DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2012-113 
 
Xxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxx 
   

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  on  April  4,  2012,  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  January  18,  2013,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The applicant asked the Board to correct his record to show that he was separated due to 
a medical condition—epilepsy—pursuant to medical board processing under the Coast Guard’s 
Physical Disability Evaluation System (PDES).  The applicant’s military record currently reflects 
a discharge due to “miscellaneous/general reasons” on September 27, 2010.   
 

The applicant alleged that he was diagnosed with epilepsy in December 2009, and that it 
was this diagnosis that caused his discharge.  Upon making the diagnosis, his physician, Dr. T, 
told  him  to  get  a  second  opinion  and  that  if  the  diagnosis  was  confirmed,  medical  board  pro-
cessing  for  separation  would  be  required.    After  the  diagnosis  was  confirmed  on  February  23, 
2010, Dr. T again  told him that he would be evaluated by a medical  board.   In addition,  Dr. T 
told him that he should not  drive, which made it very difficult  for the applicant  to  commute to 
work.    He  often  had  to  walk  to  work  and  to  medical  appointments,  and  he  would  be  charged 
leave when he was late to work because he could not get a ride and had to walk.  His command 
told him to move to quarters on base, but he did not have the money to store his possessions or to 
move them to his family home in Xxxxxxxx, so he stayed in his apartment. 

 
The applicant alleged that in May 2010, when he refused to perform a task until a proper 
safety precaution was taken, he was told he would receive a Page 7 record entry about insubordi-
nation.  A first class health services specialist (HS1) later told him that he would be punished at 
mast  and  receive  a  dishonorable  discharge.    The  HS1  also  repeatedly  advised  him  to  request  a 

 

 

hardship discharge and told him that it “would be the same thing as a medical discharge.”  The 
HS1 told him that it would take a couple of years to be processed for a medical separation under 
the PDES, and it seemed like the HS1 did not want to go to the trouble. 

 
The applicant alleged that he continued to have seizures, and the doctors told him it was 
unsafe for him to live alone.  He was feeling a lot of stress and anxiety and was referred to a psy-
chologist, who diagnosed him with post-traumatic stress disorder (PTSD).  He did not feel calm 
enough  to  make  a  good  decision  but  did  submit  a  request  for  a  hardship  discharge.    However, 
when he went to a Navy hospital to get a discharge physical, the doctor who examined him said 
he was crazy to request a hardship discharge and “started calling people.”  Several other people 
also advised him not to do that.  One of them took him to the office of the Sector Commander, 
who  said  that  “he  still  had  the  paperwork  for  the  mast  [non-judicial  punishment  (NJP)]  on  his 
desk and if [the applicant] didn’t do the hardship [discharge] it would be processed.  There was 
nothing I could do.  I was forced to waive my rights to a medical board.  I lost part of my G.I. 
bill and other benefits because of this and I didn’t even get a proper physical.” 

 
In support of his allegations, the applicant submitted copies of his medical records, which 

 
are included in the Summary of the Record below. 
 

SUMMARY OF THE RECORD  

 
 
On  April  1,  2008,  the  applicant  enlisted  in  the  Coast  Guard  at  age  21.    During  his  pre-
training and  recruit training physical  examinations, he denied  any family  history of epilepsy or 
seizures.    He  admitted  that  he  had  once  been  hit  in  the  eye  with  a  baseball,  which  broke  his 
orbital  bone  and  caused  him  to  lose  consciousness.    Upon  completing  recruit  training,  he  was 
assigned to an Aids to Navigation unit in xxxxxxxxxxxxxxx. 
 
 
headaches, vision loss.”  The report states that the results were normal. 
 

On August 14, 2008, the applicant underwent an MRI of the brain due to “head trauma, 

On February 9, 2009, the applicant was counseled on a Page 7 for repeatedly being late to 
work.  He was advised that future incidents would result in his placement on performance proba-
tion or an award of non-judicial punishment (NJP). 
 

On  March  30,  2009,  the  applicant  was  awarded  NJP  for  insubordinate  conduct  after  he 
repeatedly failed to follow directions regarding a safety issue and argued with a superior about it.  
He  was  awarded  punishment  of  7  days’  restriction  with  extra  duties  and  14  days’  arrest  in 
quarters, which was suspended for 6 months on condition of good behavior. 

 
On June 2, 2009, the applicant began seeking treatment for anxiety, nightmares, and dif-
ficulty sleeping, which he attributed to his brother’s recent death and his fear that someone else 
in his family might die.  He was prescribed Xanax. 
 

