DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-025 
 
xxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxx   

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 Chair docketed the case on November 8, 
2006, upon receipt of the application and the applicant’s military and medical records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  28,  2007,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, a former machinery technician second class (MK2; pay grade E-5) who 
was  discharged  from  Coast  Guard  Reserve  on  June  26,  2004,  asked  the  Board  to  correct  his 
record to show that he was retired from the Reserve for medical reasons.  The applicant stated 
that he was not allowed to reenlist in the Reserve because of seizures and believes that he is enti-
tled to a medical retirement.  Apart from a copy of his final physical evaluation, the applicant 
submitted no other information or evidence on his own behalf. 

 

 
 

 

SUMMARY OF THE RECORD 

The  applicant  served  on  active  duty  in  the  Coast  Guard  from  April  28,  1986,  through 
June 25, 1998, when he was discharged upon the termination of his second enlistment contract.  
On June 26, 1998, the applicant enlisted in the Coast Guard Reserve for six years, through June 
25, 2004, and began serving on inactive duty.  From April 22 to 24, 2004, the applicant was hos-
pitalized after suffering a “seizure de novo.”  He was prescribed Dilantin.1   

 

 

 

                                                 
1 Dilantin is a trademark name of the generic drug phenytoin, an anti-convulsant and cardiac suppressant “used in 
the treatment of all forms of epilepsy except petit mal and as an antiarrhythmic, administered orally.”  DORLAND’S 
ILLUSTRATED MEDICAL DICTIONARY, 29TH ED. (W. B. Saunders Co., 2000), pp. 502, 1374. 

 

On May 16, 2007, the Judge Advocate General (JAG) of the Coast Guard recommended 
that the Board deny the applicant the requested relief but grant alternative relief.  The JAG sub-
mitted with his advisory opinion a copy of an email from the applicant, dated December 6, 2006, 
in which the applicant described the circumstances of his seizure as follows: 

On May 15, 2004, while undergoing a physical examination required for reenlisting in 
the Reserve, the applicant stated on his Report of Medical History that one month earlier, he had 
been hospitalized for a seizure of unknown etiology and was taking Dilantin to avoid further sei-
zures.  A Chronological Record of Medical Care dated May 16, 2004, indicates that the examin-
ing physician determined that the applicant had suffered a single episode of grand mal seizures 
but  that  he  was  “cleared  for  full  duty  pending  outcome  of  med  board/waiver  package.”    The 
Report of Medical Examination indicates that the doctor found him qualified for continued ser-
vice pending a medical waiver and that “this physical examination has been signed pending fur-
ther review of laboratory studies.”  However, the waiver was apparently not processed, and the 
applicant’s  command  did  not  initiate  a  medical  board  to  evaluate  his  fitness  for  continued 
service. 
 
On  June  25,  2004, the  applicant  was  honorably  discharged  from  the  Reserve  upon  the 
expiration of his enlistment.  He had completed more than 18 years of service.  No DD 214 was 
issued. 
 

VIEWS OF THE COAST GUARD 

 
At the time of my reenlistment, I had completed a physical in Miami at D7; but then was told they 
[had] shredded it and I needed to complete another one.  Although my medical record shows the 
dates  and  times  I  was  there.    I  then  started  working  on  taking  [extended  active  duty]  orders  to 
Sta[tion] Islamorada with the MK detailer [Mr. S], at which time I was told to complete another 
physical.    I  had  reserve  weekend  that  week  and  Sta[tion]  Port  Canaveral  Yeoman  Chief  [X] 
scheduled me for a physical at Patrick Air Force Base.  On 22 April ’04, I went to PAFB and was 
told they would not see a Reserve unless I was under orders.  I called Sta Port Canaveral Reserve 
Unit and had YNC [X] fax a set of orders to PAFB so I could complete the physical; these orders 
were signed by BMCS [N] (Acting Reserve unit [officer in charge]) due to the fact that the Sta CO 
was on leave.  I completed part of the paperwork part of the physical but was told to reschedule 
the rest.  That afternoon I had a seizure and was admitted to Parrish Medical Center.  I [am] pres-
ently awaiting this paperwork from PAFB to prove this and have the paperwork in my record of 
the dates and times of my visit to Parrish Medical Center. 
 
Prior to all this I had a seizure in February on the 7th and again was admitted to Parrish.  I did not 
drill the second weekend as I was supposed to and called and told the watchstander and BMCS 
[M], section leader, why I couldn’t.  As you can see, I never got to fulfill the EAD orders and they 
were canceled by [Mr. S].  … I completed a physical at Naval Air Station Jacksonville on May 
16th and was stated [sic] that I was fit for full duty pending a medical board due to Commandant’s 
instructions, … a copy of which is included in my record.  I contacted [Mrs. E], Group Mayport 
Corpman, and was told I could not drill till all this happened, and that all this would be put into 
action. 
 
