DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-085 
 
Xxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxx 

 

 
 

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.  It was docketed on May 20, 
2003, upon the BCMR’s receipt of the application and military and medical records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated January 22, 2004, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
The applicant asked the Board to correct his May 1, 199x, regular retirement to a 
 
physical disability retirement.  He stated that no disabilities were discovered during his 
physical  examination  prior  to  retirement  in  November  199x.1    However,  on  May  23, 
199x, about three weeks after his retirement, he got a nose bleed and, later on, a sore 
throat.  A doctor discovered a bleeding tumor on the base of his tongue.  One month 
later,  he  had  a  biopsy  that  revealed  stage  IV  squamous  cell  cancer,  which  required 
radiation and chemotherapy.  A tube was installed to enable him to breathe despite the 
swelling in his throat. 
 

The applicant alleged that stage IV cancer (the “highest” stage) takes months to 
develop and was probably present during his physical examination for retirement.  He 
stated that, since the operation to remove the tumor, he has lost his voice and uses tubes 
to breath, eat, and drain fluids.  He stated that he is unemployable and that the Depart-
ment of Veterans Affairs (DVA) has assigned him a 100% disability rating.  Regarding 
                                                 
1 No copy of the report of this examination could be located by the Coast Guard or the DVA. 
 

the untimeliness of his application, he stated that “with the concurrent pay bill pending 
in Congress, I feel I should be granted this opportunity to be reviewed.”2 

                                                 
2 When the applicant filed his application in September 2002, the law required a veteran’s retirement pay 
to  be  offset  by  any  amount  paid  to  the  veteran  by  the  DVA  because  of  a  service-connected  physical 
disability, unless the disability was incurred in combat.  Under the National Defense Authorization Act 
for fiscal year 2003, Congress enacted a gradual elimination of this offset for veterans whose disabilities 
are rated at least 50% disabling by the DVA. 
 

SUMMARY OF THE RECORD 

 
 
On August 21, 19xx, the applicant enlisted in the Coast Guard.  He served con-
tinuously  on  active  duty  thereafter  until  his  retirement  upon  completion  of  sufficient 
service on May 1, 199x.   
 
 
DVA  records  indicate  that  on  May  23,  199x,  the  applicant  went  to  a  hospital 
seeking  treatment  for  a  nose  bleed.3    His  nostrils  were  “packed”  and  the  bleeding 
abated. 
 
 
On June 20, 199x, the applicant went to the hospital complaining of having blood 
and a bad taste in his mouth, difficulty swallowing, and a sore throat for three days.  He 
was  diagnosed  with  atypical  strep  throat  and  treated  with  antibiotics.    However,  his 
symptoms continued.   
 

On June 27, 199x, he  was examined  by an  ear, nose, and throat specialist, who 
used  a  flexible  nasolaryngoscope  and  found  a  laryngeal  tumor  near  the  base  of  his 
tongue.  On July 9, 199x, a biopsy revealed that the tumor was a poorly differentiated 
squamous  cell  carcinoma.    It  was  staged  as  T4-N2-M0.4    On  July  15,  199x,  an  MRI 
revealed that the tumor was approximately 2.7 by 3.0 centimeters in size.  One doctor 
recommended that he undergo a glossectomy and laryngectomy (removal of the tongue 
and larynx), but the applicant chose radiation treatment and chemotherapy.  Because of 
tissue swelling, a tracheotomy tube was inserted to enable him to breathe. 

 
In  September  199x,  the  applicant  was  evaluated  by  doctors  for  the  DVA.    The 
DVA  found  his  cancer  to  be  service-connected  and  rated  him  as  100%  disabled.    On 
September 9, 199x, he was provided a speaking valve to facilitate his speech. 

