DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2000-160 
 
 

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 July 12, 2000, upon receipt of the applicant’s completed application. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  July  26,  2001,  is  signed  by  the  three  duly 

REQUEST FOR RELIEF 

 

 
 

 

The applicant, a former xxxxxxxxxxx in the Coast Guard, asked the Board 
to  set  aside  his  honorable  discharge  of  June  6,  1998,  and  correct  his  record  to 
“show  that  he  has  been  on  active  duty  pending  his  right  to  a  fair  disability 
evaluation and, further, that he be allowed his right to medical care and physical 
therapy  until  such  time  as  an  evaluation  has  been  made  and  his  disability 
resolved  or  stabilized.”    In  the  alternative,  he  asked  that  the  Board  correct  his 
record to show that he was discharged with a 10-percent disability rating and is 
entitled to severance pay.   

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that at the time of his discharge, he was still under-
going extensive therapy and regular orthopedic treatment for a disabling injury.  
He alleged that he protested his fitness for discharge at the time, but the Coast 
Guard ignored his protest and failed to follow proper procedures.  He alleged 
that he “was on ‘restricted duty’ by orders of his physician at the time of separa-
tion and his fitness status was indeterminable.”  He alleged that the Coast Guard 

 

violated  its  regulations  by  discharging  him  before  properly  evaluating  and 
resolving his disabling injury. 
 
The applicant alleged that his injury was the result of a vicious attack on 
 
him  at  a  bar/restaurant  on  XXXXXXXX.    He  alleged  that  an  investigation  had 
proved that the injury was incurred in the line of duty and was not the result of 
any  misconduct  on  his  part.    The  attack  resulted  in  a  rupture  of  his  anterior 
cruciate ligament, a torn medial collateral ligament, microtrabecular injury (bone 
bruise)  of  the  lateral  femoral  condyle  and  postlateral  tibial  plateau,  and  joint 
effusion.    He  had  to  undergo  surgery  to repair  his  knee  on  XXXXXXXXX.    He 
alleged  that  he  was  told  at  that  time  that  he  would  require  between  6  and  18 
months  of  physical  therapy  to  recover  but  was  discharged  less  than  4  months 
after the surgery.  He alleged that his knee “continues to be unstable to this date 
because of incomplete therapy and treatment.” 
 
 
The applicant alleged that his command decided to separate him because 
the incident was considered to be “alcohol related,” which he alleged was unfair.  
He alleged that prior to the attack at the bar, his service in the Coast Guard was 
excellent  and  he  was  named  xxxxxxxxxxx.    He  alleged  that  on  Friday,  June  5, 
1998, he was informed that he was going to be discharged.  He alleged that on 
Monday,  June  8th,  1998,  he  was  given  his  DD  214,  which  separated  him  as  of 
Saturday,  June  6,  1998;  he  was  advised  that  he  had  no  right  to  legal  repre-
sentation; and he was asked to sign his discharge physical.  He alleged that he 
signed  his  DD  214  and  formally  objected  to  the  findings  of  fitness  on  his  dis-
charge physical on June 15, 1998.  He alleged that on July 5, 1998, a yeoman at his 
unit told him that a chief petty officer “was the ring leader behind [the nature of 
the applicant’s discharge].  He felt that because you had been drinking that you 
didn’t deserve any type of benefits.” 

 

 

SUMMARY OF THE APPLICANT’S RECORDS 

On December 7, 1993, the applicant enlisted in the Coast Guard for four 
years, through December 6, 1997.  After completing boot camp, he was assigned 
to a cutter.  On August 30, 1994, he was counseled about loaning his identifica-
tion card to another member who used it for an unauthorized purpose.   

 
After completing a two-year tour on the cutter, he was assigned to another 
cutter.  On August 15, 1996, he was formally counseled about arriving late for 
work and slacking off when he should have been working.  On October 12, 1996, 
his commanding officer (CO) formally counseled him about his ongoing unsatis-
factory performance since July 1, 1996.  The CO wrote in the applicant’s record 
that  he  had  been  “counseled  informally  on  several  different occasions  for  [his] 

lack  of  effort,  lack  of  concern  for  fellow  shipmates  and  overall  poor  attitude 
towards [his] duties on [the cutter].”  He was warned to work harder.  
 
