DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-126 
 
Xxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
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 BCMR docketed the 
case on June 28, 2002, upon receipt of the applicant’s application and military records.  
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  May  22,  2003,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  correct  his  record  to  show  that  he  was  dis-
charged from the Coast Guard in 1971, instead of being placed on the temporary dis-
ability  retired  list  (TDRL)  and  permanently  retired  by  reason  of  physical  disability  in 
1976 with a 30 percent disability rating.  He stated that because he was retired, rather 
than  discharged,  he  is  now  unable  to  “buy  back”  his  military  time  so  that  it  can  be 
included  in  the  computation  of  his  time  as  a  civil  servant.    He  stated  that  the  Board 
should find it in the interest of justice to consider his application despite the long delay 
because he is a disabled veteran and wants proof that he was discharged. 
  

SUMMARY OF THE RECORD 

 
 
The applicant enlisted in the Coast Guard on April 21, 1969.  On March 28, 1970, 
during the towing of a disabled boat, a towline struck the applicant’s left hand.  As a 
result of this accident the distal phalanx of the middle and index fingers on his left hand 
were amputated.   
 

In  September  1970,  the  applicant  wrote  his  congressman  complaining  that  the 
Coast  Guard  had  told  him  that  he  would  not  be  separated  or  compensated  for  his 
injury.  He stated that as a radioman, he could not do his job as well as he had before his 
injury.    In  response  to  an  inquiry  from  the  congressman,  the  Commandant  sought 
information from the applicant’s command. 

 
According to a letter from the applicant’s commanding officer (CO) to the Com-
mandant on October 15, 1970, when the applicant returned from convalescent leave on 
May 26, 1970, he initially indicated that he wanted to stay in the service and complete 
his obligation.  The CO stated that, despite his injury, the applicant had continued to 
serve as an above average radioman and had been advanced on June 16, 1970.  How-
ever, in mid September, the CO stated, the applicant suddenly stated that he thought he 
had “paid his debt to the Coast Guard” and wanted to be discharged.  

 
 
On  November  20,  1970,  an  Initial  Medical  Board  examined  the  applicant  in 
accordance with the Coast Guard’s Physical  Disability Evaluation System (PDES) and 
found that his two injured fingers had lost 80 percent of their flexion and were sensitive 
at the tips but that he was fit for light duty.  The applicant waived his right to rebut the 
board’s  findings,  and  the  case  was  referred  to  a  Central  Physical  Evaluation  Board 
(CPEB) for final adjudication. 
 

On January 7, 1971, the CPEB convened to review the applicant’s case, found that 
he was fit for duty, and recommended that he be returned to full duty.  On February 1, 
1971, with the advice of counsel, the applicant rejected the CPEB’s findings and asked 
for a hearing before a Formal Physical Evaluation Board (FPEB). 

 
On  April  12,  1971,  the  applicant  was  appointed  counsel  and  informed  that  the 
FPEB would be convened aboard his cutter on April 26, 1971.  At the FPEB, the appli-
cant’s counsel asked the board to find that he was 30 percent disabled due to the anky-
losis (stiffness) of his fingers.  The board heard the following testimony: 

 

  A radioman testified about how hands and fingers are used in his work. 
  A  doctor  stated  that  the  stiffness  and  soreness  of  the  applicant’s  two  fingers 
were probably permanent. 
  A fellow radioman on the cutter testified that the applicant could not type as fast 
as he used to or work very efficiently because he had to look at the keyboard as he 
typed; that the applicant had become anxious and depressed; and that the applicant 
reacted in pain whenever the tips of the two fingers were hit accidentally. 

 
On April 27, 1971, the FPEB found that the applicant was unfit for duty by reason 
of  physical  disability  and  recommended  that  he  be  discharged  with  a  20  percent  dis-
ability rating for ankylosis and with severance pay.  The applicant acknowledged the 

findings and recommendations and indicated that he would not submit a statement in 
rebuttal.  The case was forwarded to the Physical Review Council (PRC) for review. 

