DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-224 
 
Xxxxxxxxxxxx 
xxxxxxxxxxxx   

FINAL DECISION 

 

 
 

 

This proceeding was conducted under the provisions of section 1552 of title 10 and sec-
tion 425 of title 14 of the United States Code.  The Chair docketed the case after receiving the 
completed  application  on  July  27,  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  May  19,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
The applicant asked the Board to correct her record to show that she received a medical 
(disability) separation in 1996, instead of an administrative separation for failing to maintain the 
Coast Guard’s weight standards.  She was unable to maintain the weight standards, she alleged, 
only  because  she  had  to  take  the  hormone  supplement  Provera  after  she  was  diagnosed  with 
polycystic  ovarian  disease.    She  alleged  that  she  was  unjustly  denied  a  medical  separation 
because of racial prejudice.1 
 
 
In support of her allegations, the applicant submitted copies of documents from her medi-
cal and military records and an article from the New England Journal of Medicine, dated Sep-
tember 28, 1995, which states that among women with polycystic ovary syndrome, “[o]besity is 
common but not universal.”  The applicant also submitted medical records from 2009 showing 
that she continues to suffer gynecological problems. 
 
Although more than a decade has passed since her discharge, the applicant argued that it 
 
is in the interest of justice for the Board to waive the statute of limitations “because the problem 
was a medical problem,” which continues to exist and requires treatment. 
 

   

                                                 
1 The applicant did not elaborate on her claim of racial prejudice or submit any corroborative evidence. 

SUMMARY OF THE RECORD 

 
 
The applicant enlisted as a seaman on active duty in 1988 and advanced to yeoman third 
class (YN3) in March 1990.  She exceeded Coast Guard weight standards and was placed on 
weight probation in both March and June 1992 and in January 1994.  Although she successfully 
reduced her weight during these probationary periods, on September 7, 1995, the applicant was 
found to be 33 pounds over her maximum allowable weight (MAW) of 180 pounds and to have 
39% body fat, which was over the maximum body fat standard of 33%.  After a doctor certified 
that she was fit for duty and to diet and exercise, the applicant was referred to a dietician, placed 
on weight probation, and warned that if she failed to lose 33 pounds or to drop below 33% body 
fat by April 20, 1996, she would be separated.  Pursuant to this probation, her unit counseled her, 
sent her to a 5-day Navy diet seminar, and allowed her extra time to exercise during working 
hours.  When the applicant’s weight probationary period ended on April 22, 1996, she weighed 
208 pounds and her body fat measured 36%.  Because she did not meet the Coast Guard’s stan-
dards, she was advised on a Page 7 that she would be separated.  
 
 
On April 23, 1996, the applicant consulted a doctor, Dr. L, and requested a waiver of the 
weight standards.  Dr.  L noted that  a  gynecologist, Dr. U,  had advised the command that the 
applicant  had  a  history  of  ovarian  dysfunction,  which  frequently  causes  weight  gain,  and  that 
“this condition causes the vast majority of patients with it to be overweight.”  Dr. L wrote that 
the applicant’s polycystic ovarian disease and treatment with Provera “may cause weight gain, 
but this should not preclude staying within the CG weight standards in my opinion.”  Dr. L noted 
that  he  told  the  applicant  that  a  waiver  was  not  justifiable  and  that  she  should  continue  her 
“weight reduction program by prudent diet (has seen nutritionalist) and sensible exercise daily.”  
Dr. L referred the applicant to Dr. B for a second opinion at her request and noted that “she may 
require an Initial Medical Board [IMB] due to this permanent condition which requires medica-
tion to control.  This medication may also contribute to weight gain = Provera.” 
 
 
On April 30, 1996, the applicant consulted Dr. B, who noted that “GYN consultant feels 
the diagnosis is part of the cause for her weight gain.  This was confirmed by textbook refer.  
Also on Provera causing wt gain.  … Individual is exercising and on restricted diet but unable to 
meet the measurement standards pertaining to total body fat of 30% or less. … She has now pre-
sented a Weight in Water of 29% from a local sport organization that she paid for with her own 
funds. … MAW variant?  Falls within the total body fat allowance.” 
 
 
On May 1, 1996, Dr. B wrote, “Discussion with [Dr. L] and we decided that the individ-
ual does meet the letter of the regulation.  That does not mean her current weight is healthy for 
her,  and  she  should  continue  diet  and  exercise  to  reduce  it.    I  will  check  the  veracity  of  the 
determination and if solid I will pass the individual on percentage of body fat.” 
 
 
On  May  9,  1996,  the  applicant’s  commanding  officer  (CO)  notified  her  that  he  would 
initiate the applicant’s discharge for weight control failure.  The applicant responded by stating 
that she did not object to the discharge. 
 