On June 3, 2009, the applicant was counseled on a Page 7 for unsafe operation of a Gov-
ernment vehicle.  He had been stopped for speeding on base on June 1st, and on June 2nd he ran 
into a curb, damaging the tire rim, and got the “vehicle stuck while conducting tower climbing 

 

 

training.”  The command rescinded his driver and trailer qualifications and ordered him to retake 
an on-line defensive driving course, conduct motor vehicle safety training for the unit, re-qualify 
as a trailer operator, and park off-base until qualified. 
 
 
On June 28, 2009, the applicant drove off the side of a highway and crashed into a tree.  
A paramedic reported that the applicant could not recall what had caused the accident and had an 
abrasion  on  his  face,  swelling  around  the  eyes,  and  a  sore  neck.    An  emergency  room  report 
shows that the applicant complained of severe head pain and body aches.  A CT scan of his brain 
showed “nor evidence  for traumatic injury to the head,” and a CT scan  of his  back showed no 
injury.  He was diagnosed with a concussion without loss of consciousness.  
 
 
On June 29, 2009, the applicant reported to a clinic for a follow-up appointment.  He told 
the  doctor  he  had  fallen  asleep  at  the  wheel  and  hit  a  tree.    He  complained  of  a  headache  and 
body aches and some dizziness upon waking that morning.  The doctor diagnosed the applicant 
with a concussion without loss of consciousness. 

 
On July 1, 2009, the applicant underwent a thorough medical examination to be “cleared 
from MVA” (motor vehicle accident).  He complained of a headache, body aches, and stiff neck.  
The applicant asked for counseling because his little brother had recently died and he was “hav-
ing issues sleeping” and wanted his  prescription for a sleep aid  refilled.   The doctor found “no 
evidence of head injury.”  The applicant was placed on “light duty” for 14 days, told not to run 
or jump or do anything physically stressful, and referred for counseling.   

 
Following the accident, the applicant was counseled on a Page 7 for falling asleep at the 
wheel and not wearing a seatbelt. The Page 7 notes that not wearing a seatbelt was a violation of 
both  local  law  and  ALCOAST  433/09  Off-Duty  Motor  Vehicle  General  Order.    The  Page  7 
states that the command would not award the applicant NJP for the violation because the police 
had issued him a ticket for the offense.  The supervisor wrote that no line of duty determination 
was necessary because the accident did not render the applicant unable to perform his duties for 
more than 24 hours.  However, he noted, “had your injuries been more severe, your negligence 
could have additionally caused the loss of future medical benefits to include medical bills and/or 
disability  resulting  from  your  accident,  or  even  the  loss  of  your  [life  insurance]  benefits.    One 
more poor decision could result in medical and financial consequences that would last the rest of 
your life.” 

  
On  July  8,  2009,  the  applicant,  who  had  been  undergoing  endodontic  dental  treatment, 
sought  medication  for  jaw  pain,  which  he  said  had  increased  because  of  his  accident.    He 
reported that he had stopped taking Xanax, which had been “prescribed for grief” and was start-
ing grief counseling the next day. 

 
On  October  1,  2009,  the  applicant  was  prescribed  pain  medication  for  back  pain.    He 
complained  that  he  had  suffered  from  sharp  back  pains  since  he  had  fallen  off  a  ladder  and 
landed on his back about three months earlier.  (There is no medical record of this injury.) 

 
On  October  19,  2009,  the  applicant  went  to  a  hospital  complaining  of  a  headache  and 
possible seizure.  A CT scan of the applicant’s brain showed “no acute intracranial findings.”  He 

 

 

told the doctor he had no family history of seizures and  was diagnosed with syncope (fainting) 
but advised to consult a neurologist.   

 

  On  November  24,  2009,  a  neurologist,  Dr.  B,  noted  the  applicant’s  description  of  his 
apparent loss of consciousness on June 28 and October 19, 2009.  He also noted that the appli-
cant had “a positive family history for epilepsy in an uncle, an aunt, and a brother … who are all 
epileptic.”    The  neurologist  diagnosed  the  applicant  with  an  epileptic  disorder;  started  him  on 
750 milligrams (mg) of Keppra, an anti-seizure medication, daily; and ordered an EEG and MRI 
of his brain. 

