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