 
In  199x,  the  cancer  recurred  and  the  applicant  underwent  a  laryngectomy  and 
more radiation.  Because of  his difficulty with swallowing, the applicant’s  weight fell 
from 180 pounds to “the low 80s,” and a feeding tube was inserted to help his nutrition, 
in addition to the tracheotomy tube, which he continued to need.  It was noted that he 
could only whisper.  Since that time the applicant has been hospitalized on numerous 
occasions because of various complications in his condition.  In May 199x, the applicant 
began using a voice synthesizer to speak. 
                                                 
3  Nose bleed, or epistaxis, is a possible symptom of laryngeal cancer.  See Braunwald, E., et al., eds., HAR-
RISON’S PRINCIPLES OF INTERNAL MEDICINE, 15th ed. (McGraw-Hill, 2001), p. 560. 
 
4  Cancer and other illnesses are staged on a scale from 0 to 4, with 0 being undetectable and 4 being most 
advanced.  The notation T4-N2-M0 denotes a tumor at stage 4 (T4), with some presence in regional nodes 
(N2), and no other known metastases (M0).  DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 29th ed. (W.B. 
Saunders  Co.,  2000),  p.  1690.    Cancer  is  normally  present  in  a  person  at  least  50  days  prior  to  being 
clinically detectable.  See Braunwald, E., et al., eds., HARRISON’S PRINCIPLES  OF INTERNAL MEDICINE, 15th 
ed. (McGraw-Hill, 2001), p. 530 (fig. 84-1). 

 

VIEWS OF THE COAST GUARD 

 
 
On October 2, 2003, the Chief Counsel of the Coast Guard recommended that the 
Board  deny  the  applicant  the  requested  relief  because  of  its  untimeliness  and,  if  not, 
because of its lack of merit.   
 
 
Regarding  the  application’s  untimeliness,  the  Chief  Counsel  argued  that  under 
10  U.S.C.  § 1552(b),  the  application  should  have  been  filed  within  three  years  of  the 
applicant’s  discovery  of  his  illness  and  that  the  applicant  has  failed  to  show  why  it 
would be in the interest of justice to excuse his delay.  The Chief Counsel pointed out 
that the applicant “admits to receiving a discharge physical and that he did not com-
plain of any problems with his tongue or throat while he was serving on active duty.  
The Physical Disability Evaluation System [PDES] is designed to evaluate and compen-
sate, when appropriate, those members who are no longer able to serve in the military 
due to physical disability.  At the time Applicant was discharged, he was suffering from 
no physical disability that interfered with his ability to perform his Coast Guard duties.  
Speculation about whether the disease he currently has was asymptomatically present 
at the time of his retirement is unlikely to prevail on the merits.” 
 

The  Chief  Counsel  stated  the  legislation  to  which  the  applicant  referred  in  his 
application would allow veterans to receive retired pay and medical disability pay con-
currently.  However, he argued, even if the applicant were correct in suggesting that he 
might fail to qualify for concurrent payments under the new legislation, it would not 
constitute “treatment by military authorities that shocks the sense of justice.”  Reale v. 
United States, 208 Ct. Cl. 1010, 1011, cert. denied, 249 U.S. 854 (1976); BCMR No. 239-89 
(Decision of the Deputy General Counsel).  Therefore, he argued, the Board should not 
waive the statute of limitations in this case. 

 
Regarding  the  merits  of  the  case,  the  Chief  Counsel  stated  that  although  the 
report of the applicant’s physical examination for retirement is missing, there is no rea-
son to believe that it was inadequate.  He pointed out that the applicant made no such 
allegations.  He also pointed out that the applicant has not alleged that he felt or report-
ed  any  symptoms  of  his  cancer  prior  to  his  retirement.    He  stated  that  it  cannot  be 
proven  that  the  cancer  existed  when  the  physical  examination  was  made  or,  if  it  did, 
that it should have been found at that time.  He argued that while “it may be likely that 
the inception of the Applicant’s cancer occurred prior to his retirement, it had not yet 
progressed to a point where it made him unfit for continued service or a regular retire-
ment.  There are no provisions under law or regulation to allow members to obtain a 
disability  retirement  retroactively  when  a  condition  manifests  itself  after  retirement 
unless there is evidence the condition was known to exist while on active duty and was 
not properly evaluated through the [PDES].” 

