DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2000-086 
 
 
   

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.  The application was filed 
on January 21, 2000, and completed on March 15, 2000, upon the BCMR’s receipt of the 
applicant’s military and medical records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated April 12, 2001, is signed by the three duly appointed 

 

 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  a  former  seaman  apprentice  (SA;  pay  grade  E-2)  in  the  Coast 
Guard,  asked  the  Board  to  correct  his  military  record  to  show  that  the  disability  for 
which  he  was  medically  discharged  on  xxxxxx,  1981,  was  caused  by  an  injury  he 
received while serving on active duty.  He asked that his record be corrected to show 
that  he  was  medically  discharged  due  to  a  20-percent  disability.1    He  alleged  that 
“recent diagnostic findings by the VA show evidence that my back injury was a result 
of lifting a 50 lb fender bender at the time of my service with the USCG.”  He alleged 
that his application for correction is timely because he first discovered that his disability 
was service connected on August 9, 1999. 
 

SUMMARY OF THE APPLICANT’S MEDICAL AND MILITARY RECORDS 

                                                 
1  The applicant apparently believes that a finding of 20-percent disability would entitle him to disability 
retirement payments. 

 
On January 21, 1980, the applicant enlisted in the Coast Guard for a term of four 
years.  The applicant’s pre-enlistment and pre-training physical examinations revealed 
no  problems  with  his  back.    He  underwent  basic  training  and  was  transferred  to  the 
Coast Guard cutter xxxxx on April 8, 1980.   
 
 
On May 23, 1980, the applicant reported to sick call, complaining of a sharp pain 
in his lower back while using a deck buffer.  He stated that he had fallen down a ladder 
while underway and then on May 21, 1980, had fallen on his back while playing basket-
ball, but the pain did not begin until he was using the deck buffer or “chipping deck.”  
The  doctor’s  examination  revealed  back  strain  (rigid  lower  back  muscles)  and  slight 
scoliosis of the lower thoracic and upper lumbar region.  Xrays revealed a mild curva-
ture of the spine. 
 
In June 1980, the applicant sought medical attention for lower back pain several 
 
times.  He was given limited duty with no heavy lifting but continued to complain of 
back pain.  He visited the clinic daily for heat treatments.  An orthopedist who exam-
ined him on June 18, 1980, found that his complaints of neck and back pain were “not 
much related” to his mild scoliosis.  The orthopedist stated that the patient requested 
shore  duty  so  that  he  could  be  near  to  his  mother,  as  he  was  her  only  son.    He  con-
cluded  that  the  applicant’s  stressful  situation  was  contributing  to  his  pain  and  found 
him fit for full duty.  The applicant was referred to a psychologist. 
 
 
On July 3, 1980, the applicant was evaluated by a psychiatrist.  He complained of 
loss  of  sleep,  loss  of  interest  in  activities,  and  nervousness,  as  well  as  back  and  neck 
pain.  The psychiatrist stated that the applicant thought the Coast Guard should stop 
requiring him to lift heavy things and should assign him to xxxxxxxx, where he would 
be just 45 minutes from his  mother’s house.  The psychiatrist also stated that he was 
“demanding” and that his primary affect was anger.  In their referral, his superiors had 
described him as “manipulative.”  The applicant was found fit for duty and referred for 
biofeedback  and  relaxation  training  to  reduce  his  “muscle  spasm  related  to  stress.”  
However, the psychiatrist reported that the applicant was not interested in undergoing 
this training. 
 
On  August  15,  1980,  the  applicant  went  to  the  Emergency  Room  at  the  Public 
 
Health Service (PHS) Hospital on xxxxxxx complaining of lower back pain.  A doctor 
reported that he was a “chronic complainer” who felt that he should not be required to 
lift heavy things and showed a “strong desire” to be stationed near his mother.  He was 
evaluated by a psychologist and diagnosed as a “malingerer” who was mentally and 
physically fit for duty.  The psychologist reported that the applicant’s “essential feature 
is the voluntary production & presentation of false or grossly exaggerated physical or 
psychological symptoms produced in pursuit of a goal that is obviously recognizable … 
to avoid work.  Rx—Administrative problem.”  He also reported that the applicant told 
him that he wanted to get out of the Coast Guard.   

 

 
 
On August 21, 1980, a doctor at the PHS Hospital reviewed the applicant’s record 
and determined that his neck and back pain were “psychosomatic.”  He was found fit 
for duty. 
 
