DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-128 
 
Xxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR: Andrews, J. 
 
 
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 May 26, 2004, upon receipt of the applicant’s military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated March 17, 2005, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
The applicant, a Reservist who injured his wrist while plowing snow on base on 
 
November 19, 2000, argued that, following his injury, his command should have placed 
him on active duty so that he could be processed under the Coast Guard’s Physical Dis-
ability  Evaluation  System  (PDES)  for  a  disability  retirement.    Instead,  the  applicant 
stated,  his  command  erroneously  left  him  on  inactive  duty  and  did  not  allow  him  to 
drill  because  he  was  not  fit  for  duty.    Therefore,  he  alleged,  he  lost  retirement  points 
and pay.  He asked the Board to award him retirement points, lost pay, and a disability 
retirement.  He alleged that as a result of his injury he has “lost 50% usage of [his] left 
wrist, which has affected [his] civilian occupation, including the loss of one job.” 
 
The  applicant  alleged  that  after  his  snow  plow  hit  a  raised  manhole  cover  on 
 
November 19, 2000, a health services technician at his Group’s medical clinic directed 
him to seek treatment at a hospital run by the Department of Veterans’ Affairs (DVA).  
On November 25, 2000, x-rays were taken at the hospital, and he was advised that his 
wrist was just bruised and told to take aspirin.  However, his wrist continued to hurt.   
 

On  July  12,  2001,  after  he  complained  about  his  wrist  at  the  Group  clinic,  he 
received orders to return to the DVA hospital, where more x-rays were taken and he 
was advised to make a follow-up appointment with a doctor to review the report.  On 
July 24, 2001, Dr. N told him that the new x-rays “showed a separation of the bones,” 
which should have been discovered when the first set of x-rays was taken.  Dr. N pre-
scribed a wrist splint and ordered an MRI of the wrist.  His command issued orders for 
the MRI, but in August and early September 2001, he was told that the hospital’s MRI 
equipment was inoperative.  The MRI was finally done on September 17, 2001, and he 
was advised to contact the orthopedic clinic in two or three weeks to learn the results.  
The applicant alleged that when he called the clinic on October 3, 2001, he was told that 
his case “was in a consult status” but that an answer should be forthcoming within a 
month. 
 
On October 12, 2001, the applicant stated, he obtained orders from his command 
to attend an appointment at the orthopedic clinic on October 23,  2001.  There he  was 
told  that  the  damage  to  his  wrist—the  cartilage  was  separated  from  the  bone—could 
not be repaired at the DVA hospital.  He was therefore referred to a special hand clinic 
and received orders from his command to attend an appointment there on December 
17, 2001.  Dr. B at the hand clinic took more x-rays and advised him to return on Janu-
ary 18, 2002.  On January 18, 2002, Dr. B advised him that the wrist required surgery.  
After authorization was received from the DVA hospital and orders were received from 
the applicant’s command, the surgery was performed on April 15, 2002.  Thereafter, the 
applicant received physical therapy for his wrist. 

 
The applicant alleged that his last follow-up visit with Dr. B on October 8, 2002, 
he  was  told  that  he  “would  never  be  able  to  do  the  job  [he]  was  doing  for  the  Coast 
Guard because of the limited motion [he] had in the left wrist.”  Not until January 16, 
2003,  however,  did  the  Coast  Guard  begin  PDES  processing  by  sending  him  to  the 
Bethesda  Naval  Hospital  for  further  tests  and  an  Initial  Medical  Board  (IMB).    Those 
doctors issued an IMB report stating that he was not fit for duty.  On May 22, 2003, the 
applicant alleged, a health services technician at his unit informed him that the report 
had  been  forwarded  to  the  Coast  Guard’s  Central  Physical  Evaluation  Board  (CPEB).  
On July 15, 2003, he received the CPEB’s report, which stated that he was fit for duty.  
The applicant stated that, on August 10, 2003, with the assistance of his assigned coun-
sel, LT G, he submitted a rebuttal to the CPEB report and requested a hearing before the 
Formal Physical Evaluation Board (FPEB). 
 
 
On  October  26,  2003,  the  applicant  alleged,  his  counsel  informed  him  that  he 
should return to drilling because the CPEB had found him fit for duty.  On October 29, 
2003, the applicant alleged, his counsel advised him to accept the CPEB’s findings and 
report back for duty.  The applicant alleged that he asked his counsel about his entitle-
ment to back pay and retirement points.  His counsel told him that he did not know, but 
would find out and let the applicant know. 

 
 
On November 14, 2003, the applicant stated, he was told that he “was not enti-
tled to back pay or points due to the fact that there had never been an NOE1 and the fact 
that  [he]  did  not  drill.”    In  addition,  he  was  told  that  he  erred  “by  going outside  the 
system for medical treatment” even though he had only done what he was told to do. 
 
 
On  November  21,  2003,  the  applicant  alleged,  his  counsel  called  him  and  told 
him that “the Captain of the Board was attempting to reverse the decision.  He stated a 
new board was to convene with all new members.”  A copy of the decision was faxed to 
a yeoman at his unit, who told him that he could not drill because he “was still listed as 
NFFD [not fit for duty].” 
 
 
The applicant alleged that on May 1, 2004, he received papers showing that he 
had been discharged from the Reserve, even though his then current enlistment contract 
ran through January 13, 2007. 
 
 
In  support  of  his  allegations,  the  applicant  submitted  a  Coast  Guard  mishap 
report,  which  shows  that  he  injured  his  left  wrist  on  November  19,  2000,  when  the 
bucket of his snow plow hit a raised manhole cover and the resulting jerk on the steer-
ing wheel “snapped” his left wrist. 
 