 

The Chief Counsel noted that the record indicates that even when the applicant 
began experiencing symptoms after his retirement, his doctors had considerable diffi-
culty in finding the cause and diagnosing his condition.  He stated that the applicant 
has a “substantial burden of proving that his disabilities at the time of his retirement 
were  clearly  sufficient  to  have  rendered  him  unfit  for  full  military  duty.”    Callan  v. 
United States, 196 Ct. Cl. 392, 401, 02 (1971). BCMR No. 239-89 (Decision of the Deputy 
General  Counsel).    “The  DVA’s  finding  that  the  Applicant  was  100%  disabled  subse-
quent to his retirement from the Coast Guard is not relevant to the Coast Guard’s find-
ing that he was fit to perform his military duties at the time of his retirement.  The sole 
standard for a physical disability determination in the Coast Guard is unfitness to per-
form duty.” 

 
The Chief Counsel argued that the DVA’s findings “have no bearing on the Coast 
Guard’s decision to retire Applicant upon his request and before any disability mani-
fested itself. … The DVA rating awarded to Applicant is not determinative of the same 
issues  involved  in  military  disability  cases.”    Lord  v.  United  States,  2  Cl.  Ct.  749,  754 
(1983).    “The  DVA  determines  to  what  extent  a  veteran’s  earning  capacity  has  been 
reduced as a result of [his service-connected disability].  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.    Any  long-term 
diminution in his earning capacity attributable to military service is properly a matter 
for determination by the [DVA], not the Coast Guard or the BCMR.” 

 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On October 14, 2003, the Chair sent a copy of the Chief Counsel’s advisory opin-
ion  to  the  applicant  and  invited  him  to  respond  within  30  days.    No  response  was 
received.  
 

APPLICABLE REGULATIONS 

 
Disability Compensation Statutes 

 
Title 10 U.S.C. § 1201 provides that a member of the armed forces who is found 
to be “unfit to perform the duties of the member’s office, grade, rank, or rating because 
of physical disability incurred while entitled to basic pay” may be retired if the disabil-
ity is (1) permanent and stable, (2) not a result of misconduct, and (3) for members with 
less than 20 years of service, “at least 30 percent under the standard schedule of rating 
disabilities in use by the Department of Veterans Affairs at the time of the determina-
tion.” 

 
Title  38  U.S.C.  § 1155  provides  that  “[t]he  Secretary  [of  DVA]  shall  adopt  and 
apply  a  schedule  of  ratings  of reductions  in  earning  capacity  from  specific  injuries  or 

combination of injuries. The ratings shall be based, as far as practicable, upon the aver-
age impairments of earning capacity resulting from such injuries in civil occupations.” 
 
Provisions of the Personnel Manual (COMDTINST M1000.6A) 
 

Article 12.B.6. requires members to undergo a physical examination within one 
year of and at least six months prior to retirement to allow sufficient time for complete 
processing.    If  the  member  is  found  unfit  to  perform  his  duties,  he  is  processed  in 
accordance with the PDES Manual.   
 

Provisions of the Medical Manual (COMDTINST M6000.1B) 

 
The  Medical  Manual  provides  the  rules  regarding  physical  examinations. 
According to Article 3.B.3.a., during the medical examination a member must undergo 
prior to separation, “the examiner shall consult the appropriate standards of this chap-
ter  to  determine  if  any  of  the  defects  noted  are  disqualifying  for  the  purpose  of  the 
physical examination.”  Article 3.F. lists medical conditions that “are normally disquali-
fying” for administrative discharge in the Service.  Persons with such disqualifying con-
ditions  “shall  be  referred  to  an  Initial  Medical  Board.”    The  list  includes,  at  Article 
3.F.20.,  malignant  tumors  that  “are  unresponsive  to  therapy  or  when  the  residuals  of 
treatment are in themselves disqualifying under other provisions of this section.” 