I was then informed by a phone call that I had been discharged on June 25, with no medical board 
pending or completed.  I tried several times to research the medical board process and never even 
received any paperwork showing I was even discharged or a DD 214.  I had to contact a friend at 
HQ [who] informed  me I  was indeed  honorably discharged; and told I could  not reenlist  for at 

least 18-24 months from my last seizure.  The problem is I have had several since all this.  And 
this effects me in the civilian world as a private yacht engineer. 
 
I am requesting a early retirement due to medical discharge.  I contacted several people that have 
said that due to the extensive active duty time and the enlistments in the reserves I qualify; espe-
cially since I can’t physically reenlist and [because of] my age. 
 
The JAG argued that the doctor’s finding “that the applicant was fit for duty pending a 
waiver is essentially a finding that he was not fit for duty.”  However, his command failed to 
follow through by completing the procedures necessary for requesting a waiver or by initiating 
evaluation by a medical board.  The JAG stated that the applicant’s command should have either 
requested a waiver for him or followed the procedures for discharge under Chapter 8.D.7. of the 
Reserve Policy Manual.  The JAG also alleged that the applicant himself did not timely follow 
up on his status. 

 
The JAG recommended that the Board grant alternative relief by offering the applicant 
one of two options.  First, the Board could order the Coast Guard to convene a medical board to 
determine whether the applicant was fit or unfit for duty.  If the applicant were found unfit for 
duty and if his disability were determined to be “service related,”2 the JAG stated, the applicant 
“would be entitled to severance or disability retirement” under Chapter 12.B.15. of the Personnel 
Manual and Chapter 8.D. of the Reserve Policy Manual.  However, the JAG also noted that if the 
applicant were found fit for duty or if he was not fit for duty but his disability was not deemed 
“service related,” he would be offered an early retirement from the reserves pursuant to Chapter 
8.D.8. of the Reserve Policy Manual. 

 
The second option for alternative relief recommended by the JAG was that the applicant 
receive early retirement from the reserves pursuant to Chapter 8.D.8. of the Reserve Policy Man-
ual without going through Physical Disability Evaluation System (PDES) processing. 

 
The JAG stated that the Board should ensure that the applicant is “adequately counseled 
on the effects of and possible outcomes of the choices” before making his decision.  In addition, 
the  JAG  stated  that  the  Board  should  order  the  Coast  Guard  to  issue  the  applicant  a  DD  214 
reflecting the outcome of his case. 
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On June 19, 2007, the applicant responded to the views of the Coast Guard.  He stated 
that because the Coast Guard erred, he “should be retired as Active Duty with severance and a 
pension.  Per my memo of December 06, 2006, I was under active duty orders or the medical 
facilities  at  Miami,  Patrick  and  Jacksonville  would  not  have  seen  me  for  the  physicals.”    He 
stated that medical board procedures were never explained to him and that he was discharged 
without notice. 
 

                                                 
2  The Board notes that the term “service related” is used by the Department of Veterans Affairs, not by the Coast 
Guard’s medical boards, which instead determine whether a disability was “incurred in the line of duty.” 

APPLICABLE STATUTES AND REGULATIONS 

 
Retirement and Separation Statutes 
 
 
periods of 30 days or less or serving on inactive duty training: 
 

Title 10 U.S.C. § 1204 provides the following for reservists serving 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-- 
 
stable; 
 

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

(2) the disability-- 

 

 

(A) was incurred before September 24, 1996, as the proximate result of-- 
 
 
formed; or 

(i) performing active duty or inactive-duty training; 
(ii)  traveling  directly  to  or  from  the  place  at  which  such  duty  is  per-

(iii) an injury, illness, or disease incurred or aggravated while remain-
ing overnight, immediately before the commencement of inactive-duty training, 
or  while  remaining  overnight  between  successive  periods  of  inactive-duty 
training, at or in the vicinity of the site of the inactive-duty training, if the site of 
the inactive-duty training is outside reasonable commuting distance of the mem-
ber's residence; 
(B) is a result of an injury, illness, or disease incurred or aggravated in line of 

(i) while performing active duty or inactive-duty training; 
(ii) while traveling directly to or from the place at which such duty is 

performed; or 

(iii) while remaining overnight, immediately before the commencement 
of inactive-duty training, or while remaining overnight between successive peri-
ods of inactive-duty training, at or in the vicinity of the site of the inactive-duty 
training, if the site of the inactive-duty training is outside reasonable commuting 
distance of the member's residence; or 
(C) is a result of an injury, illness, or disease incurred or aggravated in line of 

duty after September 23, 1996-- 

duty-- 

(i) while the member was serving on funeral honors duty under section 

12503 of this title or section 115 of title 32; 

(ii) while the member was traveling to or from the place at which the 

member was to so serve; or 

(iii) while the member remained overnight at or in the vicinity of that 
place immediately before so serving, if the place is outside reasonable commut-
ing distance from the member's residence; 

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

 
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 dis-

abilities in use by the Department of Veterans Affairs at the time of the determination.  

