DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1998-070 
 
 
   

 

 
 

APPLICANT’S ALLEGATIONS 

 
In  his  original  application  and  in  a  later  submission  to  the  Board  on 
 
December 7, 1998, the applicant alleged that during a physical examination on 
June 20, 199x, prior to his retirement, the examining physician, Dr. X, concluded 
that  he  was  not  physically  qualified  for  retirement  and  that  his  carpal  tunnel 
syndrome, tinnitus, and hearing loss should be further evaluated.  However, on 
July 7, 199x, before his conditions were properly evaluated, a non-medical chief 
petty officer certified him as meeting the physical standards for retirement.  The 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section 
1552 of title 10 and section 425 of title 14 of the United States Code.  It was dock-
eted on March 31, 1998, upon the BCMR’s receipt of the applicant’s request. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated November 4, 1999, is signed by the three duly 

REQUEST FOR RELIEF 

 
The  applicant,  a  xxxxxxxxx  who  was  retired  from  the  Coast  Guard  on 
 
October 1, 199x, asked the Board either (a) to recall him to active duty so that his 
medical conditions may be evaluated and treated or (b) to correct his record to 
show  that  he  was  retired  by  reason  of  physical  disability  with  a  40  percent 
disability rating on October 1, 199x.  If he is recalled to active duty, the applicant 
asked  to  receive  back  pay  and  allowances,  including  retirement  credit,  for  the 
intervening time. 

 

 

applicant alleged that the chief petty officer did not have authority to do this and 
that  only  the  Maintenance  and  Logistics  Command  (MLC)  can  override  an 
examining  physician’s  determination  of  unfitness.    Furthermore,  the  applicant 
alleged, the chief petty officer did not forward the report of his physical exam 
(form SF-88), as required, to MLC, which makes the final determination regard-
ing  whether  members  are  physically  qualified  for  retirement.    In  addition,  the 
applicant alleged, he was not but should have been informed at this time that he 
had a right to request processing for a physical disability retirement under Arti-
cle 12.C.3.b.(2) of the Personnel Manual.  He alleged that he did not hear of this 
right until September 16, 199x, a few days before his retirement. 
 
 
The applicant alleged that on July 28, 199x, an orthopedic surgeon, Dr. XX, 
examined him and advised him that he should not receive another steroid injec-
tion  for  his  carpal  tunnel  syndrome.    Instead,  Dr.  XX  ordered  further  tests  to 
determine if surgery should be performed.  Because the tests could not be com-
pleted before September 1, 199x, the date the applicant was originally scheduled 
to be retired, his command asked PPC Topeka to continue his pay past his retire-
ment date.  However, his command forgot to inform the Coast Guard Personnel 
Command (CGPC) of his situation.  The applicant alleged that he continued on 
active duty in September and received his pay, but then CGPC learned he had 
not been retired and approved his command’s request to continue him on active 
duty  only  until  October  1,  199x.    Furthermore,  the  applicant  alleged,  CGPC 
caused his further medical appointments to be cancelled. 
 
 
Prior to the applicant’s retirement on October 1st, however, another senior 
medical  officer,  Dr.  Y,  reviewed  his  record  and  concluded  that  further  evalua-
tions of the applicant’s carpal tunnel syndrome, tinnitus, and hearing loss were 
needed and that the applicant should be evaluated by an initial medical board 
(IMB).  On September 30, 199x, Dr. Y requested that the applicant’s retirement be 
delayed  until  December  1,  199x,  but  a  lieutenant  at  CGPC  disapproved  the 
request the same day.  The applicant alleged that the lieutenant’s decision was 
improper  because  the  lieutenant  is  not  a  medical  officer  and  did  not  have 
authority to override Dr. Y’s decision.  The applicant alleged that only MLC had 
authority to override Dr. Y’s decision, but MLC was never involved. 
 
