DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-113 
 
Xxxxxxxxxxxxxxxxxx 
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FINAL DECISION 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case  after receiving the  applicant’s 
completed application on February 26, 2010, and assigned it to staff member J. Andrews to pre-
pare the 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 received a physical 
disability retirement on September 9, 1953, instead of a disability discharge with severance pay.  
He alleged that he received a 40% disability rating and that due to new rules regarding traumatic 
brain injuries (TBIs) and concurrent retirement and disability pay (CRDP),1 he should be consi-

                                                 
1  Under  10  U.S.C.  §  1414,  which  was  enacted  on  December  28,  2001,  veterans  with  at  least  20  years  of  active 
service  and  disability  ratings  from  the  DVA  of  at  least  50%  may  receive  concurrent  retired  and  disability  pay  as 
follows: 

 

(a)(1)  Subject  to  subsection  (b),  a  member  or  former  member  of  the  uniformed  services  who  is 
entitled for any month to retired pay and who is also entitled for that month to veterans’ disability 
compensation  for a qualifying service-connected disability (hereinafter in this section referred to 
as a ‘qualified retiree’) is entitled to be paid both for that month without regard to sections 5304 
and  5305  of  title  38  [which  statutes  prohibit  receipt  of  both  disability  retirement  pay  and 
retirement pay for years of service]. …   

     (2)  Qualifying  service-connected  disability.    In  this  section,  the  term  ‘qualifying  service-
connected  disability’  means  a  service-connected  disability  or  combination  of  service-connected 
disabilities that is rated as not less than 50 percent disabling by the Secretary of Veterans Affairs. 

(b) Special rules for chapter 61 disability retirees. 

    (1) Career retirees. The retired pay of a  member retired  under chapter 61 of  this title  with 20 
years or more of service otherwise creditable under section 1405 of this title  , or at least 20 years 

 

 

dered  permanently  disabled.    The  applicant  argued  that  he  “should  have  some  benefit  under 
CRDP.”   
 
 
The applicant stated that he discovered the alleged error in his record on April 14, 2009, 
and also that the Board should excuse the untimeliness of his application because he suffers from 
TBI and cognitive disability.  He asked the Board to review his medical record from the Depart-
ment of Veterans’ Affairs (DVA). 
 

SUMMARY OF THE RECORD 

 
 
On  February  8,  1949,  the  applicant  enlisted  in  the  Coast  Guard.    On  October  12,  1952, 
while driving a motorcycle in Honolulu, Hawaii, he collided with a truck.  He was unconscious 
for  three  days  and  suffered  many  broken  bones,  including  a  broken  skull  and  jaw  bone,  and 
contusions.  When he regained consciousness, the doctors discovered that he suffered from “right 
wrist drop” as a result of nerve damage to his upper arm.  His skull was wired together, his bones 
healed,  and  his  wrist  condition  improved.    A  Board  of  Medical  Survey  report  dated  May  14, 
1953, stated that his disabling conditions on that date were (1) numbness in the right forearm; (2) 
stiffness of the fingers of the right hand; (3) weakness of the right wrist; and (4) slight swelling 
of the right  ankle.  The board stated that although these conditions  were improving, some resi-
dual disability that would render him unfit for duty was likely, so a Board of Physical Evaluation 
should be convened to separate him from the Service. 
 
 
On  July  7,  1953,  a  Board  of  Physical  Evaluation  convened  to  review  the  applicant’s 
records and question him and his doctor about his conditions.  The applicant waived his right to 
counsel.   When  asked  about  his  physical  complaints,  he  complained  about  the  weakness  in  his 
wrist and about getting headaches in cold weather because of the wire that had been inserted in 
his head.  The board found him unfit for duty based on a mild, incomplete paralysis of his right 
radial nerve, which was rated as 20% disabling, and a slight atrophy of his thigh muscle, which 
was rated as 0% disabling.  The board recommended that he receive a 20% combined disability 
rating  under  the  Veterans’ Administration  Schedule  for  Rating  Disabilities  (VASRD).    On  July 
14, 1953, the applicant  acknowledged  receipt of the board’s report and elected not  to  rebut  the 
board’s findings and recommendation.  The case was reviewed by the Physical Review Council, 
which concurred in the findings and the rating and recommended that the applicant be separated 
with severance pay.  The Chief Counsel found the proceedings correct and supported by the evi-
dence.    On August  26,  1953,  the  Commandant  approved  the  recommendation  and  ordered  that 
the applicant be discharged with severance pay. 
 