 
The  applicant  also  submitted  copies  of  email  messages.    One,  dated  April  18, 
2002, is from a chief health services technician at the Maintenance and Logistics Com-
mand.  It states that the command could not issue an NOE after the applicant’s surgery 
“because the NOE would have to be in effect from the time of the original injury and he 
would have to be NFFD from that time.  Apparently he was FFD and went back to his 
civilian job and once he does that it negates any fault/claim on the Coast Guard.  Also 

                                                 
1 According to Article 7.E.9. of the Reserve Policy Manual (RPM) in effect when the applicant was injured, 
an  “NOE”  is  a  letter  constituting  “Disability  Orders  and  Notice  of  Eligibility  for  Disability  Benefits.” 
According  to  RPM  Article  7.E.4.  and  ALDIST  242/99,  when  a  reservist  was  injured  while  serving  on 
inactive  duty  or  active  duty  for  a  period  of  30  days  or  less,  the  command  must  “[n]otify  the  servicing 
[Integrated  Support  Command]  immediately.    If  the  member  will  be  FFD  before  the  end  of  the  duty 
period, a NOE will not be issued.  If the member will not be FFD by the end of the duty period, a NOE 
will  be  issued  to  cover  additional  time  following  the  original  duty  period.    Members  are  authorized 
treatment and medication for only the condition covered by the NOE.  After the NOE is issued, members 
shall not perform IDT or active duty until declared FFD.” 
 
According to RPM Article 7.E.5., only the commanding officer of the ISC could issue an NOE.  If 
 
the member is not declared FFD within ten weeks, an Initial Medical Board would be convened, and the 
NOE  was  only  extended  if  the  IMB  determines  that  the  injury  would  improve.    According  to  Article 
7.E.6.,  “members  on  an  NOE  may  be  eligible  for  military  pay  and  allowances,”  in  accordance  with  37 
U.S.C.  § 204(g) and  (h).  …  Pay  and  allowances  are  not  authorized  to  extend  beyond  a  6  month  period 
unless  determined  by  COMDT  (G-WTR)  to  be  in  the  interest  of  fairness  and  equity  to  the  member.”  
Under Article 7.E.7., the medical bills of a reservist with an NOE were “paid in the same manner as for 
[active duty personnel].” 

the member has approximately seven days after coming off his [drill] time to come back 
to the Coast Guard and let them know he is not healed and request further evaluation.  
Theoretically speaking, once he left the Coast Guard FFD and went back to his civilian 
job we do not know if he re-injured it on his civilian job. …  In any event we still need to 
gather all pertinent paper work and arrange for a Coast Guard medical appointment for 
FFD/med board determination.” 
 

Another email message, dated April 23, 2002, is from a lieutenant commander, 
LCDR P, who stated that the applicant was “[n]ot eligible for orders to cover his surgery 
time and convalescent period.  Since no NOE was done originally.  And since he has 
been  drilling  and  going  to  his  civilian  job,  how  can  we/he  guarantee  that  it  was  not 
reinjured  somewhere  else.    His  medical  bills  are  being  covered  by  the  VA.    They  are 
treating him as a vet.”  LCDR P further stated that the applicant could not drill until he 
was  fit  for  duty  and  that  there  would  be  “[n]o  medical  board  because  this  happened 
during a drill, not while on extended active duty.”  LCDR P noted that the applicant 
was not happy with these decisions and as he had done what he was told to do and that 
“[w]e’ll have to remember that when a reservist gets injured and may be long term we 
must do an NOE.  This retains them on active [duty] until they are [fit for duty].” 

 
A third email message, dated May 1, 2002, is from a lieutenant commander at the 
Integrated Support Command (ISC), who stated the following with respect to the appli-
cant’s case: 

 

1.  A  NOE  should  have  been  requested  immediately  following  the  accident.    This  is 

always one of the items we include in the annual [yeoman] conference … 

3. 

2.  A NOE which could have included pay & allowances was not requested.  … Several 
e-mails  beginning  with  that  of  8/10/01  from  [HS1  C]  did  however  ensure,  under 
ALCOAST 093/00, that [the applicant’s] medical costs would have been paid by [the 
Coast Guard].  In those e-mails he was listed as FFFD.  Given he was FFFD, a NOE 
for pay & allowances would not have been issued anyway. 
[The  applicant’s]  needs  were  being  taken  care  of  by  the  service  until  he  made  the 
choice to go out of the system & use, for a second time, the VA system.  Based on that 
decision,  the  service  will  not  be  paying  for  any  additional  medical  care  associated 
with  that  particular  injury.    Moreover  he  also,  with  that  decision,  placed  himself 
beyond getting pay & allowance for time lost due to that injury.  Having said that, 
however,  both  [the  Maintenance  and  Logistics  Command  and  Headquarters]  are 
agreed that a NOE this long after the fact would not have been issued. 

 
Group Xxxxx did well last August [2001] to get [the applicant] back in the system & have 
his medical costs covered by the service.  With his recent decision to go back to the VA & 
have  them  cover  the  costs  he  placed  himself  outside  of  our  system  which  includes  the 
service paying for his medical costs—and pay & allowance is beyond the question.  He is, 
by his own decision, on his own w/ regard to this injury. …  

 
 
In another email, dated June 29, 2003, the Senior Reserve Officer at Group Xxxxx 
inquired  about  the  status  of  the  applicant’s  PDES  processing.    He  stated  that  the 
applicant’s medical bills from the hand clinic and a private hospital had not been paid 

and that the applicant was receiving delinquency notices.  He also stated that the appli-
cant was frustrated and was “strongly considering going outside the Coast Guard for 
assistance.”   