 
On  April  3,  1997,  the  applicant  was  named  his  cutter’s  xxxxxxxxx  for 
 
improving his professional knowledge.  The citation for the award states that he 
“performed  admirably  in  a  listing  of  tasks  that  would  have  overwhelmed  his 
contemporaries” by training for and serving as the cutter’s emergency medical 
technician and by consistently working extended hours to accomplish an exten-
sive  list  of  projects,  such  as  painting  the  entire  mess  deck,  anchor  locker,  and 
ship’s mast, while the cutter was in dry dock.  However, on August 8, 1997, the 
he was again formally counseled about arriving late for work. 
 
 
On XXXXX, the applicant sought treatment at a hospital emergency room 
for  pain  in  his  right  knee.    He  told  the  hospital  that  he  had  been  in  a 
“fight/dispute”  with  a  bouncer  who,  when  he  raised  hands  up  to  walk  out, 
grabbed  his  hands,  put  them  behind  his  back,  “ran  him  out  30  ft.,”  and  threw 
him out of the night club.  He stated that when they pushed him out, he fell over 
a planter and heard his knee “pop.”  The police were called. 
 
 
On September 29, 1997, the applicant underwent an MRI of his knee, foot, 
and ankle at the hospital.  It showed an anterior cruciate ligament rupture, a torn 
medial collateral ligament, a microtrabecular injury (bone bruise) involving the 
later femoral condyle and posterolateral tibial plateau, and joint fusion.   
 
 
record: 
 

On  October  7,  1997,  the  applicant’s  CO  made  the  following  entry  in  his 

On XXXXXX [the applicant] was involved in an alcohol situation at the XXXXX 
Night Club in  which consumption  of alcohol may have impaired his judgment 
concerning  a  statement  made  to  a  Night  Club  Bouncer.    He  was  subsequently 
ejected from the club causing injuries to his right knee. 
 
On  07  Oct  97  member  was  counseled  by  unit’s  Command  Drug  and  Alcohol 
Representative  (CDAR)  concerning  the  use  of  alcohol  and  conduct  expected  of 
Coast Guard members. 
 
This  is  NOT  considered  an  alcohol  incident,  but  is  entered  for  documentation 
purposes only as an alcohol situation as outlined in Chapter 20 of the Personnel 
Manual. 

 
 
On October 17, 1997, an orthopedist recommended that he have his ante-
rior  cruciate  ligament  reconstructed.    On  October  23,  1997,  the  applicant  con-
sulted another orthopedist for a second opinion.  This doctor also recommended 
surgery. 
 

 
On  November  11,  1997,  the  applicant’s  command  sent  the  Coast  Guard 
Personnel Command (CGPC) a request for authorization to retain the member on 
active duty for six months so that he could undergo knee surgery.  CGPC appar-
ently  extended  the  applicant’s  enlistment  for  three  months,  through  March  6, 
1998.    The  applicant  began  physical  therapy  for  his  right  knee,  but  it  did  not 
improve, and he agreed to undergo arthroscopic surgery on his knee.  He con-
tinued to undergo physical therapy, but his knee did not improve.   
 
 
On the applicant’s performance evaluation for the period ending Novem-
ber 30, 1997, he received mostly marks of 4 and 5 (out of 7), a satisfactory conduct 
mark, and a recommendation for advancement from each of the three members 
of his rating chain.  This evaluation was very similar to his five previous evalua-
tions. 
 
 
On  January  22,  1998,  the  Coast  Guard  authorized  knee  surgery  for  the 
applicant.  On February 5, 1998, he was issued transfer orders to leave the cutter 
and serve in an onshore billet because he was scheduled to undergo surgery to 
repair his knee.  On February 12, 1998, CGPC extended the applicant’s enlistment 
another three months, through June 6, 1998.   
 
 
On  XXXXXX,  the  applicant  underwent  the  knee  surgery.    The  surgeon 
reconstructed his anterior cruciate ligament and reported no complications.  On 
February 25, 1998, the applicant began physical therapy.  An evaluating therapist 
noted that he needed therapy for four to six weeks and that he might need eight 
weeks  or  more  for  full  recovery.    His  rehabilitation  potential  was  deemed 
“excellent.”    On  March  4,  1998,  he  reported  no  pain,  moderate  swelling,  but 
limited motion, strength, and stability.  On April 1, 1998, his therapist noted that 
he  was  “progressing  well  per  protocol”  and  that  four  more  weeks  of  therapy 
were  recommended.    On  April  28,  1998,  his  therapist  reported  that  he  was 
“quickly  progressing,”  had  increased  mobility  and  strength,  and  was  limited 
only  in  squatting,  pivoting,  climbing  stairs,  running,  and  jumping.    He  recom-
mended another four weeks of therapy. 
 