 
On December 3, 2009, the applicant’s physician, Dr. T, noted the applicant’s motor vehi-
cle accident in June 2009 and provided more details of the second incident in October 2009.  One 
of  the  applicant’s  coworkers  reported  hearing  him  making  “sounds  and  shaking”  in  another 
room.    The  doctor  noted  that  the  applicant  could  not  drive,  perform  boat  or  sea  duty,  operate 
heavy machinery, or perform duties of a sensitive nature.  In addition, he noted that the applicant 
did not qualify for worldwide assignment.   
 

On  December  10,  2009,  Dr.  B  noted  that  the  applicant’s  two  episodes  of  loss  of  con-
sciousness had been followed by “diffuse soreness and achiness in his muscles” and that he “has 
a strong family history positive for epilepsy.”  However, the results of EEG and MRI tests were 
normal.  The neurologist wrote that the applicant “is epileptic until proven otherwise” and could 
live a normal life except that he (1) could not work near open water, (2) should avoid heights, (3) 
should  avoid  working  near  dangerous  moving  machinery,  and  (4)  should  follow  the  State’s 
driving limitations for people who have seizures.  He noted that the applicant was tolerating the 
Keppra well but should be “transferred to a place where he will be close to his family in case he 
has more seizures.”  However, instead of being transferred to a unit near his home in Xxxxxxxx, 
Xxxxxxxx,1  the applicant was transferred to the Sector office so that he would be closer to the 
military hospital where he was being treated. 
 

On February 23, 2010, another neurologist, Dr. S, provided a second opinion.  She noted 
that according to the applicant, he had first experienced a loss of consciousness while driving at 
65 to 70 miles per hour in June 2009 and may have hit his head when his truck hit a tree.  His 
brother, who had nearly drowned at age 2 and suffered seizures thereafter, had died in May 2009 
at age 17, and the applicant was “physically and mentally tired from  dealing with his brother’s 
illness.”  In October 2009, a coworker reported hearing the applicant “wrestling something” and 
making  “weird  noises”  for  about  ten  minutes  in  a  locker  room.    When  his  chief  found  him  in 
another  building  a  while  later,  the  applicant  was  confused  for  several  minutes  and  had  no 
memory of walking from the locker room to the other building.  He felt like he had been “hit by 
a bus.”  Dr. S wrote that, according to the applicant, apart from his brother having seizures after 
nearly drowning, there was “no other family history of seizures.”  The neurologist concluded that 
the applicant had a “likely seizure disorder” but noted that his EEGs were normal. 

                                                 
1  The  applicant’s  family  lived  in  xxxxxxxxx.    The  Coast  Guard  has  an  Aids  to  Navigation  (ANT)  unit  in 
xxxxxxxxxxxxx, about 16 miles from xxxxxxxxxxx.  The ANT unit consists of boat crewmembers responsible for 
maintaining the buoys in the xxxxxxxx Rivers and mechanics who maintain the boats.  The only non-water-related 
Coast  Guard  units  in  xxxxxxxxx  are  in  xxxxxxxxxx,  which  is  240  miles  from  xxxxxxxx.    The  closest  military 
hospital is in xxxxxxxxxxx , which is 80 miles from xxxxxxxxxxx. 

 

 

 

On March 16, 2010, the applicant was counseled on a Page 7 for being late to work and 
not calling in to explain his status.  When the command called him an hour after the start of the 
work day, the applicant said he needed a ride to work.  The Page 7 states that there “is no excuse 
for failing to contact the unit and ensure that your chain of command is aware of your situation.  
Any future incidents of this nature may result in disciplinary action.” 

 
On April 15, 2010, the applicant’s physician, Dr. T, noted that the diagnosis of epilepsy 
had  been  confirmed  and  that  if  he  had  no  seizures  for  a  year  while  taking  Keppra,  no  medical 
board would be required but that if he had “breakthrough seizures,” one would be required. 

 
On  April  29,  2010,  the  applicant’s  supervisor  sent  him  to  the  health  clinic  because  the 
applicant had overslept and come to work late.  The doctor reviewed his medications—Vicodin, 
Keppra, and Xanax—and discontinued the last.  The applicant was sent back to the clinic later in 
the day for making a suicidal statement, “I’d rather be dead than listen to [a petty officer’s] shit!”  
He denied wanting to harm himself or anyone else. 

 
On  May  4,  2010,  the  neurologist,  Dr.  B,  noted  that  the  applicant  was  regularly  taking 
Keppra but had recently woken up feeling very tired, confused, and “very sore with pain in his 
mouth as if he had been clenching his teeth.”  The neurologist concluded that he had experienced 
a seizure and increased his dosage.  In addition,  he noted that he had written to the applicant’s 
command  to  recommend  that  the  applicant  be  transferred  to  a  unit  closer  to  his  family.    The 
applicant’s dosage of Keppra was increased to 1,000 mg of Keppra per day. 

