DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2012-070 
 
Xxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxx   

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 upon receiving the 
completed  application,  including  the  applicant’s  military  and  medical  records,  on  February  21, 
2012,  and  assigned  it  to  staff  member  J.  Andrews  to  prepare 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 27, 2012, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The  applicant,  who  was  placed  on  the  Temporary  Disabled  Retired  List  (TDRL)  on 
August 19, 1996, and thereafter found fit for duty and discharged, asked the Board to order the 
Coast  Guard  to  re-process  him  through  the  Physical  Disability  Evaluation  System  (PDES)  by 
convening a medical board to evaluate him and then award him a disability retirement. 
 
 
The applicant stated that in 1996, he was placed on the TDRL with a 30% disability rat-
ing  due  to  depression.    Thereafter,  he  applied  for  benefits  from  the  Department  of  Veterans’ 
Affairs and received a 20% combined disability  rating, including 10% for depression and 10% 
for  chronic  back  pain.    The  applicant  stated  that  for  a  while  his  condition  seemed  to  be  under 
control and he “was able to find work and start to get [his] life back together.”  However, then 
his condition became much worse.  He lost his job, his apartment, and did not have any contact 
with  the  DVA  or  the  Coast  Guard.    He  stated  that  when  his  TDRL  payments  stopped  after  he 
missed an appointment, he assumed that he had been discharged.  As his condition worsened, his 
wife insisted that he contact the DVA for help.  The DVA gave him therapy and medications and 
raised his disability rating for depression to 40%.  The DVA is also providing vocational reha-
bilitation and reevaluating his back condition, which has worsened. 
 
 
The applicant stated that he recently learned that when he was removed from the TDRL, 
he  should  have  received  either  severance  pay  or  a  permanent  disability  retirement.    He  under-
stands that his earlier lack of action might have jeopardized his entitlement to these benefits, but 

 

 

he is hoping that he might still qualify for retirement or severance pay.  In support of his request, 
the  applicant  submitted  copies  of  military  and  medical  records,  which  are  summarized  below, 
and the following documents: 
 

  A letter from the DVA dated January 13, 2011, states that the applicant’s combined DVA 

disability rating is 40%. 

 

  Other DVA documents state that the applicant was put on the TDRL by the Coast Guard 
after more than 14  years of service and that his  status  at  that time was “retired military 
member (receiving retired pay).” 

 
 
The  applicant  stated  that  it  is  in  the  interest  of  justice  to  excuse  the  untimeliness  of  his 
application because he suffers from a mental disability and he “only recently began to improve 
mentally and to understand my status.” 
 

SUMMARY OF THE RECORD 

 
 
The applicant originally enlisted on April 5, 1982.  He served on continuous active duty 
and in February 1996, was hospitalized for a week.  A hospital psychiatrist’s report states that he 
was admitted because he had attempted suicide by turning on all the burners on his stove with no 
flame.  His suicide was prevented by his landlord and a sheriff who had come to evict him due to 
his failure to pay rent because of gambling losses.  He had lied to his wife, landlord, and com-
mand  to  cover  up  his  problems,  and  his  wife  knew  nothing  of  the  debts  or  the  eviction.    The 
applicant reported that he had been feeling depressed for about three years since he learned that 
he and his wife could not conceive a child and a $5,000 in vitro fertilization attempt had failed.  
The psychiatrist diagnosed the applicant with major depression, pathological gambling, compul-
sive lying, narcissistic personality disorder, dependent personality disorder, and possible alcohol-
ism.  He noted that the applicant was eligible for either PDES processing because he was not fit 
for  duty  due  to  his  major  depression  or  an  administrative  discharge  because  of  his  personality 
disorders. 
 

On  April  3,  1996,  the  applicant  was  informed  that  an  Initial  Medical  Board  (IMB)  had 
found him not fit for duty because of a physical disability and that his case would be referred to a 
Central  Physical  Evaluation  Board  (CPEB)  for  review.    The  diagnoses  listed  by  the  medical 
board are Depressive Disorder, Pathological Gambling, Compulsive Lying, and Alcohol Abuse.  
The applicant signed a form electing not to rebut the IMB’s findings and recommendation. 
 
