    He  also  asked  the  Board to  assign  him  a  combined  disability  rating  of 
50%  due  to  his  chronic  prostatitis  and  TMJ.    In  the  alternative,  the  applicant 
asked  the  Board to  award  him  a  medical  discharge  due  to  his  disabilities.    He 
alleged  that,  at  the  time  of  his  discharge,  he  was  not  informed  of  his  right  to 
object to his medical examiner’s finding of fitness for duty.  He also alleged that 

  
3. 

BCMR Final Decision for Docket No. 1996-063                                                   p. 16 

his doctors did not inform him, and he did not know, how much his conditions 
could deteriorate. 

According to Article 3.F.2. of the Medical Manual, if a member is 
found to have a “disqualifying” physical impairment during a medical examina-
tion,  a  medical  board  “shall”  be  held  to  determine  the  member’s  disposition.  
However,  Article  3.B.6.  states  that  the  Coast  Guard  shall  convene  an  IMB  for 
members  with  disqualifying  impairments  who  are  being  separated  for  reasons 
other than  a  disability  only  if  the  requirements  of  Article  2-C-2.b.  of  the  PDES 
Manual are met.  That article requires members to prove by a preponderance of 
the evidence that they are not fit for duty because of a disability.  It also states 
that members such as the applicant, who are being processed for separation for 
reasons  other  than  physical  disability,  shall  not  be  referred  to  a medical  board 
“unless  their  physical  condition  reasonably  prompts  doubt  that  they  are  fit  to 
continue to perform the duties of their office, grade, rank or rating.”  Therefore, 
the  Board  finds  that,  to  prove  that  the  Coast  Guard  erred  by  not  convening  a 
medical board to evaluate him for disability discharge, the applicant must prove 
that, at the time of his release from active duty, (a) he had a disqualifying physi-
cal impairment which rendered him unfit for duty or (b) his physical condition 
reasonably prompted doubt as to his fitness for duty. 

 
4. 

 
5. 

 
6. 

Disqualifying  Physical  Impairment.    Article  3.F.  of  the  Medical 
Manual lists those conditions that are considered “disqualifying physical impair-
ments.”  Neither prostatitis nor TMJ is specifically listed in Article 3.F.  Further-
more, because the Board finds that the applicant satisfactorily performed active 
duty service until his discharge (see Finding 6 below), the Board finds that the 
applicant’s conditions at the time of his discharge were not “disqualifying physi-
cal impairments” within the meaning of Articles 3.F.17 and 3.F.19.c.  

Fitness for Duty.  Article 2-C-2.b.(1) of the PDES Manual states that 
“[c]ontinued performance of duty until a service member is scheduled for sepa-
ration or retirement for reasons other than physical disability creates a presump-
tion of fitness for duty.”  The applicant continued to perform active duty service 
until the date of his discharge.  The applicant may overcome the presumption of 
fitness, however, if he establishes by a preponderance of the evidence that he was 
unable to perform his duties adequately.  The applicant alleged that at the time 
of his discharge, he had been missing work because of his conditions and was 
unfit  for  duty.    Affidavits  signed  by  his  fellow  officers  and  former  supervisor 
support the applicant’s allegation that he had missed work and cited his medical 
conditions  as  the  cause.    Nevertheless,  based  on  the  following  evidence,  the 
Board finds that the applicant has not proven by the preponderance of the evi-
dence that he was unable to perform his duty adequately or unfit for duty at the 
time of his discharge: 

BCMR Final Decision for Docket No. 1996-063                                                   p. 17 

The  medical  personnel  who  conducted  the  applicant’s 
examination prior to discharge found him fit for duty although they knew of his 
prostatitis and TMJ. 

had been found unfit for duty because of his conditions prior to his discharge. 

None  of  the  applicant’s  medical  records  indicates  that  he 

In the letter the applicant sent to request to resign his com-
mission, he listed several reasons, none of which was related to his medical con-
ditions. 

 
a. 

 
b. 

 
c. 

 
d. 

 
e. 

 
f. 

 
h. 

 
i. 

The applicant stated that his medical conditions have wors-
ened progressively.  His wife signed an affidavit stating that his conditions dete-
riorated  rapidly  and  dramatically  after  his  discharge.    Yet  more  than  one  year 
after his discharge, the DVA awarded the applicant just 10% disability ratings for 
each of his conditions and a combined rating of 20%. 

the applicant’s doctor described his incidence of prostatitis as “intermittent.” 

On  January  1,  19xx,  less  than  one  year  after  his  discharge, 

The applicant stated that at the time of his discharge, he did 
not know of the serious nature of his conditions.  This strongly suggests that he 
did not then consider his conditions to be serious. 

 
g.  When  the  applicant  protested  the  assignment  of  the  BNC 
separation code, he suggested several alternatives, none of which was related to 
his medical conditions. 