 
On  May  10,  2010,  a  psychiatrist  noted  that  the  applicant  was  suffering  from  an  adjust-
ment  disorder  with  depressed  mood  due  to  grief  and  many  stressors  and  would  benefit  from 
counseling.  He prescribed Prozac. 

 
On  May  12,  2010,  a  psychologist  reported  that  the  applicant  was  suffering  from  PTSD 

due to the death of his brother in May 2009.   

 
On May 19, 2010, the applicant told his physician, Dr. T, that he had suffered two noc-
turnal seizures within the past month despite being on anti-seizure medication.  Dr. T noted that 
the  applicant  had  also  seen  a  psychologist  due  to  multiple  social  and  occupational  stressors 
caused by his inability to drive.  The applicant stated that he could not afford a taxi and that tak-
ing public transportation would be cumbersome  because his  commute would  involve “multiple 
buses.”  Dr. T recommended that the applicant  be transferred to  a unit near his  family’s home.  
He  also  noted  that  because  the  applicant  had  suffered  “breakthrough  seizures”  despite  taking 
Keppra, evaluation by a medical evaluation board (MEB) was indicated. 

 
On May 27, 2010, the applicant  was placed on  report for insubordination.  The offense 

was confirmed by an investigation, and NJP was recommended. 
 
 
that the results were “within normal limits showing no current epileptogenic activities.” 

On May 29, 2010, the applicant underwent more awake and asleep EEGs.  Dr. B reported 

 

 

 

On June 1, 2010, the applicant was counseled on a Page 7 about being late to work.  His 
supervisor  noted  that  the  applicant’s  “inability  to  drive  due  to  your  current  medical  condition 
does not preclude you from securing reliable transportation to work each day.  You are  encour-
aged  to  consider  moving  on  base  as  a  means  for  mitigating  your  transportation  situation.   You 
are cautioned that any future incidents of this nature may result in disciplinary action.” 

 
On June 1, 2010, the applicant’s psychologist wrote a letter to the command.  He noted 
that the applicant was depressed and anxious and recommended that he be transferred to a unit 
close to his family so they could drive him to work and monitor him for seizures. 

 
On  July  14,  2010,  the  applicant’s  physician,  Dr.  T,  noted  that  the  applicant  “does  not 
desire a Med. Board.  [He] wants to get out of the CG in an expeditious manner and go home to 
his  family.”    The  doctor  noted  that  the  applicant  had  been  diagnosed  with  PTSD,  wanted  to 
waive his right to further medical board processing, and needed another psychiatric evaluation to 
see if he was mentally competent to waive his rights. 

 
On July 26, 2010, the applicant signed a Certificate of Full and Fair Hearing, which was 
witnessed by a Navy JAG officer and a notary public of the State of XX.  Each paragraph of the 
certificate is checked off.  The certificate states the following: 
 

I, [applicant’s name], hereby certify it has been fully explained to me a medical board has found I 
am suffering from a physical disability, namely Post Traumatic Epilepsy. 
 
I also acknowledge that I received a tentative diagnosis of Seizure Disorder and these conditions 
[sic] will not be evaluated by a medical board.  By waiving my right to have theses condition [sic] 
evaluated by a medical board, I understand that I will forego findings that may rate the disability 
under the Veterans Affairs Schedule for Rating Disabilities and entitled me to severance or retire-
ment  benefits.    My  diagnoses  were  the  proximate  result  of  performance  of  active  duty  and  were 
incurred while I was entitled to basic pay from the United States Coast Guard. 
 
I further certify it  has been  fully explained to  me  under 10 U.S.C. § 1214 and the regulations in 
Chapter 17, Personnel Manual, COMDTINST M1000.6 (series), I am entitled, as a matter of right, 
to  a  full,  fair  hearing  before  a  physical  evaluation  board  before  my  separation  from  the  United 
States Coast Guard if I demand such hearing. 
 
I further certify it has been fully explained to me that if I sign this statement, I may be separated 
from the United States Coast Guard in the near future without further hearing and without disabil-
ity, retirement, or severance pay, and any compensation whatsoever; however, all payments ordi-
narily accruing to personnel discharged under honorable conditions are due and payable. 
 
