DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2000-190 
 
 

 

 

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 dock-
eted  on  September  18,  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  July  12,  2001,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  a  former  xxxxxxxxxxxx  in  the  Coast  Guard,  asked  the  Board  to 
correct his military record to show that he injured his knee and was treated for ulcers 
and  a  hernia  while  serving  in  the  Coast  Guard  in  the  1980s.    He  asked  for  “service 
connection”1  and  “disabilities”  for  these  conditions.    He  stated  that  he  did  not  apply 
earlier for relief because he did not know about the BCMR. 
 

SUMMARY OF THE APPLICANT’S MEDICAL AND MILITARY RECORDS 

 
On February 11, 1980, the applicant underwent a physical examination prior to 
 
enlisting under the delayed entry program.  On a “Report of Medical History” he pre-
pared  for  that  examination,  the  applicant  certified  that  he  had  not  previously  experi-
enced any injuries or significant health problems other than tonsillitis, a broken collar 
bone, and a broken wrist.2  He did not report any problems with his back or knees.  On 
                                                 
1    When  the  Department  of  Veterans’  Affairs  (DVA)  determines  that  a  medical  condition  is  service-
connected, treatment of the condition is paid for by the DVA. 
 
2  The applicant’s official medical record is empty except for a receipt indicating that the applicant took 

xxxxxxxxx, the applicant was enlisted in the Coast Guard for a term of four years.  On 
the same day, he recertified that the medical history he had provided on February 11, 
1980, was true.   
 
 
On  xxxxxxxxxxx  ,  while  still  in  boot  camp,  the  applicant  sought  treatment  for 
aches  in  his  knees  and  lower  back.    The  doctor  reported  that  he  stated  that  he  had 
injured his knees and lower back six years previously.  X-rays showed no damage, but 
the doctor found that he had strained his knee and lumbar back muscle and prescribed 
a muscle relaxant, heat, and back exercises.  He was assigned to limited duty for a few 
days.  At follow-up appointments, the applicant reported that the treatment was work-
ing, and he showed a “full range” of motion. 
 
 
On February 25, 1981, the applicant sought treatment for lower back pain after 
picking up some boxes.  He was assigned to limited duty for 10 days and prescribed 
heat and a muscle relaxant. 
 
 
On June 30, 1981, an x-ray of the applicant’s digestive system revealed “marked 
spasm of the duodenal bulb together with some cobble stoning of [unreadable] relief.  
On 1 spot film there is suggestion of a very shallow [unreadable] wall ulcer crater in the 
mid portion of the bulb.”  Thereafter, he took Tagamet and Mylanta for the ulcer. 
 
 
On October 28, 1981, at a follow-up examination for his ulcer, the applicant com-
plained of occasional back pain and was advised to treat it with heat and back exercises.  
On November 3, 1981, he sought treatment for hemorrhoids.  Thereafter, he was occa-
sionally treated for them.  
 
 
On January 22, 1983, the applicant sought treatment for back pain after he had to 
push his car somewhere.  He told the doctor he had injured it the week before, as well. 
The doctor prescribed a muscle relaxant and heat. 
 
 
On August 25, 1983, the applicant underwent a physical examination.  The doc-
tor reported that the applicant had had tenderness in his left knee and back but that he 
was fit for duty.   
 
 
In April 1984, the applicant underwent a physical examination in anticipation of 
being discharged.  His knees were examined by an orthopedist, who found no swelling, 
weakness, or ligament damage.  Another doctor found that he had had hemorrhoids, an 
ulcer, and occasional lower back pain while in the service, but that none of the condi-
tions  was  disabling.    He  was  found  fit  for  discharge.    On  May  23,  1984,  he  signed  a 
statement indicating that he agreed with the findings of the examining physician. 

                                                                                                                                                             
possession of his medical records on November 22, 1986, and did not return them.  The medical records 
summarized here were received from the DVA. 

 

 
 
In June 1984, the applicant again sought help for lower back pain.  He stated that 
he had been lifting boxes from his car.  He was prescribed heat and a muscle relaxant 
and assigned to limited duty for several days. 
 
 
On xxxxxxxxx, the applicant was released into the Reserve upon the expiration of 
his  enlistment  in  the  regular  Coast  Guard.    Thereafter,  he  served  in  the  Reserve, 
performing regular drills.  On a Report of Medical History he completed for a physical 
examination in 1987, he indicated that he occasionally suffered from hemorrhoids and 
recurrent back pain.  He also indicated that he had had a problem with his knee.  He 
did  not  report  any  hernias  or  other  conditions  and  was  found  fit  for  duty.    The 
applicant was released from the Selected Reserve into the Individual Ready Reserve on 
xxxxxxxxx. 
 
 
In  1998,  the  applicant  sought  disability  benefits  from  the  DVA  for  “internal 
derangement of the knees,” hemorrhoids, a hiatal hernia, a duodenal ulcer, and hearing 
loss.  “Service connection” has been denied for everything but hemorrhoids.  The DVA 
found  that  his  derangement  of  the  knees  was  unrelated  to  his  complaints  on  active 
duty.  It found that while he had been treated for an ulcer in service, he did not submit 
any evidence of current disease.  It found that his hearing loss did not amount to a dis-
ability, and that he had not been treated for a hernia while serving on active duty. 
 