 
According  to  Article  3.B.6.,  which  is  entitled  “Separation  Not  Appropriate  by 

Reason of Physical Disability,” 
 

[w]hen  a  member  has  an  impairment  (in  accordance  with  section  3-F  of  this 
manual) an Initial Medical Board shall be convened only if the conditions listed 
in paragraph 2-C-2.(b) [of the PDES Manual] are also met.  Otherwise the mem-
ber is suitable for separation. 
 
Article 3.F.1.c. of the Medical Manual states the following: 
 
Fitness  for  Duty.    Members  are  ordinarily  considered  fit  for  duty  unless  they 
have a physical impairment (or impairments) which interferes with the perform-
ance of the duties of their grade or rating.  A determination of fitness or unfitness 
depends upon the individual’s ability to reasonably perform those duties.  Mem-
bers considered temporarily or permanently unfit for duty shall be referred to an 
Initial Medical Board for appropriate disposition. 
 

Provisions of the PDES Manual (COMDTINST M1850.2B)  
 
 
Article 2-C-2 of the PDES Manual states the following: 

The PDES Manual governs the disposition of members with physical disabilities.   

 
The law that provides for disability retirement or separation (Chapter 61, 
b. 
Title 10, U.S. Code) is designed to compensate members whose military service is 
terminated due to a physical disability that has rendered the member unfit for 
continued  duty.    That  law  and  this  disability  evaluation  system  are  not  to  be 
misused to bestow compensation benefits on those who are voluntarily or man-
datorily retiring or separating and have theretofore drawn pay and allowances, 
received promotions, and continued on unlimited active duty status while toler-
ating physical impairments that have not actually precluded Coast Guard serv-
ice.  The following policies apply. 
 

(a) 

(b) 

the  service  member, because  of  disability,  was  physically  unable 

   (1)  Continued performance of duty until a service member is scheduled for 
separation or retirement for reasons other than physical disability creates a pre-
sumption of fitness for duty.  This presumption may be overcome if it is estab-
lished by a preponderance of the evidence that: 
 
 
to perform adequately the duties of office, grade, rank or rating; or 
 
 
acute,  grave  illness  or  injury,  or  other  deterioration  of  the  mem-
ber’s physical condition occurred immediately prior to or coincident with proc-
essing  for  separation  or  retirement  for  reasons  other  than  physical  disability 
which rendered the service member unfit for further duty. 
 
    (2)  Service  members  who  are  being  processed  for  separation  or  retirement 
for  reasons  other  than  physical  disability  shall  not  be  referred  for  disability 
evaluation  unless  their  physical  condition  reasonably  prompts  doubt  that  they 
are fit to continue to perform the duties of their office, grade, rank or rating. 
 

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  10 U.S.C. 

1. 
§ 1552.   
 

2. 

An  application  to  the  Board  must  be  filed  within  three  years  after  the 
applicant discovers the alleged error in his record.5 The applicant was retired and dis-
covered his illness in 199x.  Therefore, his application was untimely. 

 
3. 

 
Pursuant to 10 U.S.C. § 1552(b), the Board may waive the three-year stat-
ute of limitations if it is in the interest of justice to do so.  To determine whether it is in 
the interest of justice to waive the statute of limitations, the Board should conduct a cur-
sory review of the merits of the case and consider the reasons for the delay.6  The appli-
cant did not explain why he delayed applying to the Board.  He only explained what 
finally motivated him to apply.  However, a cursory review of the merits of this case 
indicates that the applicant had undiagnosed laryngeal cancer at the time of his retire-
ment.  Therefore, the Board finds that it is in the interest of justice to waive the statute of 
limitations in this case. 

 

                                                 
5 10 U.S.C. § 1552(b). 
 
6 Dickson v. Sec’y of Defense, 68 F.3d 1396 (D.D.C. 1995); Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992). 

4. 

