DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-053 
 
Xxxxxxxxxxxxxxx  
  xxxxxxxxxxxxxxx 

 

 
 

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 application was dock-
eted  on  January  5,  2004,  upon  receipt  of  the  applicant’s  completed  application  and 
military and medical records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  September  9,  2004,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant asked the Board to reinstate him on active duty in the Coast Guard 
as  of  the  date  of  his  release,  June  30,  2002,  so  that  he  could  be  evaluated  under  the 
Physical  Disability  Evaluation  System  (PDES).    He  further  asked  that  he  be  awarded 
back pay and allowances and receive credit for time in grade for pay, promotion, and 
retirement purposes. 
 

The applicant stated that on January 25, 2001, while serving on extended active 
duty,  he  had  a  motorcycle  accident.    However,  no  line  of  duty  investigation  was 
ordered by his command.  He alleged that he was seriously injured with three broken 
ribs, a fractured clavicle, and chronic paravertebral spasms.  He also developed ulnar 
neuropathy  in  his  elbow.    However,  instead  of  being  processed  under  the  PDES  and 
medically separated or retired, he was administratively separated (released from active 
duty into the Reserve) when his active duty contract expired.   

 

The  applicant  stated  that  after the  accident  and  at  the  time of  his  discharge  he 
was  taking  medication  for  back  spasms  (Flexeril  and  Skelaxin)  and  for  pain  (Vicodin 
and 800 milligrams of Motrin).  However, he was not given a physical examination at 
least 60 days prior to his separation, as required by Article 12.A.10.b. of the Personnel 
Manual.    The  applicant  alleged  that,  before  his  date  of  discharge,  the  Coast  Guard’s 
doctor,  Dr.  R,  recognized  his  condition  but  refused  to  process  him  under  the  PDES.  
Therefore, with the assistance of counsel, he submitted a letter requesting PDES proc-
essing.  However, his request was denied.  The applicant alleged that a doctor at Coast 
Guard  Headquarters,  Dr.  J,  “unilaterally  interfered  with  [his]  due  process  rights”  by 
telling  Dr. R  not  to  process  him  under  the  PDES  because  he  was  performing  his 
assigned  duties  and  was  therefore  “fit  for duty”  and  not  entitled  to  PDES  processing 
under Article 2.C.2.b. of the PDES Manual.  The applicant alleged that Dr. J’s action was 
erroneous because the proper method for determining whether a member with a medi-
cal condition is fit for duty is through evaluation by medical boards in accordance with 
the PDES, not through the unilateral actions of Dr. J, who never saw the applicant. 

 
The applicant alleged that on June 18, 2002, his command asked the Coast Guard 
Personnel Command (CGPC) to delay his separation date for medical reasons.  How-
ever,  the  request  was  improperly  denied  based  on  the  presumption  of  fitness.    The 
applicant alleged that on June 26, 2002, he formally requested a 90-day extension so that 
he could complete certain medical appointments, but CGPC replied that the minimum 
term of extension he would be allowed was one year.  He alleged that he did not extend 
his  contract  because  he  did  not  feel  physically  able  to  perform  his  duties  for  another 
year. 

 
The  applicant  alleged  that  on  June  28,  2002,  he  completed  a  Report  of  Medical 
History form “for what he thought was a medical board.”  However, Dr. R “treated the 
event as a [release from active duty] examination” and found him fit for duty and for 
separation.  Although he was released from active duty on June 30, 2002, the applicant 
submitted an Initial Medical Board (IMB) report dated July 1, 2002, with Dr. R’s find-
ings.  The applicant pointed out that on the IMB report, Dr. R found him fit for duty but 
noted that the “prognosis is unknown” and that he “advised the evaluee to avoid lad-
ders and strenuous activity pending further elucidation of the medical problem.”  The 
applicant  alleged  that Dr.  R’s  comments  were  inconsistent  with  his  finding  of  “fit  for 
duty.” 
 
The applicant alleged that he was not fit for duty on June 30, 2002, and that the 
presumption of fitness for duty “does not apply where as here the disabilities were long 
standing, were refractory to medication, were degenerative and finally interfered with 
[his]  ability  to  perform  his  duties,”  as  shown  by  the  limitations  Dr.  R  placed  on  his 
activity. 
 

SUMMARY OF THE RECORD 

 
 
From 1990 to 1999, the applicant completed almost ten years of active duty as an 
officer in the Coast Guard.  He resigned and was honorably separated on August 30, 
1999.    However,  he  joined  the  Reserve  and  on  May  1,  2000,  began  serving  on  an 
extended active duty contract with a term of two years and two months.   
 