On May 11, 1998, the applicant completed a Report of Medical History for 
 
his  physical  examination  prior  to  discharge.    He  stated  that  he  was  in  good 
health except for his knee and ringing in his ears and planned to get a medical 
board for both conditions.  On the Report of Medical Examination, his physician 
wrote that he had undergone surgery of his knee and that “pending release ten-
tative date 01 Aug. 98/Per discussion [with] his orthopedic surgeon, he antici-
pates full recovery and return to FFD [fit for duty].”  He referred the applicant to 
the DVA for post-discharge therapy for his knee and treatment for his tinnitus.  
He marked the applicant as qualified for discharge.  
 

 
On  May  28,  1998,  the  applicant  consulted  his  orthopedic  surgeon,  who 
assigned him to restricted duty, with no climbing, bending, squatting, kneeling, 
or lifting more than 20 pounds. 
 
 
Also on May 28, 1998, the applicant’s command asked CGPC to retain him 
for an additional 30 days pending the completion and approval of his discharge 
physical.    On  June  1,  1998,  CGPC  responded,  stating  that  no  further  extension 
was authorized and that the command was to expedite the applicant’s physical 
examination. 
 
 
On June 4, 1998, the applicant’s command asked CGPC to retain the appli-
cant for an additional 45 days.  The message stated that the applicant had under-
gone surgery in March, was progressing well, and was expected by his orthope-
dic  surgeon  to  have  recovered  fully  and  be  fit  for  full  duty  by  mid  July.    The 
request stated that the extension was also needed to allow the applicant time “to 
review and make an informed decision on the finding of the [discharge physical 
examination].”  On June 5, 1998, CGPC responded, denying the request and stat-
ing that the applicant should be referred to the Department of Veterans Affairs 
(DVA) for any further treatment necessary. 
 
 
The applicant’s DD 214 indicates that he was released from active duty on 
XXXXX.    It  shows  that  his  character  of  service  was  “honorable,”  that  he  was 
released  because  he  had  completed  his  enlistment  (separation  code  MBK),  and 
that he was eligible to reenlist (reenlistment code RE-1).  His medical record indi-
cates that it was closed on XXXXXXX. 
 
 
On  June  8,  1998,  the  clinic  administrator  at  the  applicant’s  command 
approved  the  report  of  his  physical  examination  for  discharge  and  found  him 
physically qualified for discharge.  A copy of this approved discharge physical is 
in the applicant’s medical record. 
 
 
On  June  10,  1998,  the  applicant  again  consulted  his  orthopedic  surgeon.  
He was still wearing a knee brace and complained of weakness that caused him 
to  walk  downstairs  sideways  and  pain  after  sitting  for  more  than  20  minutes.  
The  doctor  advised  him  to  avoid  repetitive  climbing,  bending,  squatting,  or 
kneeling and not to lift more than 50 pounds.  He wrote that “with additional 
[physical therapy], [the patient] will be back to [fit for duty].”  The doctor also 
wrote a letter at the applicant’s request, in which he stated that the applicant was 
progressing “quite well” and had “excellent stability but significant muscle atro-
phy.”    In  the  letter,  he  stated  that  “[a]fter  completion  of  the  patient’s  physical 
therapy, I feel the patient will be essentially 100% without restrictions.” 
 

 
On June 12, 1998, the applicant was asked to sign an old form, CG-4057 
(Rev. 11-84), indicating whether he agree or disagreed with his doctor’s finding 
that he was physically qualified for separation.  The form notes that the applicant 
refused to sign it or to indicate whether he agree or disagreed with the finding 
and stated that he wanted to consult a legal officer. 
 
 
On June 15, 1998, the applicant signed a new copy of the CG-4057 (Rev. 7-
93), which is similar but not identical to the one he had been asked to sign on 
June 8, 1998.  The form indicated that he did not agree that he was fit for duty or 
that he had a “high expectation of recovery in the near term from illness, injury, 
or surgical procedure such that [he] would again be able to perform [his] usual 
duties.”  He attached a letter to the form, stating that he was not physically quali-
fied for discharge because he was not fit for duty.   
 
