DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                        BCMR Docket No. 2011-208 
XXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXXX 

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 July 15, 2011, and subsequently prepared 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  April  19,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  was  medically  retired  from  the  Coast  Guard  on  June  10,  1987,  with  a 
combined  60%  disability  rating  for  severe  lumbosacral  strain,  gout,  and  hypertension.    He  had 
completed  19  years,  10  months,  and  5  days  of  active  duty.    He  asked  the  Board  to  correct  his 
record to show that he was retired with exactly 20 years of active duty.  The requested correction 
might make him legally entitled to concurrent retired and disability pay (CRDP) under 10 U.S.C. 
§ 1414.1  The applicant stated that he discovered the alleged error on January 2, 2011.   
 

SUMMARY OF THE RECORD 

 
 
The  applicant  enlisted  on  active  duty  on  August  4,  1967,  as  a  steward  recruit  (TR;  pay 
grade E-1).  On September 20, 1986, the applicant, then a chief health services technician (HSC), 
underwent  an  initial  medical  board.2    He  was  diagnosed  with  a  lumbosacral  spine  condition, 

                                                 
1  Under 10 U.S.C. § 1414, veterans with at least 20 satisfactory years of service and service-connected 
disability  ratings  from  the  DVA  of  at  least  50%  may  receive  concurrent  retired  and  disability  pay 
(CRDP).  Prior to the enactment of CRDP, which was signed into law on December 28, 2001 and went 
into  effect  on  January  1,  2004,  veterans  could  not  receive  full  retirement  pay  and  disability  pay 
simultaneously. 
2   An initial medical board is a written report of a medical board convened by appropriate authority to 
evaluate  a  member's  fitness  for  continued  duty  due  to  physical  or  mental  impairments  and  to  make 
recommendations consistent with the findings.  Chapter 2.A.23 of the PDES Manual (1981). 

 

 

hypertension, and gout.  The medical board recommended that the applicant be retained on active 
duty in a limited duty status to complete 20 years of service.  The applicant’s medical limitations 
precluded him from standing for more than 3 to 5 minutes and from repeated tugging, pulling or 
lifting more than 10 pounds.  He was also precluded from unnecessary stair or ladder climbing, 
physical fitness testing or training activities, and shipboard, overseas or field activities.   
 

On  October  14,  1986,  the  applicant’s  command  commented  on  the  medical  board  and 
advised  the  Commandant  that  “[the  applicant’s]  desire  is  to  complete  his  20  years  of  active 
service[,]”  but  the  command  requested  that  the  CPEB  (Central  Physical  Evaluation  Board)3  
review  and  adjudicate  the  medical  board  for  a  medical  disability  retirement  because  of  the 
applicant’s continuing back problems and  his placement on indefinite limited duty status. 
 
 
On  March  5,  1987,  the  applicant  was  revaluated  by  the  medical  board.    The  Medical 
Board  made  the  same  diagnosis  as  the  earlier  medical  board  and  recommended  that  the 
applicant’s case be reviewed by the CPEB for adjudication and disposition.  The medical board 
stated that the applicant was unable to return to  his usual and customary activities in the Coast 
Guard.   
 

On March 27, 1987, the applicant’s CO commented on the medical board and stated that 
the applicant was not fit for assignment to a ship or station where he would be required to carry 
patients and heavy medical equipment.  The CO again recommended adjudication by the CPEB. 
 
 
On 13 April 1987, the CPEB reviewed the applicant’s case and granted him a combined 
60% disability rating for lumbosacral strain and related conditions, gout, and hypertension.  The 
CPEB noted at the time of adjudication that the applicant had served on active duty for 19 years, 
8 months, and 5 days.   
 
 
the CPEB was required to make recommendations regarding the applicant’s retention by 
completing the following items: 
 

In Section III (Recommendations Regarding Retention) on page 1 of the CPEB report, 

  “22.  The evaluee has between 18 and 20 years active duty and in the opinion of the 

CPEB, the evaluee meets the medical requirements for retention [in accordance with] 
Chapter 17, CG [Personnel Manual],”  to which the CPEB could have marked YES, NO, 
or NA.  The CPEB checked NA. 

 

                                                                                                                                                             
 
3  The CPEB is a permanently established administrative body convened to evaluate, on a record basis, 
whether active duty, reservists, or temporarily disabled retired members are fit for duty.  Chapter 4.A. of 
the PDES Manual.  If the CPEB finds a member unfit for continued duty, it shall make such findings and 
propose ratings for those disabilities which are unfitting or which contribute to the condition that causes 
the member to be unfit.  The CPEB may also to make recommendations with regard to retention.       
 

 

 

 

  “23.  The evaluee’s request for retention (if submitted with the medical board IAW Chap. 

17, CG Personnel Manual) has been approved,” to which the CPEB could have marked 
YES, NO, or NA.  The CPEB marked NA. 

  “24. Type of retirement if evaluee is to be retained less than 6 months (IAW Chapter 17, 
CG Personnel Manual) and reevaluation is not required,” to which the CPEB could have 
marked temporary retirement, permanent retirement, or NA.  The CPEB marked NA.   

