Application for Correction of  
Coast Guard Record of: 
 
 
xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxx 
 
    

 
 
 
BCMR Docket 
No.  2001-067 

  FINAL DECISION  

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

This final decision, dated February 28, 2002, is signed by three duly appointed members 

 
ULMER, Chair: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title  14  of  the  United  States  Code.    It  was  docketed  on  May  1,  2001,  upon  receipt  of  the 
applicant's complete application for correction of his military record. 
 
 
who were designated to serve as the Board in this case. 
 
 
The applicant, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (xxxxxxxxxxxxxxxxxx), 
asked the Board to correct his record by changing the reason for his discharge from expiration of 
enlistment to retirement by reason of physical disability.   
 
 
The applicant  enlisted in the Coast Guard on August 12, 1971, and served continually 
until his discharge on May 12, 1978.  Prior to enlisting in the Coast Guard, the applicant had 
served in the Navy.  
 

The applicant stated that the Board should waive the three-year statute of limitations in 

his case because he did not discover the error until May 2000. 
 

EXCERPTS FROM RECORD AND SUBMISSIONS 

 
 
The applicant made several allegations about the Coast Guard’s handling of his medical 
problem and discharge.  First, he alleged that the January 13, 1978, initial medical board (IMB) 
arbitrarily changed his duty status from not fit for duty (assigned in October 1977) to limited 
duty.  Second,  he  alleged  that  the  Coast  Guard  violated  its  regulations  by  not  providing  the 
applicant with a follow-up evaluation of his limited duty status before discharging him.   
 
Background 
 
A medical narrative summary indicated that the applicant was hospitalized from October 
 
12, 1977 until October 31, 1977 for a back condition, lumbarization.  The summary stated that 
the applicant slipped and fell on ice approximately four years earlier and had had problems with 

his back since that time.  The medical summary described the applicant’s physical examination 
as follows: 
 

A general examination was unremarkable.  His back had a normal curve, without 
lordosis or scoliosis.  There was pain on palpation of the paravertebral muscles in 
the [lumbar] area.  He was unable to bend more than 5 degrees without pain and 
his lateral flexion was limited.  SLR [straight leg raising] was about 30 degrees. 
 

  * 

* 
 

* 

HOSPITAL  COURSE:    He  was  treated  with  bed  rest  and  Valium,  following  a 
conservative regimen.  A Norton back brace was ordered and upon delivery, he 
was allowed to ambulate.   
 
RECOMMENDATIONS:    Not  fit  for  duty.    Return  to  orthopedic  clinic  in  one 
month.  He is discharged without medications.   

An  administrative  remarks  (page  7)  entry  in  the  applicant’s  record  showed  that  he 

 
 
returned from 30 days sick leave on December 2, 1977. 
 
 
A medical note showed that on December 5, 1977, the applicant visited the orthopedist 
wearing the Norton brace.  The note stated that the applicant should return in four weeks and that 
he was fit for light duty.  There was also a physical therapy note of the same date.   
 
 
From  January  10,  1978  until  January  13,  1978,  the  applicant  was  hospitalized  for  a 
medical board evaluation.  An orthopedic report dated January 13, 1978 stated that the applicant 
was suffering from mechanical low back derangement, lumbarization.  It also stated “x-rays are 
essentially  within  normal  limits  with the  exception  of  the  presence  of  lumbarization  for  S-1.”  
The report contained the following recommendation: 
 

In light of the foregoing medical course of this patient, it is doubtful that he will 
be  able  to  resume  a  fully  functional  capacity  in  his  usual  occupation.    The 
[applicant]  seems  motivated,  and  it  maybe  advisable  to  have  the  [applicant] 
undergo vocational rehabilitation to a less stressing type of position which does 
not entail lifting in excess of 20 lbs, repeated bending or stooping.   

 
 
The applicant was discharged from the hospital on January 13, 1978 fit for light duty.  He 
was not given a return appointment.  This was also the finding of the medical board in its report 
dated  January  13,  1978.    The  applicant  signed  a  statement  indicating  that  he  did  not  wish  to 
submit a rebuttal to the medical board finding.  The military record indicated that in February 
1978 the applicant was transferred from the cutter to another command because of his limited 
duty status.   
 
 
The applicant having reenlisted in the Coast Guard for three years on May 13, 1975 was 
approaching the expiration of that enlistment in the spring of 1978.  A note in the applicant’s 
military record commented that he was recommended for reenlistment, but he was not going to 
reenlist.    Therefore,  on  May  5,  1978,  the  applicant  underwent  a  physical  examination  to 
determine his fitness for discharge.  The applicant noted on the medical form that he had been 
hospitalized earlier for back problems, but he was currently in good health.  On May 10, 1978, 

the  applicant  was  found  physically  qualified  for  discharge.    On  May  12,  1978,  the  applicant 
signed  the  following  statement:  “I  have  been  informed  of  the  findings  of  the  physical 
examination  given  to  me  on  May  5,  1978  for  discharge  and  agree  with  the  findings  of  the 
examining  physician  and  do  not  desire  to  make  a  statement  in  rebuttal.”    The  applicant  was 
discharged the same date. 
 