 
The copy of the second CG-4057 in the applicant’s military records con-
tains a note dated June 18, 1998, by the clinic administrator who had approved 
the discharge physical on June 8, 1998.  He wrote that “[p]atient has been out of 
the Coast Guard since [xxxxxxx].  Please see original 4057. 
 

VIEWS OF THE COAST GUARD 

 
Advisory Opinion of the Chief Counsel 
 

On January 26, 2001, the Chief Counsel of the Coast Guard recommended 

that the Board deny the applicant the requested relief for lack of merit.   

 
The Chief Counsel argued that the applicant had failed to prove by a pre-
ponderance of the evidence that the Coast Guard was required to convene a an 
Initial Medical Board (IMB) to evaluate him and process him through the Physi-
cal Disability Evaluation System (PDES).  He alleged that the applicant had failed 
to overcome the presumption that Coast Guard officers had acted correctly, law-
fully, and in good faith in finding him fit for duty and thus for discharge.  Arens 
v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 
F.2d 804, 813 (Ct. Cl. 1979). 

 
The Chief Counsel argued that at the time of his discharge, the applicant 
was  expected  to  make  a  full  recovery  from  his  knee  injury  and  surgery.    He 
alleged that because the applicant was expected to be completely rehabilitated, 
there was no reason to refer him to an IMB.  He alleged that under Article 2.C.2.e. 
of the PDES Manual, the fact that the applicant was still undergoing rehabilita-
tion  therapy  and  restricted  to  limited  duty  did  not  render  him  unqualified  for 
discharge.    He  argued  that  members  who  are  convalescing  but  expected  to 

recover and be fit for duty in the near future may be found fit for duty and dis-
charged. 

 
The Chief Counsel alleged that the applicant has not proved that he had a 
disability that entitled him to a physical disability separation.  He alleged that the 
law is designed to compensate members who are separated because of physical 
disabilities.  Therefore, disability benefits may not be bestowed on members who 
are being separated for other reasons, unless they are physically unable to per-
form their assigned duties or an acute injury or illness arises while they are being 
processed for separation.  Article 2.C.2.b.(1), PDES Manual.  The Chief Counsel 
alleged that the applicant was being separated for a reason other than his injury 
and that, if he had been allowed to remain in service, he would soon have been 
fit for full duty.   

 
The Chief Counsel alleged that the applicant’s “limited duty” status at the 
time of his discharge was immaterial to his right to PDES processing or separa-
tion  pay.  He  alleged  that,  to  be  entitled  to  relief,  the  applicant  would  have  to 
prove  “that  he  would  never  have  been  able  to  perform  adequately  in  his 
assigned  duties  had  he  remained  in  the  service”—i.e.,  that  his  disability  was 
permanent.  He alleged that the applicant had submitted no evidence to indicate 
that  the  predictions  of  his  physicians  regarding  his  recovery  at  the  time  of  his 
discharge  were  unreasonable.    Therefore,  he  argued,  the  applicant  has  not 
proved  that  there  was  any  legal  requirement  to  retain  him  on  active  duty  or 
process him through the PDES. 

Memorandum of the Chief of the PDES Branch 

 
The Chief Counsel included with his advisory opinion a memorandum on 
the  case  prepared  by  the  Coast  Guard  Personnel  Command  (CGPC).    CGPC 
stated that on the night of XXXXXXX, the applicant was involved in an “alcohol 
situation”  at  the  xxxxxxx  Night  Club.    CGPC  stated  that  an  investigation 
revealed that the he “may have become intoxicated and then made some nega-
tive statements to a bouncer at this establishment.  The bouncer took umbrage at 
this remark and ‘ejected’ the applicant from the establishment,” thereby injuring 
his right knee. 

 
CGPC  stated  that  the  physical  evaluation  undergone  by  the  applicant 
prior to his discharge showed that he was qualified for separation and was not 
entitled  to  an  IMB.    CGPC  stated  that  the  applicant  was  discharged  upon  the 
completion of his enlistment and is eligible to reenlist.  CGPC concluded that the 
applicant “was given due process” and recommended denial of relief. 

 

 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On  January  29,  2001,  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 was granted an extension of 61 days and 
responded on April 16, 2001. 