 
The applicant further alleged that because of the confusion concerning his 
status  and  the  chief  petty  officer’s  failure  to  forward  his  SF-88  to  MLC,  CGPC 
promoted another member to the rank of xxxx on September 1, 199x, to replace 
him and thereby exceeded the authorized number of xxxxs in the Coast Guard.  
He alleged that this mistake created pressure to retire him without waiting for 
his medical conditions to be evaluated and reviewed by an IMB.  He alleged that 
when he called the lieutenant who refused to delay his retirement, he was told 
that CGPC “had already promoted another xxxx and there was nothing he could 

do about it.”  The lieutenant also told the applicant that reviewing the report of 
his physical examination was not his job because he did not work for MLC.   
 
The applicant alleged that after Dr. Y’s request was improperly denied, he 
 
exercised  his  rights  under  Article  12.C.3.B.(2)  of  the  Personnel  Manual,  by 
requesting in writing that his medical problems be corrected or that he be proc-
essed for a physical disability retirement.  However, the request was not proc-
essed prior to his retirement on October 1st.  
 

The applicant alleged that racism may have caused him to be retired pre-
maturely.  He stated that he knows of a white xxxx who was properly processed 
by a medical board and awarded a 20 percent disability rating, whereas another 
Hispanic  xxxx’s  request  for  a  medical  board  was  denied.    He  stated  that  that 
Hispanic  xxxx  was  later  awarded  a  20  percent  disability  rating  by  the  Depart-
ment of Veterans Affairs (DVA). 
 
 
The applicant also stated that the DVA has assigned him a 40 percent dis-
ability rating.  He alleged that, had he been properly evaluated before his retire-
ment, he would have received this same rating from the Coast Guard. 
 

The applicant stated that his wrongful retirement has created a financial 
hardship.    He  alleged  that  he  could  not  find  private  employment  and  that  the 
Dual Compensation Act would require him to give up more than $10,000 of his 
retirement pay were he to take a job with the federal government.  He alleged 
that, without the tax benefits of receiving disability retirement, he cannot take a 
federal job lower than GS-10 on the pay scale. 

 

SUMMARY OF THE RECORD 

The applicant submitted the following medical records in support of his 

 
 
application: 
  
2/13/9x  The  applicant  sought  treatment  for  numbness  in  the  fingers  of  his 
right  hand.    His  physician  diagnosed  carpal  tunnel  syndrome,  gave 
him  a  steroid  shot  and  a  splint,  and  prescribed  no  typing  for  three 
weeks. 

 
6/20/9x  The report of the applicant’s physical examination prior to his retire-
ment (SF-88) indicates that Dr. XX found that the applicant had high 
frequency  hearing  loss  and  referred  him  for  an  audiogram.    Dr.  XX 
also found that the applicant had numbness and tingling in the third, 
fourth, and fifth digits of his right hand.  The doctor marked him as 
“not qualified” for retirement in block 77, but left blocks 74, 75, and 78 

on  the  report  blank,  where  the  summary  of  diagnoses  and  defects, 
recommendations  for  further  treatment  and  evaluations,  and  num-
bered list of disqualifying defects are supposed to appear.   

 
7/7/9x  A health services technician in the administrative office at the appli-
cant’s command reviewed the SF-88 and marked on it that the appli-
cant did “meet the physical standards for retirement as prescribed in 
COMDTINST  M6000.1”  (the  Medical  Manual)  and  had  no  disquali-
fying  defects.    The  report  of  the  examination  was  not  forwarded  to 
MLC.  Nor was the report completed at that time by having the appli-
cant  sign  a  form  CG-4057,  which  informs  a  member  of  his  right  to 
request an IMB. 

 
7/28/9x  An  orthopedic  surgeon,  examined  the  applicant  and  found  that  he 
had chronic carpal tunnel syndrome in his right hand.  The applicant 
reported  that  he  had  numbness  and  tingling  in  his  right  hand  and 
experienced mild relief when using a splint.  His symptoms had also 
been  relieved  for  two  months  after  a  steroid  injection  in  February 
199x.  The doctor ordered further testing. 

 
9/17/9x  The applicant’s command (xxxxxxx) wrote a letter to the lieutenant at 
CGPC detailing the administrative mistakes that had been made with 
regard  to  the  applicant’s  retirement  and  medical  processing.    He 
indicated  that  he  did  not  receive  confirmation  of  the  applicant’s 
failure to meet the physical standards for retirement until September 
2,  199x,  and  that  no  IMB  had  been  convened  for  the  applicant,  as 
required by Article 12.C.3. of the Personnel Manual. 