 
On May 14, 1996, Dr. B advised the applicant’s CO that hydrostatic body composition 
analysis on April 30, 1996, had shown that the applicant’s body fat percentage was 30% and thus 

within Coast Guard standards.  The doctor recommended that the applicant’s MAW be revised 
based upon her current weight in accordance with paragraph 4.B. of COMDTINST M1020.8C. 
 
 
On May 24, 1996, the applicant’s CO sent the Coast Guard Personnel Command (CGPC) 
a memorandum recommending that the applicant be expeditiously discharged for weight control 
failure.    In  his  memorandum,  the  CO  noted  the  applicant’s  history  of  weight  probationary 
periods;  the  hydrostatic  testing  on  April  30,  1996;  and  the  fact  that  CGPC  had  told  him  that 
hydrostatic testing was not an acceptable method of determining a member’s body fat. Regarding 
the applicant’s efforts to lose weight, the Group Commander alleged that, although the command 
had gone to “extraordinary lengths” to help her succeed, “all of our efforts have failed to produce 
the kind of lifestyle changes that sustained compliance with Commandant policy would require 
of her.” 
 
 
The  applicant’s  separation  was  suspended  while  she  underwent  evaluation  by  an  IMB 
because of her obesity and polycystic ovarian disease.  The IMB reported on June 12, 1996, that 
the applicant had been “placed on the weight program and given intermittent Progesterone ther-
apy for amenorrhea secondary to Polycystic Ovary Disease.”  The IMB stated that she was fit for 
full  duty  despite  her  obesity  and  polycystic  ovarian  disease  and  that  the  “prognosis  for  this 
patient will depend on the vigor with which she pursues weight control because Polycystic Ovary 
Disease is associated with and thought to cause over weight.”  The IMB stated that she had no 
disability that prevented her from performing all the duties of her rate and recommended “con-
tinued  weight  management  with  diet/exercise  and  measured  through  hydrostatic  weighing  vs 
standard weight procedures, which would require a waiver.”   
 

On  July  9,  1996,  the  CO  forwarded  the  IMB’s  report  to  CGPC  with  a  memorandum 
stating  that  “[o]ur  interpretation  of  Chapter  3  of  Commandant  Instruction  M1020.8C  is  that 
personnel  with  a  medical  condition  that  chronically  prevents  them  [from]  maintaining  their 
maximum allowable body weight are to be separated, either discharged or medically retired as 
appropriate.”  He reported that at the start of her weight probation, a doctor had determined that 
losing weight would not be detrimental to her health, but beneficial, and that he did not think her 
diagnosis should excuse her from maintaining the Coast Guard weight and body fat standards: 

 
If [the applicant’s condition] is a ratable disease, we have no objection to her medical retirement.  
We cannot recommend retention if the ovarian problems are going to present an obstacle to con-
sistently maintaining her allowable weight.  While the board findings suggest that the condition 
would make weight loss more difficult, it in no way appears to suggest that she cannot or should 
not lose the excess weight.  It is not unusual—in fact it is almost the norm—for people identified 
as  chronically  overweight  to  evidence  secondary  problems  such  as  bad  backs,  bad  knees,  bad 
ankles, or some other health problem that precludes an aggressive exercise program.  Historically 
Commandant has not considered these a sound basis for excusing someone from maintaining their 
allowable weight.  I see nothing in this case that would merit an exception. 

 
 
The applicant rebutted the IMB’s report to CGPC on July 17, 1996, noting that several 
doctors had found that polycystic ovarian disease and treatment with Provera cause women to 
gain weight.  She also stated that Dr. B had told her that she met the Coast Guard’s standards 
because of the results of her hydrostatic testing and that a YNC had cursed at her about the letter 
from the gynecologist and had told her that the command watched what she was eating in the 
office and at lunch. 

On September 23, 1996, the applicant submitted a request to be assigned to the Selected 

CGPC submitted the IMB’s report and the CO’s memorandum with the applicant’s rebut-
tal to a Central Physical Evaluation Board (CPEB) to determine whether she was fit for full duty 
and, if not, what her disability rating should be.  On September 13, 1996, the CPEB found the 
applicant fit for full duty and noted that she was “eligible for retention in accordance with Encl 
(3) to COMDTINST M1020.8C.”  The applicant’s counsel advised her of these findings in both 
a telephone conversation and a memorandum on September 18, 1996.  The memorandum notes 
that under the rules, she could not reject the finding that she was fit for full duty, but she had a 
right to submit a rebuttal and request for reconsideration if she submitted new medical informa-
tion within 15 days of their conversation.  The memorandum also notes that if the applicant took 
no further action, the CPEB’s findings would be forwarded for final approval.  
 
 
Reserve upon the expiration of her enlistment on October 23, 1996. 
 