 

 

SUMMARY OF THE RECORD 

On July 25, 1966, the applicant enlisted in the Coast Guard and performed four 
years of active duty followed by two years in the Reserve, during which he did not drill.  
The  applicant  reenlisted  in  the  Reserve,  however,  on  May  19,  1976,  and  thereafter 
drilled regularly and advanced to the rate of machinery technician first class. 

 
On November 19, 2000, while operating a plow to clear snow from a base park-
ing lot, the applicant injured his left wrist when the bucket hit a raised manhole cover.  
He reported his wrist pain to the Group clinic the next day, and had the wrist x-rayed a 
few  days  later.    Apparently,  no  serious  injury  was  discovered  at  the  time.    His  com-
mand  did  not  issue  an  NOE  or  notify  the ISC.    Moreover,  the  applicant  continued  to 
drill  regularly  for  the  next  17  months,  and  he  completed  satisfactory  years  of  service 
toward retirement on May 18, 2001, and May 18, 2002. 

 
In July 2001, the applicant complained about continuing problems with his wrist.  
An MRI revealed “scapholunate widening and scaphoid subluxation.”  He was referred 
to a hand specialist.  On April 15, 2002, the applicant underwent surgery on the wrist, 
which included a “scaphoid excision and four corner fusion using right iliac crest bone 
graft.”  While convalescing, the applicant was determined to be not fit for duty (NFFD).  
He underwent physical therapy, but at his final follow-up appointment on October 8, 
2002,  he  was  advised  that  the  condition  of his  wrist  left  him  permanently  NFFD  as  a 
mechanic.  The surgeon noted that the applicant’s neurovascular exam was normal but 
that he still had “tightness in his left wrist with prolonged use or prolonged therapeutic 
exercises, but no real pain in his left wrist now, as it did preoperatively.”  The doctor 
had  tested  the  applicant’s  right  and  left  wrists  and  hands  and  noted  the  following 
differences: 

 

Test 
Dorsiflexion of wrist 
Palmar flexion of wrist 
Pronation 
Supination 
Ulnar deviation 
Radial deviation 
Grip strength 
Grip strength, key pinch 
Flexion lag of index finger 
Flexion lag of other fingers 

Right Wrist & Hand 

Left Wrist & Hand 

64° 
62° 
68° 
77° 
34° 
26° 
50 kg 
10 kg 
0 cm 
0 cm 

44° 
14° 
73° 
45° 
25° 
0° 

16 kg 
10.5 kg 
0.3 cm 
0 cm 

 
On January 22, 2003, the applicant was evaluated by an IMB at Bethesda Naval 
Hospital.  The IMB noted that the applicant’s diagnosis was “left wrist scaphoid exci-
sion  for  corner  fusion  for  chronic  scapholunate  ligament  rupture.”    The  IMB  report 
stated  that  the  applicant  had  been  NFFD  since  the  surgery  and  that  the  applicant 
“report[ed] left wrist pain associated with any strenuous activity, especially with wrist 
flexion.”    The  IMB  found  that  the  wrist  had  “decreased  strength  and  markedly 
decreased flexibility … [which] makes it difficult for him to perform his military duties 
as  a  diesel  mechanic.”    The  IMB  compared  the  applicant’s  left  wrist  and  hand  to  his 
dominant right wrist and hand and noted the following differences: 

 

Right Wrist & Hand 

Left Wrist & Hand 

Test 
Range of motion in wrist 
Flexion of wrist 
Ulnar deviation 
Radial deviation 
Grip strength, position 1 
Grip strength, position 3 
Grip strength, position 5 
Flexion lag of index finger 
Flexion lag of middle finger 

45° 
65° 
10° 
15° 
22 kg 
45 kg 
40 kg 
0 cm 
0 cm 

25° 
15° 
5° 
10° 
12 kg 
20 kg 
18 kg 
1 cm 
0.5 cm 

 
The  IMB  report  stated  that  x-rays  showed  that  the  surgery  had  resulted  in  a 
“well  consolidated,  four  corner  fusion”  and  that  tests  showed  “pain  only  associated 
with heavy activity, but markedly limited motion and strength.”  It also stated that “[i]t 
is the opinion of the Board that the subject will not be fit for full duty.  Because he may 
have a permanent partial disability, it is recommended that this case be referred to the 
Physical Evaluation Board for adjudication.”  The IMB report also states that the appli-
cant had been informed of the findings and “does not desire to submit a statement in 
rebuttal.”   

 
On March 4, 2003, the applicant did submit a statement in which he wrote that he 
agreed with the IMB report but wanted to note that he had been injured while drilling 
and that “[d]ue to nature and extent of injuries, [he was] not given current duty status, 
not issued NOE.” 

 
On March 5, 2003, the applicant’s commanding officer forwarded the IMB report 
to the Central Physical Evaluation Board (CPEB).  He concurred with the IMB’s finding 
that the applicant was not fit for duty.  He stated that the applicant normally worked on 
“small engine repair” in the engineering department but “has been unable to drill for 
the past six months due to the nature of his injuries and his inability to perform at his 
normal duties associated with his rank and rating.” 

 

On July 15, 2003, the CPEB found that the applicant was fit for duty.2  On August 
10, 2003, the applicant asked the CPEB to reconsider its decision.  He stated that he did 
not understand how he could be found FFD in light of his  doctors’ reports, copies of 
which he submitted.  He stated that he had “only about a 40% use of [his] left hand and 
wrist”  and  argued  that  the  safety  of  his  shipmates  might  be  compromised  if  he  were 
ever mobilized in an emergency.  He noted that he had served during the Vietnam War 
and  served  in  Saudi  Arabia  during  Desert  Storm  and  that  he  did  not  believe  he  was 
being  treated  fairly  since  he  was  permanently  disabled  from  an  injury  incurred  on 
active duty.  He alleged that if his command had completed the proper paperwork, he 
“would not have been put through all the aggravation and tension [he had] incurred.”  
He alleged that the stress had affected his  civilian job “through lost time and wages” 
and that the restricted motion and strength of his left wrist and hand affected his use of 
the computer and his ability to pick up and carry things. 

