DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-092 
 
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xxxxxxxxxxxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
Author:  Ulmer, D. 
 
 
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 April 7, 2006, upon receipt of the applicant’s completed application and records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated January 11, 2007, is signed by the three duly appointed 

APPLICANT’S REQUEST  

 
The applicant asked the Board to correct his record by awarding him "retirement 
 
disability  back  pay  from  May  1996  until  August  2001,  when  [he]  began  receiving 
Department of Veterans Affairs' (DVA) compensation."   In support of his request the 
applicant stated the following:   
 

For  several  years  while  serving  in  the Reserve,  the  Coast  Guard  tried  to 
end my career because I was diagnosed with Type 2 Diabetes.[1]  In May 
of 1996, I was told by a Physical Evaluation Board [PEB] that I was not fit 

                                                 
1   Diabetes Mellitus is a chronic syndrome of impaired carbohydrate, protein, and fat metabolism owing 
to insufficient secretion of insulin or to target tissue insulin resistance.  It occurs in two major forms:  type 
1 and type 2.  See Dorland's Illustrated Medical Dictionary, 29th Edition, p. 489.    Dorland's further states 
that type 2 diabetes "is characterized by peak age onset between 50 and 60 years, gradual onset with few 
symptoms of metabolic disturbance (glycosuria and its consequences, and no need for exogenous insulin; 
dietary control without oral hypoglycemics is usually effective.)"  Id.  
 

for  duty.    I  was  then  put  on  TDRL  (temporary  disability  retired  list)[2] 
with  a  40%  disability  rating.    I  was  told  that  I  would  receive  $840.00  a 
month for disability pay.  A few days later I was informed that a mistake 
had been made and that I was not entitled to any disability pay at all.    I 
was allowed to serve six more months and then I was retired on Reserve 
Transition Benefits with a total of 15 years of service . . . 
 
In  December  2005,  I  received  a  phone  call  from  the  Coast  Guard 
Retirement  Annuity  Services,  Coast  Guard  Personnel  Command  in 
Topeka, KS.  Mr. [D] inquired as to why I was not currently receiving my 
Coast Guard Disability Retirement pay.  He then stated by law, I should 
have been receiving the promised $840.00 a month beginning in May 1996.    

 

BACKGROUND 

 
 
After serving approximately four years in the Navy, the applicant enlisted in the 
 
Coast Guard Reserve on May 20, 1985.  He served continuously until his transfer to the 
retired list without pay (RET-2), effective December 1, 1996.   
 
 
Prior to his placement on the retired list, the applicant underwent a Coast Guard 
periodic medical examination in February 1992, where it was discovered he had Adult 
Onset  Diabetes  Mellitus.    His  command  notified  him  in  April  1993  that  he  had  been 
found medically unfit for continued duty and that he could request a waiver to remain 
on  active  duty.    On  May  22,  1993,  the  applicant's  request  for  a  waiver  was  favorably 
endorsed by his  command.   He was allowed to continue in a drill status  until a  final 
decision was made on his request for a waiver.   The record indicates that the waiver 
was denied on August 12, 1993 but the applicant was allowed to remain in a drill status.   
 

An Initial Medical Board [IMB] convened on October 29, 1994, and confirmed the 
diagnosis  of  "Adult  Onset  Diabetes  Mellitus  Insulin  Dependence."    The  IMB  report 
stated  that  the  applicant  was  well  until  June  1986  when  during  a  routine  physical  he 
was  found  to  have  gylcosuria  that  was  initially  controlled  with  diet.    Subsequently, 
during routine medical examinations, the applicant was noted to have hyperglycemia 
with  glycosuria.    Diabetes  was  noted  on  his  medical  examination  dated  February  18, 
1992  for  which  he  was  treated  with  "Humulin  N  Insulin."      Of  this  medication,  the 
applicant was taking a daily average of "50 units qAM and 25 units qPM of Humulin N 
insulin."    The  IMB  noted  that  the  applicant  performed  his  Coast  Guard  duties 