 
On September 30, 1996, the applicant’s CO asked Commander, CGPC whether hydro-
static testing was an acceptable means of determining a member’s percentage of body fat.  He 
noted that “[t]he Board section [of CGPC] feels the hydrostatic body fat analysis is legitimate 
and [the applicant] should be retained, the Separations section says the hydrostatic body fat anal-
ysis  is  invalid  and  she  should  be  separated  pursuant  to  [Article  12-B-16  of  the  Personnel 
Manual].  I need to know which is correct.”  Commander, CGPC replied to the CO on October 8, 
1996, stating that hydrostatic testing “is not valid based on the fact that the Coast Guard’s only 
allowable  method  for  determining  body  fat  percentages  is  provided  for  in  COMDTINST 
M1020.8C.”    Also  on  October  8,  1996,  CGPC  advised  the  CO  that  Commander,  CGPC  had 
approved  the  findings  of  the  CPEB  on  October  2,  1996,  and  that  the  applicant  “shall  not  be 
retired or separated by reason of physical disability.” 
 
 
On October 8, 1996, the Group Commander advised the applicant that he was initiating 
her discharge because she had failed to meet the weight or body fat standard and “medical per-
sonnel  [had]  determined  that  it  would  not  be  detrimental  to  [her]  health  to  lose  the  excess 
weight.”  Pursuant to her pending discharge, the applicant underwent a physical examination on 
October 10, 1996, and was found fit for duty and/or separation.  After the examination, Dr. B 
noted in the applicant’s record that the IMB had found her fit for full duty and that she was being 
separated  because  the  Coast  Guard  did  not  accept  hydrostatic  weighing  as  a  way  to  measure 
body fat.  Dr. B wrote that he told the applicant that other members have received waivers in the 
past based on hydrostatic weighing.  He concluded that “[t]his is the type matter that will have to 
be sorted out at a higher level and I would suggest she seek counsel of a legal authority since I 
can offer no further assistance medically.” 

 

 
On October 11, 1996, the applicant acknowledged notification of and objected to the pro-
posed discharge.  In her statement, she noted that several doctors had found that her weight gain 
could  be  attributed  to  her  medical  condition  and  treatment  with  Provera  and  that  hydrostatic 
testing on April 30, 1996, had shown her body fat percentage to be within the Coast Guard stan-
dard.  Regarding the timing of the discharge proceedings, the applicant noted that she had 10 
days to object to the finding that she was fit for full duty; that her 15-day period for appealing the 
results of the CPEB were still pending; and that as of October 23, 1996, she would have more 

than  eight  years  of  service  and  so  would  be  entitled  to  an  Administrative  Discharge  Board 
(ADB).  She stated that if she were discharged before these issues were resolved or if she were 
denied her rights, she would pursue relief through congressional or legal channels. 
 

The CO appended the applicant’s objection and other pertinent records to a memorandum 
to CGPC dated October 9, 1996, in which he recommended that she be expeditiously discharged 
for weight control failure.  In this memorandum, the CO repeated the information in his memo-
randum of May 24, 1996; noted that the applicant had lost no more weight while the IMB and 
CPEB were pending; and also noted the IMB’s finding that it would not be harmful for the appli-
cant to try to lose weight.  In addition, the CO noted that the applicant had recently submitted a 
Statement  of  Intent  declaring  her  intent  to  leave  active  duty  when  her  enlistment  expired  on 
October 23, 1996.   

 
On  October  15,  1996,  CGPC  ordered  the  CO  to  discharge  the  applicant  no  later  than 
October 22, 1996.  The applicant received an honorable discharge on October 22, 1996, due to 
“weight control failure” with an RE-3F reenlistment code.  She was advised on a Page 7 that if 
she met her MAW when she had been out of the Service for at least six months but no longer 
than a  year, she could request reenlistment and would be reenlisted  “based on [the Service’s] 
needs and the member’s past performance.” 

 

 
In February 2002, the applicant submitted an application to the Board for Correction of 
Military  Records  (BCMR)  in  which  she  asked  it  to  correct  her  reason  for  separation  from 
“weight  control  failure”  to  “end  of  enlistment”  and  to  upgrade  her  reenlistment  code  to  RE-1 
(eligible to reenlist).  Because the BCMR’s rules require applicants to exhaust their administra-
tive remedies within the Coast Guard before applying to the BCMR, the Chair forwarded her 
application to the Discharge Review  Board (DRB).  On April 28, 2003, the DRB advised the 
applicant  that  her  reenlistment  code  is  correct  and  that  she  could  apply  for  reenlistment  at  a 
recruiting office. 

VIEWS OF THE COAST GUARD 

On December 17, 2010, the Judge Advocate General (JAG) of the Coast Guard recom-

 
 
mended that the Board deny the requested relief. 
 