                                                                                                                                                             

of  service  computed  under  section  12732  of  this  title,  at  the  time  of  the  member’s  retirement  is 
subject  to  reduction  under  sections  5304  and  5305  of  title  38,  but  only  to  the  extent  that  the 
amount of the member’s [disability] retired pay under chapter 61 of this title  exceeds the amount 
of  retired  pay  to  which  the  member  would  have  been  entitled  under  any  other  provision  of  law 
based  upon  the  member’s  service  in  the  uniformed  services  if  the  member  had  not  been  retired 
under chapter 61 of this title. 

       (2)  Disability  retirees  with  less  than  20  years  of  service.  Subsection  (a)  does  not  apply  to  a 
member retired under chapter 61 of this title with less than 20 years of service otherwise creditable 
under  section  1405  of  this  title,  or  with  less  than  20  years  of  service  computed  under  section 
12732 of this title, at the time of the member’s retirement. … 

 

 

On  September  9,  1953,  the  applicant  was  discharged  because  of  his  physical  disability, 

 
incident to service with a 20% disability rating and severance pay of $917.28. 

 
Following  his  discharge,  the  applicant  applied  to  the  Veterans’ Administration  (VA)  for 
disability benefits and was initially awarded a combined 40% disability rating, including 30% for 
“right radial nerve contusion, moderate, partially resolved”; 10% for “fracture, complete, comm., 
maxilla [jaw bone] malunion”; and 0% for his other fractures, scars, and brain concussion. 

 
Over  the  years,  the  applicant  applied  for  increased  benefits  for  various  conditions.    In 
April 2009, he sought compensation for TBI.  A clinical psychologist who examined him for the 
DVA reported the following: 

 
It is likely that some of his memory decline is attributable to the traumatic brain injury in question, 
but that probably does not account for the severity we see presently.  History shows he was able to 
work  successfully  despite  a  significant  alcohol  dependency  after  injury.    Given  recent  cardiac 
difficulties  which  could  have  produced  vascular  dementia  to  some  degree,  I  cannot  say  that  his 
cognitive disorder (mild dementia) is due solely to military experience – as stated previously, attri-
buting causality in this case would require resorting to speculation.   
 
On  November  27,  2009,  the  DVA  awarded  the  applicant  a  50%  disability  rating  for 

service-connected “depression associated with brain concussion.” 

 

VIEWS OF THE COAST GUARD 

 
 
On June 18, 2010, the Judge Advocate General  (JAG) of the Coast  Guard submitted an 
advisory  opinion  recommending  that  the  Board  deny  relief  because  of  the  untimeliness  of  the 
application.    He  stated  that  the  applicant  has  provided  “no  rationale  for  his  approximately  50+ 
year delay.”  In addition, he adopted the findings and analysis provided in a memorandum  pre-
pared by the Coast Guard Personnel Service Center (PSC).   
 
 
The PSC stated that the record shows that the applicant was separated from the Service 
 
because of partial paralysis of his right radial nerve and a slight atrophy of his thigh muscle and 
that he was not separated because of any cognitive issues.  “Had [he] recovered the full use of his 
right hand, he would have been retained on active duty.”  
 
 
The PSC noted that under VASRD rule 4.3, in determining service connection and assign-
ing disability ratings, the DVA resolves all reasonable doubt in favor of the claimant.  The PSC 
also noted the DVA is “the appropriate avenue for relief” for veterans suffering from disabilities 
that increase following their separation from the Service. 
 

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: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.   

 

 

 

2. 