 
On September 5, 1980, the applicant attended sick call complaining of lower back 
pain.  However, his movement and flexibility were normal.  The doctor found him fit 
for  duty  and  noted  that,  as  his  cutter  was  getting  underway  the  next  morning,  the 
applicant was trying to avoid sea duty.   
 
 
On September 19, 1980, the applicant’s commanding officer recommended that 
he be evaluated by an Initial Medical Board (IMB) because of his chronic complaints of 
back pain, desire to live near his mother, and “minimal production in his work habits.”  
Throughout the fall and winter, the applicant continued to complain of back pain.   
 
 
On November 12, 1980, the Commander of the Third District authorized the IMB.  
From December 16 to 31, 1980, the applicant was evaluated at the PHS Hospital.  Xrays 
showed mild scoliosis of the thoracolumbar spine at the 11th and 12th vertebrae, as well 
as congenital thoracic lordosis.  
 
 
On January 5, 1981, the IMB reported that the applicant suffered from mild scoli-
osis  at  the  11th  and  12th  vertebrae,  congenital  thoracic  lordosis,  and  chronic  thora-
columbar pain.  The IMB report states that his pain was most likely associated with his 
pre-existing spinal deformity and that it would likely increase.  He was given a corset, 
found not fit for duty, and referred to a Central Physical Evaluation Board (CPEB).  He 
was also notified of the IMB’s findings and recommendation.  On January 28, 1981, the 
Commander of the Third District endorsed the IMB report and recommended that the 
applicant be separated without severance pay.  On February 10, 1981, the report of the 
IMB was approved. 
 
 
On February 11, 1981, the applicant’s case was reviewed by a CPEB, which found 
that the applicant suffered from “right thoracolumbar scoliosis and congenital thoracic 
lordosis.”    The  CPEB  found  that  these  conditions  predated  the  applicant’s  enlistment 
and recommended that he be separated without severance pay. 
 
 
On February 19, 1981, the applicant was advised by counsel concerning the find-
ings and recommendations of the CPEB.  On February 24, 1981, he signed a form, SF-
4809, accepting the CPEB’s findings and waiving his right to a hearing before a Formal 
Physical Evaluation Board (FPEB). 
 
On March 25, 1981, the applicant was awarded an honorable discharge by reason 
 
of “physical disability existing prior to enlistment” with no service-connected disability 
percentage or severance pay. 

 

 
 
In 1995, the applicant was in a car accident in which he injured his neck, back, 
and ankle.  On September 24, 1999, the Department of Veterans Affairs (DVA) deter-
mined  that  the  applicant’s  back  condition  was  service  connected  and  that  he  was  10 
percent disabled by it. 
 

VIEWS OF THE COAST GUARD 

On September 22, 2000, the Chief Counsel of the Coast Guard recommended that 

 
 
the Board deny the applicant’s request for its untimeliness and lack of merit. 
 
 
The Chief Counsel alleged that the applicant knew or should have known of the 
alleged  error  in  his  record  upon  his  discharge  in  1981.    Therefore,  he  argued,  relief 
should  be  denied  because  the  applicant  filed  his  application  some  16  years  after  the 
expiration of the BCMR’s 3-year statute of limitations.  Moreover, he argued, although 
the  Board  may  waive the  statute  of  limitations,  a  cursory  review of  the  merits  of  the 
case, required under Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995), indi-
cates that the applicant has not proved that the Coast Guard committed any error or 
injustice in determining that his back problem existed prior to his enlistment.  There-
fore, he argued, the Board should find that there is no reason to waive the statute of 
limitations. 
  
 
The Chief Counsel also argued that, under 33 C.F.R. § 52.13(b), because the appli-
cant signed the form SF-4809 on February 24, 1981, waiving his right to have his case 
heard  by  an  FPEB,  the  Board  must  dismiss  his  application  for  failure  to  exhaust  his 
administrative remedies.  The Chief Counsel argued that under Barnett v. International 
Business Machine Corp., 885 F.Supp. 581, 588 (S.D.N.Y. 1995), “where a plaintiff failed in 
a timely fashion to pursue administrative remedies that were available and open, the 
plaintiff cannot later claim futility based on her inability to pursue those remedies any 
longer.” 
 