 
The  JAG  stated  that  the  Coast  Guard  complied  with  the  regulations  in  COMDTINST 
M1020.8 and that the applicant “had numerous documented warnings of pending discharge if she 
failed to maintain weight compliance.”  In addition, the JAG stated that the applicant’s claim that 
she should have been granted a medical discharge is without merit based on the findings of the 
CPEB that she was fit for full duty. 
 
 
In making this recommendation, the JAG adopted the findings and analysis provided in a 
memorandum on the case prepared by the Personnel Service Center (PSC, successor to CGPC).  
The PSC stated that the application should be denied for untimeliness.  Regarding the merits of 
the case, the PSC stated that although the applicant’s condition frequently causes women to gain 
weight, the medical reports show that “nothing precluded her from still carefully watching her 
diet and maintaining a healthy weight and lifestyle.”  The PSC stated that it is “well documented 

 

throughout the applicant’s record that numerous medical professionals not only saw it as possi-
ble, but in fact healthy, if the applicant were to lose the weight” as the Coast Guard required.  
The  PSC  stated  that  the  applicant  was  “discharged  from  the  service  for  a  preventable  weight 
control  problem.”    The  PSC  concluded  that  nothing  in  the  record  warrants  a  finding  that  the 
applicant’s discharge for weight control failure was erroneous or unjust.    
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On January 4, 2011, the Chair sent the applicant a copy of the views of the Coast Guard 

and invited her to submit a written response within 30 days.  No response was received.  
 

FINDINGS AND CONCLUSIONS 

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

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

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

1. 
 
2.  

 
4. 

 
5. 

3. 

Under 10 U.S.C. § 1552(b) and 33 C.F.R. § 52.22, an application to the Board 
must be filed within three years after the applicant discovers, or reasonably should have discov-
ered, the alleged error or injustice.  The applicant knew in 1996 that she was being discharged for 
“weight control failure.”  Therefore, her application is untimely. 
 

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 instructed 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.”2 

Regarding the delay of her application, the applicant argued that it is in the inter-
est  of  justice  for  the  Board  to  waive  the  statute  of  limitations  because  her  medical  problems 
persist and still require treatment.  The Board finds that the applicant’s explanation for her delay 
is not compelling because she failed to show that anything prevented her from seeking correction 
of the alleged error more promptly. 

A cursory review of the merits of this case indicates that the applicant received 
due process with respect to her discharge under the Coast Guard’s Weight/Physical Fitness Stan-
dards for Coast Guard Military Personnel, Physical Disability Evaluation System Manual, and 
the Personnel Manual.  When the applicant exceeded the weight and body fat standards, she was 
afforded  a  weight  probationary  period,  nutritional  counseling,  and  extra  time  for  exercise.    A 
doctor certified that it was safe and healthy for her to lose weight through diet and exercise, and 

                                                 
2 Allen v. Card, 799 F. Supp. 158, 164-65 (D.D.C. 1992); see also Dickson v. Secretary of Defense, 68 F.3d 1396 
(D.C. Cir. 1995).   

her probationary period was extended for several months.  Her medical records show that her 
doctors acknowledged that her polycystic ovarian disease and treatment with Provera increased 
the  difficulty  of  weight  control  for  her  but  also  found  that  losing  weight  to  meet  the  Coast 
Guard’s weight standards  would be possible and healthy for her.3  However, her CO  reported 
when he initiated her discharge both in May and October 1996 that although the command had 
gone to “extraordinary lengths” to help her lose weight, “all of our efforts have failed to produce 
the kind of lifestyle changes that sustained compliance with Commandant policy would require 
of her.”  Because of her medical condition, she was referred to an IMB, but like her CO, both the 
IMB and the CPEB found that she was fit for full duty.  Unfitness for the duties of one’s office, 
rank, or rating is the sole reason a member may receive a medical discharge or retirement.4  The 
applicant’s military records are presumptively correct, and the applicant has submitted insuffi-
cient  evidence  to  overcome  the  presumption.5    Therefore,  the  Board  finds  that  the  applicant’s 
claim cannot prevail on the merits. 

 
6. 

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] 

 

 

                                                 
3  The  Board  notes  that  Article  2.E.4.  of  Weight/Physical  Fitness  Standards  for  Coast  Guard  Military  Personnel, 
COMDTINST M1020.8 (series), states that a “member found to have an underlying medical condition that would 
make  fitness  activities  detrimental  to  his/her  health  is  still  responsible  for  meeting  MAW  standards  within  the 
timeline specified by the probationary period.” 
4 Physical Disability Evaluation System Manual, Article 2.C.2.a. 
5 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.”).   

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 
 Christopher M. Dunne 

 

 

 
 Frank E. Howard 

 

 

 

 
 
 Jennifer A. Mehaffey 

 

 

 

 

 

 

 

 

 

 

her military record is denied.