 
On January 25, 2001, the applicant fell off his motorcycle when he hit a curb after 
he turned to say goodbye to someone as he was leaving a church group meeting.  The 
police report indicates that he was wearing a helmet and the motorcycle was not dam-
aged, but he complained of pain in his ribs and right arm.  Hospital xrays showed “a 
comminuted left mid clavicular fracture, as well as multiple fractures involving the 4th, 
5th,  and  6th  ribs,”  but  no  injuries  to  the  spine  or  brain.    An  xray  of  the  thoracic  spine 
revealed “some degenerative changes” but no fracture.  He was placed in a limited duty 
status. 
 

On  February  2,  2001,  the  applicant  sought  treatment  for  pain  in  the  upper 
thoracic area and his left elbow.  Xrays of the elbow were “negative.”  A CT scan of the 
thoracic spine on February 7, 2001, ruled out a fracture but noted “mild marginal osteo-
phyte formation anteriorly in the upper thoracic region.”   
 

On February 5, 2001, the applicant submitted a copy of the police report on his 
accident to his supervisor.  There is no documentation of a “line of duty” determination 
in the record. 
 
 
While still in a figure-eight sling in February 2001, the applicant began complain-
ing of pain in his upper and mid back.  The doctor noted that he was taking Motrin and 
Vicodin for pain and that the Flexeril he had been prescribed for the applicant’s back 
spasms did not seem to help.  The doctor prescribed Skelaxin for the back spasms and 
referred the applicant to a physical therapist.  On February 27, 2001, the applicant also 
complained of swelling in the ulnar aspect of his left wrist.  At a follow-up examination 
on March 23, 2001, the applicant was found to be doing well, as he had “essentially no 
pain over the left clavicle” and an xray showed “excellent callus formation.”  He was 
released from further care, but on April 20, 2001, he requested chiropractic treatment, 
which was authorized. 
 

Throughout 2001 and 2002, the applicant continued to seek chiropractic care and 
physical therapy.  He continued to work full time but used sick leave to attend medical 
appointments.  He reported continuing symptoms, including back spasms; pain in his 
upper back, neck, and left shoulder; and tingling in his left arm.  He reported that work 
aggravated his symptoms because he sat at a computer most of the time.  
 

Beginning in November 2001, the applicant complained of loss of feeling in his 
left arm and fingers and on the left side of his back.  He stated that he continued to have 
pain where his ribs had broken and muscle spasms near the scapula.   

 
On January 7, 2002, the applicant told a doctor that his arm symptoms had con-
tinued,  with  intermittent  numbness  in  two  left  fingers  and  sometimes  the  entire  arm.  
The  doctor  referred  him  to  an  orthopedist.    On  January  28,  2002,  the  orthopedist 
reported that the applicant had developed numbness in his left forearm and ring and 
little  fingers  and  complained  of  some  continuing  pain  and  occasional  tingling  “in  the 
left side of the thoracic cage.”  The orthopedist provisionally diagnosed the applicant 
with an “ulnar neuropathy at the elbow” and referred him to a neurologist for “consul-
tation and consideration of nerve conduction studies.” 

 
On March 13, 2002, the neurologist reported to the orthopedist that the applicant 
was still complaining of intermittent back and neck pain and numbness and tingling in 
his left arm and fingers.  The neurologist stated that he would conduct electrodiagnostic 
studies of the left arm.  On April 24, 2004, after the studies, the neurologist diagnosed 
the applicant as having a “left ulnar neuropathy at the elbow.” 

 
On May 6, 2002, xrays of the applicant’s shoulder and left wrist were “normal.”  
The applicant’s orthopedist recommended that he seek help at a pain clinic because, he 
stated, he did “not believe that there are any further orthopedic interventions to con-
sider.”    The  orthopedist  stated  that  the  applicant’s  primary  complaint  was  “pain  and 
paresthesia  [numbness]  radiating  around  his  left  lateral  chest  wall,”  which  likely 
resulted from his broken ribs. 

 
On May 8, 2002, Dr. R noted that the applicant consulted him about “his future 
in the USCG.”  The doctor noted that he had chronic pain but “is able to work daily and 
has no deployment limits.”  