 
9/17/9x  The applicant signed a form CG-4057, indicating that he agreed “with 
the findings of the examining physician" on his SF-88.  He attached to 
the  form  a  statement  indicating  that  he  was  an  accountant  and  had 
worked with typewriters and computers for 26 years.  He stated that 
he had suffered from numbness, tingling, and pain in his right hand 
and  forearm  since  before  197x,  when  he  first  sought  treatment  and 
was diagnosed with carpal tunnel syndrome.  The applicant also indi-
cated that he had suffered hearing loss as “a direct result of repeated 
exposure  to  loud  noises,  high  frequency  turbine  noises”  when  he 
served on a cutter as a “check sight observer” stationed at the front of 
a gun mount.  He stated that the noise was so loud during rapid firing 
of the 5 inch gun that even double hearing protection provided very 
little  relief.    He  stated  that  as  a  result  of  this  hearing  loss,  sound 
entering his left ear sounds like breaking glass.  Therefore, he cannot 
use his left ear for telephone conversations, which makes office work 

difficult because he is right handed.  In addition, tinnitus in his left ear 
causes a constant high-pitched squeal, which makes it very difficult to 
sleep.  The applicant asked that his retirement be delayed until after 
his medical appointments on September 27, 199x, and October 7, 199x, 
or that he be processed for a physical disability retirement.  

 
9/30/9x  The applicant’s command asked CGPC to delay the applicant’s retire-
ment date until December 1, 199x, because Dr. Y had decided to initi-
ate an IMB for the applicant because his fitness for retirement could 
not be determined without further consultations and evaluations. 

On  the  same  day,  a  lieutenant  at  CGPC  informed  the  applicant’s 
command  that  the  request  was  disapproved  because  his  “condition 
does not meet the criteria set forth” in Article 2.C.2.b. of COMDTINST 
M1850.2C, the Physical Disability Evaluation System (PDES) Manual. 

 
 

 
 

 

The  applicant’s  discharge  form  (DD  214)  indicates  that  he  was  hon-
orably retired on September 30, 199x, after serving more than 26 years 
on  active  duty,  pursuant  to  Article  12.C.6.  of  the  Personnel  Manual.  
His  separation  code  is  RBD,  which  means  “voluntary  retirement 
authorized but not required by law when a member has attained suf-
ficient service to retire.” 

 
10/17/9x  The applicant’s command sent his medical records, separation papers, 

and DD 214 to CGPC. 

 
6/4/9x 

The  DVA  awarded  the  applicant  a  combined  disability  rating  of  40 
percent, based on a 10 percent disability for each of the following four 
conditions:  carpal tunnel syndrome in right arm; carpal tunnel syn-
drome in left arm; high blood pressure and controlled hypertension; 
and tinnitus.  The DVA did not find the applicant’s hearing loss to be 
disabling.  

 
9/12/9x  The applicant wrote a letter to an admiral in the Coast Guard stating 
that a xxxx serving as a supply officer for a unit near the applicant’s 
home was planning to leave the Coast Guard in the summer of 199x.  
The  applicant  suggested  that  he  could  serve  in  that  billet  for  three 
years while being medically evaluated.  The applicant stated that he 
had served in the unit before and was very familiar with the job and 
that it would save the Coast Guard the cost of moving another xxxx to 
the unit.  Because the admiral had retired, the applicant’s letter was 
forwarded to the BCMR. 

VIEWS OF THE COAST GUARD 

 
Advisory Opinion of the Chief Counsel  
 

On  June  18,  1999,  the  Chief  Counsel  of  the  Coast  Guard  recommended 

that the Board deny the applicant the requested relief.  

 
The Chief Counsel stated that his advisory opinion is based on the medi-
cal  records  provided  by  the  applicant  because  the  applicant’s  medical  records 
have not been found. 

