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
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