                                                 
2  The TDRL is a pending list of individuals whose disabilities are not permanent.  In order to be placed 
on the TDRL, the individual must have a disability that renders him or her unfit to perform the duties of 
his  or  her  office,  grade  and  rank,  and  the  disability  must  be  rated  at  a  minimum  of  30%  disabling.  
Temporary  Disability  retired  pay  terminates  at  the  end  of  5  years.    See  Chapter  8  of  COMDTINST 
M1850.2C (Physical Disability Evaluations Manual).   
 

satisfactorily as well as his civilian duties as a tree-trimmer without incident.   The IMB 
referred  the  matter  to  the  Central  Physical  Evaluation  Board  (CPEB)  stating  the 
following: 
 

It  is  the  opinion  of  the  Board  that  the  diagnosis  of  adult  onset  diabetes 
mellitus, insulin dependent, is correct.  The [applicant] does not meet the 
retention  standard  for  enlisted  personnel,  according  to  COMDTINST 
6000.1b, paragraph 3-F-10d:  "Diabetes Mellitus."  When proven to require 
any hypoglycemic drug in addition to the restrictive diet for control. 
 
The  [applicant]  is  expected  never  to  be  fit  for  full  unrestricted  duty, 
although by history he has performed satisfactorily in the duty to which 
he is assigned. 

 
 
The  applicant  was  notified  of  the  IMB  findings  and  on  January  29,  1995, 
submitted  a  statement  in  rebuttal  in  which  he  non-concurred  with  the  IMB 
recommendation.  He stated that he did not want to terminate his association with the 
Coast Guard Reserve and requested to remain on limited duty until he had completed 
fifteen years of service, which would allow him to retire under the Reserve Transition 
Benefits  program.      The  applicant  stated  that  the  Coast  Guard  had  known  about  his 
condition since February 1992, and he was allowed to perform active duty without pay 
in 1993 and 1994.  He stated that his diabetes was under control and that he monitored 
it daily.  
 
 
On  December  10,  1994,  the  applicant's  commanding  officer  (CO)  favorably 
endorsed  his  request  that  he  be  allowed  to  continue  in  the  Coast  Guard  in  a  limited 
duty status.  He stated that the Coast Guard could use the applicant's skill and that his 
illness had not interfered with his ability to do his job.   
 
 
On February 21, 1995, Commander, Coast Guard Personnel Command (CGPC) 
notified the applicant's CO that the IMB could not be referred to the CPEB until CGPC 
had received the following: "Notice of Eligibility (NOE) or evidence that injury/illness 
was incurred while Reservist was eligible to receive basic pay." 
 
 
active status at the time the illness was incurred.   
 
 
The CPEB met on February 21, 1996 and found the applicant unfit for duty due 
to "Diabetes Mellitus; Moderately Severe."  The CPEB marked the block on the report 
form  that  indicated  that  the  applicant's  illness  was  incurred  while  he  was  entitled  to 
basic pay and that it was the proximate result of performance of active duty or active 
duty training.  The CPEB rated the disability as 40% disabling and recommended that 
the applicant be placed on the TDRL.    

On March 9, 1995, the applicant's unit responded that the applicant was not in an 

 
 
With  advice  of  counsel,  the  applicant  accepted  the  findings  of  the  CPEB.    The 
JAG found the CPEB findings to be in acceptable form and technically correct and to be 
supported  by  the  evidence  of  record. 
  The  JAG  further  found  the  CPEB 
recommendation to be supported by the evidence of record.   
 
 
On April 19, 1996, the CGPC (adm) approved the findings and recommendations 
of the CPEB and stated that the applicant would be placed on the TDRL, effective May 
17,  1996.      Retirement  orders  were  prepared  to  this  effect.  The  letter  prepared  by  the 
applicant's  CO  that  would  have  delivered  the  orders  to  the  applicant  contained  a 
handwritten  note:    "hold  do  not  do  this  [letter]."    At  the  bottom  of  this  letter  is  the 
following hand written note:  "Call [the applicant] and tell him that he won't be retired 
on TDRL & to continue drilling until he hears otherwise - we're working on it.  He's on 
hold for now." 
 