 
Citing  Article  1.A.  of  the  PDES  Manual,  the  Chief  Counsel  stated  that 
“[t]he law that provides for physical disability retirement or separation and asso-
ciated benefits (Chapter 61, Title 10, United States Code) is designed to compen-
sate  members  whose  military  service  is  terminated  due  to  a  service  connected 
disability, and to prevent the arbitrary separation of individuals who incur dis-
abling  injuries.”    Furthermore,  he  argued,  under  10  U.S.C.  §  1201  and  Article 
2.C.2.a. of the PDES Manual, “[t]he sole basis for a physical disability determina-
tion  in  the  Coast  Guard  is  unfitness  to  perform  duty.”    Article  2.C.2.b.  of  the 
PDES  Manual,  he  stated,  expressly  “prohibit[s]  use  of  this  authority  to  bestow 
compensation benefits on those who are retiring or separating and have contin-
ued on unlimited active duty while tolerating impairments that have not actually 
precluded Coast Guard service.”   

 
Under Article 2.C.2.b.1., the Chief Counsel argued, “[c]ontinued perform-
ance 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. 
…    If  the  evidence  establishes  that  service  members  adequately  performed  the 
duties of their office, grade, rate 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.” 

 
The Chief Counsel stated that the applicant  “has not presented any evi-
dence that he was unable to fulfill his duties while on active duty prior to and 
coincident  with  his  voluntary  retirement.”    The  applicant’s  records  indicate  he 
performed  his  duties  “at  a  highly  satisfactory  level”  until  his  retirement.    The 
Chief Counsel alleged that “there is not a single instance of a documented sick 
leave or hospitalization day in Applicant’s OER file.”  Therefore, he argued, the 
applicant has failed to prove he was physically unable to perform adequately his 
assigned duties. 

 
The Chief Counsel alleged that “[t]he fact that the physician  conducting 
his retirement physical identified the potential presence of one or more physical 

defects is immaterial to Applicant’s request for relief.  The record shows that the 
Applicant performed his duties in a highly satisfactory manner during his career 
up to and including the time of his retirement from the service.  …   Therefore, 
there was no basis to evaluate him under PDES for a physical disability retire-
ment, nor was there any legal basis to medically retire the Applicant.” 

 
Regarding the applicant’s allegations that non-medical personnel improp-
erly  made  the  determination  that  he  was  fit  for  retirement,  the  Chief  Counsel 
stated that, contrary to the applicant’s statement, the final determination of fit-
ness  rests  with  CGPC,  not  with  the  examining  physician  or  MLC.    The  Chief 
Counsel  stated  that  CGPC  has  many  qualified  medical  personnel  on  staff  and 
that “in the instant case, the decision made by CGPC was not a decision requir-
ing specific medical expertise.  Under the provisions of the PDES Manual, CGPC 
need only determine if the Applicant had adequately performed the duties of his 
office until such time when he was referred for physical evaluation.” 

 
Regarding the applicant’s allegation that he should have appeared before 
an IMB and been processed for a physical disability retirement, the Chief Coun-
sel stated that the Coast Guard had no duty to do so under Article 12.C.3.b.1. of 
the Personnel Manual because “the Applicant’s physical condition did not render 
him unfit for continued service.”  The Chief Counsel argued that the applicant’s 
carpal tunnel syndrome, tinnitus, and hearing loss are “chronic medical condi-
tions, which did not prevent the Applicant from adequately fulfilling his duties 
in his assigned rank or position.  Therefore, the Applicant’s physical condition 
did not require the convening of an [IMB].” 

 
The Chief Counsel stated that, under Lord v. United States, 2 Ct. Cl. 749, 754 
(1983),  disability  ratings  awarded  by  the  DVA  “are  not  determinative  of  the 
issues involved in military disability retirement cases. …  The DVA determines 
to what extent a veteran’s earning capacity has been reduced as a result of spe-
cific injuries or combinations 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 rate and specialty … because of a physical disability.”  Furthermore, 
the Chief Counsel argued, the DVA’s determination in June 199x that the appli-
cant was 40 percent disabled does not prove he was 40 percent disabled on the 
date of his retirement, October 1, 199x.  The Chief Counsel also alleged that the 
applicant did not prove that his conditions were service connected. 

