DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-101 
 
XXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXX 
   

FINAL DECISION 

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 upon receipt of 
the applicant’s completed application and military records on January 15, 2010, and subsequently 
prepared the final decision for the Board as required by 33 C.F.R. § 52.61(c).     
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  October  21,  2010,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant asked the Board to correct his record to show that he is entitled to a 20% 
disability rating for post traumatic stress disorder (PTSD) from August 8, 1979 to July 17, 2009.  
He stated that he only received 10% compensation for back strain for 30 years.  He stated that he 
did not discover the error until July 17, 2009, when he received a copy of his military medical 
record.  The applicant submitted a copy of a page from a physical evaluation board showing that 
that  board  found  him  unfit  for  duty  due  to  “hysterical  neurosis,  conversion  type,  exhibits 
emotional  tension  or  other  evidence  of  anxiety  productive  of  moderate  social  and  industrial 
impairment” rated as 10% disabling.  That Board also gave the applicant a 10% disability rating 
for depressive neurosis rated as 10% disabling, a combined 20% disability rating.    
 

SUMMARY OF THE RECORD 

 
 
On  October  30,  1978,  a  medical  board  diagnosed  the  applicant  with  “low  back  pain-
 
subjective” and anxiety but found him fit for duty.  His case was referred to the Central Physical 
Evaluation  Board  (CPEB).  The  applicant  was  informed  of  the  medical  board  findings  and 
submitted a rebuttal to them.   
 
 
On December 14, 1978, the CPEB met and found that the applicant was fit for duty.  On 
December  15,  1978,  the  applicant  rejected  the  findings  of  the  CPEB  and  demanded  a  formal 
hearing before the Formal Physical Evaluation Board (FPEB). 

 

 

 
  
On February 8, 1979, the FPEB held a hearing in which the applicant was represented by 
military counsel.  The FPEB determined that the applicant was unfit for duty and diagnosed him 
as  suffering  from  “hysterical  neurosis,  conversion  type,  exhibits  emotional  tension  or  other 
evidence  of  anxiety  productive  of  moderate  social  and  industrial  impairment”  rated  as  10% 
disabling.    The  applicant  was  also  given  a  10%  disability  rating  for  depressive  neurosis,  for  a 
combined  20%  disability  rating.    A  majority  of  the  five-member  FPEB  recommended  that  the 
applicant be separated from the Coast Guard with severance pay.  The president of the FBEP did 
not agree that the applicant was not fit for duty and wrote that “all available evidence indicates 
that [the applicant] is fit for duty.” 
 

On June 4, 1979, the Physical Review Council (PRC) reviewed the applicant’s FPEB and 
found that he was unfit for duty due to “hysterical neurosis, conversion type, exhibits emotional 
tension  or  other  evidence  of  anxiety  productive  of  moderate  social  and  industrial  impairment” 
rated as 10% disabling.  PRC explained its decision as follows: 

 
After  consideration  of  all  the  available  information  contained  in  the  Board,  the 
[PRC]  council  is  of  the  opinion  that  the  evaluee’s  condition  is  more  accurately 
described as indicated above.   
 
In accordance with Article 17-L-1(d), CG Personnel Manual, it is illegal to apply 
more than one rating to any area or system of the body when the total functional 
impairment  of  that  area  of  system  in  adequately  reflected  under  a  single 
appropriate code.  Related diagnoses should be merged for rating purposes when 
the  VA  Schedule  provides  a  single  code  covering  all  their  manifestations.    The 
PRC  members  agree  that  VA  Code  9402  (hysterical  neurosis)  is  the  appropriate 
code  in  this  case.    Therefore,  VA  code  9405  (depressive  neurosis)  has  been 
deleted from the Board’s findings.   
 
Accordingly, separation with severance pay at 10% is recommended.   
 

# 

 

# 

 

# 

 
A  copy  of  the  PRC  substitute  findings  is  being  forward  to  the  evaluee  for 
information purposes.   

On  June  13,  1979,  the  PDES  proceedings  and  recommended  findings  of  the  PRC  were 

 
 
reviewed and approved by the Chief Counsel of the Coast Guard.   
 
 
On June 14, 1979, the Chief of the Office of Personnel of the Coast Guard approved the 
recommended findings of the PRC and directed that the applicant be discharged from the Coast 
Guard with severance pay.   
 
 
pay. 
 

On August  8, 1979, the  applicant  was discharged from  the Coast  Guard  with  severance 

 

 

VIEWS OF THE COAST GUARD 

 
 
On  June  18,  2010,  the  Board  received  an  advisory  opinion  from  the  Judge  Advocate 
General  (JAG)  of  the  Coast  Guard.    He  recommended  that  the  applicant’s  request  for  relief  be 
denied  for  untimeliness  and  lack  of  evidence  that  the  Coast  Guard  committed  an  error  or 
injustice.   The JAG asked that comments from the Commander, Personnel Service Center (PSC) 
be accepted as a part of the advisory opinion. 
  
 
received a full and fair hearing before the FPEB.  PSC further stated the following: 
 

PSC recommended that the Board deny relief and stated the applicant was entitled to and 

The  member  signed  documentation  with  the  understanding  that  he  would  be 
separated  from  service  with  a  10%  severance  pay.    The  VASRD  (Veterans 
Administration  Schedule  for  Rating  Disabilities)  diagnostic  code  (DC)  on  the 
CPEB, FPEB, and PRC all utilized 9402 Hysterical Neurosis (with the correction 
at the PRC [to avoid] pyramiding . . . .)  
 