Veterans Administration (VA) Rating Decision 
 
On  May  7,  1981,  the  applicant  filed  a  claim  with  the  VA,  now  the  Department  of 
 
Veterans Affairs [DVA].  On February 9, 1982, the VA granted the applicant a 40% disability 
rating for “Intervertebral Disc Disease  . . . with Chronic left Radiculopathy.”  
 
Views of the Coast Guard  
 
 
On September 25, 2001, the Board received an advisory opinion from the Chief Counsel 
of the Coast Guard recommending that the applicant's request be denied for untimeliness and for 
lack of proof of error or injustice. 
 
 
The Chief Counsel stated that the applicant submitted his application approximately 20 
years after the three-year statute of limitations expired.  He stated that the applicant offered no 
reason  for  not  filing  his  application  sooner.    Therefore,  since  the  applicant  has  failed  to 
demonstrate an error or injustice in his record his application should be denied for untimeliness. 
 
 
The  Chief  Counsel  stated  that  he  was  perplexed  by  the  applicant’s  contention  that  his 
duty  status  was  changed  arbitrarily  from  not  fit  for  duty  to  limited  duty.    He  stated  that  the 
applicant  offered  no  explanation  why  his  condition  could  not  have  improved  with  time.  
Moreover, the Chief Counsel stated that the applicant’s failure to file a rebuttal to the IMB and 
his agreement with his May 5, 1978 fit for discharge diagnosis is compelling evidence that the 
applicant’s condition had improved.  The Chief Counsel noted that at the time of his discharge, 
the applicant stated that he was in good health.  The Chief Counsel further stated as follows: 
 

[The  applicant]  appears  to  have  placed  great  weight  on  the  VA  rating  decision 
dated February 9, 1982 when he surmises that the Coast Guard acted arbitrarily 
and without merit:  “Further evidence of record reflecting the chronic nature of 
the [applicant’s] back condition is from the [VA’s] rating decision dated February 
9, 1982 . . . An equally plausible explanation, though difficult to prove after two 
decades, is the fact that Applicant waited three  years to file his VA application 
precisely because his back did not bother him for those three years.  Regardless, 
presenting evidence that came to light over three years after his discharge is not 
persuasive to show that the Coast Guard acted arbitrarily and without merit during 
the applicant’s enlistment.   

 
 
The  Chief  Counsel  stated  that  the  Coast  Guard  counseled  the  applicant  upon  his 
discharge and notified him that he might have VA rights.  The applicant signed the “Termination 
of Health Record form on May 5, 1978 which stated, “[a]fter you are separated or retired, any 
claims for disability benefits must be submitted to the Veterans Administration.  It is suggested 

On October 16, 2001, the Board received the applicant’s reply to the views of the Coast 

that  you  contact  the  VA  Regional  Office  nearest  your  home  as  soon  as  practicable  after  your 
separation for certain benefits you may be entitled to.”1   
 
Applicant's Response to the Coast Guard Views 
 
 
Guard.   
 
The applicant stated that the physician who performed his discharge physical “committed 
 
an  impropriety  by  not  reviewing  the  full  extent  of  the  [applicant’s]  disabilities.    Instead,  the 
[discharge physician] believed the proper action would take place as the Coast Guard already had 
knowledged of the severity of the back condition, and therefore did only a cursory review of the 
applicant’s physical condition.”  The applicant further stated as follows: 
 

There  is  sufficient  evidence  to  show  the  disability  was  unfitting  at  the  time  of 
discharge as no condition as severe as the [applicant’s] back condition could have 
improved that quickly.  All of which was compounded by the poor examination 
and counseling services.  The culmination of which allowed the [applicant] to be 
discharged from active service without the benefits that he rightly deserved.  

The applicant denied that he was told he could go the VA.  He was told, however, to sign 

 
 
the document or he would not be released to go home; so he signed it.   
 

The Board makes the following findings and conclusions on the basis of the applicant's 

FINDINGS AND CONCLUSIONS 

 
 
record and submissions, the Coast Guard's submission, and applicable law: 
 
 
States Code.  The application was untimely. 
 