 
On  October  31,  1996,  the  applicant  requested  retirement,  effective  December  1, 
1996.      The  applicant's  CO  favorably  endorsed  the  applicant's  request  for  retirement.  
On December 18, 1996, the CO of the Coast Guard Pay and Personnel Center wrote the 
applicant  a  letter  confirming  his  eligibility  for  RTB  (Reserve  transition  benefits)  and 
notifying him of his transfer to RET-2 status effective December 1, 1996.  The letter also 
informed the applicant that he would be entitled to retired pay upon reaching age 60 
because he had at least fifteen but less than 20 years of satisfactory federal service.     
 

VIEWS OF THE COAST GUARD 

 
 
On August 22, 2006, the Board received an advisory opinion from the office of 
the  Judge  Advocate  General  (JAG)  recommending  that  no  relief  be  granted  to  the 
applicant.    The  JAG  adopted  the  facts  and  analysis  provided  by  CGPC  as  the  Coast 
Guard's advisory opinion.    CGPC made the following conclusions: 
 

1.  The application is not timely and may be denied for untimeliness.  The 
Applicant indicates that he discovered the error based upon a telephone 
call  from  the  Coast  Guard  Personnel  Service  Center  in  December  2005 
which caused the Applicant to question his entitlement to TDRL payment.  
However, the Applicant admits that he was advised of the initial error in 
his TDRL orders in May 1996.   
 
2.    The  applicant,  a  Selective  Reserve  enlisted  member  was  processed 
through  the  PDES  system  for  diabetes.    The  fourth  endorsement  to  the 
IMB  . . . clearly indicates that the Applicant was not on active duty at the 
time  of  the  illness/injury. 
  Accordingly,  his  case  was  improperly 
processed  by  the  CPEB.    The  Applicant  was  issued  orders  to  the  TDRL; 
however such orders were not consistent with policy regarding processing 

of Reserve members who incur illness/injury not in the line of duty.  The 
Applicant's record substantiates his  being issued  both TDRL orders  . . . 
which  were not executed, and subsequently Reserve Retirement [orders]   
. . . [The record] indicates there was confusion regarding the execution of 
TDRL  order,  however,  there  is  no  record  of  cancellation  of  the  original 
TDRL  order.    Based  upon  the  [applicant's]  statement  he  was  advised  in 
May 1996 that his TDRL order was cancelled along with the subsequent 
issuance  of  a  Reserve  Retirement  order,  it  is  presumed  that  the  Coast 
Guard  properly  cancelled  the  original  TDRL  order.    Additionally,  a 
complete  review  of  the  Applicant's  record    .  .  .  does  not  correlate  his 
illness/injury  to  active  duty.    The  CPEB  erroneously  classified  his 
condition as occurring while entitled to basic pay and a proximate result 
of performance of active duty.    
 
3.  The applicant bases his recent claim for payment under the TDRL order 
upon erroneous information provided by PSC.  The information presented 
by PSC to the Applicant was based solely upon the TDRL order and not 
upon a complete review of the applicant's record.   
 
4.    There  is  no  evidence  that  the  Applicant  was  treated  unfairly  in  his 
processing.  The error in processing his TDRL order was discovered prior 
to execution of the order and the Applicant was allowed to remain in the 
Selective  Reserve  until  he  met  the  15-year  threshold  for  a  non-regular 
Reserve Retirement under title 10 § 12731b, U.S. Code.  Additionally, the 
Applicant's original statement to the IMB expressed his desire to remain in 
the service until the 15-year mark  . . . The Coast Guard's delay with the 
processing  of  his  case  through  the  PDES  benefited  the  member  with  a 
Reserve  Retirement  that  he  would  not  have  otherwise  been  eligible  for 
due to insufficient service.   