 
On  December  11,  2003,  the  CPEB  reconsidered  the  applicant’s  case3  and  found 
that the applicant was not fit for duty and recommended that he be separated with a 
disability rating of zero percent and severance pay.  The applicant was assigned counsel 
to advise him about his right to object to the CPEB and demand a hearing before the 
Formal Physical Evaluation Board (FPEB).  After consulting with counsel, the applicant 
accepted  the  findings  of  the  CPEB  but  asked  that  he  be  transferred  to  the  Standby 
Reserve (Inactive Status) instead of being separated, even though he would waive his 
right to severance pay.  On May 1, 2004, he was transferred to the Standby Reserve. 
 

                                                 
2  A copy of the CPEB report is not in the record, but the applicant and the Coast Guard state this. 
3  A copy of the CPEB report is not in the record, but the applicant and the Coast Guard state this. 

 

VIEWS OF THE COAST GUARD 

On  November  5,  2004,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  in  which  he  recommended  that  the  Board  deny  the 
applicant’s request but grant alternate relief.  The JAG based his recommendation on a 
memorandum on the case prepared by the Coast Guard Personnel Command (CGPC). 

 
Regarding  the  applicant’s  request  for  a  disability  retirement,  CGPC  stated  that 
because the applicant  agreed with the zero percent disability rating recommended by 
the CPEB prior to his transfer to inactive status, the Board should not grant his request 
for a disability retirement.  CGPC argued that the applicant has failed to overcome the 
presumption that the CPEB acted correctly in awarding him the zero percent disability 
rating. 
 
Regarding  the  applicant’s  request  for  retirement  points,  CGPC  stated  that 
reservists  who  are  NFFD  may  not  drill,  and  they  receive  retirement  points  only  for 
membership  (15  points  annually)  and  for  completing  authorized  correspondence 
courses.  CGPC stated that after the applicant became NFFD following his surgery, he 
completed no correspondence courses and so received only membership points.  CGPC 
stated  that  under  10  U.S.C.  § 12732,  aside  from  membership  points,  retirement  points 
may  only  be  awarded  for  duty  performed,  and  the  applicant  failed  to  complete  any 
authorized correspondence courses while he was NFFD.  Therefore, CGPC argued, the 
Board should not award the applicant any retirement points for the period following his 
surgery. 

 
CGPC stated that the Reserve Incapacitation System is intended to permit treat-
ment of injuries incurred in the line of duty until the reservist becomes fit for duty or is 
processed  through  the  PDES  and  separated,  pursuant  to  10  U.S.C.  § 1074a.    CGPC 
stated that an NOE is used “to document entitlement to health care and to establish a 
member’s  entitlement to  incapacitation  pay”  under  this  system.    CGPC  admitted  that 
the Coast Guard erred in not preparing an NOE “once the injury … was found to be 
more  serious  than  the  original  diagnosis.”    However,  CGPC  noted,  even  though  an 
NOE  was  not  issued,  the  applicant  received  medical  treatment  when  he  requested  it.  
CGPC stated that the DVA “serves as the primary care manager for Coast Guard per-
sonnel in the Xxxxx area.”  

 
CGPC  stated  that  in  addition  to  issuing  an  NOE,  the  applicant’s  command 
should have initiated an IMB ten weeks after the condition of the applicant’s wrist was 
discovered.  Because the command failed to do these things timely, the applicant’s IMB 
and  PDES  processing  were  delayed  by  more  than  a  year.    Moreover,  CGPC  stated, 
proper management by the command and the ISC “would also have resulted in coun-
seling  to  Applicant  on  his  prospective  entitlement  to  Reserve  Incapacitation  Pay,  and 
the procedures by which he would document lost civilian income.”  

 
CGPC stated that the Reserve Incapacitation System entitles reservists injured in 
the line of duty to receive incapacitation pay, pursuant to 37 U.S.C. § 204(g), (h), and (i).  
However, Congress limited incapacitation pay to six months and required that it be off-
set by civilian income and not exceed the amount the reservist would have earned if he 
had served on active duty for that period.  Therefore, CGPC stated, a reservist “who can 
demonstrate a loss of civilian income as a result of an injury incurred in the line of duty 
can submit a claim to the Coast Guard for incapacitation pay.”   

 
CGPC stated that although in a letter dated April 9, 2004, the applicant alleged 
that he had missed six weeks of work from his civilian job following his surgery, he has 
not provided any documentation of “a loss of nonmilitary or self-employment income” 
between  the  date  of  his  injury  and  his  transfer  to  inactive  status.    Moreover,  CGPC 
argued, because the applicant was regularly drilling until his surgery in April 2002, he 
would  not  have  been  entitled  to  incapacitation  pay  prior  to  April  2002  unless  he 
incurred a loss of civilian income.  After the applicant was found to be NFFD on May 9, 
2002, he “was entitled to the equivalent of active duty pay and allowances for a regular 
Coast Guard member (pay grade E-6, over 26 years of service) for up to six months fol-
lowing the determination.” 