The  applicant  began  suffering  symptoms  of  his  cancer  just  a  few  weeks 
after his retirement on May 1, 199x, and his tumor, when biopsied ten weeks after his 
retirement in July 199x, was already sizable and in stage IV.  Therefore, the Board finds 
that the preponderance of the evidence in the record proves that the applicant incurred 
laryngeal cancer while serving on active duty in the Coast Guard.   

 
5. 

There  is  no  evidence  in  the  record  that  the  Coast  Guard  committed  any 
error in administratively retiring the applicant upon his request.  There is no evidence 
that  he  complained  of  any  symptoms  of  his  cancer  prior  to  his  retirement  or  that the 
doctor who conducted his physical examination approximately six months prior to his 
retirement  in  accordance  with  Article  12.B.6.  of  the  Personnel  Manual  could  have  or 
should have detected the cancer in the applicant’s larynx.  The record indicates that the 
tumor was found only upon investigation by a specialist  with a  flexible nasolaryngo-
scope when the applicant’s symptoms did not abate.  Therefore, the applicant has not 
proved  that the  Coast  Guard  committed  any  error  in  failing  to  diagnose  his  incipient 
cancer and in failing to retire him by reason of physical disability. 

 
6. 

In  addition  to  correcting  errors  in  a  veteran’s  record,  the  Board  is  also 
authorized  to  correct  injustices  in  the  record.7    Contrary  to  the  Chief  Counsel’s  view, 
such injustices do not necessarily have to reflect “treatment by military authorities that 
shocks the sense of justice” to merit correction by the Board.  The Board sometimes cor-
rects records that are found to be unjust only with the benefit of hindsight.8  

 
7. 

The  applicant  alleged  that  his  record  is  unjust  because  his  cancer  must 
have existed prior to his retirement and he is now 100% disabled.  As the Chief Counsel 
stated,  however,  the  disability  benefit  systems  administered  by  the  DVA  and  by  the 
Coast Guard and other armed forces serve different purposes.  The DVA system com-
pensates veterans to the extent that their civilian employment after separation is dimin-
ished by a service-connected disability, whereas the armed forces compensate members 
to the extent that they become unfit for duty prior to separation because of a disability 
incurred during their service.9  Congress created these two systems to address veterans’ 
medical problems under the two different circumstances.  In this case, the Board finds 
that the applicant was clearly able to perform his duties prior to his retirement, but his 
service-connected  condition  made  him  unemployable  after  his  retirement.    Therefore, 
the applicant’s compensation clearly falls properly within the aegis of the DVA under 

                                                 
7 10 U.S.C. § 1552(a). 
 
8 See, e.g., BCMR Dkt. Nos. 2003-015, 2002-110. 
 
9 Lord v. United States, 2 Cl. Ct. 749, 754 (1983) (citing 38 U.S.C. § 355 (now 38 U.S.C. § 1155) for the pur-
pose of the DVA’s system and 10 U.S.C. § 1201 for the purpose of the armed forces’ system).  PDES Man-
ual, Article. 2-C-2.(b); Medical Manual, Article 3.F.1.c.  
 

38 U.S.C. § 1155, rather than under 10 U.S.C. § 1201.10  He has not proved that his failure 
to receive disability retirement benefits from the Coast Guard instead of the DVA con-
stitutes an injustice in his record. 

 
8. 

The two compensation schemes provided for by Congress under the DVA 
and the armed forces are not identical.  (For example, compensation from the DVA is 
tax exempt.)  For various reasons, some veterans prefer to receive compensation from 
one source over the other.  Although the applicant has not contested the source of his 
compensation since 199x, he apparently now believes that he would benefit from new 
legislation  if  he  received  his  disability  compensation  from  the  Coast  Guard  under 
10 U.S.C. § 1201, instead of from the DVA.  Congress recently enacted Public Law 108-
136,  revising  10 U.S.C.  § 1414  to  allow  disabled  retired  veterans  to  receive  concurrent 
retirement pay and disability benefits from the DVA without any offset.11  However, the 
                                                 