 

APPLICANT'S REPLY TO THE VIEWS OF THE COAST GUARD 

 
 
On  September  18,  2006,  the  Board  received  the  applicant's  response  to  the 
advisory opinion.  He objected to the recommendation.  The applicant stated that with 
three years and eight months of naval service plus the time spent in the Coast Guard 
Reserve, he should have had the necessary eight years to be eligible for placement on 
the  TDRL.        He  stated  that  he  never  saw  the  email  in  which  Coast  Guard  personnel 
stated that the TDRL orders should be rescinded.  In this regard, he stated that he never 
received any official written notice that the TDRL orders would be rescinded and that 
all he received was a verbal statement saying such.   
 

FINDINGS AND CONCLUSIONS 

 

The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 

 
applicant's record and submissions, the Coast Guard's submission, and applicable law: 
 

1. The Board has jurisdiction concerning this matter pursuant to section 1552 of 

title 10 of the United States Code.   

 
 
2.  The application was not timely.  To be timely, an application for correction of 
a military record must be submitted within three years after the applicant discovered or 
should  have  discovered  the  alleged  error  or  injustice.    See  33  CFR  52.22.      This 
application was submitted approximately nine years beyond the statute of limitations.   
 

3.   However, the Board may still consider the application on the merits, if it finds 
it is in the interest of justice to do so. In Allen v. Card, 799 F.  Supp. 158, 164 (D.D.C. 
1992), the court stated that in assessing whether the interest of justice supports a waiver 
of the statute of limitations, the Board "should analyze both the reasons for the delay 
and  the  potential  merits  of  the  claim  based  on  a  cursory  review."    The  court  further 
stated that "the longer the delay has been and the weaker the reasons are for the delay, 
the more compelling the merits would need to be to justify a full review."  Id. at 164, 
165.   See also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995). 

 
 
4.    The  applicant  claimed  that  he  did  not  discover  the  alleged  error  until 
December  15,  2005,  when  an  employee  from  the  Pay  and  Services  Center  (PSC) 
contacted him and told him that he  should  have been receiving disability retired pay 
since  1996.      However,  the  Board  finds  that  the  alleged  error  should  have  been 
discovered at the time of the applicant's transfer to RET-2 because as he admitted, he 
was  told  prior  to  placement  in  RET-2  status  that  he  was  not  eligible  for  the  TDRL 
because  his  illness  was  not  incurred  while  on  active  duty.    He  knew  in  1996  that  the 
Coast Guard was not following the recommendation of the CPEB that he be placed on 
the TDRL.  Moreover, during the PDES processing, the applicant had assigned counsel 
who could have assisted him in raising the matter with the Coast Guard if he believed 
that he was being wrongfully denied placement on the TDRL.   Rather, he accepted the 
Coast  Guard's  explanation  and  requested  voluntary  transfer  to  RET-2  on  October  31, 
1996.  He now claims to have learned of the alleged error in December 2005 when an 
employee from PSC phoned him and told him that he should have been receiving pay 
since May 1996.   However, that employee's opinion was based on the same information 
and  documentation  that  the  applicant  knew  about  in  1996.    The  fact  that  the  PSC 
employee  offered  an opinion  different  from  that  rendered  earlier by  the  Coast  Guard 
without  offering  a  basis  for  that  conclusion  based  on  either  new  information  or  the 
misapplication  of  the  law  does  not  explain  to  the  Board's  satisfaction  the  applicant's 
failure to bring this claim in a timely manner.  The information in the applicant's record 
was the same in 1996 as it was in 2005.   Accordingly, the Board finds that the applicant 
has  presented  insufficient  evidence  to  support  a  waiver  of  the  three-year  statute  of 
limitations.    