 
The Chief Counsel concluded that the applicant has failed to prove that 
his retirement was in error or unjust or that he was eligible for a medical retire-
ment  under  Chapter  61  of  Title  10  U.S.C.    He  further  stated  that  this  case 
“involves a significant issue of Coast Guard policy.  Action by the Board other 

than denial and the waiver of the ten-month rule would therefore be subject to 
final action by the Secretary pursuant to 33 C.F.R. § 52.64(b).” 

 

Memorandum of the Commander of the Coast Guard Personnel Command 

 
The Chief Counsel attached to his advisory opinion a copy of a memoran-

dum on the case from CGPC dated May 25, 1999. 

 
CGPC  stated  that  on  June  20,  199x,  the  physician  conducting  the  appli-
cant’s physical examination prior to retirement marked him as not qualified for 
retirement.    On  September  30,  199x,  the  applicant’s  command  asked  CGPC  to 
extend  his  retirement date  due  to  “consultations  and  evaluations  needed  to  be 
completed for the purpose of an Initial Medical Board (IMB).  These evaluations 
included looking at his carpal tunnel syndrome, hearing loss and tinnitus.”   

 
CGPC stated that it denied this request because “the applicant’s condition 
did  not  meet  the  criteria  set  forth  by  COMDTINST  M1850.2C,  ART  2.C.2.B.”  
CGPC stated that the applicant was not referred for disability evaluation because 
he was ably performing his duty at the time and that members who serve “unen-
cumbered until retirement, but with pain such as that experienced by [the appli-
cant], [are] normally referred to the Department of Veterans Affairs (DVA) sub-
sequent to retirement, to address the member’s employability.”  

 
CGPC  further  stated  that  “[a]lthough  the  physician  who  conducted  the 
retirement physical indicated that the member was not physically qualified for 
retirement,  the  final  decision  for  such  matters  rests  with  the  [CGPC],  not  the 
physician. … Failure to complete consultations and examinations set up prior to 
the member’s separation from service do[es] not support a delay in retirement.  
The DVA was established to handle cases such as this.” 
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On June 9, 1999, the Chairman sent copies of the Chief Counsel’s advisory 
opinion and CGPC’s memorandum to the applicant and invited him to respond 
within 15 days.  The applicant requested an extension and responded on August 
4, 1999. 
 
The  applicant  argued  that  he  fully  qualified  for  a  disability  retirement 
under 10 U.S.C. § 1201 because (a) his disability is “based upon accepted medical 
principles  and  is  of  permanent  nature  and  stable;  (b)  his  disability  is  not  the 
result  of  misconduct;  and  (c)  he  has  served  more  than  20 years on  active  duty 
and his disability rating is more than 30 percent according to the schedule used 

by the DVA.1  He stated that the Chief Counsel’s claim that the DVA rating is 
irrelevant  is  wrong  because  10  U.S.C.  §  1201  mandates  use  of  the  DVA  rating 
schedule. 

 
The applicant also argued that it was wrong for the Coast Guard to retire 
him without reviewing his medical records.  He alleged that he offered to fax or 
mail  his  records  to  the  Coast  Guard  overnight  in  September  199x,  two  weeks 
before  he  was  retired,  but  was  told  the  decision  had  already  been  made.    He 
alleged  that  CGPC’s  action  was  analogous  to  a  judge  deciding  a  case  without 
ever looking at the evidence. 

 
The  applicant  alleged  that  the  non-medical  member  who  overrode  his 
doctor’s determination that he was unfit for retirement and who marked on his 
SF-88 that he met the physical standards for retirement was not authorized to do 
so  according  to  the  Medical  Manual.    He  stated  that  the  non-medical  member 
was  supposed  to  forward  the  SF-88  to  MLC  for  evaluation,  which  would  then 
have  recommended  disposition  of  his  case  to  CGPC.    He  alleged  that  if  his 
records had been properly forwarded to MLC and CGPC, the determination by 
two Coast Guard doctors that he was unfit for retirement would not have been 
overruled. 

 
The applicant said that, when he signed form CG-4057, he was agreeing 
with his physician’s finding that he was not physically qualified for retirement; 
he was not agreeing with the non-medical member’s erroneous mark.  Because of 
the non-medical member’s mark, the applicant attached a signed statement to the 
form, detailing his medical conditions and asking to be extended so that his con-
ditions could be properly evaluated. 