The  applicant  did  not  deny  that  he  was  informed  of  the 
finding that he was fit for duty prior to his discharge.  However, he never con-
tested the finding.  Although the applicant alleged that he did not know he had a 
right to contest it, the Board finds that any officer--and especially an xxxxx--who 
believed such a finding to be in error would have at least inquired into the possi-
bility of having the finding reversed. 

The applicant’s last two regular evaluations and the affida-
vits of his supervisor and colleagues reflect superior job performance during his 
last year on active duty. 

Reasonable  Doubt  of  Fitness  for  Duty.    The  applicant  voluntarily 
sought to resign his commission for nonmedical reasons.  Article 2-C-2.b.(2) of 
the PDES Manual states that members who are being administratively separated 

 
7. 

BCMR Final Decision for Docket No. 1996-063                                                   p. 18 

shall  be  referred  to  a  medical  board  if  “their  physical  condition  reasonably 
prompts doubt that they are fit to perform the duties of their office, grade, rank 
or rating.”  At the time of his medical examination for discharge, the applicant (a) 
had  been  diagnosed  with  prostatitis  and  TMJ,  (b)  took  antibiotics  and  wore  a 
night guard for these conditions, respectively, (c) had missed some work because 
of these conditions, and (d) occasionally required Motrin to be able to open his 
mouth wide enough to talk and eat.  Nevertheless, the Board finds that the appli-
cant has not proved by a preponderance of the evidence that his physical condi-
tion should have prompted doubt in his fitness for duty.  Therefore, the Board 
finds that the applicant was not entitled to a medical board under the terms of 
Article 2-C-2.b.(2) of the PDES Manual. 

 The applicant stated that he was not informed that his conditions 
are  ratable  disabilities  under  the  DVA  rating  system.    The  Board  knows  of  no 
law—and the applicant did not cite any--that requires the Coast Guard to give its 
members  of  this  particular  information.    Having  a  ratable  disability  under  the 
DVA system does not entitle a member of the Coast Guard to a medical board.  
Furthermore, pursuant to Article 2-C-2.i. of the PDES Manual, the fact that the 
applicant’s conditions are ratable disabilities under the DVA rating systems does 
not prove that he would have been found unfit for duty by a medical board.  As 
the  Chief  Counsel  pointed  out,  the  Court  of  Federal  Claims  has  held  that 
“[d]isability  ratings  by  the  Veterans  Administration  [now  the  Department  of 
Veterans Affairs] and by the Armed Forces are made for different purposes.  The 
[DVA] determines to what extent a veteran’s earning capacity has been reduced 
as a result of specific injuries or combination of injuries. . . .  The Armed Forces, 
on the other hand, determine to what extent a member has been rendered unfit 
to perform the duties of his office, grade, rank, or rating because of a physical 
disability.  .  .  .    Accordingly,  [DVA]  ratings  are  not  determinative  of  issues 
involved in military disability retirement cases.”  Lord v. United States, 2 Cl. Ct. 
749, 754 (1983). 
 
 
Therefore, the Board finds that the applicant has not proved by a 
preponderance  of  the  evidence  that  the  Coast  Guard  committed  any  error  or 
injustice by not convening a medical board to evaluate his conditions or by not 
giving him a medical discharge. 
 
 
The applicant stated and the Coast Guard admitted that he had not 
signed a CG-4057 form to agree or disagree with his medical examiner’s finding 
of fitness.  The applicant stated that this error deprived him of his right to object 
to  the  finding  and  have  it  reviewed  and  perhaps  reversed.    The  Coast  Guard 
argued that the error was harmless because the applicant received other notice of 
his rights and because, if he had objected to the finding, the examiner’s finding of 
fit for duty would have been upheld.  In addition, the Coast Guard argued that 

10. 

 
8. 

9. 

BCMR Final Decision for Docket No. 1996-063                                                   p. 19 

the error had been remedied because, upon receiving the applicant’s application 
and medical records, the Personnel Command had reviewed them in accordance 
with Article 3.B.5. of the Medical Manual.  The review determined that the find-
ing of fitness was appropriate.  In light of the facts set out in Finding 6, above, the 
Board is persuaded that the Coast Guard’s failure to notify the applicant of his 
right to object to the finding of fitness via the CG-4057 form was harmless error. 
 
 
Regardless  of  the  severe  pain  and  difficulties  the  applicant  is 
suffering now, he has not established by the preponderance of the evidence that 
his  conditions  at  the  time  of  his  discharge  rendered  him  unfit  to  perform  his 
duty.    A  veteran’s  remedy  for  loss  of  income  due  to  a  service-connected 
condition  that  becomes  significantly  disabling  after  his  discharge  lies  with  the 
DVA. 
 
 
 
 
 
 
 
 

Therefore, the applicant’s request for correction should be denied. 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

11. 

12. 

 

BCMR Final Decision for Docket No. 1996-063                                                   p. 20 

 

ORDER 

 

The  application  for  correction  of  the  military  record  of  former  XXXXX, 

 
 

 
 

 
 

USCGR, is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Harold C. Davis, M.D. 

 

 

 

 
John A. Kern 

 

 

 
 
Betsy L. Wolf