 
The applicant stated that the Coast Guard wrongly denied him a medical 
retirement and due process because he was the victim of a violent attack at a bar.  
He alleged that the location of the attack was used to discredit him and that the 
location is irrelevant to the merits of his case.  He alleged that the police investi-
gated the incident as an assault and battery by five bouncers against him.  He 
stated that the “uncontroverted fact is that [he] was found to be ‘in the Line of 
Duty and the injury was not due to misconduct.’” 

 
The applicant alleged that he did not know when he underwent a physical 
examination on May 11, 1998, that it was his discharge physical and that he did 
not see the report until June 12, 1998,1 after he had already been discharged.  He 
pointed out that the approving authority did not even find him fit for discharge 
until June 8, 1998.  Therefore, when he was discharged on XXXXXX, he had not 
been found fit for duty and had not been given the opportunity to object to the 
finding of  fit for duty.  He alleged that the  Coast Guard thus violated his due 
process  rights  under  the  Medical  and  PDES  Manuals  regarding  his  physical 
examination.  

 
The applicant alleged that at the time of his discharge he was on approved 
annual leave in the Midwest, far from his unit.  He submitted his objection to the 
discharge  physical  on  June  15,  1998,  just  three  days  after  he  received  it.    He 
alleged that there is no record that the Coast Guard processed his objection. 

 
Moreover, the applicant alleged, the reports of his orthopedist dated May 
28, June 10, and June 18, 1998, prove that he was unfit for duty at that time, still 
had significant muscle atrophy, wore a knee brace, and needed continued physi-
cal therapy.  He alleged that his orthopedist’s statement that he “will” be fit for 
duty in the future proves that he was not fit for duty at that time.  Therefore, he 
argued, he clearly met the requirements for a Medical Board under Article 3.D.8. 
of the PDES Manual.   

 
The  applicant  further  alleged  that  the  Coast  Guard  did  not  make  any 
arrangement for him to continue to receive physical therapy from the DVA and 

                                                 
1  In his original application, the applicant indicated that this meeting occurred on June 8, 1998.  
However, in the response, he revised the date of this meeting to June 12, 1998, which is consistent 
with the date on the form he was asked to sign. 

that  DVA  refused  to  provide  him  physical  therapy  because  of  insufficient 
resources.  Therefore, he alleged, he was deprived of his statutory right to medi-
cal care under 10 U.S.C. § 1074 and had to pay for approximately 30 sessions of 
care  himself.    He  submitted  copies  of  records  indicating  that  he  continued  to 
receive physical therapy until at least December 1999. 

 
The  applicant  argued  that  in  violating  its  own  regulations,  the  Coast 
Guard violated federal law under Meinhold v. United States Dep’t of Defense, 123 
F.3d 1275, 1283 (9th Cir. 1997); Lauritzen v. Secretary of the Navy (Lehman), 736 F.2d 
550  (9th  Cir.  1985);  Fairchild  v.  Lehman,  814  F.2d  1555  (Fed.  Cir.  1987);  Yang  v. 
Shalala,  22  F.3d  213,  217  (9th  Cir.  1994).    He  argued  that  because  the  Coast 
Guard’s  violations  deprived  him  of  proper  medical  care  and  a  Medical  Board 
evaluation, “the only just correction is a disability severance at 10% with credit 
for active duty time until August 1998.”  He also asked to be reimbursed for his 
medical expenses. 
 

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

APPLICABLE REGULATIONS 

 
Article 12-B-6.a. requires members to undergo a physical examination no 
later than six months prior to being discharged if they have not had one during 
the previous year.  Article 12-B-6.b. provides that when the examination is com-
plete  and  the  member  is  found  fit  for  separation,  he  shall  be  advised  and 
“required to make a signed statement as to agreement or disagreement with the 
findings ... [on a] CG-4057.”   

 
Article 12-B-6.c. provides that when the member objects to the finding of 
fitness, the report of the physical examination and the member’s written objec-
tions will be forwarded immediately for review.  If necessary, the member may 
be retained in service beyond the expiration of his enlistment. 

