DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-022 
 
XXXXX, Xxxxxx X. 
xxx xx xxxx, XXX 
   

 

 
 

FINAL DECISION 

 
GARMON, Attorney-Advisor: 
 
 
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 December 23, 2002 upon 
the BCMR’s receipt of the applicant’s request for correction. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  November  20,  2003,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 

The applicant asked the Board to correct his record to show that he retired from 
the  Coast  Guard  Reserve  due  to  a  physical  disability  under  the  Temporary  special 
retirement authority (10 U.S.C. § 12731a.).   
 

APPLICANT’S ALLEGATIONS 

 

The  applicant  stated  that  he  was  a  member  of  the  New  York  City  Fire 
Department, where he served as a lieutenant for xx years.  He alleged that because he 
was attending funerals for firemen killed in the September 11, 2001 attack, he missed 
the deadline to apply for early retirement from the Coast Guard Reserve.  The applicant 
stated that the deadline for applying for early retirement was December 31, 2001.  He 
admitted that the Coast Guard received his application in January 20xx. 
 

SUMMARY OF THE RECORD AND SUBMISSIONS 

 

 
On  June  1,  19xx,  the  applicant  was  transferred  from  the  selected  reserve 

On  May  19,  19xx,  the  applicant  enlisted  in  the  Coast  Guard  Reserve.    Prior  to 
 
entering the Reserve, the applicant had served for more than six years on active duty in 
the Navy.  On May 18, 19xx, he completed 16 years of satisfactory service.   
 
 
(SELRES) into the individual ready reserve (IRR).   
 
 
On  January  15,  20xx,  the  applicant  wrote  the  Commander,  Integrated  Support 
Command Boston stating that he believed he may be eligible for retired pay at age 60.  
He attached statements from his doctor in support of his request. 
 
 
On  February  8,  20xx,  the  Commander,  Integrated  Support  Command  Boston 
informed  the  applicant  that  his  request  was  returned  without  action  because  the 
authority for requesting an early retirement under 10 USC § 12731a had expired.   
 
 
located by the Coast Guard.   
 
Summary of the Applicant’s Medical Evidence 
 
Radiology Reports  
 
•  The applicant submitted a radiological report, dated April 25, 20xx, containing the 
results  of  an  MRI  of  the  brain.    The  radiologist’s  impression  was  “BILATERAL 
SMALL  LACUNA  INFRACT.    NO  EVIDENCE  OF  HEMORRHAGE  OR  MASSES.  
NO LARGE TERRITORIAL FOCAL INFRACTS." 

As of November 14, 20xx, the applicant’s military medical records could not be 

 

 

•  The  applicant  also  submitted  a  radiological  report,  dated  December  29,  19xx, 
containing the results of an MRI of his right shoulder.  The impression was listed as 
follows:   

1.  Findings consistent with either severe inflammation and/or partial tear of the 
supraspinatus tendon of the rotator cuff.  
 
2.  Mild subacromial impingement.    

 
Letter from Applicant’s Psychiatrist 
 

In support of his application, the applicant submitted a letter, dated January 11, 
20xx,  from  his  psychiatrist,  Dr.  K,  who  wrote  that  the  applicant  had  been  his  patient 
since April 19xx and was initially seen for Attention Deficit Disorder.  Dr. K stated that, 
in late 19xx the applicant discovered that his wife was ill with cancer, which, along with 
the bilateral rotator cuff injuries to his shoulders forced the applicant to retire from the 
Fire  Department.    Dr.  K  stated  that  the  applicant  became  depressed  after  his  wife 
passed away in May 19xx.  Dr. K concluded by stating that at the time the applicant was 

unable to perform his usual duties in the Coast Guard Reserve because he was caring 
for his wife as well as dealing with his own injuries and illnesses.  
 
Disability Report 
 

On March 3, 19xx, the applicant was examined by Dr. B at a civilian hospital for 
purposes  of  a  disability  determination.    In  the  disability  report,  Dr  B.  stated  that  the 
applicant's  chief  complaint  was  "I  cannot  work  mentally  and  physically."    The  doctor 
noted that while working as a fireman, the applicant had sustained a rotator cuff tear in 
19xx,  for  which  he  was  treated  with  physical  therapy;  that  the  applicant  was 
complaining  of  pain  since  falling  on  ice  in  November  or  December  19xx;  that  he  had 
stopped  working  as  a  fireman  in  January  19xx  due  to  his  disability;  and  that  he  was 
being  treated  by  a  psychiatrist  for  stress  that  was  affecting  his  concentration.    Dr.  B 
reported the following physical findings: 
 

Neck examination shows tenderness over the left C7 paraspinal muscles and left upper 
trap[ezius] with full range of motion negative spurling's. 
 