 
CGPC  stated  that  the  applicant’s  request  for  active  duty  back  pay,  retirement 
points,  and  a  disability  retirement  “are  not appropriate  forms  of  relief  given  law  and 
policy in effect since the time of [his] injury.”  Instead, CGPC stated, the applicant may 
be entitled to incapacitation pay if he in fact lost civilian income following his injury.  
CGPC  recommended  that  the  applicant’s  record  be  corrected  by  the  issuance  of  an 
“NOE for the period 9 May 2002 (date he was found not fit for duty by his command) to 
1 May 2004 (the date on which he was removed from active status in the Coast Guard 
Reserve).”  Upon issuance of the NOE, CGPC stated, the applicant “would be entitled to 
Reserve Incapacitation Pay for the first six months in which he was not fit for duty, in 
accordance  with  37  U.S.C.  § 204(g).    The  amount  paid  would  be  reduced  by  civilian 
income earned during the period.” 

 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On November 8, 2004, the BCMR sent the applicant a copy of the Chief Counsel’s 
advisory opinion and invited him to respond within 30 days.  The applicant responded 
on December 7, 2004.   

 
The applicant stated that he did not challenge the recommendation of the CPEB 
because his Coast Guard counsel advised him that accepting the recommendation “was 
the best way to handle this situation.”  The applicant argued that the zero percent rating 
is  completely  inconsistent  with  his  doctors’  findings  that  his  wrist  is  totally  disabled.  

He noted that the members of the CPEB only reviewed his records and did not actually 
examine his wrist as his doctors did. 

 
Furthermore,  the  applicant  argued  that  the  Coast  Guard  failed  to  counsel  him 
and “did not give [him] the information [he] needed to acquire the proper information 
so that [he] could follow up with all the documentation required to establish [his] enti-
tlement to incapacitation pay.”  He stated that he would have kept documentation of 
his loss of civilian income had he been timely informed that it was needed. 

 
Regarding his request for retirement points, the applicant argued that his request 
is not “out of line” because but for his injury, he would still be drilling since his enlist-
ment was not due to end for several years.  He argued that he “should not be punished” 
for getting injured in the line of duty. 
 

SUMMARY OF APPLICABLE LAW 

 
Disability Statutes 
 
 
periods of 30 days or less or on inactive duty training: 
 

Title  10  U.S.C.  §  1204  provides  the  following  for  members  on  active  duty  for 

Upon a determination by the Secretary concerned that a member of the armed forces not 
covered  by  section  1201,  1202,  or  1203  of  this  title  is  unfit  to  perform  the  duties  of  his 
office, grade, rank, or rating because of physical disability, the Secretary may retire the 
member with retired pay computed under section 1401 of this title, if the Secretary also 
determines that-- 
 
nature and stable; 
 

(1)  based  upon  accepted  medical  principles,  the  disability  is  of  a  permanent 

(2) the disability-- 

(B) is a result of an injury, illness,  or disease incurred or aggravated in 

•  •  • 

line of duty after September 23, 1996-- 

(i) while performing active duty or inactive-duty training; 

(3) the disability is not the result of the member's intentional misconduct or will-

 
ful neglect, and was not incurred during a period of unauthorized absence; and 
 

•  •  • 

(4) either-- 

(A) the member has at least 20 years of service computed under section 

1208 of this title; or 

(B)  the  disability  is  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 37 U.S.C. § 204 provides the following: 

(g)(1) A member of a reserve component of a uniformed service is entitled to the pay and 
allowances provided by law or regulation for a member of a regular component of a uni-

formed service of corresponding grade and length of service whenever such member is 
physically disabled as the result of an injury, illness, or disease incurred or aggravated - 
        (A) in line of duty while performing active duty; 
        (B) in line of duty while performing inactive-duty training (other than work or study 
in connection with a correspondence course of an armed force or attendance in an inac-
tive status at an educational institution under the sponsorship of an armed force or the 
Public Health Service); 

•  •  • 

    (2) In the case of a member who receives earned income from nonmilitary employment 
or self-employment performed in any month in which the member is otherwise entitled 
to  pay  and  allowances  under  paragraph  (1),  the  total  pay  and  allowances  shall  be 
reduced by the amount of such income.  In calculating earned income for the  purpose of 
the  preceding  sentence,  income  from  an  income  protection  plan,  vacation  pay,  or  sick 
leave which the member elects to receive shall be considered. 
       
(h)(1) A member of a reserve component of a uniformed service who is physically able to 
perform his military duties, is entitled, upon request, to a portion of the monthly pay and 
allowances provided by law or regulation for a member of a regular component of a uni-
formed service of corresponding grade and  length  of service for each  month for which 
the member demonstrates a loss of earned income from nonmilitary employment or self-
employment as a result of an injury, illness, or disease incurred or aggravated - 
        (A) in line of duty while performing active duty; 
        (B) in line of duty while performing inactive-duty training (other than work or study 
in connection with a correspondence course of an armed force or attendance in an inac-
tive status at an educational institution under the sponsorship of an armed force or the 
Public Health Service); 

•  •  • 

    (2) The monthly entitlement may not exceed the member's demonstrated loss of earned 
income from nonmilitary or self-employment.  In calculating such loss of income, income 
from an income protection plan, vacation pay, or sick leave which the member elects to 
receive shall be considered. 
 
(i)(1)  The  total  amount  of  pay  and  allowances  paid  under  subsections  (g)  and  (h)  and 
compensation  paid  under  section  206(a)  of  this  title  for  any  period  may  not  exceed  the 
amount of pay and allowances provided by law or regulation for a member of a regular 
component of a uniformed service of corresponding grade and length of service for that 
period. 
    (2)  Pay  and  allowances  may  not  be  paid  under  subsection  (g)  or  (h)  for  a  period  of 
more than six months.  The Secretary concerned may extend such period in any case if 
the Secretary determines that it is in the interests of fairness and equity to do so. 