 
In 1999, the applicant sought disability benefits from the DVA for “chronic lower 
back  pain.”    He  included  in  his  application  a  letter  from  his  chiropractor,  who  con-
cluded that there was a “direct causal relation” between his current back pain and his 
military service.  The DVA reviewed his medical records and denied service connection 
for  “chronic  lower  back  pain”  because  it  determined  that  the  applicant’s  back  pain 
while serving in the military did not meet the definition of the word “chronic.”  It found 
that  his  back  pain  in  the  Coast  Guard  had  occurred  in  discrete  “acute  episodes”  and 
that  he  had  not  been  treated  continuously  for  back  pain  since  his  discharge.    It  also 
found that the chiropractor’s statement was conclusory as it lacked a “full rationale.”  
 

VIEWS OF THE COAST GUARD 

On February 26, 2001, the Chief Counsel of the Coast Guard recommended that 

 
 
the Board deny the applicant’s request for its untimeliness or for lack of merit. 
 
 
The Chief Counsel interpreted the application as a request for a “medical retire-
ment  with  a  disability  rating  based  on  an  alleged  knee  injury,  ulcers  and  hernias  he 
allegedly  sustained  while  on  active  duty.”    He  alleged  that  the  applicant  knew  or 
should  have  known  of  the  alleged  error  in  his  record  upon  his  separation  in  1984.  
Therefore, he argued, relief should be denied because the applicant filed his application 
some 12 years after the expiration of the BCMR’s three-year statute of limitations.   The 

 

Chief Counsel alleged that the applicant’s excuse for not applying to the Board sooner 
—his  lack  of  knowledge  of  the  BCMR—is  “insufficient  evidence  to  support  a  waiver 
under 33 C.F.R. § 52.22 of the three-year timeliness requirement.”  Therefore, he argued, 
the Board should not waive the statute of limitations for this case.  Dickson v. Secretary of 
Defense, 68 F.3d 1396 (D.C. Cir. 1995). 
 
 
The  Chief  Counsel  also  argued  that  the  Board  should  deny  relief  because  the 
applicant has not proved that the Coast Guard committed any error or injustice in not 
processing him through the Physical Disability Evaluation System (PDES) at the time of 
his separation in 1984.  He alleged that the applicant has not presented sufficient evi-
dence to overcome the presumption that Coast Guard officials acted “lawfully, correct-
ly, and in good faith” in finding him fit for duty and separation.  Arens v. United States, 
969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979).  He alleged that the applicant had not proved that any of the medical conditions 
he suffered from in 1984 met the criteria for PDES processing under the provisions of 
the PDES Manual. 
 
Finally, the Chief Counsel argued that none of the applicant’s medical conditions 
entitled  him  to  a  physical  disability  retirement.    He  alleged  that  the  purpose  of  the 
PDES  is  to  compensate  members  whose  military  service  is  terminated  because  of  a 
service-connected disability, and that the applicant was not terminated because of any 
medical condition.  He alleged that the “sole basis for a physical disability determina-
tion ... is unfitness to perform duty.”  10 U.S.C. § 1201; PDES Manual, Article 2.C.2.a.  
He alleged that the applicant had not presented sufficient evidence to prove that he was 
unfit for duty at the time of his separation and that his continued performance of active 
duty  up  to  the  day  of  his  separation  created  a  presumption  of  fitness,  under  Article 
2.C.2.b.(1) of the PDES Manual, which the applicant had failed to overcome.   
  

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
Coast Guard and invited him to respond within 15 days.  No response was received. 

On February 27, 2001, the BCMR sent the applicant a copy of the views of the 

 

APPLICABLE LAW 

 
Disability Retirement Statute 
 
Under 10 U.S.C. § 1201, Coast Guard members serving on active duty for more 
 
than 30 continuous days in 1984 could be medically retired and paid disability benefits 
under the following circumstances: 
 

Upon a determination by the Secretary concerned that a member of a regular component 
of  the  armed  forces  entitled  to  basic  pay  ...  is  unfit  to  perform  the  duties  of  his  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 determines 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 

 
 
Under 10 U.S.C. § 1204, members of the Coast Guard Reserve serving on active 
duty for periods of 30 days or less or on inactive duty training in 1988 could be medi-
cally retired if they were rendered unfit for duty by a permanent, stable disability that 
was the proximate result of their military service and if they met the requirements in 10 
U.S.C. § 1201(1), (2), and (3). 
 