Right shoulder:  the patient can actively abduct the right shoulder.  However, there is a 
component of scapulo-thoracic movement the first 30 degrees and then the patient is able 
to  abduct  with  glenohumeral  movement,  after  30  degrees  all  the  way  to  150  degrees.  
Positive  drop  arm.    Muscle  testing  4+/5.    No  muscle  atrophy.    Muscle  tone  is  normal.  
There is tenderness of rotator cuff insertion. 
 
Left shoulder:  shows rotator cuff insertion tenderness and tenderness over the bicipital 
tendon  with  positive  speeds,  negative  drop  arm.    Positive  painful  arc.    150  degrees 
flexion and abduction with pain end range.  4+/5.  Normal muscle tone and no atrophy. 
 
Bilaterally elbows, bilateral grip within normal limits. 
 
Lower extremities:  Full range of motion with tenderness over the left piriformis and left 
gluteal  muscles.    5-/5  left  hip  otherwise  5/5  across  all  joints.    The  right  foot  shows 
tenderness  over  the  metatarsal  pad  between  first  and  second  toes,  no  masses  felt.  
Sensory is intact, deep tendon reflexes +2. 
 
Back examination:  shows mild tenderness over the left lumbosacral paraspinal muscles 
with  full  truncal  range  of  motion  and  negative  straight  leg  raise. 
  Negative 
Saber/negative Faber/negative Fadir. 
 
Functional  Activity:    Independent  upper  and  lower  extremities  dressing.    Independent 
ambulation without assistive devices, there is reciprocal gait.  Able to heel walk, tandem 
walk and do a mini squat.  Able to toe walk through there is a limp on the right because 
of the right fore foot pain.   
 
Impression: 
 
1.  Right rotator cuff tear. 
 
2.  Rule out rotator cuff tendonitis/bicipital tendonitis, left. 

 
3.  Rule out neuroma right foot between the first and second toes. 
 
4.  Rule out depression/anxiety. 
 
Based on history and physical examination the patient should be able to walk two blocks 
without assisted device.  Sit 1/2 hour, stand 1/2 hour, carry up to 10# weight.   
 
The patient should continue follow-up care with orthopedist as well as continue follow-
up with psychiatrist and possibly psychotherapist if not yet seeing one.   
 
Prognosis:  Guarded. 

 

VIEWS OF THE COAST GUARD 

 
On May 30, 2003, the Chief Counsel of the Coast Guard asked the Board to accept 
 
the comments from the Coast Guard Personnel Command (CGPC) as the Coast Guard’s 
advisory opinion.  CGPC recommended that the Board deny the applicant's request for 
relief.   
 
 
CGPC  stated  that  under  10  U.S.C.  §  12731,  retired  pay  is  earned  when  one 
reaches 60 years of age and has completed 20 years of satisfactory service.  CGCP stated 
that the applicant was 60 years old on September 13, 20xx.   
 
 
However, CGPC commented that 10 U.S.C. § 12731a provided temporary special 
retirement  qualification  authority  to  the  Secretary  to  retire  certain  members  of  the 
Selected Reserve with at least 15 years of service but less than 20 years of satisfactory 
service,  from  October  23,  1992  to  December  31,  2001.    CGPC  asserted  that  the  Coast 
Guard’s stated policy with respect to this program was that "selected Reserve members 
could voluntarily request special retirement under this statute if they were involuntarily 
removed  from  a  Selected  Reserve  billet  due  to  billet  removal  from  the  Reserve 
Personnel  Allowance  List  and  no  suitable  replacement  billet  was  available  within  the 
reservist’s normal commuting radius." 
 