10  See  Parthemore  v.  United  States,  1  Cl.  Ct. 199,  202  (1982) (holding  that  the  Army  BCMR  did  not  err  in 
denying the plaintiff’s request for a disability retirement since his metastatic melanoma had been treated 
and had not recurred prior to his discharge); Callan v. United States, 196 Ct. Cl. 392, 399 (1971) (holding 
that the plaintiff’s regular retirement was proper because, although he had pre-cancerous lesions on his 
hands  prior  to  his  retirement  “[t]he  uncontested  fact  is  that  at  the  time  of  plaintiff’s  retirement  he  was 
performing all duties assigned to him in a manner satisfactory to his superiors”); and San Millan v. United 
States, 139 Ct. Cl. 485, 496 (1957) (holding that the plaintiff was not entitled to a disability retirement from 
the Army because, although he had complained to his friends of abdominal pain many times prior to his 
discharge and probably had incipient intestinal cancer during his service, he had continued to perform 
his duties and never reported or sought treatment for the pain until after his discharge (at which point the 
tumor was discovered)). 
11 10 U.S.C. § 1414 now reads as follows in pertinent part:   
 
§ 1414.  Members eligible for retired pay who are also eligible for veterans' disability compensation for 
disabilities  rated  50  percent  or  higher:  concurrent  payment  of  retired  pay  and  veterans'  disability 
compensation 
(a) Payment of both retired pay and compensation. 
   (1) In general. Subject to subsection (b), a member or former member of the uniformed services who is 
entitled  for  any  month  to  retired  pay  and  who  is  also  entitled  for  that  month  to  veterans'  disability 
compensation  for  a  qualifying  service-connected  disability  (hereinafter  in  this  section  referred  to  as  a 
"qualified retiree") is entitled to be paid both for that month without regard to sections 5304 and 5305 of 
title 38 [which prohibit concurrent pay]. During the period beginning on January 1, 2004, and ending on 
December 31, 2013, payment of retired pay to such a qualified retiree is subject to subsection (c). 
   (2)  Qualifying  service-connected  disability.  In  this  section,  the  term  "qualifying  service-connected 
disability"  means  a  service-connected  disability  or  combination  of  service-connected  disabilities  that  is 
rated as not less than 50 percent disabling by the Secretary of Veterans Affairs. 
  
(b) Special rules for chapter 61 disability retirees. 
   (1) Career retirees. The retired pay of a member retired under chapter 61 of this title [10 USCS §§ 1201 et 
seq.] with 20 years or more of service … is subject to reduction under sections 5304 and 5305 of title 38, 
but  only  to  the  extent  that  the  amount  of  the  member's  retired  pay  under  chapter  61  …  exceeds  the 
amount of retired pay to which the member would have been entitled under any other provision of law 
based  upon  the  member's  service  in  the  uniformed  services  if  the  member  had  not  been  retired  under 
chapter 61 of this title. 
 

Board fails to see how the applicant would benefit by the sought-after correction under 
the  new  law.    Under  subsection  (b)  of  10  U.S.C.  § 1414,  the  retired  pay  of  a  veteran 
retired under 10 U.S.C. § 1201 is subject to reduction to the level of retired pay received 
for a regular retirement.  Moreover, even if the new law would benefit the applicant in 
some way if he had been retired under 10 U.S.C. § 1201, a legislative change in the bene-
fits Congress grants veterans under 10 U.S.C. § 1201 or 38 U.S.C. § 1155 does not war-
rant  a  finding  by  this  Board  that  an  applicant’s  receipt  of  disability  benefits  from  the 
DVA rather than the Coast Guard constitutes a significant injustice in his record, par-
ticularly  when  the  veteran  has  accepted  compensation  from  the  DVA  without  com-
plaint for xx years. 
 
 
 
 
 
 
 
 

Accordingly, the applicant’s request for correction should be denied. 

9. 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

 

 

ORDER 

 

The  application  of  retired  xxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Stephen H. Barber 

 

 

 

 
Harold C. Davis, M.D. 

 

 

 

 
Dorothy J. Ulmer