 
The Chief Counsel further argued that, even if the Board should decide to waive 
the  statute  of  limitations  and  ignore  the  applicant’s  failure  to  exhaust  administrative 
remedies, relief should be denied for lack of merit.  He argued that, absent strong evi-
dence to the contrary, the Board must assume that when the applicant waived his right 
to an FPEB and accepted the CPEB’s report on February 24, 1981, his counsel properly 
advised him of his rights and otherwise “performed his duties lawfully, correctly, and 
in  good  faith.”    Arens  v.  United  States,  969  F.2d  1034,  1037  (Fed.  Cir.  1992);  Sanders  v. 
United States, 594 F.2d 804, 813 (Ct. Cl. 1979). 
 
Under the same presumption of regularity, the Chief Counsel argued, the Board 
 
should find that the applicant has not proved that the CPEB erred in finding that his 
back conditions predated his enlistment.  He alleged that the disability rating determi-

 

nation by the DVA “is irrelevant for purposes of rebutting the CPEB’s determination” 
because  the  DVA  reached  its  decision  about  service  connection  “under  the  differing 
standards  of  evaluation  employed  by  the  DVA.”    The  Chief  Counsel  did  not  explain 
what  difference  exists  in  the  standards  for  determining  service  connection  but  stated 
that in setting disability ratings “[t]he DVA determines to what extent a veteran’s earn-
ing capacity has been reduced as a result of specific 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 dis-
ability.”  He also stated that the documentation of service connection provided by the 
applicant  was  inconclusive  and  insufficient  to  overcome  the  presumption  that  the 
CPEB’s report was correct. 
 
 
The  Chief  Counsel  included  with  his  advisory  opinion  a  memorandum  on  the 
case  prepared  by  the  Coast  Guard  Personnel  Command  (CGPC).    CGPC  stated  that 
“there  was  never  an  investigation  as  to  the  cause  of  the  applicant’s  alleged  work 
incurred  grievances”  and  pointed  out  that  there  is  no  record  of  the  applicant’s  ever 
having complained about injuring his back upon lifting a “fender bender” prior to his 
discharge.  CGPC alleged that the record suggests the applicant’s complaints were moti-
vated by a desire to leave the Coast Guard and recommended that no relief be granted. 
   

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On September 22, 2000, the BCMR sent the applicant a copy of the views of the 
Coast  Guard  and  invited  him  to  respond  within  15  days.    On  October  19,  2000,  the 
applicant responded.  He stated that the CPEB misinformed him about the cause of his 
back pain.  He also requested an extension so that he could seek legal counsel. 
 
 
On October 26, 2000, the Board sent the applicant a letter granting him an exten-
sion of 60 days to respond to the advisory opinion.  The letter also informed him that if 
he  needed  another  extension,  he  was  required  to  request  one  in  writing  prior  to  the 
expiration  of  the  extension  on  December  6,  2000.    No  further  responses  were  ever 
received from the applicant. 

 

APPLICABLE LAW 

 
Disability Retirement Statute 
 
 
active duty for more than 30 continuous days: 
 

Title 10 U.S.C. § 1201 provided the following for members who were serving on 

(a)  Retirement.    Upon  a  determination  by  the  Secretary  concerned  that  a  member 
described in subsection (c) 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 subsection (b). 
  
(b)  Required  determinations  of  disability.    Determinations  referred  to  in  subsection  (a) 
are determinations by the Secretary that-- 

(1)  based  upon  accepted  medical  principles,  the  disability  is  of  a  permanent 

nature; 

(2) the disability is not the result of the member's intentional misconduct or will-

ful neglect, and was not incurred during a period of unauthorized absence; and 

(A) the member has at least 20 years of service computed under section 

(3) either-- 

1208 of this title; or 

(B)  the  disability  is  at  least  30  percent  under  the  standard  schedule  of 
rating  disabilities  in  use  by  the  Veterans’  Administration  at  the  time  of  the 
determination; and either-- 

(i)  the  member  has  at  least  eight  years  of  service  computed 

under section 1208 of this title; 

(ii)  the  disability  is  the  proximate  result  of  performing  active 

duty; 

14, 1978. 

national emergency; or 

(iii) the disability was incurred in line of duty in time of war or 

(iv)  the  disability  was  incurred  in  line  of  duty  after  September 

  

 

Applicable Provisions of the Medical Manual 

 
The Coast Guard Medical Manual (CG-294) in effect in 1981 governed the dispo-
sition  of  members  with  physical  disabilities.    According  to  Chapter  3-C-15(b)(5),  per-
sons with scoliosis, kyphosis, or lordosis were qualified for enlistment as long as their 
condition did not cause pain or noticeable deformity or impair their mobility or weight-
bearing  power.    According  to  Chapter  3-I-17,  a  member  discovered  to  have  scoliosis 
causing “severe deformity with over two inches deviation of tips of spinous processes 
from the midline” was unqualified for retention in the Coast Guard.   
 