 
§ 12371a because the statutory authority for the early retirement expired on December 
31,  2001,  and  the  applicant’s  letter  inquiring  about  retired  pay  was  dated  January  15, 
20xx.  CGPC further stated that even if the applicant's request had been timely and had 
been made prior to June 1, 1999, the applicant was still ineligible for early retirement 
because  the  billet  to  which  he  was  assigned  had  not  been  abolished  and  was  within 
reasonable commuting distance from the applicant's residence.   
 
CGPC  stated  that  10  U.S.C.  §  12731b  authorizes  the  Secretary  to  offer  early 
 
retirement  to  members  of  the  SELRES  with  at  least  15  but  less  than  20  years  of 
satisfactory  service  who  no  longer  meet  the  qualifications  for  membership  in  the 

According to CGPC, the applicant was not eligible for retirement under 10 U.S.C.     

Selected Reserve solely because the member is unfit due to a physical disability.   CGPC 
argued  that  the  applicant  did  not  meet  the  requirements  of  this  section  of  the  law 
because he was not in the SELRES at the time of the request and significant important 
medical evidence is dated after the applicant became a member of the IRR on June 1, 
19xx.  
 
 
With respect to the medical evidence submitted by the applicant in support of his 
application, CGPC had its Chief Medical Officer, CAPT J, review its content.  CAPT J 
offered the following opinion: 
 

Although  medical  records  are  old  (most  recent  dated  1/11/xx-letter),  information 
provided  indicates  member  is  not  fit  for  duty.    He  is  not  entitled  to  disability  via  the 
Coast  Guard’s  PDES  as  his  injuries  and  mental  disease  did  not  occur  while  on  active 
duty.  Determination of early retirement rests on CGPC (rpm). 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On  June  2,  2003,  the  Chair  sent  a  copy  of  the  views  of  the  Coast  Guard  to  the 
 
applicant  and  invited  him  to  respond  within  30  days.    He  was  granted  a  60-day 
extension and responded on September 17, 2003. 
 
 
The applicant asserted that the medical evidence he submitted clearly documents 
that  his  physical  and  mental  problems  began  before  he  was  transferred  out  of  the 
SELRES.    He  argued  that  based  on  this  medical  evidence,  he  has  satisfied  the 
requirements under 10 U.S.C. § 12731b because he “no longer [met] the qualifications 
for membership in the Selected Reserve solely because the member is unfit because of 
physical disability.”   
 
 
The  applicant  argued  that  his  Reserve  unit  never  informed  him  about  any 
entitlement to an early retirement.  He asserted that when he informed the Coast Guard 
“of [his] situation,” he was “told … that he would be put into the IRR.”  He argued that 
the Coast Guard “involuntarily removed [him] from the Selected Reserve, without [his] 
knowledge of any option.”   
 

With respect to CGPC’s argument that his billet was intact and within reasonable 
commuting distance when he transferred to the IRR, the applicant asserted that no billet 
was  appropriate  for  him  because  he  “was  sleeping  all  the  time”  and  not  allowed  to 
drive.  He asserted that he was in contact with a chief warrant officer (CWO) prior to 
the deadline but had to “begin the process all over again” when the petty officer either 
retired or was transferred.   
 

APPLICABLE STATUTES AND REGULATIONS 

 

Title 10 U.S.C. § 12731a provides the following with respect to the authority for 

early retirement benefits to Reserve members: 

 
(a)  Retirement With At Least 15 Years of Service. - 
 
 
performed at least 20 years of service], the Secretary concerned may –  
 

For  the  purposes  of  section  12731  of  this  title  [at  least  60  years  of  age  and 

(1) 

 during the period described in subsection (b), determine to treat a member 
of  the  Selected  Reserve  of  a  reserve  component  of  the  armed  force  under 
the jurisdiction of that Secretary as having met the service requirements of 
subsection  (a)(2)  of  that  section  and  provide  the  member  with  the 
notification required by subsection (d) of that section if the member –  

(A)  as of October 1, 1991, has completed at least 15, and less than 20 , 

years of service computed under section 12732 of this title; or 

(B)  after  that  date  and  before  the  end  of  the  period  described  in 
subsection  (b)  [December  31,  2001],  completes  15  years  of  service 
computed under that section; and 

(2)  upon  the  request  of  the  member  submitted  to  the  Secretary,  transfer  the 

member to the Retired Reserve. 