 
The applicant said that the lack of sick leave papers in his record does not 
prove that he was fit for duty because “the Coast Guard is very poor in issuing 
sick leave papers.”  For instance, he alleged, when he was injected with steroids 
for his carpal tunnel syndrome, he went on sick leave for three weeks upon his 
doctor’s recommendation, but this absence was not documented in his personnel 
record even though it appears in his medical record.  Furthermore, the applicant 
named three other members who worked in office jobs despite their disabilities 
and were later processed for medical retirements.  One, he stated, the chief of a 
dining facility, was found unfit for duty by the physician conducting his exami-
nation for retirement due to a foot problem.  That member was given a medical 
board and 20 percent disability rating even though he continued to perform his 
                                                 
1  The applicant also indicated that the 40 percent disability rating he received from the DVA does 
not  include  a  rating  for  his  knee  injury  because,  although  he  injured  his  knee  while  on  active 
duty, he treated it himself with analgesics and never reported it to Coast Guard medical staff. 
 

duty as chief of the dining facility until his retirement.2  He stated that the other 
two named members were similarly assigned disability ratings despite working 
up to the day they retired.  He alleged that the only reason he was not similarly 
processed and assigned a disability rating was because his SF-88 was not prop-
erly forwarded to MLC for review. 

 
The  applicant  further  stated  that  he  did  not  fail  to  provide  his  medical 
records  to  the  Coast  Guard.    He  stated  that,  in  fact,  his  medical  records  were 
mailed to CGPC on October 17, 199x.  He explained that the medical records he 
provided with his application to the BCMR are true copies that were made for 
him by the medical staff after he retired.  

 
The applicant included with his response an affidavit signed by a Coast 
Guard colleague, who stated that the applicant had performed his duty superbly 
and  rarely  complained  despite  “constant  pain  in  his  hand.”    The  affiant  stated 
that  about  90  percent  of  the  applicant’s  work  was  on  the  computer  and  that 
“[t]he price he paid was wearing a brace thru pain the entire time.” 
 

APPLICABLE STATUTES AND REGULATIONS 

 
Disability Retirement Statute 
 
Under 10 U.S.C. § 1201(a), “[u]pon a determination by the Secretary con-
 
cerned that a member [entitled to basic pay] is unfit to perform the duties of the 
member’s  office,  grade,  rank,  or  rating  because  of  physical  disability  incurred 
while entitled to basic pay … the Secretary may retire the member, with retired 
pay  computed  under  section  1401  of  this  title,  if  the  Secretary  also  makes  the 
determinations with respect to the member and that disability specified in sub-
section (b).”  [Emphasis added.] 
 
 
as follows: 
 

Under 10 U.S.C. § 1201(b), the “Required Determinations of Disability” are 

based upon accepted medical principles, the disability is of a per-

(1) 
manent nature and stable; 

                                                 
2  The applicant submitted copies of this member’s medical records.  The records indicate that the 
member was examined and given an IMB after his physician found that he was not fit for duty 
due to plantar fasciitis and limited him to duty not requiring a significant amount of standing, 
walking,  or  running.    The  physician  wrote  on  the  SF-88  that  the  member  was  referred  for  a 
medical  board.    The  IMB  found  the  member  not  fit  for  duty  and  referred  him  to  a  Central 
Physical  Evaluation  Board  (CPEB),  which  similarly  limited  his  activity  and  set  his  disability 
rating at 20 percent.  As a result the member received permanent physical disability retirement 
orders.  

the  member  has  at  least  20  years  of  service  computed 

the disability is not the result of the member’s intentional miscon-

(2) 
duct …; and 
either 
(3) 
 
(A) 
under section 1208 of this title; or 
 
the  disability  is  at  least  30  percent  under  the  standard 
schedule  of  rating  disabilities  in  use  by  the  Department  of  Veterans 
Affairs at the time of the determination; and either 
 
service …; 
 
active duty; 
 
time of war or national emergency; or 
 
(iv) 
September 14, 1978. 

the member has at least eight years of [active duty] 

the disability was incurred in the line of duty after 

the disability is the proximate result of performing 

(iii) 

the  disability  was  incurred  in  the  line  of  duty  in 

(i) 