 
On July 2, 1971, the applicant’s counsel wrote to the PRC and asked that it con-
sider rating the applicant as 10 percent disabled by the tenderness of his scars in addi-
tion to the 20 percent disability for ankylosis.  The counsel stated that at the time of the 
FPEB, he had not known that “tender scar” was a ratable disability. 

 
On July 22, 1971, the PRC recommended that the applicant receive a 30 percent 
combined  disability  rating—20  percent  for  the  ankylosis  and  10  percent  for  tender 
scars—and be placed on the temporary disability retired list (TDRL).  On July 26, 1971, 
the  applicant  acknowledged  notification  of  the  findings  and  recommendation  of  the 
PRC and stated that he concurred in them.  The PRC’s findings and recommendation 
were reviewed and found to be technically correct by the Chief Counsel on August 10, 
1971, and approved by the Chief of the Office of Personnel on August 12, 1971. 

 
On August 26, 1971, the applicant was placed on the TDRL.  He was issued a dis-
charge form DD 214 indicating his temporary retirement by reason of physical disability 
with an honorable character of service. 

 
In  December  1972  and  again  in  June  1974,  the  applicant  underwent  physical 
examinations to determine whether he should remain on the TDRL or be discharged or 
retired  by  reason  of  physical  disability.    Each  time,  the  doctor  found  that  his  fingers 
were less stiff but still tender, and he was retained on the TDRL. 

 
On December 4, 1975, the applicant underwent his final physical examination to 
determine whether he should be discharged or retired by reason of physical disability.  
The doctor found that the fingers still “lack[ed] a few degrees flexion.”  The applicant 
told  him  that  the  fingers  were  always  stiff  in  the  morning,  that  they  ached  in  cold 
weather, and that the tips were still sensitivity to touch.  He worked at a post office. 

 
On January 5, 1976, the CPEB recommended that the applicant be permanently 
retired  with  a  30  percent  combined  disability  rating—20  percent  for  ankylosis  and  10 
percent for tender scars.  On February 10, 1976, with the advice of counsel, the applicant 
accepted the findings and recommendation of the CPEB and waived his right to a for-
mal hearing.  The CPEB’s findings and recommendation were reviewed and found to be 
technically  correct  by  the  Chief  Counsel  on  February  20,  1976,  and  approved  by  the 
Chief of the Office of Personnel on February 23, 1976. 

 
The applicant was permanently retired from the Coast Guard on March 8, 1976. 
 

VIEWS OF THE COAST GUARD 

 

 
On November 15, 2002, the Chief Counsel of the Coast Guard submitted an advi-
sory opinion in which he recommended that the Board deny the applicant’s request for 
relief.  A copy of the advisory opinion and an enclosed memorandum on the case by the 
Coast Guard Personnel Command (CGPC) are attached to this Final Decision. 
 
 
On November 18, 2002, the BCMR sent the applicant copies of the Chief Coun-
sel’s  advisory    opinion  and  CGPC’s  memorandum  and  invited  him  to  respond.    No 
response was received. 
 

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: 
 

1. 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

§ 1552. 
 

2. 

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  permanently  retired  from  the  Coast  Guard  in  1976.    Therefore,  his 
application was untimely. 

 
3. 

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 that the Board should consider his case because he is a dis-
abled veteran and wants proof that he was discharged.  No explanation was given for 
his delay, but the Board presumes that he has only recently decided that it would now 
be to his financial advantage if he had been discharged rather than retired.  The Board 
finds that the applicant’s reason for delay is not compelling.  Moreover, the applicant’s 
argument that the Board should consider his application because he is a disabled vet-
eran somewhat contradicts his argument that the Coast Guard should not have retired 
him because of his physical disability. 

 
4. 

The  applicant  submitted  no  evidence  to  support  his  allegation  that  the 
Coast  Guard  committed  an  error  or  injustice  in  processing  him  under  the  PDES  and 
permanently  retiring  him  because  of  his  physical  disability.    The  fact  that  now,  more 
than 25 years after his retirement, he believes that a discharge would have been more 
favorable to him in the long run, with 20/20 hindsight, does not mean that the Coast 
Guard’s  actions  and  decisions  were  erroneous  or  unjust.    The  Board’s  review  of  the 

applicant’s record did not reveal any errors made by the Coast Guard.  Moreover, the 
record indicates that the applicant himself diligently sought a medical retirement with a 
30 percent disability rating. 