 
Provisions of the Reserve Policy Manual 
 
In May 2003, after the applicant’s injury and IMB but before the first CPEB, the 
 
Reserve Policy Manual (RPM) was amended.  The regulations for the Reserve Incapaci-
tation System now appear in Article 6 of the RPM.  Article 6.A.1. provides that  

 
[m]edical and dental care shall be provided for reservists incurring or aggravating an in-
jury, illness, or disease in the line of duty, and physical examinations shall be authorized 
to determine fitness for duty or disability processing. Pay and allowances shall be author-

ized, to the extent permitted by law, for reservists who are not medically qualified to per-
form  military  duties,  because  of  an  injury,  illness,  or  disease  incurred  or  aggravated  in 
the line of duty. Pay and allowances shall also be authorized, to the extent permitted by 
law, for reservists who are fit to perform military duties but experience a loss of earned 
income because of an injury, illness, or disease incurred or aggravated in the line of duty. 

 

Under Article 6.A.2, “earned income” is defined as “[i]ncome from nonmilitary 
employment, including self-employment. This includes normal wages, salaries, profes-
sional fees, tips, or other compensation for personal services actually rendered, as well 
as income from taxable unemployment benefits, income protection plans, vacation pay, 
and sick leave that the member elects to receive.” 
 

Under Article 6.A.3.a., a “reservist who incurs or aggravates an injury, illness, or 
disease in the line of duty is entitled to medical and/or dental treatment as authorized 
by  10  U.S.C.  1074  or  1074a  in  an  approved  medical  treatment  facility  or  authorized 
civilian healthcare provider.”  Article 6.A.3.b. provides the following: 

 

 
Medical and dental care shall be provided until the member is found fit for military duty, 
or the injury, illness, or disease cannot be materially improved by further hospitalization 
or treatment and the member has been separated or retired as the result of a Coast Guard 
Physical  Disability  Evaluation  System  (PDES)  determination  (See  Physical  Disability 
Evaluation  System,  COMDTINST  M1850.2  (series)).  Each  case  in  which  the  member  is 
projected to remain incapacitated for more than six months shall be referred to the PDES. 

According to Article 6.A.4. of the RPM, 
 
b.  A reservist who is unable to perform military duties due to an injury, illness, or dis-
ease  incurred  or  aggravated  in  the  line  of  duty  is  entitled  to  full  pay  and  allowances, 
including all incentive and special pays to which entitled, if otherwise eligible, less any 
earned income as provided under 37 U.S.C. 204(g). A member in receipt of incapacitation 
pay who is unable to perform military duties, i.e., Not Fit For Duty (NFFD), shall not be 
allowed  to attend IDT periods  or ADT, and shall  not acquire retirement points  by per-
forming IDT or ADT. However, he or she may earn retirement points in order to satisfy 
the  requirements  for  a  qualifying  year  of  service  by  completing  authorized  correspon-
dence courses. 
 
c.  A  reservist  who  is  able  to  perform  military  duties  but  demonstrates  a  loss  of  earned 
income  as  a  result  of  an  injury,  illness,  or  disease  incurred  or  aggravated  in  the  line  of 
duty is entitled to pay and allowances, including all incentive and special pay to which 
entitled, if otherwise eligible, but not to exceed the amount of the demonstrated loss of 
earned income or the amount equal that provided by law or regulation for an active duty 
member of corresponding grade and length of service, whichever is less. … 
 
d. Pay and allowances shall be paid only during the period a member remains not fit for 
military duties or demonstrates a loss of earned income as a result of an injury, illness, or 
disease  incurred  or  aggravated  in  the  line  of  duty.  The  member's  entitlement  to  inca-
pacitation pay shall terminate on the date that one of the following actions occurs: 

(1) The member is found FFFD, 
(2) The member no longer demonstrates a loss of earned income, 

(3) The member is separated or retired, or 
(4) Commandant (G-WTR) determines that it is no longer in the interest of fair-

ness and equity to continue pay and allowances under 37 U.S.C. 204(g) or 204(h). 
 
e.  Payment  in  any  particular  case  may  not  be  made  for  more  than  six  months  without 
review of the case by Commandant (G-WTR) to ensure that continuation of military pay 
and allowances is warranted.  In making the determination whether pay and allowances 
should continue beyond the initial six  months, Commandant (G-WTR) shall consider if 
the member has resumed his or her civilian occupation, undertaken a new position in the 
same occupation, or taken  a position in a new occupation. These factors are to  be used 
when determining if it is in the interest of fairness and equity to continue benefits. 

 

Under  Article  6.B.3.a.,  a  “Notice  of  Eligibility  (NOE)  for  authorized  medical 
treatment is issued to a reservist not serving on active duty, to document eligibility for 
medical care as a result of an injury, illness, or disease incurred or aggravated in the line 
of duty.” NOEs should be issued “as soon as possible but not later than three working 
days  after  the  initial  medical  evaluation  and  prognosis  is  completed.”    RPM,  Art. 
6.B.3.b.    Under  Article  6.b.3.c.,  “[u]pon  determination  that  the  member  will  require 
treatment beyond the first three-month period of the NOE, commands shall notify the 
servicing  ISC  (pf)  and  may  request  extensions  in  one-month  increments.  …  ISC  (pf)s 
may not authorize extensions to allow an NOE to exceed six months.”  Article 6.B.3.d. 
provides  that  “[a]s  soon  as  a  medical  officer  or  designed  authority  determines  that  a 
reservist is expected to remain incapacitated for more than six months, the case shall be 
referred to the Coast Guard Physical Disability Evaluation System (PDES).” 
 