 

 

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

Title  10  U.S.C.  §  1203  provides  the  following  for  members  who  are  on 

(a)  Separation.  Upon a determination by the Secretary concerned that a member 
described in subsection 1201(c) of this title 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 member may be separated from the member’s 
armed force, with severance pay computed under section 1212 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 subsec-
tion (a) are determinations by the Secretary that— 
 

(1) the member has less than 20 years of service computed under section 

1208 of this title;  

 
(2) the disability is not the result of the member's intentional misconduct 
or  willful  neglect,  and  was  not  incurred  during  a  period  of  unauthorized 
absence; 
 
(3) based upon accepted medical principles, the disability is or may be of 

a permanent nature; and 

 
(4)  either— 

 

 
 

 

 
(A)  the  disability  is  less  than  30  percent  under  the  standard 
schedule of rating disabilities in use by the Department of Veterans Affairs at the 
time of the determination, and the disability was (i) the proximate result of per-
forming active duty, (ii) incurred in line of duty in time of war or national emer-
gency, or (iii) incurred in line of duty after September 14, 1978; 
 
 
(B)  the  disability  is  less  than  30  percent  ...  at  the  time  of  the 
determination  and  the  member  has  at  least  eight  years  of  service  computed 
under section 1208 of this title; or 
 

(C) the disability is at least 30 percent ... at the time of the deter-
mination, the disability was neither (i) the proximate result of performing active 
duty, (ii) incurred in line of duty in time of war or national emergency, nor (iii) 
incurred in line of duty after September 14, 1978, and the member has less than 
eight years of service computed under section 1208 of this title ... . 

 

 

 
Provisions of the PDES Manual (COMDTINST M1850.2B)  
 
 
The PDES Manual governs the separation or retirement of members due 
to  physical  disability.    Article  2.C.2.  of  the  PDES  Manual  states  the  following 
general policies: 

 
a.  The sole standard in making determinations of physical disability as a basis 
for  retirement  or  separation  shall  be  unfitness  to  perform  the  duties  of  office, 
grade, rank or rating because of disease or injury incurred or aggravated through 
military service. ...  In addition, before separation or permanent retirement may 
be ordered: 
 
 
 
 
neglect and was not incurred during a period of  unauthorized absence. 
 
 
(2)  To warrant retirement, the length of service and degree of disability 
requirements prescribed in clause (3) of 10 U.S.C. § 1201 must be satisfied.  [Eight 
years of active service and 30-percent disability.] 

(1)  There must be findings that the disability: 
 
 

(a)  is of a permanent nature and stable, and 
(b)    was  not  the  result  of  intentional  misconduct  or  willful 

 
 
(3)    To  warrant  separation,  the  degree  of  disability  requirements  pre-
scribed in clause (4) of 10 U.S.C. § 1203 must be satisfied and the evaluee must 
have  less  than  20  years  of  qualifying  service,  under  the  criteria  of  10  U.S.C. 
§ 1208. 
 
b.  The law that provides for disability retirement or separation (10 U.S.C., chap-
ter 61) is designed to compensate a member whose military service is terminated 
due to a physical disability that has rendered the him or her unfit for continued 
duty.    That  law  and  this  disability  evaluation  system  are  not  to  be  misused  to 
bestow  compensation  benefits  on  those  who  are  voluntarily  or  mandatorily 
retiring or separating and have theretofore drawn pay and allowances, received 
promotions,  and  continued  on  unlimited  active  duty  status  while  tolerating 
physical impairments that have not actually precluded Coast Guard service.  The 
following policies apply: 
 
(1)  Continued performance of duty until a service member is scheduled 
  
for  separation  or  retirement  for  reasons  other  than  physical  disability  creates  a 
presumption  of  fitness  for  duty.    This  presumption  may  be  overcome  if  it  is 
established by a preponderance of the evidence that: 
 
 
perform adequately in his or her assigned duties; or 
 
(b)    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 physical disability 
which rendered the service member unfit for further duty. 
 
 
(2)  A member being processed for separation or retirement for reasons 
other than physical disability shall not be referred for disability evaluation unless 
the conditions in paragraphs 2.C.2.b.(1)(a) or (b) are met. 

(a)  the member, because of disability, was physically unable to 

 

 

• • • 

e.  An evaluee whose manifest or latent impairment may be expected to interfere 
with the performance of duty in the near future may be found “unfit for contin-
ued duty” even though the member is currently physically capable of perform-
ing all assigned duties.  Conversely, an evaluee convalescing from a disease or 
injury  which  reasonably  may  be  expected  to  improve  so  that  he  or  she  will  be 
able to perform the duties of his or her office, grade, rank, or rating in the near 
future may be found “Fit for Duty.”  In this instance, the evaluee will continue in 
an interim duty status until convalescence is complete, at which time he or she 
will be returned to full duty status. 
 