 
5. 

Accordingly, the Board will not waive the statute of limitations, and the 

applicant’s request should be denied. 

 
 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

ORDER 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Julia Andrews 

 

 

 
 
 Margot Bester 

 

 

 

 
 
 Francis H. Esposito 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 

 
 

                         Memorandum 

  Subject:  ADVISORY OPINION IN CGBCMR 

DOCKET NO. 2002-126 (XXXXXXX) 

 

From:  Chief Counsel, U.S. Coast Guard  

Date: 

Reply to 
Attn. Of: 

 
5420/3 
G-LMJ 
CDR Orlando 
70116 

To:  Chairman, Board for Correction 

 
                of Military Records (C-60) 

Ref:  

 

 

(a) 

 

Applicant's 

DD 

Form 

149 

filed 

01 

May 

2002 

1.   Please  accept  enclosure  (1),  and  the  following  comments,  as  the  Coast 
Guard’s  advisory  opinion  recommending  denial  of  relief  in  the  subject  case 
for lack of timeliness and lack of merit. 

2.   Summary of Case:  The Applicant has requested that he receive a copy of a 
DD214 (Armed Forces of the United States Report of Transfer or Discharge) 
stating that he was discharged vice retired.  On 21 August 1971, the Applicant 
was  placed  on  the  Temporary  Disabled  Retirement  List  with  a  ratable 
disability of 30%.  [During the towing of a disabled boat, the towline parted 
and struck the Applicant on his left hand, resulting in the partial amputation 
of his middle and index fingers.]  On 26 August 1971, the Coast Guard issued 
a  DD  214  transferring  the  Applicant  to  the  TDRL.    On  08  March  1976,  the 
Applicant  was  placed  on  the  Permanently  Disabled  List  with  a  ratable 
disability of 30%.  Given that the Applicant was retired and not discharged, 
no DD 214 was issued at that time.  The Applicant is now seeking a DD214 
showing him as “discharged” vice “retired” to enable him to take advantage 
of a federal law that permits discharged veterans to “buy back” their military 
time and apply it toward their federal civil service pension. 

3.   Analysis:  
a.  The application is untimely and lacks merit. 

(1)  Under 10 U.S.C. § 1552(b), and further regulations in 33 C.F.R. § 52.22, an 

application must be filed within three years of the date the alleged error or 
injustice was, or should have been, discovered. Applicant was retired on 08 March 
1976; he served two years four months and five days of active duty service.  
Therefore, the application is 23 year late. Under 33 C.F.R. 52.22, when an 
application is untimely, the applicant must set forth in the application reasons why 

its acceptance is in the interest of justice.  In addition, the Board must deny relief 
unless the Applicant presents sufficient evidence to warrant a finding that it would 
be in the interest of justice to excuse the failure to file timely.  In making this 
determination, the Board must consider the reasons for delay and make a cursory 
review of the potential merits of the claim.  Dickson v. Secretary of Defense, 68 F. 
3rd 1396 (D.C. Cir. 1995).  The Applicant has not provided any reason for his 
delay and a cursory review of his record shows no basis to excuse his lack of 
timeliness.  Therefore, this application should be dismissed because it was not 
filed within three years of the date that an alleged error should have been 
discovered, and Applicant has presented no argument as to how justice will be 
served by granting the requested relief. 

(2)  Per the analysis contained in enclosure (1), the Board should also deny relief in 

this case because the Applicant has failed to submit any documentation to support 
a change in his status from “retired” to “discharged.” 

4.   Recommendation: The Coast Guard recommends that the Board deny the relief requested 
for the reasons described above.   