 

5.  Nor is the Board persuaded based on a cursory review of the merits that the 
applicant  is  likely  to  prevail  on  his  claim.    Entitlement  to  disability  retirement  for 
reservists  who  serve  on  active  duty  for  30  days  or  less  or  who  perform  inactive  duty 
training is different from that of reservists who serve on active duty for more than 30 
days.    Reservists  in  the  latter  category  enjoy  the  presumption  that  the  disability  was 
incurred while entitled to basic pay.  See 10 USC § 1201.3     However, for Reservists 
who  serve  on  active  duty  for  30  days  or  less  or  inactive  duty  training,  disability 
retirement  is  dependent  upon  whether  the  disability  is  the  proximate  result  of 
performing  active  duty.    See  10  USC  §  1204  of  the  United  States  Code  (Members  on 
active duty for 30 days or less or on inactive-duty training)4; see also Article 12.D.3. of 
the Reserve Training and Administration (RATMAN) in effect at the time in question 
and Article 2.C.3.a.(3) of the PDES Manual.5   The applicant mainly performed weekend 
drills and one 12-day period of active duty per year.  There is no evidence in the record 
that he served on active duty for more than 30 days while in the Coast Guard; therefore 
to  be  entitled  to  retired  pay  his  diabetic  disability  must  be  the  proximate  result  of 
performing active duty or inactive duty training.  In this regard, his CO wrote that he 
was not in an active status at the time his illness was incurred and there is no evidence 
that the applicant challenged this assessment.  

 
6. The applicant's record indicates that he was on a 12-day period of active duty 
when he was medically examined and found to suffer from adult onset diabetes.  Even 
so,  the  applicant  has  not  proven  that  his  diabetes  was  the  proximate  result  of 
performing active duty.   Article 2.C.8.e. of the PDES Manual states that a disability is 
the proximate result of performing active duty, active duty for training or inactive duty 
for training when the disability occurs while the member is performing acts consistent 
with that status. The applicant has not presented the Board with evidence of any of the 
duties  that  he  was  performing  at  that  time  that  could  have  resulted  in  his  acquiring 
                                                 
3  Title 10 U.S.C. § 1201 provides that a member 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  disability  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 determination.” 
 
4   Title 10 U.S.C. § 1204 states in pertinent part that upon a determination by the Secretary concerned that 
a member of the armed forces, with less than 20 years of satisfactory service, on active duty for 30 days or 
less  or  on  inactive  duty  training  and  is  unfit  to  perform  the  duties  of  his  office,  grade,  rank,  or  rating 
because  of  physical  disability,  may  be  retired  with  retired  pay,  if  the  Secretary  determines  that  based 
upon accepted medical principles, the disability is of a permanent nature and stable, that the disability 
was  incurred  as  the  proximate  result  of  performing  active  duty  or  inactive  duty  training,  and  the 
disability is at least 30% disabling.    
   
5   This provision states that "When considering the case of evaluees [on active duty for 30 days or less] 
the [CPEB] shall  . . . in lieu of a finding of entitlement to basic pay, the board must find whether or not 
each disability is the proximate result of performing active duty or inactive duty training."  

diabetes.    In  Charles  v.  Rice,  28  F.3d  1312,  1321  (1st  Cir.  1994),  the  Court  of  Appeals 
affirmed the district court's ruling that a plaintiff who was discharged from the Puerto 
Rico National Guard due to HIV and who had twenty years of service was not entitled 
to disability retired pay.  The Court stated "The record in this case is devoid of proof 
that  plaintiff  acquired  HIV  as  a  result  of  performing  duties  in  the  Guard."  See  also 
Candelaria v. United States, 5 Cl. Ct. 266  (1984)  (holding that "myocardial infraction is 
the  result  of  a  slowly-developing  disease  and  is  not  in  and  of  itself  an  injury.    In  the 
absence of independent evidence that while serving on a tour of duty plaintiff suffered 
an independent blow or trauma which acted as a precipitating cause of his myocardial 
infraction,  plaintiff  does  not  fall  within  the  meaning  of  section  1204  of  Title  10  of  the 
United States Code.")  In light of the above, the Board finds that the applicant has failed 
to prove that the Coast Guard committed an error or injustice by not placing him on the 
TDRL as a result of his diabetes mellitus for which he was Insulin dependent.   
 