 
 
The CPEB recommended that the applicant be permanently retired from the Coast Guard 
due to physical disability.  On April 20, 1987, after consultation with an attorney, the applicant 
accepted the findings and recommendation of the CPEB and waived his right to a formal hearing.   
 
 
On  May  12,  1987,  the  Commandant  approved  the  findings  and  recommendation  of  the 
CPEB  and  directed  that  the  applicant  be  discharged  from  the  Coast  Guard  due  to  a  physical 
disability effective June 10, 1987.  At the time of discharge, the applicant was 54 days short of a 
20 year active duty retirement.   
 

VIEWS OF THE COAST GUARD 

 

On October 20, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion in which he recommended that the Board deny relief “if the Board decides 
not to consider the applicant’s claim based on its untimely submission” but to grant relief if the 
Board “decides that it would be in the interest of justice to excuse the failure to file timely.” 

 
In arguing that that the application should be denied for untimeliness, the JAG noted that 
the applicant retired in 1987, but waited 24 years before filing his application with the BCMR.  
The  JAG  also  noted  the  applicant’s  assertion  that  he  did  not  discover  the  alleged  error  until 
January 2, 2011,  when he learned of the 2001 passage of the Concurrent  Receipt of Retired  & 
Disability Pay law.  The JAG stated that the applicant failed to provide any other explanation for 
his lengthy delay in filing his BCMR.  

 
However,  the  JAG  noted  that  the  Board  may  waive  the  untimeliness  if  the  Board  finds 
that it is  in  the interest  of justice to do so.    In this regard, the JAG stated that “the decision to 
medically retire the applicant  less than 2 months shy of his statutorily mandated 20-year active 
duty retirement appears to be contrary to [Coast Guard] policy and inconsistent with past BCMR 
findings.”  The JAG further stated that although the applicant was afforded due process under the 
Physical  Disability  Evaluation  System  (PDES),4  the  record  does  not  reflect  that  it  was  in  the 
Coast Guard’s best interest, and certainly not in the applicant’s best interest, to medically retire 
the applicant two months shy of a 20-year active duty retirement.  

 

                                                 
4  The Coast Guard PDES is composed of administrative boards and reviewing and approving authorities 
that evaluate a member’s physical ability to perform the duties associated with the member’s office, rank, 
grade, or rating.  The components of the PDES are the medical board, Central Physical Evaluation Board, 
Formal  Physical  Evaluation  Board,  the  Physical  Review  Council,  and  the  Physical  Disability  Appeal 
Board. 
 

 

 

The  JAG  noted  that  the  applicant’s  first  medical  board  recommended  his  retention  on 
 
active duty in a limited duty status until he earned 20 years of service, which is consistent with 
Coast Guard policy to retain personnel who have at least 18 but fewer than 20 years of service 
when they are determined to be unfit for continued duty.  The JAG further stated: 
 

Based  on  the  first  [medical]  board’s  transcript,  it  would  appear  the  board  was 
attempting  to  follow  the  Coast  Guard’s  policy  as  previously  mentioned.    The 
record does not reflect any indication to show that the applicant should not have 
remained  on  active  duty  a  few  weeks  longer  to  gain  a  20  year  active  duty 
retirement.    Therefore,  it  is  the  Coast  Guard’s  opinion  that  the  applicant  should 
have  remained  on  active  duty  based  on  the  facts  and  circumstances  of  this 
particular case until he reached his 20-year active duty retirement date.    
 
 
The JAG noted that if the BCMR waives the statute of limitations and grants relief in this 
case, “[a]ny relief granted should be in accordance with the policy and law during the time-frame 
of the applicant’s computed 20-year retirement  date.  Any monetary retirement benefits  should 
be offset by corresponding disability payments as prescribed by applicable laws in effect at that 
time.  Calculations of any back-pay should also correspond with applicable law and regulations 
during  the  appropriate  time-frame(s).”    The  JAG  noted  that  his  recommendation  was  based  on 
the  unique  circumstances  of  the  case  and  “should  not  be  viewed  as  establishing/setting  new 
precedent.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On  November  7,  2011,  the  Board  received  the  applicant’s  response  to  the  views  of  the 
Coast Guard.  He explained that he was told by his lawyer that he had to accept the offer to retire 
permanently  due  to  his  disability.    He  stated  that  he  was  not  aware  of  the  repercussions  of  not 
earning a 20-year retirement and had no way of knowing that some 20 years later the Congress 
would  pass  a  law  authorizing  concurrent  receipt  of  retired  and  disability  pay.      He  stated  that 
because he is 54 days shy of 20 years  of active service, he is deprived of approximately $1900 
per  month.    He  argued  that  the  Coast  Guard  should  have  retained  him  for  the  54-day  period 
under Article 17.A.2. of the Personnel Manual.  He asked that the Board grant his request for a 
correction to show that he served on active duty for 20 years.  
 