Applicable Provisions of the Personnel Manual 
 

Article  12-B-15(a)  of  the  Coast  Guard  Personnel  Manual  in  effect  in  1981  (CG-
207) stated that members rendered unfit for duty by one of the disqualifying medical 
conditions  listed  in  the  Medical  Manual  should  be  evaluated  by  a  medical  board  in 
accordance with the terms of Article 17.  Article 12-B-15(c) stated that the Commandant 
could direct the discharge of a member under the following conditions: 

(1) 

 
A medical board has expressed the opinion:  
a. 

That the member does not meet the minimum standards for retention on 

active duty.   

b. 

c. 

physical disability, and  

That  the  member  is  unfit  for  further  Coast  Guard  service  by  reason  of 

that the physical disability was neither incurred in nor aggravated by a 

The  member’s  commanding  officer  and/or  district  commander  concur  in  the 

period of active military service. 
 
(2) 
opinion of the board. 
 
(3) 
has stated in writing that such a hearing is not demanded. … 

The member has been fully informed of the right to a full and fair hearing and 

 
According to Article 17-B-7, an IMB report was required to “present a summary 
 
of the pertinent data concerning each complaint, symptom, disease, injury or disability 
presented by the evaluee, which causes or is alleged to cause impairment of his health. 
… the report must contain data to permit a reviewer to conclude whether the evaluee 
suffers impairment of health in any respect, and the degree thereof.  The report of the 
medical board shall not assign a percentage rating.”  The IMB report was also required 
to indicate whether the member was fit for duty.  If the member was found unfit for 
duty by reason of physical disability, the IMB was supposed to refer him to a CPEB. 
Article  17-B-8  allowed  the  member to  indicate  his  acceptance  of  the  IMB  report  or  to 
submit a reply, rebutting the IMB’s findings. 
 
 
According to Article 17-C-5, a CPEB was required to review the IMB report and 
make a finding as to whether the member was (1) fit for duty, (2) unfit for duty by rea-

 

son of a condition or defect that was not a disability, or (3) unfit for duty by reason of a 
physical disability.  For each physical disability found, the CPEB was required to assign 
a percentage of disability and to indicate whether the disability was incurred or aggra-
vated while the member served on active duty.  
 
 
Article 17-L-1(j) provided that “[i]n cases involving aggravation by active service, 
the rating will reflect only the degree of disability over and above the degree existing at 
the time of entrance into the active service, whether the particular condition was noted 
at the time of entrance into the active service or is determined upon evidence of record 
to have existed at that time.  It is necessary, therefore, in all cases of this character to 
deduct from the present degree of disability, the degree, if ascertainable, of the disabil-
ity existing at the time of entrance into active service … .” 
 
Under Article 17-C-9, each member was entitled to be counseled about the CPEB 
 
process by an attorney or law specialist.  After the CPEB issued a report, the counsel 
was required to review the case and advise the member regarding his right to reject the 
CPEB’s findings and demand a full hearing before an FPEB.  If the member accepted the 
CPEB’s findings, the report was forwarded to the Commandant for final action.  Under 
Article 17-D-8, if a member rejected the CPEB’s findings, he was entitled to be repre-
sented by counsel before an FPEB.  The counsel was supposed to be “an attorney or [an 
officer] who is well acquainted with the regulations and procedures governing physical 
evaluation boards.”  The counsel was required to “prepare his case in accordance with 
the law and regulations and the best interest of the evaluee.” 

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 appli-
cable law: 
 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.   

An  application  to  the Board  must  be  filed within  3  years of  the day  the 
applicant discovers the alleged error in his record. 10 U.S.C. § 1552(b).  The Chief Coun-
sel argued that the application was more than 16 years untimely because the applicant 
knew or should have known of the alleged error in his record—no service connection 
for his back problems—upon his discharge in 1981.  The Board finds that Coast Guard 
members should normally be able to rely on the findings of Coast Guard medical per-
sonnel.  Therefore, a member who is told by Coast Guard doctors that his condition is 
congenital and therefore not service connected but who later discovers that the condi-
tion  is  service  connected  should  not  necessarily  be  barred  from  applying  for  relief 
because he has mistakenly relied on the erroneous findings of Coast Guard doctors. 

 

1. 

 
2. 

 

 
3. 

 
4. 

7. 

8. 