(ii) 

(B) 

 

 

 

 

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

Article 12.A.10. requires officers to undergo a physical examination prior 
to retirement.  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) 

 
The  Medical  Manual  governs  the  disposition  of  members  with  physical 
disabilities.    According  to  Article  3.B.3.a.(1),  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  retire-
ment from the Service.  Persons with “listed conditions or defects (and any other 
not listed) considered disqualifying shall be referred to an Initial Medical Board 
… .”  Among those conditions listed in Article 3.F. are malfunction of the acous-

tic nerve, which requires further evaluation, and severe pain or a limited range of 
motion in the wrist. 

 
According to Article 3.B.3.a.(2), “[w]hen the physical examination of active 
duty  personnel  indicates  defects  which  are  remediable  or  which  may  become 
potentially disabling unless a specific medical program is followed, the examiner 
shall clearly state any recommendations … [and] tentative arrangements for care 
shall be scheduled, subject to the approval of the examinee’s command.” 

 
According  to  Article  3.B.3.a.(3),  after  the  physical  examination,  “the 
examinee shall be informed that the examiner is not an approving authority for 
the  purpose  of  the  examination  and  that  the  findings  must  be  approved  by 
proper authorities.” 

 
According to Article 3.B.3.b.(1)(a), the member’s “command  has a  major 
responsibility  in  ensuring  …  that  physical  examinations  are  scheduled  suffi-
ciently  far  in  advance  to  permit  the  review  of  the  findings  and  correction  of 
medical defects prior to the effective date of the action for which the examination 
is required.” 

 
According to Article 3.B.3.b.(1)(c), “[w]hen the medical examiner recom-
mends further tests or evaluation, … the command will ensure that these tests or 
examinations are completed … .  When a necessary test, evaluation, or program 
can be completed within a 60 day period, the unit may hold the SF-88 to permit 
the forwarding of results.  In all cases the command shall endorse the SF-88 to 
indicate  what  action  has  been  taken  and  forward  the  report  to  the  reviewing 
authority if the 60 day period cannot be met or has elapsed.” 

 
According  to  Article  3.B.3.c.,  MLC  “acts  as  the  reviewing  authority  for 
physical  examinations  performed  on  personnel  assigned  to  their  areas.”    MLC 
must  review  each  SF-88  carefully  “to  determine  whether  the  findings  reported 
indicate the examinee does or does not meet the appropriate physical standards.  
If  further  medical  evaluation  is  required  to  determine  that  the  examinee  does 
meet the standards, or to resolve doubtful findings, the reviewing authority shall 
direct the commanding officer … to obtain the evaluation and shall provide such 
assistance as may be required.” 

 
According  to  Article  3.B.3.d.,  when  a  member  meets  the  appropriate 
physical standards, MLC is supposed to forward the physical examination back 
to the member’s command for inclusion in his medical records.  However, when 
a member “is not physically qualified for the purpose of the examination, … the 
reviewing authority will arrange for the examinee to be evaluated by a medical 
board … .” 

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

Fitness for Duty at Separation,” 

 
[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. 
 
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.6.c.  provides  instructions  for  completing  the  SF-88  Report  of 
Medical  Examination.    Article  4.B.6.c.(44)  instructs  the  examining  physician  in 
block 74 of the SF-88 to “[l]ist ALL defects in order to protect the Government in 
the event of future disability compensation claims.  All defects listed which are 

not considered disqualifying shall be so indicated by the abbreviation NCD (Not 
Considered Disqualifying).  When as individual has a disease or other physical 
condition that, although not disqualifying, requires medical or dental treatment 
clearly state the nature of the condition and the need for treatment.”  In block 75, 
the  physician  is  supposed  to  indicate  any  recommendations  and  “[s]pecify  the 
particular type of further medical or dental specialist examination indicated.”  If 
the member is not fit for the purpose of the examination, the physician is sup-
posed to list the disqualifying defects by number in block 78. 

 
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.” 
 