 

 

 

 
(c)  Applicability Subject to Needs of the Service 
 

*  *  * 

*  *  * 

 

 

(3)  Notwithstanding  the  provisions  of  section  4415(2)  of  the  Defense 
Conversion, Reinvestment, and Transition Assistance Act of 1992 (division 
D  of  Public  Law  102-484;  106  Stat.  2714),  the  Secretary  concerned  may, 
consistent with the other provisions of this section, provide the notification 
required by section 12731(d) of this title to a member who no longer meets 
the qualifications for membership in the Selected Reserve solely because the 
member is unfit because of physical disability.  Such notification may not be 
made if the disability is the result of the member’s intentional misconduct, 
willful  neglect,  or  willful  failure 
to  comply  with  standards  and 
qualifications  for  retention  established  by  the  Secretary  concerned  or  was 
incurred during a period of unauthorized absence.   

*  *  * 

 
(e)  Regulations. -  
 
 
The authority provided in this section shall be subject to regulations prescribed 
by  the  Secretary  of  Defense  and  by  the  Secretary  of  Transportation  with  respect  to  the 
Coast Guard. 

 

Title  10  U.S.C.  §  12731b,  entitled  “Special  rule  for  members  with  physical 
disabilities  not  incurred  in  the  line  of  duty,”  was  enacted  on  October  5,  1999.    It 
provided the following  
 

(a) 

In  the  case  of  a  member  of  the  Selected  Reserve  of  a  reserve  component  who  no 
longer  meets  the  qualifications  for  membership  in  the  Selected  Reserve  solely 
because the member is unfit because of physical disability, the Secretary concerned 
may,  for  purposes  of  section  12731  of  this  title,  determine  to  treat  the  member  as 
having met the service requirements of subsection (a)(2) of that section and provide 
the  member  with  the  notification  required  by  subsection  (d)  of  that  section  if  the 
member  has  completed  at  least  15,  and  less  than  20,  years  of  service  computed 
under section 12732 of this title. 

 
(b)  Notification under subsection (a) may not be made if –  

 

 

 

(1)    the  disability  was  the  result  of  the  member’s  intentional  misconduct,  willful 
neglect, or willful failure to comply with standards and qualifications for retention 
established by the Secretary concerned; or 

(2) the disability was incurred during a period of unauthorized absence. 

Reserve Policy Manual (RPM) (COMDTINST M1001.28) 
 
 
Chapter  8,  Section  E,  of  the  Reserve  Policy  Manual  in  effect  in  19xx  provided 
guidance  for  the  implementation  of  transition  programs  for  members  of  the  Coast 
Guard  SELRES.    According  to  Article  8.E.1.  of  the  RPM,  Section  E  describes  “the 
protections,  preferences  and  benefits  accorded  to  qualifying  members  or  former 
members  of  the  Coast  Guard  Reserve  who  are  involuntarily  transferred  from  the 
Selected Reserve.” 
 
 
follows:   
 

Article  8.E.2.  sets  forth  the  definition  of  “involuntary  separation.”    It  states  as 

The discharge of a member of the Coast Guard Reserve or transfer of such member from 
the  SELRES  which  is  effective  during  the  period  beginning  on  01  October  1991  and 
ending  on  30  September  1999  shall  be  considered  an  involuntary  separation  for  the 
purposes  of  the  programs  implemented  by  this  guidance  unless  one  or  more  of  the 
following conditions applies: 
 
a.  The member was discharged or transferred from the SELRES: 

 

 

 

(1)  At the member’s request except as modified by section 8.E.6. 

* * * 

(3)  Because the member did not meet the qualifications for membership in the 
SELRES  under  law  or  regulations,  to  include  medical  fitness  standards,  which 
were in effect on 01 October 1991.   

Article 8.B.14. of the RPM provides for the separation of a member of the Reserve 

 
 
for a disqualifying physical condition.  It states as follows: 
 

The  unit  commander  shall  direct  a  medical  officer  to  provide  a  report  on  any  reservist 
found  to  have  a  disqualifying  physical  condition  per  section  3-F,  Medical  Manual, 
COMDTINST M6000.1 (series).  This report shall include a review of the medical file, the 
circumstances  which  resulted  in  the  condition,  and  an  opinion  concerning  service-
connection.    Based  on  the  medical  officer’s  report,  the  unit  commander  will  determine 
whether the condition is service-connected and take the following action: 
 

*  *  * 

 
b. 