 
 
 
 
 
 
 
Encl: 

  
 
 
 

  G. T. VACHON 
  By direction 

(1)  
(2)  
(3) Applicant’s Health Record 

CGPC ltr 5420 of 06 September 2002 
Applicant's Service Record  

 

Command 
United States Coast Guard 
 

MEMORANDUM 
 
From
: 

G. W. PALMER 
CGPC-c 

 
To: 
 

Commandant  
(G-LMJ) 

2100 Second Street, S.W. 
Washington, DC 20593-0001 
Staff Symbol: CGPC-adm-2 
Phone: (202) 267-6969 
Fax: (202) 267-4381 
 
5420 
 

Reply 
to 
Attn of: 

ENS Crespo 
7-6969 

Subj:  PROGRAM INPUT ON CGBCMR APPLICATION (xxxxxxxxxx) 
 
Ref: 
 
1.  Comments on the application contained in reference (a) are attached as enclosure (1). 

(a) CGBCMR Application 2002-126 

2.  I recommend no relief be granted. 
 
 
 

# 

 
Enclosures
: 
 

(1) Comments concerning CGBCMR Application 2002-126 

Enclosure 1 - CGBCMR 2002-126 

 

 
RELIEF REQUESTED BY APPLICANT: 
 
1.  The  applicant  requests  to  receive  a  copy  of  his  DD-214  stating  he  was  discharged 

vice retired. 

 
APPLICANT’S STATED BASIS FOR RELIEF: 
 
1.  The Applicant does not necessarily allege an error, but requests that his DD-214 be 
changed  to  reflect  that  he  was  discharged  and  not  retired,  so  that  he  can  take 
advantage of a provision of the federal law that allows non-retired veterans to “buy 
back” their military time and apply it toward their federal civil service pension.   

 
MATTERS OF RECORD: 
 

1.  The application is not timely. 

 

 

 

 

 

 

2.  April 21, 1969: Applicant enlisted in the Coast Guard. 

3.  August  12,  1971:    Per  ltr  1856  SUBJ:  RETIREMENT  FROM  ACTIVE  DUTY; 
PLACEMENT  ON  TEMPORARY  DISABILITY  RETIRED  LIST;  ORDERS; 
TRAVEL, effective on August 26, 1971, applicant was placed on the Temporary 
Disability  Retired  List  (TDRL)  with  a  30  percent  physical  disability  rating.  
Applicant was entitled to receive retired pay, and he was required to report for a 
periodic physical examination at least every 18 months. 

4.  August 25, 1971:  Per Form DD-214 (Armed Forces of the United States Report of 
Transfer  or  Discharge),  applicant  was  temporary  retired  for  disability  under 
Article 12-B-9, Code 374.   

5.  August  26,  1971: 

  Per  CG-3307  (Administrative  Remark),  applicant  was 

temporary retired from the U. S. Coast Guard for physical disability. 

6.  February 23, 1976:  Per ltr 1856 SUBJ: PERMANENT RETIREMENT; REMOVAL 
FROM TEMPORARY DISABILITY RETIRED LIST, the final action on a Physical 
Evaluation  Board  (PEB)  removed  the  applicant  from  the  TDRL  and  was 
permanently retired effective on March 8, 1976. 

7.  March  8,  1976:    Per  CGHQ-3433  (Statement  of  Service  –  Retired  Personnel), 
applicant was retired with a 30 percent permanent physical disability.  Member 
served two years, four months and five days of active duty. 

 

8.  Per Commandant Instruction (COMDTINST) M1900.4D, Chapter 1.B.3 Ineligible 
Personnel, the DD-214 will NOT be issued to members “who are being removed 
from the temporary disability retired list (TDRL).   

 
 

 
 
CONCLUSIONS: 
 
1.  Applicant  was  temporary  retired  and  placed  on  the  TDRL  on  August  26,  1971.  
Applicant  was  removed  from  the  TDRL  and  placed  on  permanent  retirement  on 
March  8,  1976.    In  accordance  with  COMDTINST  M1900.4D,  applicant  received  a 
DD-214  when he  was  temporarily retired and he was  not entitled to a subsequent 
DD-214 when he was permanently retired.  Applicant’s DD-214 is correct, and there 
is no documentation to support that the applicant was discharged vice being retired. 
 

2.  Altering  an  accurate  document  in  an  effort  to  assist  the  Applicant  in  obtaining  a 

more advantageous federal civil service pension would be inappropriate.   

 
RECOMMENDATION: 
 
1.  I recommend no relief be granted.