 
7.  The Coast Guard  committed errors in processing the applicant's case.    The 
referral of  the  applicant's  diabetic  disease  to  the  CPEB  was  improper  because  he  was 
not on regular active duty, nor was he under active duty orders for a period in excess of 
30  days  when  he  was  diagnosed  with  diabetes.    The  CPEB  further  exacerbated  the 
situation  by  not  adequately  reviewing  the  record  to  determine  whether  the  applicant 
was  on  regular  or  long  term  active  duty  at  the  time  it  rendered  its  findings  and 
recommendation.    While  the  CPEB  marked  on  its  report  form  that  the  applicant  was 
entitled  to  basic  pay  and  that  his  disability  was  the  proximate  result  of  performing 
active duty, it is clear from a review of the applicant's record that he had preformed no 
long-term  active  duty  since  joining  the  Coast  Guard  Reserve.6    Therefore,  the  CPEB's 
marking  of  the  two  blocks  constituted  administrative  error.  TDRL  orders,  with  an 
effective date of May 17, 1996, were prepared based on the CPEB's administrative error. 
It  is  unclear  from  the  record  whether  the  erroneous  TDRL  orders  were  officially 
delivered  to  the  applicant,  although  he  knew  about  them.  However  the  CPEB's  error 
was discovered on or about May 7, 1996, several days prior to the effective date of the 
orders.  The applicant suffered no injustice as a result of this series of errors because he 
was never placed on the TDRL and never received disability retired pay from the Coast 
Guard.   
 
8.  The applicant argued that the Coast Guard knew that he had been diagnosed 
 
with  high  levels  of  glucose  in  his  blood  and  urine  as  early  as  1986.    However,  these 
findings  did  not  cause  the  applicant  to  be  unfit  for  continued  service.  When  his 
condition evolved into diabetes mellitus with insulin dependence he became unfit for 

                                                 
6  There  is  no  evidence  in  the  record  that  the  applicant  served  on  active  duty  for  more  than  30  days 
subsequent  to  his  1985  enlistment  in  the  Coast  Guard  Reserve.    While  he  served  on  active  duty  in  the 
Navy prior to joining the  Coast  Guard, there  is  no evidence that he suffered from diabetes during this 
period. 
 

continued duty.  See Article 3.F.10.e. of the Medical Manual and Article 9.B.48.a. of the 
PDES Manual.   
 
9.  It should be noted that after the applicant was diagnosed as unfit, the Coast 
 
Guard  allowed  him  to  remain  in  the  Reserve  until  he  earned  15  years  of  satisfactory 
service for retirement under the Reserve Transition Benefit program.  The applicant was 
diagnosed with an unfitting condition in 1992 and could have been discharged at that 
time.      Rather,  he  was  allowed  to  remain  in  the  Reserve  to  earn  the  necessary 
satisfactory years of service to be transferred to RET-2 and to receive retired pay at age 
60.  
 
 
10.   The applicant indicated that he currently has a 100% disability rating from 
the  DVA.    It  is  not  clear  to  the  Board  why  the  DVA  concluded  that  the  applicant's 
diabetes is service connected since the applicant was erroneously processed under the 
PDES.      Moreover,  DVA  disability  ratings  are  not  determinative  of  the  same  issues 
involved in military disability cases.  See Lord v. United States, 2 Cl Ct. 749, 754 (1983).   
Becasue the applicant was a reservist who served on active duty for periods less than 30 
days and on inactive duty drills, his diabetes mellitus must be the result of performing 
active duty for him to be entitled to disability retirement from the Coast Guard.  He has 
not proven this to be the case. 

 
11.   Accordingly, the applicant's request for relief should be denied 

 
 
 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCGR  (RET),  for 

ORDER  

 

 
 

 
 

correction of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
  

 
  

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Jordan S. Fried 

 

 

 
 George J. Jordan 

 

 

 

 

 
 
 Charles P. Kielkopf