 
On  May  13,  2002,  the  applicant  sought  help  for  thoracic  back  pain,  which  he 
stated  had  been  aggravated  by  a  massage  from  his  chiropractor  the  week  before.    A 
health services technician placed him on limited duty until his evaluation the next day.  
On May 14, 2002, the applicant told a doctor that he was frustrated by his continuing 
symptoms  and  felt  depressed.    He  reported  feeling  a  burning  sensation  in  his  left 
shoulder and discomfort in the left thoracic back, which he described as “hot, burning, 
and searing.”  He also reported muscle spasms in his left back and shoulder blade area.  
The  doctor  diagnosed  him  with  chronic  thoracic  pain,  secondary to  his  motor  vehicle 
accident, and depression. 

 
On June 12, 2002, the applicant requested an IMB.  Dr. R noted the applicant’s 
continuing physical complaints, referred him to a pain clinic, ordered another MRI, and 

recommended  regular  deep  water  therapy  and  pain  management  therapy,  but  also 
noted that he was “fit for discharge based upon [Article] 2.C.2.b. per [Dr. J].” 

 
On June 18, 2002, the applicant’s command  asked CGPC to extend his contract 
for three months for unstated medical reasons.  On June 19, 2002, CGPC responded by 
denying the request.  CGPC stated that the applicant was presumed fit absent “a serious 
injury,  illness,  or  disease  discovered  upon  separation  processing  or  which  has  been 
aggravated by active service and would otherwise lead to termination of service with 
physical  disability.”    CGPC  noted  that  it  had  offered  the  applicant  another  two-year 
contract. 

 
On June 20, 2002, the applicant was prescribed Celexa for his depression. 
 
On  June  26,  2002,  the  applicant  sent  a  letter  to  CGPC  requesting  a  ninety-day 
extension so that he could be processed under the PDES and complete medical appoint-
ments.    His  commanding  officer  strongly  supported  his  request.    On  June  28,  2002, 
CGPC denied the request, citing the message of June 19, 2002, and stating that a “fur-
ther discussion with the [Executive Officer of the applicant’s unit] on 27 Jun 2002 indi-
cates an IMB will not be submitted.”  CGPC stated that if the applicant wanted to con-
tinue in his position, the minimum term of extension allowed was twelve months.  The 
applicant  replied  by  fax  the  same  day.   He wrote that  he  was  “not  physically  able  to 
complete an active duty extension of 12 months” and that he “was told by [Dr. R that] 
both a separation physical and medical board would be initiated 28 Jun 02” and that, 
although CGPC had indicated that he was being denied a medical board, he was cur-
rently at the clinic for completion of the medical board.  A copy of a Report of Medical 
History  form  that  the  applicant  filled  out  on  June  28,  2002,  shows  that  he  checked 
“Medical Board” as the purpose of the examination. 

 
On  June  28,  2002,  Dr.  R  completed  the  applicant’s  physical  examination.  His 
“Report of Physical Examination” indicates that it was conducted because of the appli-
cant’s  upcoming  release  from  active  duty  (not  pursuant  to  a  medical  board).    Dr.  R 
noted that the applicant had a full range of motion in his left shoulder, elbow, and wrist 
but tender sites and paresthesia around the mid thoracic spine and left scapula, “hypo-
aesthesia  l.  ulnar  distribution,”  and  “chronic  pain  and  residual  neuropraxia.”    Dr.  R 
recommended that the applicant continue treatment at a pain clinic and seek physical 
therapy  and  deep  water  exercise.    However,  he  marked  the  form  to  indicate  that  the 
applicant was fit for duty or for release from active duty. 

 
At some point, Dr. R completed an undated IMB report in which he found that 
the  applicant’s  medical  conditions  included  “para-spinous  and  peri-scapular  pain 
coupled  with  ‘depression’  and  sleep  maintenance  disorder  [that]  are  suspicious  for  a 
Myofascial  Syndrome,”  and  left  cubital  tunnel  syndrome  (mild  and  related  to  the 
[motor  vehicle  accident]).”    Dr.  R  also  wrote  that  the  applicant’s  “prognosis  is 

unknown” but that he was fit for full duty and for release from active duty.  However, 
Dr.  R  noted  that  he  “advised  the  [applicant]  to  avoid  ladders  and  strenuous  activity 
pending  further  elucidation  of  the  medical  problem.”    In  addition,  Dr.  R  noted  that 
“recommended evaluations are in abeyance” because the applicant “elected to separate 
from the military.” 

 
On June 30, 2002, the applicant was honorably released from active duty into the 

Individual Ready Reserve (IRR). 
 
 
On July 2, 2002, after his release from active duty, the applicant was apparently 
shown  a  copy  of  Dr.  R’s  findings.    He  signed  a  statement  indicating  that  he  did  not 
agree with the findings.  He also wrote that he had never recovered from his accident 
and that he had been denied a medical board. 
 