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.  Under 10 U.S.C. § 1552 and 33 C.F.R. § 52.22, an application to the Board must be 
filed within three years after the applicant discovers the alleged error.  The Board finds that the 
applicant knew when he retired in 1987 due to a medical disability that he did not have 20 years 
of  active  service  because  his  length  of  service  is  written  on  the  CPEB  documentation  that  he 
signed.  However, the Board is persuaded that the date of retirement is not the date that should be 

 

 

used to determine whether the applicant’s application is timely because until the passage of the 
CRDP  law  in  December  2001,  a  member  could  not  receive  both  retired  pay  and  disability 
compensation.   

 
3.    The  applicant  stated  that  he  did  not  discover  the  CRDP  law  until  January  2,  2011, 
approximately 10 years after its passage.  However, he did not provide the Board with sufficient 
facts and information about how he learned of the law in 2011 for the Board to find that January 
2,  2011  is  the  date  on  which  he  discovered  the  error  or  injustice.  Therefore,  the  Board  agrees 
with the JAG that the application is untimely.   
 
 
4.  Although the application is untimely, 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. 
 

5.    The  Board  finds  that  it  is  interest  of  justice  to  waive  the  untimeliness  in  this  case 
based upon the strength  of its merits.  In this regard, the JAG admitted in the advisory opinion 
that the Coast Guard did not follow its policy when it retired the applicant 54 days short of 20 
years  of  active  service.    This  unfortunate  error  has  resulted  in  the  applicant’s  ineligibility  to 
receive  both  retired  and  disability  pay  under  the  CRDP  law  and  constitutes  a  continuing 
injustice.    The  Board  notes  that  today,  members  like  the  applicant,  have  the  benefit  of  counsel 
who  are  aware  of  CRDP  and  would  probably  contest  any  attempt  to  retire  a  member  with 
between  18  and  20  years  of  active  service.    Therefore,  as  stated  above,  the  untimeliness  is 
excused.    

  
6.  The Board agrees with the JAG that the decision to retire the applicant 54 days short 
of his earning a 20-year retirement is contrary to Coast Guard policy.  Under Article 17.A.2.b. of 
the Personnel Manual, the policy is to retain disabled members with more than 18 years of active 
duty until their 20-year retirement date, if they would not be a hazard to themselves or others and 
they could perform useful service.  There is no evidence in the record that the applicant could not 
have performed some useful service or that he would have been a hazard to himself or others.   

 
7.  The Board also finds, as admitted by the JAG, that the applicant wanted to remain on 
active duty until he reached 20 years of active service and the first medical board to evaluate his 
case recommended his retention until his 20th active duty anniversary.  There is some evidence in 
the record that the applicant  could  not  perform  all of the duties of a health services technician, 
but that is not proof that he could not perform some other useful service to the Coast Guard in a 
limited  duty  status,  which  is  the  standard  for  determining  the  retention  of  members  with 
disabilities and who have 18 or more years of active duty.  In addition, there is no explanation by 
the  CPEB  for  not  making  a  recommendation  with  regard  to  the  applicant’s  retention.  
Accordingly,  the  Board  finds  that  the  Coast  Guard  committed  an  error  or  injustice  by  not 
retaining the applicant for 54 days to allow him to reach his 20th year of active service.   

 

 

 
 
8.  The Board notes that the instant case is similar to  BCMR Docket No. 2005-049.   In 
that case the applicant had been placed on the TDRL in 1988 with a 60% disability rating and 19 
years, 10 months, and 25 days of active duty.  Prior to his retirement due to a disability, he had 
asked to be retained on active duty until he could complete 20 years of service, but his request 
was  denied.    The  JAG  recommended  in  the  advisory  opinion  that  the  Board  grant  relief.    The 
Board found that at the time of his placement on the TDRL, “the applicant was physically able to 
perform some useful work for the Coast Guard, even though pain prohibited him from  working 
full days and from performing all of the physical tasks that might be expected of an engineering 
officer  in  certain  billets.”5    The  Board  granted  relief  by  correcting  the  date  of  the  applicant’s 
placement on the TDRL to his 20th active duty anniversary 
 

9.  In light of the above findings, the Board finds and the JAG agrees, that the applicant’s 
request should be granted by correcting his retirement date to his 20th active duty anniversary so 
that he shall have exactly 20 years of active duty and by paying him any amount due as a result 
of this correction in accordance with applicable laws and regulations.   
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

                                                 
5  Although  the  Board  found  the  application  in  2005-049  to  be  untimely,  it  excused  the  untimeliness 
because  the  applicant  had  filed  it  within  three  years  of  the  enactment  of  Public  Law  107-107  on 
December 28, 2001.   

 

 

ORDER 

 

The  application  of  XXXXXXXXXXXXXXXXXXXXXXX,  for  correction  of  his 

military record is granted.   

 
The  Coast  Guard  shall  correct  the  date  of  his  retirement  to  his  20th  active  duty 
anniversary so that he shall be credited with exactly 20 years of active duty.  The Coast Guard 
shall pay him any  amount due as a result of this correction in  accordance with  applicable laws 
and regulations. 

 

 
 Anthony C. DeFelice 

 

 

 
 Megan Gemunder 

 

 

 
 Patrick B. Kernan