Article 6.B.4. provides the following instructions for claiming incapacitation pay: 
 
Claims for incapacitation pay shall be submitted to the servicing ISC (pf) via the chain of 
command. … If submitting a claim for pay and allowances due to a NFFD status (unable 
to perform military duties), the member must submit a statement declaring any earned 
income … , enclose a copy of the NOE, medical officer’s certification … , and a letter from 
his or her civilian employer containing: 

(1) The employer’s mailing address, 
(2) Supervisor’s name and phone number, 
(3) Certification and reason that the member has not returned to work, and  
(4) Documentation of any normal wages, salaries, professional fees, tips, vacation 
pays, sick leave, disability insurance, or other compensation (if any) that the member has 
received. 

(5) In the case of a student in receipt of financial aid, certification that the mem-

ber has not returned to school must be provided, …. 

Article 8.C.1 of the RPM states the following: 
 
As outlined in 10 U.S.C. 12731, a reservist is entitled, upon application, to “non-regular” 
retired pay if the reservist: 

a. Is at least 60 years of age; 
b. Is not entitled to receive military retired pay under any other provision of law; 

 

c.  Has  performed  at  least  20  years  of  satisfactory  qualifying  federal  service  as 

computed under section 10 U.S.C. 12732; and 

d.  Has  performed  the  last  six  years  of  qualifying  service  as  a  member  of  a 

Reserve component. 

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

 
Article 3.F.1.a. of the Medical Manual states that the physical standards provided 
in the article must be met for retention in the service.  Members with medical conditions 
that “are normally disqualifying” for retention in the Service shall be referred to an IMB 
or a waiver shall be requested by their commands.  Article 3.F.2. states that the list of 
“normally disqualifying conditions” contained in the article is neither all-inclusive nor 
“a mandate that possession of one or more of the listed conditions or physical defects 
means  automatic  retirement  or  separation.” Article  3.F.12.a.(c)  of  the  Medical  Manual 
requires that each wrist have a “total range, extension plus flexion, of 15°.”   

 
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. 
 

DVA Schedule for Rating Disabilities (VASRD) 
 
 
According to 38 C.F.R. § 4.71a, a veteran may receive a 10% disability rating if he 
has a limitation of motion in the wrist and dorsiflexion is less than 15° or palmar flexion 
is limited in line with the forearm. 
 
Physical Disability Evaluation System Manual 
 

Chapter 9.A.8. of the PDES Manual provides that if “a medical condition 
which  causes  or  contributes  to  unfitness  for  military  service  is  of  such  mild 
degree that it does not meet the criteria even for the lowest rating provided in the 
VASRD … [a] zero percent rating may be applied in such cases.” 

 

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 applicant alleged that because his command failed to issue an NOE at 
the time of his injury in November 2000, he lost pay and retirement points.  The Coast 
Guard has admitted that the applicant’s command should have issued an NOE, if not at 
the time of his injury then in July 2001, when he complained of continuing pain and the 
severity of his injury was realized.  The applicant alleged that a doctor told him that the 
injury  discovered  in  July  2001  should  have  been  discovered  in  November  2000  if  the 
doctors had properly examined the x-rays.  The Coast Guard did not dispute this allega-
tion and apparently concedes that the applicant’s wrist injury as discovered in July 2001 
was incurred while he drilled on November 19, 2000.  Therefore, although the applicant 
apparently  managed  to  drill  after  his  wrist  was  injured,  the  Board  finds  that  he  has 
proved by a preponderance of the evidence that his command erred in failing to issue 
an NOE pursuant to ALDIST 242/99 and Article 7.E.4. of the Reserve Policy Manual in 
effect at that time. 

 
3. 

If  the  applicant’s  command  had  issued  an  NOE  in  November  2000,  he 
would have been deemed not fit for duty (NFFD) and he would not have been allowed 
to drill and complete satisfactory years of service in May 2001 and May 2002 except by 
completing correspondence courses.  He would presumably have been counseled about 
the  Reserve  Incapacitation  System  and  processed  under  the  PDES  much  sooner.    His 
PDES processing would likely have been completed in 2001 or early 2002, instead of in 
2004.  Under Article 7.E.6. of the RPM then in effect, he would have been eligible for 
incapacitation pay for at least the first six months of his NFFD status. 

 
4. 

The applicant has alleged that he lost civilian pay and a job because of his 
wrist condition.  However, he submitted no evidence whatsoever to prove how much 
income he lost or when he lost it or to show how much he earned while he was NFFD. 

 
5. 

The record indicates that the applicant continued to drill until his surgery 
in April 2002.  After the surgery, the applicant’s doctors determined that he was NFFD.  
If an NOE had been issued, the applicant would have been eligible for incapacitation 
pay  following  his  surgery.   The  Coast  Guard  has  admitted  that  an  NOE  should  have 
been issued and recommends that the applicant be made eligible for incapacitation pay 
for  six  months  beginning  on  May  9,  2002,  when  he  was  declared  NFFD.    The  Board 
finds  that  the  Coast  Guard’s  proposed  relief  is  a  fair  and  equitable  resolution  of  the 
applicant’s claim for lost pay.  However, because the applicant’s surgery occurred on 
April 15, 2002, his eligibility for incapacitation pay should begin on that date, as he was 
certainly NFFD immediately following the surgery.  The fact that the Coast Guard did 
not declare him NFFD until more than three weeks after the surgery, even though the 
Coast Guard knew the date of his surgery, does not mean that he should not be eligible 
for incapacitation pay during those three weeks.  The Board finds that he is most likely 

to have lost civilian income during the weeks immediately after his surgery.  Because 
the applicant was very vague in his allegations about his income and civilian employ-
ment, there is no basis in the record for extending his entitlement to incapacitation pay 
beyond six months.  

