DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2011-068
Xxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxx
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 January 6, 2011, 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 September 29, 2011, is approved and signed by the three duly
APPLICANT’S REQUEST AND ALLEGATIONS
The applicant, former lieutenant (LT) who was honorably discharged from the Reserve
on June 30, 1994, asked the Board to correct his military record to show that he has service-
connected amyotrophic lateral sclerosis (ALS; also known as Lou Gehrig’s disease) and is
entitled to processing under the Physical Disability Evaluation System (PDES) and to disability
retired pay from the Coast Guard. The applicant stated that he was diagnosed with ALS on April
25, 2009, and was advised that his ALS is deemed to be service connected under the rules of the
Department of Veterans’ Affairs (DVA). He stated that he has requested disability retired pay
from the Coast Guard but was told he did not qualify because he was not disabled at the time of
his separation. The applicant argued that because his ALS is service connected, he should be
eligible for PDES processing and disability retired pay “regardless of how [he] was at time of
separation.”
In support of his allegations, the applicant submitted a publication of the ALS Associa-
tion entitled “ALS in the Military: Unexpected Consequences of Military Service,” stating that a
study conducted by Harvard University published in the January 11, 2005, edition of Neurology
“found that men with any history of military service in the last century are at nearly 60% greater
risk of ALS than men who did not serve in the military.” The applicant also submitted a print-
out of a DVA web page with a press release dated September 23, 2008, which states that “ALS
will become a presumptively compensable illness for all veterans with 90 days or more of conti-
nuously active service in the military.”
SUMMARY OF THE RECORD
The applicant enlisted in the Reserve in 1980, was appointed an officer in 1987, and per-
formed more than 10 years of active duty on extended active duty agreements before he was
released from active duty into the Reserve on June 29, 1993, and honorably discharged from the
Reserve on June 30, 1994, due to his non-selection for promotion to lieutenant commander.
Before the applicant was released from active duty, he underwent a pre-separation physical
examination on April 19, 1993. On his Report of Medical History, the applicant wrote that he
was in good health and was not taking any medications. The Report of Medical Examination
shows that a physician found him fit for duty or discharge. There is no evidence that the appli-
cant suffered from or was disabled by ALS before his discharge from the Service.
The applicant’s DVA medical records show that in May 2007 he began to have difficulty
controlling his right foot. He was initially diagnosed with peroneal neuropathy of the right leg,
but his condition progressed and in April 2009 he was diagnosed with ALS at the Mayo Clinic.
VIEWS OF THE COAST GUARD
On May 4, 2011, the Judge Advocate General submitted an advisory opinion in which he
recommended that the Board deny relief in this case. He argued that the application is untimely
and that based on the information of record, no error or injustice was committed by the Coast
Guard when the applicant was separated from the Service. In making this recommendation, the
JAG adopted the findings and analysis provided in a memorandum prepared by the Personnel
Service Center (PSC).
The PSC stated that the under Chapter 2.C.2.a. of the PDES Manual, “[t]he sole standard
in making determinations of physical disability as a basis for retirement or separation shall be
unfitness to perform the duties of office, grade, rank, or rating because of disease or injury
incurred or aggravated through military service.” In addition, the PSC pointed out that under 10
U.S.C. § 1201, to be entitled to disability retired pay, a member must be found unfit for duty
because of a physical disability incurred or aggravated while entitled to basic pay. Therefore, the
PSC concluded that the applicant is not entitled to disability retired pay because there is no evi-
dence that he was ever found to be unfit to perform his duties while he was entitled to basic
pay—i.e., serving on active duty. The PSC noted that there is no evidence that ALS prevented
the applicant from performing his duties while he was entitled to basic pay, “nor is there evi-
dence that the applicant exhibited symptoms from the disease at the time he left service. There-
fore, by law, the applicant is not entitled to a disability retirement from the [Coast Guard]. The
applicant is entitled by law, however, to disability compensation from the [DVA] for his service
connected disease.” The PSC also noted that the applicant’s records show that he is already
receiving monetary compensation for ALS through the DVA.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
Guard and invited him to respond within 30 days. No response was received.
On May 9, 2011, the Chair sent the applicant a copy of the advisory opinion of the Coast
APPLICABLE LAW
10 U.S.C. § 1201
Under 10 U.S.C. § 1201, a member of the regular Coast Guard or a reservist serving on
active duty for a period of more than 30 days may receive disability retired pay if the member is
“unfit to perform the duties of the member’s office, grade, rank, or rating because of physical
disability incurred while entitled to basic pay” and if the Secretary determines that
(1) based upon accepted medical principles, the disability is of a permanent nature and stable;
(2) 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
(3) 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 disabilities in
use by the Department of Veterans Affairs at the time of the determination; and either--
(i) the disability was not noted at the time of the member's entrance on active
duty (unless clear and unmistakable evidence demonstrates that the disability existed
before the member's entrance on active duty and was not aggravated by active military
service);
(ii) the disability is the proximate result of performing active duty;
(iii) the disability was incurred in line of duty in time of war or national emer-
gency; or
(iv) the disability was incurred in line of duty after September 14, 1978.