VIEWS OF THE COAST GUARD 

 

On  February  6,  2003,  the  Judge  Advocate  General  (TJAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  in  which  he  recommended  that  the  Board  grant  the 
applicant alternative relief.   

 
TJAG  argued  that  the  applicant’s  evidence  was  “unpersuasive  in  light  of  the 
evidence  showing  the  Coast  Guard  followed  its  policy  of  not  evaluating  members 
already scheduled for separation in the [PDES].  The Coast Guard committed no error 
and  created  no  injustice  in  even-handedly  applying  its  policy  to  Applicant.”    TJAG 
stated, however, that despite the lack of error, “the Coast Guard is committed to taking 
care  of  its  people  and  ensuring  they  receive  any  benefits  to  which  they  are  entitled.”  
TJAG argued that conducting a proper IMB to discover the applicant’s current medical 
status  and  “using  the  results  of  that  IMB  to  determine  whether  additional  corrective 
action is justified is in both Applicant’s and the Coast Guard’s best interest. …  If Appli-
cant is currently not fit for full duty, then it is appropriate to evaluate him for separa-
tion and also to revisit his status at the time of his [release] from active duty.” 

 
TJAG  based  his  recommendation  on  a  memorandum  on  the  case  prepared  by 
CGPC.  CGPC stated that the applicant’s medical records show that after his motorcycle 
accident he “sought ongoing treatment for pain, numbness, spasms, and depression,” as 
well as “ulnar neuropraxia at the level of the elbow, pain in the left ribs and chest, and 
myofascial syndrome with tender sites,” and that he “was occasionally unable to work 
as  a  result  of  his  medical  condition.”    CGPC  alleged  that  although  the  applicant  was 
absent  from  work  for  periods  to  receive  physical  therapy,  there  “is  no  evidence  of 
extensive periods of absence from work to convalesce as a result of his medical condi-
tion.”  Moreover, CGPC noted that the applicant continued to perform active duty and 
did  not  request  an  IMB  until  approximately  seventeen  months  after  his  accident  and 
one month prior to his scheduled release from active duty.  Therefore, CGPC argued, 

“the provisions of Article 2.C.2.b. of the PDES Manual were appropriately applied to his 
circumstances.” 

 
CGPC alleged that Dr. J, the Senior Medical Advisor for CGPC, “took no unilat-
eral  action  in  this  case.    The  initial  decision  not  to  convene  an  IMB  was  made  by  the 
local medical authority, who in the process of reaching his decision may have sought 
advice from [Dr. J].  [Dr. J] is free to offer his advice and expertise in these and similar 
matters to local medical authorities—this is one of his routine duties.”   

 
CGPC  alleged  that  the  applicant’s  assertion  that  “a  presumption  of  fitness  for 
duty under Article 2.C.2.b. can only be made by a [medical board]” is erroneous.  CGPC 
alleged  that  “[d]epending  on  the  circumstances  of  the  case,  local  medical  authorities 
may appropriately make such determinations even before an IMB is convened.”  CGPC 
stated  that  if  a  member  objects  to  a  determination  by  the  local  medical  authority,  he 
may request review by a higher authority, as the applicant did.  CGPC alleged that his 
requests were twice reviewed “and given due consideration in accordance with current 
policies.” 

 
CGPC stated that the “record contains evidence that an IMB was initiated on the 
Applicant …, but was not completed.  The local medical authority may have been ini-
tially supportive of the Applicant’s position that an IMB was warranted.  However, this 
partially completed IMB supports evidence that the medical authority found the Appli-
cant fit for duty.” 

 
CGPC alleged that the applicant received a complete physical examination prior 
to his separation.  Although it was not conducted more than sixty days before his sepa-
ration, CGPC alleged that the sixty-day requirement under Article 12.A.10.b. of the Per-
sonnel Manual “is in place to help ensure any potentially disabling conditions are prop-
erly  evaluated  prior  to  separation.”    CGPC  alleged  that  it  is  the  responsibility  of  the 
separating officer to schedule such an examination in a timely manner, and the appli-
cant failed to do so. 

 
CGPC stated that although the Coast Guard “acted appropriately in separating 
the Applicant in a fit for duty status, I believe there is reasonable uncertainty that the 
Applicant remains in this status.  The record indicates that his condition may have been 
slowly  declining  at  the  time  he  left  active  duty  (though  not  to  the  point  that  his  per-
formance was affected).” 

 
CGPC  noted  that  although  no  “line  of  duty”  investigation  was  conducted,  the 
record indicates that his injuries occurred in the line of duty.  CGPC also noted that the 
applicant is currently a civilian employee of the Coast Guard and a member of the IRR. 