 
On April 26, 1996, the applicant’s commanding officer (CO) forwarded the IMB report 
to the Personnel Command for review by the CPEB.  The CO stated that the applicant should be 
discharged expeditiously because he could not be trusted.  He opined that the applicant’s illness 
was due to his own misconduct. 
 

The report of the CPEB dated May 31, 1996, shows that the CPEB recommended that the 
applicant  be  placed  on  the  TDRL  with  a  30%  disability  rating  due  to  a  diagnosis  of  “Major 
Depression Without Melancholia, With Definite Industrial Impairment.”  On July 9, 1996, after 
consulting counsel, the applicant by his signature accepted the findings and recommendation of 

 

 

the CPEB and waived his right to a formal hearing.  The CPEB’s findings and recommendation 
were approved on July 18, 1996. 
 

The  applicant’s  DD  214  shows  that  he  was  temporarily  retired  from  active  duty  on 

August 18, 1996, with more than 14 years of service, and placed on the TDRL. 

 
On  January  12,  1998,  the  Personnel  Command  sent  the  applicant  a  letter  advising  him 
that he should undergo his first periodic psychiatric examination at a local DVA hospital in Feb-
ruary 1998. 

 
On  July  16,  1998,  the  Personnel  Command  sent  the  applicant  a  letter  noting  that  the 
Coast Guard had been unable to contact him by telephone.  The Personnel Command asked the 
applicant to contact its Physical Disability Office and advised him that “[w]ithout your necessary 
assistance  in  evaluating  your  physical  condition,  the  Coast  Guard  may  be  forced  to  close  your 
record and terminate all retirement benefits in the near future.  Please reply by 15 August 1998.” 
 
 
On  August  7,  1998,  the  Personnel  Command  received  the  report  of  the  applicant’s  first 
periodic psychiatric examination, dated March 11, 1998.  The psychiatrist’s report stated that the 
applicant showed no signs or symptoms of depression, was working full time, and had no social 
impairment. 
 
 
August 9, 1998, the CPEB found the applicant fit for full duty. 
 

After  reviewing  the  case  and  the  report  of  the  applicant’s  periodic  examination,  on 

On September 11, 1998, the Personnel Command sent the CPEB’s report to the applicant 
with information from his assigned counsel and about his right to submit a written rebuttal to the 
CPEB’s  report  within  15  working  days.    The  Personnel  Command  also  warned  him  that  if  he 
failed to reply within 15 working days, he “may forfeit important rights in the disability evalua-
tion process.”  This package was sent with a return receipt requested and the green return receipt 
card is in the record with the applicant’s signature on it. 
 
 
On November 9, 1998, the Personnel Command advised the applicant by letter that it had 
not received any reply from him in response to the September 11, 1998, package.  The Personnel 
Command advised him that if he did not submit a reply by December 1, 1998, “the conclusive 
presumption is that you are accepting the CPEB findings and recommended disposition.  In that 
event,  your  case  will  be  forwarded  immediately  for  approval  and  final  administrative  action.”  
The  Personnel  Command  included  with  this  letter  another  copy  of  the  CPEB’s  report  and 
encouraged him to contact his assigned counsel. 
 
 
On  December  9,  1998,  the  Personnel  Command  forwarded  the  CPEB’s  report  to  the 
Commandant for review and approval, noting that no response had been received from the appli-
cant.  The CPEB’s report was approved. 
 
On  January  11,  1999,  the  Personnel  Command  sent  the  applicant  a  letter  stating  that 
 
because he had been found fit for duty, he would be reenlisted on active duty in the same rank if 
he applied within 15 days by taking a copy of the letter to any Coast Guard recruiter.  The letter 

 

 

further stated that if he  applied to  reenlist  within 15 days, his  status  on  the TDRL  and his  dis-
ability pay would end upon his reenlistment on active duty, and that if he did not apply to reenlist 
within 15 working days, his status on the TDRL and disability pay would end on the 15th work-
ing day and he would be discharged. 
 
 
On  March  18,  1999,  the  Personnel  Command  advised  the  applicant  in  a  letter  that 
because he had not reenlisted within the 15-day period, his honorable discharge would be effec-
tive as of March 18, 1999. 
 