Article 3.D.3.8. provides that an IMB must be initiated for a member “in 

 
any situation where fitness for continuation of active duty is in question.” 

 
Article 8.A.3. provides that the requirements for placement on the Tempo-
rary  Disability  Retired  List  (TDRL)  are  “the  same  as  for  permanent  disability 
retirement, except that the disability is not stable.  The disability must render the 
member unfit to perform the duties of his or her office, grade and rank or rating, 

and the disability must be rated at a minimum of 30 percent or higher, unless the 
member has 20 years of active service for retirement purposes.” 
 
Provisions of the Medical Manual (COMDTINST M6000.1B) 

 
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 conditions listed 
in paragraph 2-C-2.(b) [of the PDES Manual] are also met.  Otherwise the mem-
ber is suitable for separation. 
 
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,” 

 
[a]ny  member  undergoing  separation  from  the  service  who  disagrees  with  the 
assumption of fitness for duty and claims to have a physical disability as defined 
in  section  2-A-38  of  COMDTINST  M1850.2  (series),  Physical  Disability  Evalua-
tion  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. 

 

 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  wrongfully  denied  PDES  proc-
essing since he was unfit for full duty at the time of his discharge.  Therefore, he 
asked  the  Board to  void  his  discharge  and  either  (a)  return  him to  active  duty 
until such time as the Coast Guard properly evaluates his medical condition or 
(b) return him to active duty until August 1998 and award him a 10 percent dis-
ability  rating  and  severance  pay.    He  also  asked  to  be  reimbursed  for  certain 
medical expenses.  

 
4. 

 
5. 

  
3. 

 
6. 

The  record  indicates  that  toward  the  end  of  his  enlistment  in  the 
fall of 1997, the applicant injured his knee when he was ejected from a night club 
by one or more bouncers.  The incident was not proven to have been a result of 
misconduct and so was presumed to have occurred in the line of duty. 

The  record  indicates  that  because  of  his  injury,  the  Coast  Guard 
twice  extended  his  enlistment  for  a  total  of  six  months,  from  XXXXXXX,  1997, 
through XXXXX, 1998, to allow time for him to undergo reconstructive surgery 
and rehabilitation.2 

Upon  the  expiration  of  the  applicant’s  enlistment  on  XXXX,  1998, 
he had completed more than three months of physical therapy but needed more 
to be wholly recuperated.  His orthopedic surgeon reported that he was still sup-
posed to avoid repetitive climbing, bending, squatting, or kneeling and should 
not lift anything that weighed more than 50 pounds.  The doctor also reported 
that with further physical therapy, the applicant would be fit for duty, that he 
was  progressing  “quite  well,”  and  that  upon  completing  physical  therapy,  he 
would be “essentially 100% without restrictions.” 

The applicant has not proved by a preponderance of the evidence 
that  he  was  entitled  to  a  disability  rating  or  severance  pay.    Under  10  U.S.C. 
§ 1203,  members  may  only  receive  severance  pay  if  they  have  a  disability  that 
“based upon accepted medical principles, ... is or may be of a permanent nature.”  
All of the evidence in the record indicates that the condition of the applicant’s 
knee  at  the  time  of  his  discharge  was  not  considered  permanent  by  either  his 
orthopedic surgeon, his physical therapist, or the physician who conducted his 
discharge examination.  He was expected to be completely healed within a few 
weeks and fit for full duty.  Therefore, the Board finds that the applicant is not 
                                                 
2  The record is somewhat unclear as to whether the applicant ever wanted to reenlist in the Coast 
Guard.  There is no statement in his record concerning his eligibility or intentions.  However, on 
his November 30, 1997, performance evaluation, he was recommended for advancement by his 
entire  rating  chain,  and  his  DD  214  shows  that  he  was  assigned  an  RE-1  reenlistment  code, 
making him eligible to reenlist.  Therefore, the preponderance of the evidence suggests that the 
extensions were necessary because the applicant did not want to reenlist. 

entitled  to  a  disability  rating  or  severance  pay  under  10  U.S.C.  §  1203  or  its 
implementing regulations. 