 

CGPC  concluded  by  recommending  that  the  Board  grant  alternative  relief  by 
ordering the Coast Guard to conduct a physical examination of the applicant.  CGPC 
stated that, if the examination revealed no currently disabling conditions, no corrections 
to his record would be made.  CGPC stated that if the applicant was found to have a 
disabling  condition,  the  Coast  Guard  would  convene  an  IMB  and,  if  the  IMB  deter-
mined that the applicant was not fit for duty on June 30, 2002, the Coast Guard would 
process  the  applicant  in  accordance  with  the  PDES  “for  possible  separation  or  retire-
ment due to physical disability.”  CGPC noted that if the IMB found that the applicant 
was fit for duty on June 30, 2002, but is no longer fit for duty, he would be processed for 
discharge from the Reserve. 

 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On  April  23,  2004,  the  BCMR  sent  the  applicant  a  copy  of  the  Chief  Counsel’s 
advisory  opinion  and  invited  him  to  respond  within  30  days.    No  response  was 
received.  On August 20, 2004, in response to an inquiry by the BCMR staff, the appli-
cant’s  attorney  called  the  BCMR  offices  and  stated  that  the  applicant  had  in  fact 
submitted  a  written  response  agreeing  with  the  Coast  Guard’s  recommendation  for 
relief. 
 

SUMMARY OF APPLICABLE LAW 

 
Disability Statutes 
 
 
Title 10 U.S.C. § 1201 provides that a member who is found to be “unfit to per-
form the duties of the member’s office, grade, rank, or rating because of physical dis-
ability incurred while entitled to basic pay” may be retired if the disability is (1) perma-
nent 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 determination.”  Title 10 
U.S.C.  § 1203  provides  that  such  a  member  whose  disability  is  rated  at  only  10  or  20 
percent under the schedule shall be discharged with severance pay.   
 
Provisions of the Personnel Manual  
 
 
Article 12.A.10.a. of the Personnel Manual states that, as used in that Article, the 
phrase “not fit for duty” is “a local medical term meaning the member is unable to per-
form the immediate duties to which assigned for a short period of time.  A finding of 
‘not fit for duty’ does not qualify the member for processing in the [PDES], and does not 
mean the member is not qualified for separation. … ‘Unfit for continued service’ means 
a physical disability exists which renders the member unfit to perform the duties of his 
or her office, grade, rank, or rating.  This determination can only be made through the 
PDES … .” 

 
 
Article 12.A.10.b. states that “[a]n officer being separated shall schedule any nec-
essary physical examination so it is completed at least 60 days before the effective date 
of separation or release, although Commander (CGPC-opm) will not delay a separation 
or release date solely because the officer failed to complete a scheduled physical exami-
nation.  A scheduled separation or release date may be delayed only if a question exists 
about a member’s unfitness for continued service so as to require convening a medical 
board under the [PDES] … .” 
 
 
Article 12.A.10.f. provides that if an officer’s physician finds that he is qualified 
for separation or release, and the officer objects, the medical record and any statement 
submitted by the officer are forwarded to CGPC.  
 
Provisions of the Medical Manual (COMDTINST M6000.1B) 

 
Article  3.B.5.  of  the  Medical  Manual  provides  that  when  an  officer  objects  to  a 
finding of qualified  for separation or release, CGPC will review the record to make a 
final determination as to whether the officer will be separated or processed under the 
PDES. 
 
Article 3.B.6. provides that “[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 member is suitable for separation.” 

 
Article 3.F. of the Medical Manual provides that members  with  medical  condi-
tions that “are normally disqualifying” for retention in the Service shall be referred to 
an IMB by their commands.  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  performance  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.  Members considered temporar-
ily or permanently unfit for duty shall be referred to an Initial Medical Board for appro-
priate disposition. 

 
Provisions of the PDES Manual (COMDTINST M1850.2C)  
 
 
Chapter 2.A.15. of the PDES Manual defines “fit for duty” as “[t]he status of a 
member who is physically and mentally able to perform the duties of office, grade, rank 
or rating.  This includes specialized duty such as duty involving flying or diving only if 
the performance of the specialized duty is a requirement of the member’s enlisted rat-
ing.” 
 

Chapter 2.A.38. defines “physical disability” as “[a]ny manifest or latent physical 
impairment  or  impairments  due  to  disease,  injury,  or  aggravation  by  service  of  an 
existing  condition,  regardless  of  the  degree,  that  separately  makes  or  in  combination 
make a member unfit for continued duty.”   
 