VIEWS OF THE COAST GUARD 

 
 
On June 15, 2012, the Judge Advocate General  (JAG) submitted an advisory opinion in 
which he recommended that the Board deny relief in this case.  In so doing, he adopted the find-
ings  and  analysis  provided  in  a  memorandum  on  the  case  prepared  by  the  Personnel  Service 
Center (PSC). 
 
 
PSC stated that the applicant’s request should be denied because he cited no error in his 
record and provided no basis for reopening his PDES processing.  PSC stated that the applicant’s 
record  and  the  Coast  Guard’s  actions  are  presumptively  correct  and  the  CPEB’s  findings  and 
recommendation “were sustained at all levels of review and approval and are well supported by 
the  evidence  of  record.    There  is  no  evidence  of  error  or  irregularity  in  the  processing  of  this 
case.”  PSC noted the  return receipt in  the  record showing that the  applicant  received the  Sep-
tember 11, 1998, mailing regarding the CPEB’s report and his assigned counsel.   
 
 
PSC stated that pursuant to regulation, after the applicant was found fit for duty, he had 
15  working  days  to  apply  to  reenlist  but  did  not  do  so.    Therefore,  he  was  discharged.    PSC 
argued that the applicant has failed to prove by a preponderance of the evidence that his record is 
erroneous  or  unjust  or  that  he  did  not  receive  his  full  and  fair  due  process  rights.    “Failing  to 
meet his burden, the Coast Guard’s actions are deemed correct, lawful, and done in good faith.  
Accordingly, his petition should be denied.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On June 23, 2012, the applicant responded to the views of the Coast Guard.  He said that 
he disagrees  with  those  views because he does  “not  believe the CG medical  board was  able to 
gather enough information to conclude a full evaluation of my conditions.  I feel that a new eval-
uation  of  my  conditions  from  the  DVA  can  fully  show  the  level  of  my  physical  and  mental 
impairment.”  The applicant stated that the DVA had increased his disability ratings to 30% for 
depression and 20% for back pain for a combined rating of 40%.  The applicant stated that the 
outcome of his case was apparently due to his failure to respond to the Coast Guard’s correspon-
dence, and that he is hoping that the Board “will look at my attempts seeking help as the years 
went to show that I was not then or now fit for duty or mentally & physically capable.” 
 
 
 

 

 

 

APPLICABLE REGULATIONS 

 
 
Chapter  8  of  the  PDES  Manual  in  effect  from  July  1996  through  1999  and  beyond 
(COMDTINST  M1850.C)  governs  the  disposition  of  members  on  the  TDRL.    Paragraph  A.6. 
provides that a member cannot stay on the TDRL, entitled to temporary disability retired pay, for 
more than five years.  Paragraph C states that members must be periodically examined while on 
the  TDRL  to  determine  if  their  conditions  have  changed.    The  examining  physician  prepares  a 
report,  which  is  forwarded  to  the  Personnel  Command  for  consideration  by  the  CPEB.    Para-
graph  E  provides  that  after  the  member’s  final  examination  while  on  the  TDRL,  a  CPEB  will 
consider his case and make recommendations in accordance with Paragraph C.3.c. of Chapter 2.  
Thereafter, the procedures prescribed in Chapter 4 must be followed.   
 
 
Paragraph C.3.c. of Chapter 2 of the PDES Manual  requires the CPEB that reviews the 
case of a member on the TDRL to make findings as to his fitness for duty and, if unfit, his degree 
of disability due to the medical condition(s) that caused his placement on the TDRL. 
 
 
Chapter  4  of  the  PDES  Manual  contains  the  procedures  for  CPEBs.    Paragraph  A.13.a. 
provides that the Chief Counsel’s office must appoint counsel to advise each member undergoing 
review by a CPEB.  Paragraph A.13.b. provides that the counsel normally contacts the member 
within five working days of receiving the CPEB report and advises the member “of the disability 
process and of the evaluee’s rights in light of the CPEB’s findings and recommended disposition. 
…    Upon  completion  of  counseling,  the  designated  counsel  will  forward  the  CPEB’s  Findings 
and Recommended Disposition, CG-4809, to the evaluee for signature and subsequent return.” 
 