The applicant has not proved by a preponderance of the evidence 
that the Coast Guard erred in finding him fit for duty and thus qualified for an 
administrative discharge.  Under Article 2.C.2.e. of the PDES Manual, members 
who are convalescing from surgery but are expected to make a full recovery in 
the  near  future  may  properly  be  found  fit  for  duty.    The  Board  finds  that  the 
reports  made  by  the  applicant’s  physicians  and  physical  therapist  in  May  and 
June 2000 prove that, though still undergoing physical therapy, he was expected 
to make a full recovery within a few weeks.  Based on the report of his orthope-
dic surgeon, the doctor who conducted his discharge physical examination could 
properly find him fit for duty and qualified for discharge.  Moreover, the appli-
cant has not proved that the doctors’ expectations were false.  The fact that he 
continued to undergo physical therapy past August 2000 does not prove that he 
was  not  fit  to  perform  the  duties  of  his  rating  within  a  few  weeks  of  his  dis-
charge. 
 
8. 

The applicant was properly found fit for duty and qualified for dis-
charge, within the meaning of the regulations, by the doctor who conducted his 
physical examination.  In addition, the orthopedic surgeon’s reports show that he 
was completely confident that the applicant would fully recuperate.  Therefore, 
the Board finds that the applicant’s convalescence did not constitute a “situation 
where  fitness  for  continuation  of  active  duty  is  in  question,”  and  he  was  not 
entitled to an IMB or PDES processing under Articles 2.C.2.b. and 3.D.8. of the 
PDES Manual because of his condition.  

 
7. 

 
9. 

 
10. 

The  applicant  alleged  that  the  Coast  Guard  should  have  retained 
him on active duty until he had completed rehabilitation.  However, there is no 
statute  or  regulation  requiring  the  retention  of  members  undergoing  physical 
therapy following surgery when their full recovery is confidently expected.  Only 
members  who  are  30  percent  or  more  disabled  may  be  placed  on  the  TDRL.  
PDES Manual, Article 8.A.3.  The medical treatment of members who have serv-
ice-connected  injuries  but  who  are  discharged  for  reasons  other  than  physical 
disability is the responsibility of the DVA, not the military.  The record indicates 
that  the  applicant  was  properly  advised  by  the  Coast  Guard  to  seek  further 
medical treatment from the DVA.  Although the DVA allegedly refused to treat 
him, that does not mean that the Coast Guard erred or committed any injustice in 
discharging him before he had completed rehabilitation. 

The record indicates that the clinic administrator failed to approve 
the applicant’s discharge physical until after he had been discharged.  In addi-
tion, the applicant was not shown the report of the examination or able to file his 

objection to it on a form CG-4057 until after he was discharged.  The record indi-
cates  that  the  clinic  administrator  reviewed  his  objection  but  dismissed  it.    In 
doing so, he referred to the fact that the applicant had initially refused to sign a 
CG-4057 (reasonably requiring more than a few minutes to make the decision) 
and to the fact that the applicant had already been discharged.  There is no evi-
dence  to  indicate  that  the  applicant’s  objection  received  the  same  review  and 
consideration  that  it  would  have  if  he  had  still  been  serving  on  active  duty.  
Therefore, the Board finds that the applicant has proved by the preponderance of 
the evidence that he was denied due process in this respect.  However, the Board 
also finds that the applicant was not harmed by this error.  Though convalescing, 
the applicant was properly found fit for duty and discharge and had no perma-
nent disability that could have qualified  him for a permanent disability rating, 
severance  pay,  or  a  medical  retirement.    If  he  had  to  pay  for  his  post-service 
physical therapy, the fault lies with the DVA, not with the Coast Guard. 

 
11. 

The  applicant  alleged  that  he  was  unjustly  discharged  in  secret 
while he was out of town.  However, the record indicates that he knew or should 
have known that his enlistment’s original termination date was XXXXXX, 1997, 
and that it had been extended twice for a total of six months, through XXXXX, 
1998.    Although  he  may  have  been  surprised  that  the  Coast  Guard  did  not 
authorize a third extension, this does not mean his discharge was erroneous or 
unjust.  Moreover, the applicant admitted that he was informed on June 5, 1998, 
that he was being discharged because no further extension had been authorized. 
 
 
 

12.  Accordingly, the applicant’s request should be denied. 

 
 

denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

The  application  of  XXXXXXXXX,  for  correction  of  his  military  record  is 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Terence W. Carlson 

 

 

 

 
Harold C. Davis, M. D.  

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 
 
 
 
 

 
 

 

 
 

 

 
John A. Kern