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 
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 

(b) 

(a) 

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 alleged that he was not fit for duty at the time of his 
retirement  and  that  he  was  wrongly  denied  proper  medical  examinations  and 
evaluation  by  a  medical  board  because  of  administrative  error.    He  further 
alleged that the Coast Guard unjustly ordered his retirement without permitting 
further medical evaluation because it had mistakenly promoted a member to the 
rank of xxxx to fill his place.  He alleged that the Coast Guard may have acted 
out  of racial  prejudice  because  he  is  Hispanic.    The  applicant  asked  that  he  be 
returned  to  active  duty  so  that  his  medical  conditions  can  be  evaluated  and 
treated  or  that  his  record  be  corrected  to  show  that  he  was  retired  due  to  a 
medical disability. 

  
3. 

The Coast Guard made several administrative errors in processing 
the  applicant  for  retirement.    The  examining  physician  failed  to  complete 
important  blocks  on  the  applicant’s  SF-88.    The  applicant’s  command  failed  to 
ensure that his conditions were further evaluated at the recommendation of the 
examining physician, as required by Article 3.B.3.b.(1)(c) of the Medical Manual.  
His SF-88 was not forwarded to MLC for review, as required by Article 3.B.3.c.  
When his command realized that his conditions could not be further evaluated 

prior to his scheduled date of retirement, September 1, 199x, his pay was contin-
ued, but his command failed to notify CGPC and thereby caused another mem-
ber to be promoted to xxxx before the applicant was retired.  

In light of these errors, the Board must determine whether the out-
come—non-medical retirement—might have been different had any of the errors 
not been made. 

 
4. 

 
5. 

According  to  Article  3.F.  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, he had a disqualifying physical 
impairment which rendered him unfit for duty or his physical condition reason-
ably prompted doubt as to his fitness for duty. 

 
6. 

The applicant’s record indicates that he volunteered for retirement 
and that his separation was not initiated due to a physical disability.  Although 
his examining physician indicated he was not fit for retirement and ordered fur-
ther evaluations, the applicant satisfactorily performed active duty service until 
the day of his retirement, which creates a presumption of fitness for duty under 
Article  2.C.2.b.(1)  of  the  PDES  Manual.    Evidence  that  the  applicant  may  have 
taken sick leave due to his conditions in the past does not prove that he could not 
perform the duties of his rank and office at the time of his retirement.  Further-
more, the Board notes that after his retirement, the applicant requested that he be 
reenlisted to serve a three-year term as the supply officer at a nearby unit.   In 
light of these facts, the Board is convinced that even if no administrative errors 
had  been  made  in  processing  the  applicant  for  retirement,  he  would  not  have 
been awarded a physical disability retirement, under Articles 3.B.6. and 3.F.1.c. 
of the Medical Manual and Article 2.C.2.b. of the PDES Manual.  The applicant 
has not proved by a preponderance of the evidence that he was unfit for duty at 
the time of his retirement or that his condition “reasonably prompted doubt as to 
his fitness for duty.” 

 Having a ratable disability under the DVA system does not entitle 
a member of the Coast Guard to a physical disability retirement or to a medical 
board.  Title 10. U.S.C. § 1201(a) provides the minimum statutory requirements a 
member of the Coast Guard must meet before the Secretary may award him or 
her a physical disability retirement.  The Coast Guard’s regulations create addi-
tional requirements that must be met before members are entitled to a physical 
disability retirement.   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 sys-
tems 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). 

 
7. 

 
8. 

9. 

The  applicant  alleged  that  he  was  denied  a  medical  board  and 
physical disability retirement because he is Hispanic.  Apart from his own alle-
gations and anecdotes, the applicant presented no evidence of such racial preju-
dice. 
 
 
Therefore, the Board finds that the applicant has not proved by a 
preponderance of the evidence that the Coast Guard erred or committed injustice 
by not convening a medical board to evaluate his conditions or by not awarding 
him a physical disability discharge. 
 
 
Regardless  of  the  pain  the  applicant  suffered  while  he  served  on 
active duty, 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. 

10. 

11. 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

 
 

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

ORDER 

 

 
 

USCG, is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 

 

 
Harold C. Davis, M.D. 

 

 

 

 
John A. Kern 

 

 

 
 
Betsy L. Wolf