An application to the Board must be filed within three years of when the applicant 
discovers the alleged error in his record. 10 U.S.C. § 1552(b).  Because there is no evidence that 
the  applicant  was  cognitively  impaired  upon  his  discharge  in  1953,  and  he  apparently  worked 
and  supported  himself  for  years  thereafter,  the  Board  concludes  that  he  knew  or  should  have 
known that he had received no disability rating for his concussion or cognitive impairment upon 
his separation in 1953.  Therefore, his application was filed more than 50 years late. 
 

3. 

Pursuant  to  10  U.S.C.  §  1552(b),  the  Board  may  excuse  the  untimeliness  of  an 
application  if  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 to determine 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 argued that the Board should excuse the untimeliness of his applica-
tion because he now suffers from a cognitive disability.  However, the record shows that his cog-
nitive disability has been diagnosed relatively recently and does not explain why he did not apply 
sooner. 
 
5. 

The  Board’s  cursory  review  of  the  record  indicates  that  it  lacks  potential  merit.  
The applicant clearly suffered a severe head trauma while in the Service, but there is no evidence 
that he was disabled by this head trauma when he was discharged in September 1953.  His Coast 
Guard medical  records show that he was discharged because of his  wrist condition,  which was 
rated  as  20%  disabling,  and  not  because  of  his  other  residual  conditions.    These  Coast  Guard 
medical records are presumptively correct. 33 C.F.R. § 52.24(b); see Arens v. United States, 969 
F.2d  1034,  1037  (Fed.  Cir.  1992)  (citing  Sanders  v.  United  States,  594  F.2d  804,  813  (Ct.  Cl. 
1979), for the required presumption, absent evidence to the contrary, that Government officials 
have carried out their duties “correctly, lawfully, and in good faith.”).  

 
6. 

Although the VA awarded the applicant a 40% disability rating soon after his dis-

charge,  the  VA’s  rating  does  not  prove  that  the  Coast  Guard’s  rating  was  erroneous.    Under  
10 U.S.C. § 1201, the military services award disability ratings based upon the member’s degree 
of unfitness for duty upon the date of discharge.   Post-discharge increases in veterans’ service-
connected disabilities are compensated by the DVA, not by the military service.   In accordance 
with  38  C.F.R.  §  4.1,  the  DVA  considers  the  extent  to  which  all  of  a  veteran’s  “service-con-
nected”  disabilities  currently  render  him  unable  to  work  in  civilian  life,  whether  or  not  these 
disabilities rendered the  veteran unfit for duty  at  the time of separation.   DVA ratings are “not 
determinative  of  the  same  issues  involved  in  military  disability  cases.”    Lord  v.  United  States,  
2  Cl.  Ct.  749,  754  (1983);  see  Kirwin  v.  United  States,  23  Cl.  Ct.  497,  507  (1991);  Dzialo  v. 
United  States,  5  Cl.  Ct.  554,  565  (1984)  (holding  that  a  VA  disability  rating  “is  in  no  way 
determinative  on  the  issue  of  plaintiff’s  eligibility  for  disability  retirement  pay.  A  long  line  of 
decisions have so held in similar circumstances, because the ratings of the VA and armed forces 
are made for different purposes.”).  Therefore, the fact that the VA assigned the applicant a 40% 

 

 

combined disability rating soon after his discharge does not prove that the Coast Guard erred in 
assigning him just a 20% rating and discharging him with severance pay.  
 

7. 

The  Board  notes  that  the  applicant  argued  that  he  should  receive  CRDP.    How-
ever,  to  receive  CRDP,  a  veteran  must  have  qualified  for  a  regular  retirement  with  at  least  20 
years of service. 10 U.S.C. § 1414.  The applicant served on active duty for less than 5 years and 
so clearly cannot qualify for CRDP.   

 
8. 

Based  on  the  record  before  it,  the  Board  finds  that  the  applicant’s  claim  cannot 
prevail on the merits.  Accordingly, the Board will not excuse the application’s  untimeliness or 
waive the statute of limitations.  The applicant’s request should be denied. 

 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 
 
 
 
 
 
 
 

 
 
 
 
 

 

 

The  application  of  former  SN  xxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction 

of his military record is denied.   

ORDER 

 

        

 
 Philip B. Busch 

 

 

 
 
 Paul B. Oman 

 

 
 Dorothy J. Ulmer