1.  The BCMR has jurisdiction of the case pursuant to section 1552 of title 10, United 

“you have been examined and found physically fit for separation from active duty.  Any 

                                                 
1   This entry appears on the document entitled “TERMINATION OF HEALTH RECORD” 
under the applicant’s signature and reads as follows: 
 
 
defects noted during this examination are recorded in block #74 of the attached report of 
medical examination (SF-88). 
 
 
performance of your duties or entitle you to disability benefits from the Coast Guard.  To 
receive a disability pension from the Coast Guard, you must be found unfit to perform your 
duties before you are separated.  
 
 
to the Veterans Administration [VA].  It is suggested that you contact the VA Regional Office 
nearest your home as soon as practicable after your separation for certain benefits you may be 
entitled to.” 

“The defects listed on report of medical examination do not disqualify you from 

“After you are separated or retired, any claims for disability benefits must be submitted 

 
2.    To  be  timely,  an  application  for  correction  of  a  military  record  must  be  submitted 
within three years after the discovery of the alleged error or injustice.  See 33 CFR 52.22. The 
applicant was discharged from the Coast Guard approximately twenty three years ago.  Although 
the applicant claimed that he only  recently discovered the error in May 2000, he should have 
discovered the alleged error at the time of his discharge or at the very latest on the date he filed a 
claim with the VA.  He provided no explanation why he did not or could not have discovered the 
error sooner if he had exercised due diligence. 
 
3.  The Board may still consider the application on the merits, however, if it finds it is in 
 
the interest of justice to do so.  The interest of justice is determined by taking into consideration 
the reasons for and length of the delay (discussed above) and the likelihood of success on the 
merits of the claim. See  Allen v. Card, 799 F. Supp 158 (D.D.C. 1992). 
 
 
 4.  After a review of the merits, the Board finds that the applicant has failed to establish 
by a preponderance of the evidence that the Coast Guard committed an error by discharging him 
in  1978  rather  than  retiring  him  due  to  physical  disability.    Contrary  to  the  applicant’s 
contention, the IMB did not arbitrarily change the applicant’s duty status from unfit to limited 
duty.  The applicant was discharged from the hospital in a limited duty status on October 31, 
1977.  Records show that he spent 30 days on sick leave, after which he saw an orthopedist for 
evaluation on December 5, 1977.  After examining the applicant, the orthopedist stated that the 
applicant was fit for light duty and he should return to see him in four weeks.  Therefore, the 
applicant’s duty status had been updated prior to the convening of the IMB.  Moreover, the IMB 
had an additional orthopedic consultation before reaching its conclusion that the applicant should 
remain on light duty.  The applicant accepted the findings of the IMB and did not file a rebuttal.  
A service record entry indicated that the applicant was subsequently transferred from his unit to 
another command because of his light duty status. 
 
 
5.  The applicant was not forced out of the Coast Guard.  It happened that his contract 
was  due  to  expire  on  May  13,  1978  and  he  chose  not  to  reenlist.    As  part  of  the  separation 
process, the applicant underwent a discharge physical examination, wherein he was found fit for 
separation.  He noted that he had had a problem with his back, but stated that he was currently in 
good health.  Moreover, he agreed with the findings of the discharge physical examination.  The 
applicant has not presented any contemporaneous evidence corroborating his allegation that he 
was he was not fit for separation at the time of his discharge.   
 
 
6.   Approximately three years after his 1978 discharge, the DVA rated the applicant’s 
condition as 40% disabling. The fact that the applicant has received a disability rating from the 
DVA approximately three years after his discharge from the Coast Guard does not mean that the 
Coast Guard committed an error or injustice by discharging the applicant due to expiration of 
enlistment rather than by retiring him by reason of physical disability.  
 

7.  Moreover, the Court of Federal Claims has stated, "[d]isability ratings by the Veterans 
Administration [now the Department of Veterans Affairs] and by the Armed Forces are made for 
different purposes.  The Veterans Administration determines to what extent a veteran's earning 
capacity  has been  reduced as  a result of specific injuries or combination of injuries. [Citation 
omitted.]  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.  [Citation  omitted.] 
  Accordingly,  Veterans'  Administration  ratings  are  not 

determinative of issues involved in military disability retirement cases."  Lord v. United States, 2 
Cl. Ct. 749, 754 (1983). 
 
 
8.  Due to the applicant's lengthy delay in bringing this claim, his lack of a persuasive 
reason for not filing his application sooner, and the unlikelihood of any success on the merits of 
this claim, the Board finds that it is not in the interest of justice to waive the statute of limitations 
in this case.  
 
 
 
 
 
 
 
 
 

9.  Accordingly, the applicant's application should be denied 

 

[ORDER AND SIGNATURES ON NEXT PAGE] 

The application of xxxxxx xxxxxxxxxxxxxxxxxxxx, xxxxxxxxxxx, USCG, for correction 

ORDER 

 

 
 

 
 

 
 

_______________________________ 
George J. Jordan 

_______________________________ 
John A. Kern 

_______________________________ 
David M. Wiegand 

 

 

 
 

 
 

 

 
 

 
 

 
of his military record is denied.