Chapter 2.C.2. states the following: 
 
b. 
The law that provides for disability retirement or separation (10 U.S.C., chapter 
61)  is  designed  to  compensate  members  whose  military  service  is  terminated  due  to  a 
physical disability that has rendered him or her 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 mandatorily retiring or separating and have theretofore 
drawn  pay  and  allowances,  received  promotions,  and  continued  on  unlimited  active 
duty status while tolerating physical impairments that have not actually precluded Coast 
Guard service.  The following policies apply. 
 
   (1) 
Continued performance of duty until a service member is scheduled for separa-
tion or retirement for reasons other than physical disability creates a presumption of fit-
ness for duty.  This presumption may be overcome if it is established by a preponderance 
of the evidence that: 
 
 
adequately in his or her assigned duties; or 
 
 
acute,  grave  illness  or  injury,  or  other  deterioration  of  the  member’s 
physical condition occurred immediately prior to or coincident with processing for sepa-
ration or retirement for reasons other than physical disability which rendered the service 
member unfit for further duty. 
 
    (2)  A  member  being  processed  for  separation  or  retirement  for  reasons  other  than 
physical disability shall not be referred for disability evaluation unless the conditions in 
paragraphs 2.C.2.b.(1)(a) or (b) are met. 
 
c. 
If a member being processed for separation or retirement for reasons other than 
physical  disability  adequately  performed  the  duties  of  his  or  her  office,  grade,  rank  or 
rating, the member is presumed fit for duty even though medical evidence indicates he 
or she has impairments. 

the  member,  because  of  disability,  was  physically  unable  to  perform 

(a) 

(b) 

•  •  • 

e. 
An  evaluee  whose  manifest  or  latent  impairment  may  be  expected  to  interfere 
with the performance of duty in the near future may be found “unfit for continued duty” 
even  though  the  member  is  currently  physically  capable  of  performing  all  assigned 
duties.  Conversely, an evaluee convalescing from a disease or injury which reasonably 
may be expected to improve so that he or she will be able to perform the duties of his or 
her office, grade, rank, or rating in the near future may be found “Fit for Duty.” 
 
f. 
The following standards and criteria will not be used as the sole basis for making 
determinations that an evaluee is unfit for continued military service by reason of physi-
cal disability. 
 

Inability to perform all duties of his or her office, grade, rank or rating in every 

   (1) 
geographic location and under every conceivable circumstance. … 
 
   (2) 

Inability to satisfy the standards for initial entry into military service … . 

 

•  •  • 

Inability to qualify for specialized duties requiring a high degree of physical fit-

Pending  voluntary  or  involuntary  separation,  retirement,  or  release  to  inactive 

   (4) 
ness, such as flying … . 
 
The presence of one or more physical defects that are sufficient to require referral 
   (5) 
for evaluation or that may be unfitting for a member in a different office, grade, rank or 
rating. 
 
   (6) 
status. 
 
Chapter  3.D.7.  states  that  a  “member  who  is  being  processed  for  separation … 
shall not normally be referred for physical disability evaluation. … [A]bsence of a sig-
nificant  decrease  in  the  level  of  a  member’s  continued  performance  up  to  the time  of 
separation or retirement satisfies the presumption that the member is fit to perform the 
duties of his or her office, grade, rank or rating (see paragraph 2.C.2.).” 
 

Chapter 3 provides that if a member’s fitness for continued duty is in question, 
an IMB of two medical officers shall conduct a thorough medical examination, review 
all  available  records,  and  issue  a  report  with  a  narrative  description  of  the  member’s 
impairments, an opinion as to the member’s fitness for duty and potential for further 
military service, and if the member is found unfit, a referral to a CPEB.  The member is 
advised about the PDES and permitted to submit a response to the IMB report.   
 
 
Chapter 4 provides that a CPEB shall review the IMB report, the CO’s endorse-
ment, and the member’s medical records.  Chapter 2.C.2.a. provides that the “sole stan-
dard” that a CPEB (or FPEB) may use in “making determinations of physical disability 
as a basis for retirement or separation shall be unfitness to perform the duties of office, 
grade, rank or rating because of disease or injury incurred or aggravated through mili-
tary service.”  Chapter 2.C.3.a.(3)(a) provides that, if a CPEB (or subsequently an FPEB) 
finds that the member is unfit for duty because of a permanent disability, it will propose 
a physical disability rating.  Chapter 4.A.14.c. provides that if the member objects to a 
CPEB finding, he may demand a formal hearing by the FPEB.    Chapter 5.C.11.a. pro-
vides that the FPEB shall issue findings and a recommended disposition of each case in 
accordance  with  the  provisions  of  Chapter  2.C.3.a.  (see  above).    The  applicant  may 
submit a rebuttal within 15 working days, and the FPEB must respond and, if indicated, 
prepare a new report.  The FPEB’s final report is reviewed for sufficiency by an officer 
at  CGPC  and  by  the  Judge  Advocate  General,  and  forwarded  to  the  Chief  of  the 
Administrative Division of CGPC for final action.   
 