The  member’s  request  for  relief  is  based  on  a  document  that  is  incomplete,  as 
there were two more pages to the original document . . . .  The document provided 
by  the  applicant  was  the  original  findings  of  the  FPEB  without  the  additional 
recorded findings of the PRC.  Therefore, it should be noted that the member[‘s] . 
. . recommended 10% [disability] rating  with severance pay was correct in 1979 
and is correct today.   
 
The  applicant’s  appropriate  avenue  of  relief  at  this  time  is  a  request  for  service 
connected compensation from the Veterans Administration.   
 

APPLICANT’S REPLY TO THE VIEWS OF THE COAST GUARD 

 
On June 22, 2010, a copy of the Coast Guard views was mailed to the applicant with an 
 
invitation  for  him  to  submit  a  response.    The  BCMR  did  not  receive  a  response  from  the 
applicant.1 
 

APPLICABLE LAW 

 
Disability Statutes 
 
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.”  Title 10 U.S.C. § 1203 provides that such a member whose disability 

                                                 
1   The Board’s June 22, 2010 letter to the applicant was returned to the Board with the notation “not at this address.”  
The  staff  phoned  the  applicant  at  the  number  he  provided  and  left  a  message  that  we  needed  his  address.    The 
applicant has not contacted the Board.   

 

 

is rated at only 10 or 20 percent under the VASRD shall be discharged with severance pay.  Title 
10 U.S.C. § 1214 states that  “[n]o member of the armed forces may be retired or separated for 
physical disability without a full and fair hearing if he demands it.” 
 
Physical Disability Evaluation System (PDES) Manual 
 
 
Article 9.A.4. of the PDES Manual prohibits pyramiding which is the application of more 
than one rating under the Veterans Administration Schedule for Rating Disabilities (VASRD) for 
any  area  or  system  of  the  body  when  the  total  functional  impairment  of  that  area  or  system  is 
more appropriately reflected under a single diagnostic code.  The prohibition against pyramiding 
prevents overrating the disability.   
 

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: 
 
 
States Code.  The application was timely. 
 

1.    The  BCMR  has  jurisdiction  of  the  case  pursuant  to  section  1552  of  title  10,  United 

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 thirty years after the applicant’s FPEB proceedings and discharge from 
the Coast Guard.  The applicant claimed that he discovered the alleged error in July 2009 but he 
did  not  offer  an  explanation  why  he  could  not  have  discovered  the  alleged  error  earlier.    The 
Board finds that he should have discovered the alleged error at the time of or within three years 
of his discharge in 1979.  In this regard the PRC noted on its report that it was sending a copy of 
its substituted findings granting only a 10% disability rating to the applicant.  The applicant has 
not stated that he did not receive this information at that time.  
 

3.  Although the application is not timely, the Board must still perform at least a cursory 
review  of  the  merits  to  determine  whether  it  is  the  interest  of  justice  to  waive  the  statute  of 
limitations.    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. 
 
 
4.  With respect to the merits, the applicant has failed to prove by a preponderance of the 
evidence  that  the  Coast  Guard  committed  an  error  by  discharging  him  with  a  10%  disability 
rating.    Contrary  to  the  applicant’s  contention,  he  never  had  a  disability  rating  from  the  Coast 
Guard  for  back  strain.    His  disability  rating  from  the  Coast  Guard  was  always  for  neurosis.  
During  the  PDES  process,  the  FPEB  gave  the  applicant  a  10%  disability  rating  for  hysterical 
neurosis  and  a  10%  disability  rating  for  depressive  neurosis,  for  a  combined  20%  rating.  

 

 

However, the PRC, a review board, found that  “the applicant was entitled to only a 10% rating 
for hysterical neurosis because the Personnel Manual prohibited applying more than one rating to 
any  area  or  system  of  the  body  when  the  total  functional  impairment  of  that  area  or  system  is 
adequately  reflected  under  a  single  appropriate  code.”    The  PRC  noted  that  its  decision  was 
being forwarded to the applicant.  The record indicates that the applicant received severance pay 
for his 10% disability upon his discharge from the Coast Guard.  The Coast Guard is entitled to 
the presumption that its officers carried out their duties “correctly, lawfully, and in good faith.”  
Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 
804,  813  (Ct.  Cl.  1979).    The  applicant  has  presented  no  evidence  otherwise.    Nor  has  he 
presented any evidence that he was entitled to a higher disability rating from the Coast Guard. 
 

5.   Accordingly, the applicant’s request for relief should be denied because it is untimely 

and because it lack merit. 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

 

The  application  of  former  XXXXXXXXXXXXXXX,  USCG,  for  correction  of  his 

ORDER  

 

military record is denied. 
 
 

        

 
 Philip B. Busch 

 

 

 
 
 Paul B. Oman 

 

 
 Dorothy J. Ulmer