 

Title 10 U.S.C. § 1206 provides the following for reservists serving on active duty for 

periods of 30 days or less or serving on inactive duty training: 
 

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 member may be separated from his armed force, with 
severance pay computed under section 1212 of this title, if the Secretary also determines that— 
 
(1)  the member has less than 20 years of service computed under section 1208 of this title; 
(2)  the disability is a result of an injury, illness, or disease incurred or aggravated in line of duty— 

 
(A) while— 

          

(i)  performing active duty or inactive-duty training; 
(ii)  traveling directly to or from the place at which such duty is performed; or 
(iii)    remaining  overnight  immediately  before  the  commencement  of  inactive-
duty training, or while remaining overnight between successive periods of inactive-duty 
training, at or in the vicinity of the site of the inactive-duty training, if the site is outside 
reasonable commuting distance of the member's residence; or       
 
(B)  while the member— 
          
section 115 of title 32; 

(i)    was  serving  on  funeral  honors  duty  under  section  12503  of  this  title  or 

(ii)  was traveling to or from the place at which the member was to so serve; or 
(iii)  remained overnight at or in the vicinity of that place immediately before so 

serving; 

 
(3)  the disability is not the result of the member's intentional misconduct or willful neglect, and 
was not incurred during a period of unauthorized absence; 
(4)  based upon accepted medical principles, the disability is or may be of a permanent nature; and 
(5)  the disability is less than 30 percent under the standard schedule of rating disabilities in use by 
the Department of Veterans Affairs at the time of the determination, and, in the case of a disability 
incurred before October 5, 1999, was the proximate result of performing active duty or inactive-
duty training or of traveling directly to or from the place at which such duty is performed. 
 
However, if the member is eligible for transfer to the inactive status list under section 1209 of this 
title, and so elects, he shall be transferred to that list instead of being separated. 

 
 
cal disabilities are not incurred in the line of duty: 

Title 10 U.S.C. § 12731b provides the following special rule for reservists whose physi-

 
(a)  In the case of a member of the Selected Reserve of a reserve component who no longer meets 
the  qualifications  for  membership  in  the  Selected  Reserve  solely  because  the  member  is  unfit 
because of physical disability, the Secretary concerned may, for purposes of section 12731 of this 
title  [which  controls  non-regular  retirements],  determine  to  treat  the  member  as  having  met  the 
service requirements of subsection (a)(2) of that section [20 years of satisfactory service] and pro-
vide the member with the notification required by subsection (d) of that section if the member has 
completed at least 15, and less than 20, years of service computed under section 12732 of this title. 
 
(b)  Notification under subsection (a) may not be made if— 

(1)  the disability was the result of the member's intentional misconduct, willful neglect, 
or willful failure to comply with standards and qualifications for retention established by the Sec-
retary concerned; or 

(2)  the disability was incurred during a period of unauthorized absence. 

 

Coast Guard Regulations 
 

Chapter 8.D.3. of the Reserve Policy Manual (RPM) reflects 10 U.S.C. § 1204 by provid-
ing the following for reservists on serving on inactive duty or on active duty for a period of 30 
days or fewer:   

 
A  member  of  the  Reserve  not  covered  by  the  above  section  [which  is  for  reservists  serving  on 
continuous active duty for more than 30 days], who is determined by the Commandant to be unfit 
to perform the duties of their office, grade, rank, or rating because of physical disability resulting 
from injury, may be permanently retired with retired pay, if the Commandant also determines that:  
 
 
 
 
willful neglect, and was not incurred during a period of unauthorized absence, and  
 

 
a. The disability is of a permanent nature, and  
b. Is the proximate result of performing active or inactive duty, or  
c. Is not a pre-existing condition or the result of the member's intentional misconduct or 

(1) The member has at least 20 years service computed under 10 U.S.C. 12739, 
(2) The disability is at least 30 percent.  

d. Either:  
 
or  
 

 

Chapter 3.F.15.e. of the Medical Manual states that convulsive disorders may  render a 
member  unfit  for  retention  and  that  “[f]ollowing  a  seizure,  the  member  is  NFFD  [not  fit  for 
duty],  and  will  remain  unfit  until  he/she  is  controlled  with  medications  with  no  seizures  for 
twelve months.  A medical board is not required if the convulsive disorder is well controlled.” 