 
Paragraph A.14.a. of Chapter 4 provides that a member found fit for duty by a CPEB may 
submit a written rebuttal to the CPEB for consideration by that board.  If the member fails to do 
so  within  15  working  days  from  the  date  of  written  notification  of  the  CPEB’s  findings,  “the 
conclusive  presumption  is  that  the  evaluee  is  accepting  the  CPEB  findings  and  recommended 
disposition and the case will be forwarded to [the Office of the Chief Counsel] for legal review.” 
 
 
Paragraph C of Chapter 4 provides that a CPEB’s recommended findings are reviewed by 
a  Physical  Review  Counsel  and  forwarded  to  the  Chief  Counsel’s  office  for  a  legal  review.  
Finally, they are forwarded to the Personnel Command for final action. 

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(b), an application to the Board must be filed within three 
years  after  the  applicant  discovers  the  alleged  error  or  injustice  in  his  record.    The  applicant 
alleged  that  because  of  his  disabilities,  he  has  only  recently  been  able  to  understand  his  status.  
The record shows that while on active duty, the applicant was diagnosed with depression, patho-
logical gambling, compulsive lying, narcissistic personality disorder, dependent personality dis-

 

 

order, and alcohol abuse, and he was placed on the TDRL based on his depression.  However, the 
record  also  shows that following his  temporary retirement, he became  fit for full duty  and was 
employed full time in 1998.  The applicant signed a return receipt in September 1998 acknowl-
edging receipt of the CPEB’s report and information from his assigned attorney.  Given the medi-
cal  reports  and  correspondence  in  the  record,  the  Board  finds  that  the  preponderance  of  the 
evidence  shows  that  the  applicant  was  fit  for  duty  and  received  the  information  sent  to  him  in 
1998 and 1999 and so was aware at the time that he had been found fit for duty and discharged 
because he failed to reenlist.  Therefore, his application is untimely. 

 
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.”1  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  

 
4. 

Regarding the delay of his application, the applicant stated that because of his dis-
abilities,  he  has  only  recently  improved  and  been  able  to  understand  his  status.    However,  the 
record shows that the applicant was fit for full duty and employed full time in 1998, and there is 
nothing in the record that supports his claim that he has been so incapacitated in the interim that 
he  was  unable  to  understand  that  he  had  been  discharged  without  severance  or  retirement  pay 
and to seek correction of his discharge.  The Board finds that the applicant’s explanation is not 
persuasive or compelling. 

 
5. 

The Board finds no evidence of error or injustice in the record.  The record shows 
that at the applicant’s first periodic examination while on the TDRL, he was reported to be fit for 
duty and fully employed.  His signature on the green return receipt card shows that he received 
the package with the CPEB’s finding that he was fit for duty and information from his assigned 
attorney.    No  rebuttal  was  received  from  the  applicant,  and  he  did  not  reenlist  on  active  duty 
when invited to do so.  Because he failed to reenlist when invited to do so, his separation is con-
sidered administrative and voluntary, rather than medical and involuntary.  Therefore, he was not 
entitled  to  severance  pay  or  disability  retired  pay  when  removed  from  the  TDRL.3    The  Coast 
Guard’s  actions  and  these  military  and  medical  records  are  presumptively  correct.4    The  appli-
cant has not submitted sufficient evidence to overcome the presumption of regularity.  Based on 
the record before it, the Board finds that the applicant’s claim cannot prevail on the merits. 

 
6. 

Accordingly, the Board will not excuse the untimeliness of the application.  The 

application should be denied. 

                                                 
1 Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992). 
2 Id. at 164-65; see also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995).   
3  U.S.  Coast  Guard,  COMDTINST  1910.1,  “Eligibility  of  Regular  and  Reserve  Enlisted  Personnel  for  Separation 
Pay” (January 29, 1992).  
4 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 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 Evan R. Franke 

 

 

 

 
 
 Thomas H. Van Horn 

 

 

 
 Barbara Walthers 

 

 

 

 

 

 

 

 

 

 

 

of his military record is denied.