 

Initiate  separation  action  when  the  condition  is  found  not  to  be  service-connected.  
The  unit  commander 
relevant  medical  and  administrative 
documentation  and  forward  it  with  recommendations  to  CGPC-rpm,  copying  the 
servicing ISC, for final determination and separation authority. 

shall  gather 

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 section 1552 

of title 10 of the United States Code.  The application was timely. 

 

2. 

The  applicant  requested  that  his  record  be  corrected  to  show  that  he 

timely  applied  for  early  retirement  from  the  Coast  Guard  Reserve  under  10  U.S.C.          
§  12731a  before  the  December  31,  2001  deadline.    According  to  the  Medical  Manual, 
fitness  for  duty  is  determined  by  the  “individual’s  ability  to  reasonably  perform  … 
duties” of a member’s grade or rating.  The applicant asserted that he could not perform 
any duties beginning in June 19xx because he “was sleeping all the time” and unable to 
drive.  The applicant also submitted a report from a disability examination completed 
just two months prior to his transfer to the IRR.  According to the report, the applicant 
could  “sit  for  [30  minutes],  stand  for  [30  minutes],  and  carry  up  to  ten  pounds  of 
weight.”        Based  on  a  review  of  this  and  other  medical  evidence  submitted  by  the 
applicant,  CAPT  J  opined  that  the  information  provided  by  the  applicant  “indicates 
[that the] member is not fit for duty.” 

 

3. 

Pursuant  to  10  U.S.C.  §12731a,  the  Coast  Guard  issued  guidance  for 
submitting  and  processing  requests  for  eligible  members  and  former  members  of  the 
SELRES to receive early retirement benefits due to force reduction.  See COMDTINST 
1001.37  and  ALDIST  345/93.    The  contents  of  ALDIST  345/93  were  subsequently 
incorporated into Chapter 8.E. of the RPM in effect in 1999.  Therein, the Coast Guard 

specifically  excluded  from  early  retirement  eligibility  “[the  member  who  was 
discharged  or  transferred]  because  [he  or  she]  did  not  meet  qualifications  for 
membership  in  the  SELRES  under  law  or  regulations,  to  include  medical  fitness 
standards ….”  See Article 8.E.2.(a).3. of the RPM.  Moreover, Commandant Instruction 
1001.37  provided  that “involuntary”  transfers  and  separations  from  the  SELRES  were 
“due to downsizing” and occurred “during the period of force drawdown.”  Given the 
foregoing  express  exclusion  in  the  RPM  and  the  use  of  such  language  as  “due  to 
downsizing,”  the  record  fails  to  demonstrate  that  the  protections  of  the  Reserve 
Transition  Benefits  (RTB)  Program  were  intended  to  cover  situations  in  which  a 
member of the SELRES could no longer drill because of a disability.  Consequently, the 
applicant has failed to prove by a preponderance of the evidence that he was eligible for 
early  retirement  under  10  U.S.C.  §  12731a  and  Coast  Guard  regulations  promulgated 
thereto. 

 

4. 

In the alternative, the applicant argued that because the medical evidence 
he submitted establishes that he was unfit for duty on or about June 1, 19xx, he should 
be entitled to early retirement under 10 U.S.C. § 12731b.  However, this provision did 
not become effective until October 1999, and therefore, is not the controlling authority 
in this case.  Prior to the effective date of 10 U.S.C. § 12731b, reservists who were found 
unfit  due  to  a  non-service  connected  disability  were  processed  for  separation  in 
accordance  with  Article  8.B.14.  of  the  RPM.    According  to  the  medical  evidence,  the 
applicant’s injuries were sustained while working as a firefighter.  The applicant has not 
proved that he would not have been processed for separation under Article 8.B.14. of 
the RPM had he been found unfit in June 1999.  Nor has the applicant proved that he 
was erroneously removed from the SELRES or erroneously precluded from reentering 
the SELRES.   
 

5. 

Accordingly, the applicant’s request should be denied.  

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The application of XXX Xxxxxx X. Xxxxx, xxx xx xxxx, USCGR, for correction of 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

his military record is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Patricia V. Kingcade 

 

 

 
 James G. Parks 

 

 

 
 Dorothy J. Ulmer