 
Article 3.D.4. of the Physical Disability Evaluation System (PDES) Manual (COMDT-
INST M1850.2C) provides that if, during a physical examination, a reservist is found unfit for 
duty because of a medical condition that is disqualifying for retention, the reservist’s command 
shall initiate his evaluation by a medical board to determine whether he is fit for continued ser-
vice or to recommend that he be evaluated by  a Physical Evaluation Board and processed for 
separation under the PDES.  Under Chapter 2.C.3.a.3.d.2.a., if a reservist is referred to the Physi-
cal Evaluation Board, that board will determine, inter alia, to what extent the reservist is disabled 
(which is reflected in a percentage disability rating) and whether the reservist’s disability was 
incurred in the line of duty or is a proximate result of his military service, which would make the 
disability potentially compensable under 10 U.S.C. §§ 1204 or 1206. 

 
 
Article  2.A.23.  of  the  PDES  Manual  defines  “incurrence  of  disability”  as  the  moment 
“when the disease or injury is contracted or suffered as distinguished from a later date when the 
member’s physical impairment is diagnosed or the physical impairment renders the member unfit 
for continued duty.” 
 
 
Article  2.A.43.  of  the  PDES  Manual  defines  “proximate  result  of  military  service”  as 
occurring when an injury or disease or aggravation thereof “may reasonably be regarded as an 
incident of military service or may reasonably be assumed to be the effect of military service.”  

 
Chapter 8.D.7. of the Reserve Policy Manual states the following:  
 
a. The unit commander shall initiate separation action when a reservist is found to have a perma-
nent  disqualifying  physical  condition  and  the  condition  is  determined  to  be  not  the  proximate 

result of performing active or inactive duty. Relevant medical and administrative documentation 
shall be forwarded with recommendations to CGPC-rpm, copying the servicing ISC (pf), for final 
determination and separation authority. Commanding Officer, Training Center Cape May has final 
separation authority for Reserve personnel undergoing IADT.  
 
b. Reservists shall be notified of their right to request retention waivers for disqualifying physical 
conditions.  Medical  waiver  procedures  are  contained  in  section  3.A.8,  Medical  Manual, 
COMDTINST M6000.1 (series).  

Chapter 8.D.8. of the Reserve Policy Manual provides the following “Special Rule for 

Members with Physical Disabilities Not Incurred in Line of Duty”: 

  
a. By the authority of 10 U.S.C. 12731b, in the case of a SELRES member who no longer meets 
the qualifications for SELRES membership solely because the member is unfit because of physical 
disability, the Commandant may determine to treat the member as having met the service require-
ments for non-regular retirement if the member has completed at least 15, and less than 20, years 
of service.  
b. Such determination shall not be made if:  

(1) The disability was the result of the member's intentional misconduct, willful neglect, 
or willful failure to comply with standards and qualifications for retention; or  
(2) The disability was incurred during a period of unauthorized absence.  

 

 

1. 

 
2. 

 
3. 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

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

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

10 of the United States Code.  The application was timely. 

The applicant alleged that he should have been medically retired from the Reserve 
because of his seizure disorder.  Under 10 U.S.C. § 1204, the applicant, who was not serving on 
extended active duty, would only be entitled to a medical (physical disability) retirement if he 
were found to be at least 30% disabled as the result of a medical condition that was incurred or 
aggravated in the line of duty (assuming that his seizure disorder began after 19963).  The record 
shows that in May 2004 while undergoing a physical evaluation in preparation for reenlisting, 
the applicant admitted to the doctor that he had recently suffered one or more seizures and was 
taking an anti-convulsant medication to control them.  The doctor noted that the applicant would 
need a waiver of the medical retention standards to reenlist.  The record indicates that no waiver 
was granted and that the applicant was separated from the Reserve when his enlistment expired 
on June 25, 2004, after more than eighteen years of service. 