 
6. 

The  applicant  argued  that  he  should  not  be  required  to  prove  his  lost 
civilian income because he was not timely counseled about the Reserve Incapacitation 
System.  However, the applicant is not required to prove lost income to receive incapa-
citation pay; under Article 6.B.4. of the RPM, he need only prove actual income.  More-
over,  the  Board  will  not  order  the  Coast  Guard  to  pay  the  applicant  any  amount  he 
claims to have lost.  It is reasonable to require the applicant to submit the documenta-
tion required by Article 6.B.4. 

 
7. 

The  applicant  alleged  that  the  Coast  Guard’s  error  prevented  him  from 
drilling and therefore asked the Board to award him retirement points.  However, the 
delay in the applicant’s PDES processing actually allowed him to continue to drill and 
complete satisfactory years of retirement in 2001 and 2002.  Moreover, under the regula-
tions, when a reservist becomes NFFD, he may only receive membership points (15 per 
year)  and  retirement  points  for  completing  authorized  correspondence  courses.    The 
record indicates that the applicant was awarded membership points and that he did not 
complete  any  correspondence  courses.    As  a  member  with  more  than  25  years  in  the 
Reserve, the applicant must certainly have known that he could earn points by complet-
ing correspondence courses while NFFD, but he failed to do so.  Therefore, the Board 
finds that the Coast Guard’s error in not issuing an NOE, which delayed his PDES proc-
essing,  did  not  cause  the  applicant  to  lose  drill  time  and  retirement  points  he  would 
have been able to earn had the NOE been timely issued. 

 
8. 

The applicant alleged that the CPEB erred in awarding him a zero-percent 
disability rating and that he should have received a higher rating so that he could retire 
by reason of physical disability.  However, Chapter 9.A.8. of the PDES Manual provides 
that if “a medical condition which causes or contributes to unfitness for military service 
is of such mild degree that it does not meet the criteria even for the lowest rating pro-
vided in the VASRD … [a] zero percent rating may be applied in such cases.”  Under 
the VASRD, a veteran may receive a 10% disability rating only if he has a limitation of 
motion in the wrist and dorsiflexion is less than 15° or palmar flexion is limited in line 
with the forearm.  The IMB found that the applicant’s left wrist had 15° of flexion and a 
total range of motion of 25°.  Under Article 3.F.12.a.(c) of the Medical Manual, a mem-
ber may be retained in the Service if each wrist has a “total range, extension plus flex-
ion, of 15°.”  In addition, the Board notes that the applicant is right-handed.  Therefore, 
although the applicant’s doctors found him to be NFFD as a mechanic (and the CPEB 
agreed after the applicant objected to the original finding that he was FFD), the Board 
finds that the zero-percent rating awarded by the CPEB is consistent with the applicable 

9. 

regulations.  The applicant has not proved by a preponderance of the evidence that the 
zero-percent rating is erroneous or unjust. 
 
Furthermore, the Board notes that the applicant was assigned counsel and 
 
admits that after the second determination by the CPEB, he discussed his options with 
his counsel, accepted the CPEB’s findings and recommendation, and chose a course of 
action  he  considered  to  be  in  his  best  interest  at  the  time.    The  applicant  apparently 
chose to be transferred to inactive status and to receive a regular retirement, due to suf-
ficient years of service, when he attains age 60.  Under Article 8.C.1.b. of the RPM, the 
applicant would have forgone his retirement pay for sufficient years of service if he had 
received medical retirement pay.  Presumably, he determined that the retirement pay 
and allowances he would receive following his chosen course of action were better than 
those he would receive in accordance with the statutes and regulations if he accepted 
retirement  with  a  zero-percent  disability  rating.    The  record  indicates  that  the  Coast 
Guard granted his request by transferring him to inactive status.  The applicant has not 
proved by a preponderance of the evidence that the Coast Guard committed any error 
in  advising  him  of  his  options  under  applicable  law  following  the  approval  of  the 
CPEB’s  findings  and  recommendation  or  in  permitting  his  transfer  to  the  Ready 
Reserve. 

 
10.  Accordingly, the applicant’s request for additional retirement points and a 
retirement from the Coast Guard by reason of physical disability with a higher disabil-
ity rating should be denied.  However, partial relief should be granted by correcting his 
record to show that he was found NFFD on the day of his surgery; that an NOE was 
issued from April 15, 2002, until May 1, 2004; and that he was eligible for incapacitation 
pay  for  the  first  six  months  in  which  he  was  not  fit  for  duty,  in  accordance  with  37 
U.S.C. § 204(g).  If within 180 days of the date of this decision, the applicant documents 
his  civilian  income  during  those  six  months  in  accordance  with  the  requirements  of 
Article 6.B.4. of the RPM, the Coast Guard should pay him any amount due in accor-
dance with Article 6.A.4. 

 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

ORDER 

 

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

record is granted in part.   

 
His record shall be corrected to show that on the date of his wrist surgery, April 
15, 2002, he became not fit for duty; that an NOE was issued from that date until May 1, 
2004; and that he was eligible for incapacitation pay for the first six months in which he 
was not fit for duty, in accordance with 37 U.S.C. § 204(g).  If within 180 days of the date 
of this final decision, he submits to the Coast Guard Personnel Command documenta-
tion of earned civilian income during the six-month period beginning on April 15, 2002, 
in accordance with the requirements of Article 6.B.4. of the Reserve Policy Manual, the 
Coast Guard shall pay him the amount of incapacitation pay due under Article 6.A.4. 

 
No other relief is granted. 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

        

 
 Quang D. Nguyen 

 

 

 
 Kathryn Sinniger 

 

 

 

 

 
 Molly McConville Weber