In the present case, however, it is clear that in 1980, the applicant told his 
doctors several times that his back pain had begun shortly after a series of accidents that 
happened  while  he  was  serving  on  active  duty.    Nevertheless,  on  February  24,  1981, 
after  consulting  with  counsel,  he  accepted  the  finding  of  the  CPEB  that  his  condition 
had been neither incurred nor aggravated while he served on active duty.  Therefore, 
the Board concludes that the applicant’s request is untimely because he knew or should 
have known of the alleged error in his record in 1981. 

6. 

5. 

The Board may waive the 3-year statute of limitations if it is in the interest 
of justice to do so.  10 U.S.C. § 1552(b).  To determine whether it is in the interest of jus-
tice to waive the statute of limitations, the Board should conduct a cursory review of the 
merits of the case.  Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992).  
 
 
 A cursory review of the applicant’s record indicates that, while serving on 
active duty, he frequently sought treatment for back pain, which he attributed to a fall 
from a ladder, a fall on the basketball court, and working with heavy equipment.  After 
a  series  of  orthopedic  and  psychological  examinations,  his  doctors  concluded  that 
although  he  had  mild  scoliosis  and  lordosis  and  may  have  strained  his  back  in  May 
1980, his continuing complaints were not caused by actual pain but were motivated by 
his desire to avoid sea duty.  On August 15, 1980, he was diagnosed as a “malingerer.”   
 
 
The record also reveals that following his discharge in 1981, the applicant 
did not again seek treatment for his back until after a car accident in 1995.  Although the 
DVA  may  have  decided  that  the  applicant’s  current  condition  is  service  connected 
because he once strained his back while serving on active duty in 1980, this does not 
prove that the Coast Guard erred in 1981 in determining that the condition for which he 
was being discharged was not caused or aggravated by his service in the Coast Guard.  
 
 
The record indicates that the applicant was discharged in 1981 because the 
CPEB  convened  to  evaluate  his  case  determined  that  his  mild  scoliosis  and  lordosis, 
which predated his enlistment, were permanent disabilities that rendered him unfit for 
further active duty.  Although his condition may not have technically disqualified him 
for  retention  on  active  duty  under  Chapter  3-I-17  of  the  Medical  Manual,  the  Board 
finds that, in light of the applicant’s chronic complaints, the CPEB’s recommendation 
that he be separated because of his scoliosis and lordosis was reasonable.  
 
 
The fact that the applicant strained his back in May 1980 does not prove 
that the scoliosis and lordosis for which he was discharged were incurred or aggravated 
while he served on active duty.  Nor has he proved that his continuing complaints of 
back  pain  were  caused  by  any  incident that  occurred  while  he  served on  active  duty 
rather than by his desire to avoid sea duty and leave the service or by his pre-existing 
scoliosis and lordosis, as his doctors concluded.  Absent strong evidence to the contrary, 

 

9. 

government officials  must be presumed to  have performed their duties lawfully, cor-
rectly, and in good faith.  See Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); 
Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).  Therefore, the Board finds that 
the applicant has not proved that the CPEB erred or committed an injustice in conclud-
ing  that,  under  Article  17-L-1(j)  of  the  Personnel  Manual,  while  his  conditions  were 
deemed 10 percent disabling, none of his disability could be attributed to his service in 
the Coast Guard. 
 

On  February  24,  1980,  after  being  advised  by  counsel  about  his  rights 
under the law, the applicant voluntarily accepted the findings and recommendations of 
the  CPEB  and  waived  his  right  to  contest  them  before  an  FPEB.    The  Chief  Counsel 
argued  that  the  Board  should  dismiss  this  case  for  failure  to  exhaust  administrative 
remedies.  However, the Board finds that a member’s previous waiver of his right to an 
FPEB should not necessarily bar his application to the Board because that waiver may 
have been made based upon the erroneous medical findings of Coast Guard doctors. 
 
 
The applicant has not proved by a preponderance of the evidence that the 
Coast Guard committed any error or injustice in discharging him by reason of physical 
disability with zero percent of his disability attributed to his service on active duty. 
 

10. 

11.  Accordingly, the applicant’s request should be denied both because of its 

untimeliness and for lack of merit. 

The application of former XXXXXXXXX, USCG, for correction of his military 

ORDER 

 

 
 

 
 

 
 

record is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 

 

 

 

 
 

 
 

 

 
 

 
 

 

 

 
James K. Augustine 

 

 

 
Coleman R. Sachs 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Edmund T. Sommer, Jr.