Physical Disability Evaluation System (PDES) Manual
Article 2.A. of the PDES Manual defines “fit for duty” as “[t]he status of a member who
is physically and mentally able to perform the duties of office, grade, rank or rating.” “Not fit
for duty” is defined as being “unable to perform the essential duties of the member’s office,
grade, rank, or rating.”
Article 2.C.2. of the PDES Manual states the following:
a. The sole standard in making determinations of physical disability as a basis for retire-
ment or separation shall be unfitness to perform the duties of office, grade, rank or rating because
of disease or injury incurred or aggravated through military service. Each case is to be considered
by relating the nature and degree of physical disability of the evaluee concerned to the require-
ments and duties that a member may reasonably be expected to perform in his or her office, grade,
rank or rating. …
b. The law that provides for disability retirement or separation (10 U.S.C., chapter 61) is
designed to compensate a member whose military service is terminated due to a physical disability
that has rendered him or her unfit for continued duty. That law and this disability evaluation sys-
tem are not to be misused to bestow compensation benefits on those who are voluntarily or man-
datorily retiring or separating and have theretofore drawn pay and allowances, received promo-
tions, and continued on unlimited active duty status … while tolerating physical impairments that
have not actually precluded Coast Guard service.
DVA Regulation: Presumptive Service Connection for Amyotrophic Lateral Sclerosis
Title 33 C.F.R. § 3.318, added to the code on September 23, 2008, states the following:
(a) Except as provided in paragraph (b) of this section, the development of amyotrophic lateral
sclerosis [ALS] manifested at any time after discharge or release from active military, naval, or air
service is sufficient to establish service connection for that disease.
(b) Service connection will not be established under this section:
(1) If there is affirmative evidence that amyotrophic lateral sclerosis was not incurred
during or aggravated by active military, naval, or air service;
(2) If there is affirmative evidence that amyotrophic lateral sclerosis is due to the veter-
an's own willful misconduct; or
(3) If the veteran did not have active, continuous service of 90 days or more.
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 after the applicant
discovers the alleged error or injustice.1 The applicant alleged that his application is timely
because within the past three years, he has been diagnosed with ALS and learned that the DVA
considers his ALS to be service-connected. However, the applicant was released from active
duty without PDES processing in 1993 and discharged from the Reserve in 1994, about fifteen
years before his diagnosis. He knew in 1994 that he had not been processed under the PDES,
which is the alleged error he wants corrected, and there is no evidence that he actually suffered
from ALS or any symptoms of ALS before his discharge. Nor is there any evidence that he was
misdiagnosed or in any way misled about his medical condition by the Coast Guard. Therefore,
his application is untimely.
3.
The Board may excuse the untimeliness of an application if it is in the interest of
justice to do so.2 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
1 10 U.S.C. § 1552(b).
2 Id.
the claim based on a cursory review.”3 In addition, “the longer the delay has been and the
weaker the reasons are for the delay, the more compelling the merits … need to be to justify a
full review.”4
4.
Regarding the delay of his application, the applicant explained that he did not
know that he had ALS or that his ALS is considered a service-connected medical condition by
the DVA until recently.
5.
A cursory review of the merits of this case shows that the applicant underwent a
pre-separation physical examination in 1993 and was found fit for duty and separation without
PDES processing or disability retired pay from the Coast Guard. His Coast Guard medical
records are presumptively correct,5 and he has submitted nothing to show that he was not fit for
duty at that time. Specifically, he has not shown that he was “unfit to perform the duties of the
member’s office, grade, rank, or rating” at the time of his separation, as is required for a disabil-
ity retirement under 10 U.S.C. § 1201. This statute is reflected in the Coast Guard’s regulations:
Chapter 2.C.2. of the PDES Manual states that “[t]he sole standard in making determinations of
physical disability as a basis for retirement or separation shall be unfitness to perform the duties
of office, grade, rank or rating” and “[t]he law that provides for disability retirement or separa-
tion (10 U.S.C., chapter 61) is designed to compensate a member whose military service is termi-
nated due to a physical disability that has rendered him or her unfit for continued duty.” There is
no evidence that the applicant’s military service was terminated because of a physical disability
or that he suffered a disqualifying disability in 1993 or 1994. The fact that the applicant has
been diagnosed with ALS and is presumptively entitled to DVA benefits under DVA rules
because of the diagnosis does not prove that, under the laws applicable to the Coast Guard, he is
entitled to PDES processing or disability retired pay from the Coast Guard. Based on the laws
applicable to the Coast Guard and the applicant’s records, the Board finds that the applicant’s
claim cannot prevail on the merits.
6.
Accordingly, the Board will not waive the statute of limitations. The applicant’s
request should be denied.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
3 Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992).
4 Id. at 164-65; see also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995).
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 xxxxxxxxxxxxxxxxxxxxxxxxxx, USCGR, for correction of his
military record is denied.
ORDER
James E. McLeod
Vicki J. Ray
Julia Doig Wilcox
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