Under Chapter 3.F. of the Medical Manual and Article 3.D.4. of the PDES Man-
ual, when the applicant was found to suffer from a seizure disorder, his command should have 
convened a medical board to process him under the PDES.  His command failed to do so.  If the 
applicant had been processed under the PDES, a Physical Evaluation Board would presumably 
have determined whether his seizure disorder was incurred or aggravated in the line of duty, as 
                                                 
3 Disabilities dating to 1995 or earlier must be the “proximate result of military service” to be compensable under 
either §1204 or § 1206 of 10 U.S.C. 

defined under Article 2.A.23. of the PDES Manual, and whether he was entitled to retirement or 
severance  pay  under  10  U.S.C.  §§  1204  or  1206,  respectively.    Although  the  applicant  has 
proved that his command erred in not initiating a medical board, he has not proved that his sei-
zure disorder was incurred or aggravated in the line of duty.  Therefore, he has proved that he 
was erroneously denied PDES processing, but he has not proved that he was erroneously denied 
a  physical  disability  retirement  or  separation  pursuant  to  10  U.S.C.  §§  1204  or  1206.    Under 
those  statutes,  the  applicant’s  entitlement  to  a  physical  disability  retirement  or  separation 
depends upon whether his seizure disorder was incurred or aggravated in the line of duty.  Under 
Chapter 2.C.3.a.3.d.2.a. of the PDES Manual, that determination is properly made by a Physical 
Evaluation Board. 

The applicant alleged that he should receive active duty disability retirement pay 
because he was on active duty orders when he underwent his physical examination.  However, 
the provisions for active duty disability retirement or severance pay under 10 U.S.C. §§ 1201 and 
1203 do not apply unless a member incurs or aggravates his disability while serving on a period 
of continuous active duty that is longer than 30 days.  The applicant has presented no evidence to 
show that he incurred or aggravated his seizure disorder while serving on active duty for more 
than 30 days. 

The JAG pointed out in his advisory opinion that even if the applicant is not enti-
tled to a physical disability retirement or separation under 10 U.S.C. §§ 1204 or 1206, he is enti-
tled to a Reserve retirement under 10 U.S.C. § 12731b and Chapter 8.D.8. of the Reserve Policy 
Manual because he completed more than eighteen years of service.  The JAG recommended that 
the Board order the Coast Guard to advise the applicant about the following two types of relief 
and require him to choose one:  (1) evaluation by a medical board and further PDES processing 
if he is found unfit for duty, or (2) early retirement from the Reserve pursuant to Chapter 8.D.8. 
of the Reserve Policy Manual without going through PDES processing.   

The applicant’s command erred in failing to convene a medical board to evaluate 
him.  If his command had convened a medical board, it is likely that the applicant would have 
been referred to a Physical Evaluation Board for further PDES processing.  Therefore, the Board 
finds that the applicant is entitled to evaluation by a medical board and further PDES processing 
if he is found to have been unfit for duty on June 25, 2004.  However, the applicant also could 
have requested early retirement under Chapter 8.D.8. of the Reserve Policy Manual, in lieu of 
PDES processing, and he should have had that option in June 2004. 

 
4. 

 
5. 

 
6. 

 
7. 

 

 
 

Accordingly, after being advised by the Coast Guard about his options under this 
order,  the  applicant  should,  at  his  discretion,  be  evaluated  by  a  medical  board  to  determine 
whether he was fit for duty on June 25, 2004, and if found unfit for duty, he should be referred to 
a Physical Evaluation Board for further processing under the PDES.  If the applicant does not 
choose to be evaluated by a medical board, if he is found to have been fit for duty, or if his sei-
zure disorder is found not to have been incurred or aggravated in the line of duty, he should be 
retired as of June 26, 2004, pursuant to Chapter 8.D.8. of the Reserve Policy Manual. 

 

ORDER 

 

The  application  of  former  MK2  xxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for 

correction of his military record is granted in part as follows: 
 

Within 60 days of the date of this decision, the Coast Guard shall advise the applicant 

about his options under this order.   

 
Within 90 days of the date of this decision, the applicant shall inform the Coast Guard in 
writing whether he agrees to undergo evaluation by a medical board to determine whether he was 
fit for duty on June 25, 2004, and if found unfit for duty, to be referred to a Physical Evaluation 
Board for further processing under the PDES.   

 
If the applicant does not choose to be evaluated by a medical board within 90 days of the 
date of this decision; if he is found by the medical board to have been fit for duty on June 25, 
2004; or if his seizure disorder is found not to have been incurred or aggravated in the line of 
duty, he shall be retired as of June 26, 2004, pursuant to Chapter 8.D.8. of the Reserve Policy 
Manual. 
 
The Coast Guard shall correct his military record as necessary to reflect any action taken 

 
 

All other relief is denied. 

 
under this order and shall pay him any amount he may be due as a result of such corrections. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 Richard Walter 

 
 
 Jordan S. Fried 

        

 
 
 Julia Andrews