Applicable Provisions of the Coast Guard Manuals 

 
The Coast Guard Medical Manual (CG-294) in effect in 1984 governed the dispo-
sition  of  members  with  physical  disabilities.    According  to  Chapters  3-G  and  3-I,  the 
following conditions disqualify members for continued service in the Coast Guard and 
trigger  processing  through  the  PDES:    (a)  inoperable  hiatal  hernias  whose  symptoms 
remain  severe  despite  treatment;  (b)  ulcers  that  cause  repeated  absences  from  duty 
despite  good  medical  management;  (c)  internal  derangement  of  the  knee  that  causes 
recurrent episodes of incapacitation and that is not remedied by medical treatment; and 
(d)  various  spinal  problems  that  require  frequent  hospitalizations,  outpatient  treat-
ments, or absences from duty.  Hemorrhoids are not listed as a disqualifying condition.  
Hearing  loss  may  be  considered  a  considered  a  disqualifying  condition  when  “the 
unaided  average  hearing  loss  in  the  better  ear  is  45  decibels  or  more  in  the  normal 
speech range.” 
 

Article  12-B-15(a)  of  the  Coast  Guard  Personnel  Manual  in  effect  in  1984  (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 PDES Manual. 

 

 
Article 2-C-2 of the PDES Manual in effect in 1984 (COMDTINST 1850.2) mem-
bers  are  presumed  fit  for  duty  until  it  is  proved  that  they  are  not  fit  to  perform  the 
duties of their rates.  “Entitlement to disability retirement or separation arises only on a 
determination that a member is not fit to perform the duties of his grade and rating.  It 
does not rest merely on the existence of an impairment or a condition ratable under the 
Veterans  Administration  Schedule  for  Rating  Disabilities,  VASRD.”    PDES  Manual 
Article 2-C-2.c.  Under Article 3-D of the PDES Manual, evaluation by a medical board 
was  required  upon  “[a]ny  indication  that  a  determination  of  fitness  for  duty  is 
required.” 
 
 
Although some of the provisions in the manuals were slightly revised before the 
applicant was released from the Reserve in 1988, no substantive changes affecting the 
applicant’s entitlements were made. 

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 three years of the day the 
applicant discovers the alleged error in his record.  10 U.S.C. § 1552(b).  The applicant 
was released from active duty into the Reserve in 198X and released from the Selected 
Reserve  in  198X.    He  knew  or  should  have  known  more  than  ten  years  prior  to  his 
application to this Board the content of his military medical record and the fact that he 
was  not  being  awarded  disability  benefits  from  the  Coast  Guard.    Therefore,  his 
application was untimely. 

 
The  Board  may  waive  the  three-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 justice to waive the statute of limitations, the Board should consider the reasons for 
the delay and conduct a cursory review of the merits of the case.  Dickson v. Secretary of 
Defense, 68 F.3d 1396, 1405 (D.C. Cir. 1995); Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 
1992).  The applicant stated the he did not apply to this Board earlier because he did not 
learn of its existence until recently.  No other explanation was given for his delay.  The 
Board finds that the applicant’s reason for delay is not compelling.  Nevertheless, the 
merits of his case must also be reviewed. 

1. 

 
2. 

 
3. 

 

 

 

4. 

The applicant asked the Board to grant him “service connection” for sev-
eral medical conditions.  “Service connection” is determined by the DVA (not by this 
Board), based on an examination of a veteran’s military medical records.  Based on its 
review of the applicant’s records, the DVA has apparently denied “service connection” 
for  his  hernias,  knee  problems,  “chronic”  back  pain,  ulcers,  and  hearing  loss,  for  the 
reasons  stated  in  the  DVA’s  Rating  Decisions.    This  Board  has  no  control  over  the 
DVA’s  determinations;  it  can  only  correct  inaccurate  military  records.    The  applicant 
has not identified or proved the existence of any error in his military medical records.  
He has not proved that all of the medical conditions he suffered and medical treatments 
he received while serving on active duty were not accurately recorded in his military 
medical file. 

 
5. 

 
The applicant also asked the Board for “disabilities,” which may reason-
ably be interpreted as a request for a medical retirement because only members who are 
medically  retired  from  the  Coast  Guard  receive  disability  payments  from  the  Coast 
Guard directly, rather than from the DVA.  However, the applicant has not proved that 
he was unfit  for duty because of a  physical disability in 198X, when he was released 
from  active  duty  into  the  Reserve,  or  in  198X,  when  he  stopped  drilling  with  the 
Reserve.  His medical records show only that he had suffered from occasional back and 
knee strains, hemorrhoids, and an ulcer, which were properly treated and were not con-
sidered disabling.  Moreover, on May 23, 1984, the applicant signed a form indicating 
that he agreed with the finding of his physician that he was fit for duty and separation.   
Only members who are unable to perform their duties because of a physical disability 
may be processed through the PDES and awarded a medical retirement and disability 
benefits.  PDES Manual, Article 2-C-2. 
 
 
The applicant has not proved by a preponderance of the evidence that the 
Coast Guard committed any error or injustice in recording his medical conditions and 
treatments or in not awarding him a medical retirement.  Therefore, the Board finds that 
it is not in the interest of justice to waive the statute of limitations in this case. 
 

6. 

7. 

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

untimeliness and lack of merit. 

 

The  application  of  XXXXXXXX,  USCG,  for  correction  of  his  military  record  is 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Kevin C. Feury 

 

 

 

 
 
Robert A. Monniere 

 

 

 
Gareth W. Rosenau 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

hereby denied.