DoD Instruction 1332.39 

 
 
Paragraph E2.A1.1.20.2. of Enclosure 2 of this instruction, which the Coast Guard 
uses as non-binding guidance, states that “[d]emonstrable pain on spinal motion associ-
ated with positive radiographic findings shall warrant a 10 percent rating.  If paraverte-
bral  muscle  spasms  are  also  present,  a  20  percent  rating  may  be  awarded.    Such 
paravertebral  muscle  spasms,  however,  must  be  chronic  and  evident  on  repeated 
examinations.” 
 

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.  The application was timely. 

 
2. 

The  Board  begins  each  case  presuming  that  the  applicant’s  records  are 
correct and that Coast Guard officials, including his doctors, have acted correctly and in 
good faith.1  The applicant’s Coast Guard doctor, Dr. R, found that he was fit for duty 
and for separation in June 2002 and that he was not entitled to evaluation by an IMB.  
The applicant’s medical record also indicates, however, that at the time of his release, 
Dr. R advised him to “avoid ladders and strenuous activity pending further elucidation 
of the medical problem.”  Dr. R’s advice indicates that, although the applicant was ade-
quately  performing  his  assigned  duties  (primarily  desk  work)  prior  to  his  release,  he 
may not have been fit for any more physically demanding assignment.  Chapter 2.A.15. 
defines  fitness  for  duty  as  the  physical  and  mental  ability  “to  perform  the  duties  of 
office,  grade,  rank  or  rating.”    As  the  duties  of  a  Coast  Guard  officer  are  frequently 
more  physically  demanding  than  desk  work,  the  Board  finds  that  the  applicant  has 
overcome the presumption of regularity accorded Dr. R’s finding of fitness for duty, but 
he must still prove by a preponderance of the evidence that Dr. R and the Coast Guard 
erred in releasing him without PDES processing. 2 

 
3. 

The applicant’s medical records indicate that, during his last 17 months of 
active duty, he suffered symptoms including back pain and numbness in his left arm 
and  fingers  as  a  result  of  his  motorcycle  accident.    The  Board  agrees  with  the  Coast 

                                                 
1  33  C.F.R.  § 52.24(b).    See  Arens  v.  United  States,  969  F.2d  1034,  1037  (Fed.  Cir.  1992);  Sanders  v.  United 
States, 594 F.2d 804, 813 (Ct. Cl. 1979) (holding that “absent strong evidence to the contrary,” government 
officials are presumed to have acted “lawfully, correctly, and in good faith”). 
2 See BCMR Dkt. No. 2000-194 (holding that once the applicant has rebutted the presumption of regularity 
by  presenting  at  least  some  “clear,  cogent,  and  convincing”  evidence  that  specifically  contradicts  the 
disputed record, the Board weighs the evidence in the record and determines whether the applicant has 
met his burden of proof, which is the preponderance of the evidence). 

Guard that, although no line of duty investigation was conducted, the preponderance of 
the evidence in the record indicates that the accident occurred while the applicant was 
serving on active duty and that it was not a result of his own misconduct.   

 
4. 

The  record  further  indicates  that,  despite  these  symptoms,  the  applicant 
continued  to  work  regularly  and  took  sick  leave  to  attend  his  medical  appointments.  
The applicant has not alleged or proved that his symptoms caused him to miss many 
days at work or that they significantly interfered with his performance of his assigned 
duties.  Chapter 2.C.2.b. of the PDES Manual provides that the Coast Guard’s own “dis-
ability  evaluation  system  [is]  not  to  be  misused  to  bestow  compensation  benefits  on 
those  who  are  voluntarily  or  mandatorily  retiring  or  separating  and  have  theretofore 
drawn  pay  and  allowances,  received  promotion,  and  continued  on  unlimited  active 
duty  status  while  tolerating  physical  impairments  that  have  not  actually  precluded 
Coast  Guard  service.”    Service-related  medical  conditions  that  become  disabling  after 
separation or retirement are properly handled by the disability evaluation system of the 
Department of Veterans’ Affairs. 

 
5. 

Chapter 2.C.2.b.(1) provides that “[c]ontinued performance of duty until a 
service member is scheduled for separation or retirement for reasons other than physi-
cal disability creates a presumption of fitness for duty.”  The applicant argued that the 
presumption  should  not  have  been  applied  to  him  because  his  symptoms  were  long-
standing.  The Board disagrees.  The applicant’s case clearly fell within the parameters 
of  Chapter  2.C.2.b.  because  he  continued  to  perform  his  assigned  duties  adequately 
while tolerating his physical impairments, and there is no evidence of “acute, grave ill-
ness or injury, or other deterioration of [his] condition … immediately prior to or coin-
cident with processing for separation.”  PDES Manual, Chap. 2.C.2.b.(1)(a) and (b). 

 
6. 

The  applicant  alleged  that  Dr.  J  “unilaterally  interfered  with  [his]  due 
process  rights”  by  telling  Dr.  R  not  to  process  him  under  the  PDES.    The  applicant’s 
medical record does indicate that Dr. R consulted Dr. J while considering the applicant’s 
request to be evaluated by an IMB.  However, the applicant has not proved that Dr. J 
improperly influenced Dr. R’s decision, or that Dr. R did not properly exercise his own 
professional judgment in finding the applicant fit for release in June 2002.   

 
7. 

The  applicant  alleged  that  Dr.  R’s  advice  in  June  2002  that  he  should 
“avoid ladders and strenuous activity pending further elucidation of the medical prob-
lem”  proves  that  he  was  not  fit  for  duty  and  should  have  been  processed  under  the 
PDES.  In May 2002, the doctor wrote that although the applicant had chronic pain, he 
“is  able  to  work  daily  and  has  no  deployment  limits,”  which  supports  the  doctor’s 
determination that he was fit for duty, as defined in Chapter 2.A.15. of the PDES Man-
ual.  However, the record also shows that in June 2002, Dr. R at least began preparing 
an  IMB  report  for  the  applicant,  indicating  that  at  one  point  Dr.  R  had  substantial 
doubts about the applicant’s fitness for duty. 

 
8. 

The applicant has not proved by a preponderance of the evidence that Dr. 
R erred in finding him fit for duty and release or that CGPC erred in failing to extend 
his  contract  for  ninety  days  and  in  not  processing  him  under  the  PDES.    He  has  not 
proved that he is entitled to the relief he originally requested, which was reinstatement 
on active duty as of July 1, 2002.  However, the applicant has proved that his primary 
doctor had substantial doubts about his fitness for duty prior to his release and that he 
was  suffering  from  significant  impairments  that  might  have  interfered  with  his  per-
formance of duty in a more physically demanding assignment.  The Coast Guard has 
recommended that the Board order the Coast Guard to conduct a physical examination 
of the applicant and, if indicated, to process him under the PDES, and the Board finds 
that it would be in the interest of justice to order this relief. 

 
9. 

Accordingly, partial relief should be granted by ordering the Coast Guard 
to conduct a physical examination of the applicant.  If he is found to be currently unfit 
for duty due to a physical disability that was incurred while he was serving on active 
duty,  the  Coast  Guard  should  convene  an  IMB  in  accordance  with  COMDTINST 
M1850.2C.  If the applicant is evaluated by an IMB, and the IMB determines that he was 
unfit for duty on June 30, 2002, the Coast Guard should further process him under the 
PDES,  and  his  DD  form  214  and  other  records  as  necessary  should  be  corrected  to 
reflect the results of that processing. 

 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

ORDER 

 

The application of xxxxxxxxxxxxxxxxxxx, USCGR, for correction of his military 

record is granted in part as follows: 
 

The Coast Guard shall pay the applicant any amount he may be due as a result of 

The  Coast  Guard  shall  expeditiously  conduct  a  physical  examination  of  the 
applicant.  If he is found to be currently unfit for duty due to a physical disability that 
was incurred while he was serving on active duty, the Coast Guard shall convene an 
IMB  in  accordance  with  COMDTINST  M1850.2C.    If  the  applicant  is  evaluated  by  an 
IMB,  and  the  IMB  determines  that  he  was  unfit  for  duty  on  June  30,  2002,  the  Coast 
Guard  shall  further  process  him  under  the  PDES,  and  his  DD  form  214  and  other 
records as necessary shall be corrected to reflect the results of that processing. 
 
 
any correction made to his record in accordance with this order. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 Marc J. Weinberger  

        

 
 Julia Andrews  

 
 

 

 
 James E. McLeod