With full knowledge of the findings of the medical board convened in my case and of my rights in 
this  matter,  I  hereby  certify  I  do  not  demand  a  hearing  before  a  physical  evaluation  board  and 
request I be separated from the United States Coast Guard as soon as possible. 

 

On August 6, 2010, the Sector Commander informed the applicant in a memorandum that 
he was initiating the applicant’s honorable discharge because of the applicant’s medical ineligi-
bility  for  worldwide  assignment  and  his  waiver  of  a  full  and  fair  hearing.    The  Sector  Com-
mander  stated  that  the  applicant  had  a  right  to  consult  an  attorney  at  Government  expense,  to 
object  to  the  proposed  discharge,  and  to  submit  a  statement  on  his  own  behalf.    The  Sector 
Commander specifically encouraged the applicant to consult an attorney. 

 

 

 
 
On  August  9,  2010,  the  applicant  acknowledged  the  Sector  Commander’s  notification 
and acknowledged having consulted a Navy JAG officer.  He submitted a statement requesting a 
discharge  for  the  convenience  of  the  Government.    He  noted  that  he  had  been  diagnosed  with 
epilepsy and could not drive for a year, live alone, or be around water, heights, or heavy machin-
ery.  He was having a hard time traveling to and from work, and four doctors had recommended 
that he be transferred  closer to  home, where his family  could  help  him  with  transportation and 
watch him for future seizures. 
 
 
the Coast Guard’s Personnel Service Center (PSC) through the District Commander.   

On August 9, 2010, the Sector Commander submitted the discharge recommendation to 

 
On  August  10,  2010,  the  applicant  signed  a  Page  7  stating  that  he  desired  to  be  dis-
charged “despite the fact separation may prejudice any rights or benefits to which I may be enti-
tled as a result of physical evaluation board hearings under 10 U.S.C. Chapter 61.  I have been 
duly advised of my rights in this matter and request the Coast Guard to discharge me as soon as 
possible without further hearing and without disability, retirement, or severance pay and without 
any  compensation  whatsoever.    I  understand  I  am  not  required  and  am  under  no  obligation  to 
give this statement and I hereby certify I given this statement voluntarily.” 

 
The  District  Commander  forwarded  the  separation  package  to  PSC  and  recommended 
approval.    He  noted  that  the  applicant  had  been  counseled  “and  understands  his  rights  with 
regards to a Physical Disability Evaluation Board.  [He] desires to be discharged and use the VA 
to pursue any disability evaluation.” 

  
On  August  18,  2010,  the  applicant’s  doctor  reported  that  the  applicant  “has  waived  his 
right  to  an  MEB,  has  done  the  Page  7  and  his  Admin[istrative]  Sep[aration]  package  has  been 
forwarded up the chain.  [Patient] has not gone to military psych for the second opinion to judge 
if  mentally  competent  to  waive  his  right  given  his  psych  [diagnosis]  of  adjustment  disorder. 
[Patient]  has  been  doing  well  on  the  meds  and  has  had  no  [seizures]  since  last  visit  with  me.”  
The doctor noted that the applicant was taking 500 mg of Keppra per day and “need[ed] to see 
military  psych  as  prev[iously]  recommended.”    The  doctor  noted  that  he  had  scheduled  the 
applicant  for  a  psychiatric  examination  the  following  week.    The  report  of  the  psychiatric 
examination is not in the record. 

 
An  MRI  of  the  applicant’s  brain  on  September  2,  2010,  showed  “normal  intracranial 

anatomy.” 

   

 
On  September  14,  2010,  the  applicant  underwent  a  pre-separation  physical  examination 
by  a  new  doctor,  Dr.  M.    His  medication  list  shows  that  he  was  taking  Prozac,  Keppra,  and 
Klonopin (another anti-seizure medication).  The applicant told the doctor about his truck wreck 
and a 16-foot fall that had caused several medical problems.  When the doctor asked the appli-
cant  if he had been  evaluated for a traumatic brain  injury  (TBI), the  applicant  said  he had not.  
The  doctor  recommended  that  the  applicant  be  processed  through  a  medical  board  to  address 
“possible TBI as a [unreadable] of fall from significant height, seizures, and PTSD.” 
 

 

 

Also on September 14, 2010, the neurologist, Dr. B, wrote that the applicant had “a case 
 
of  generalized seizures”  and although he  “claims that he still has seizures while taking Keppra 
500 mg  two tablets  b.i.d. but  his  EEG has shown no epileptogenic activity.   Now he claims to 
have a chronic pain syndrome in his mouth, neck and lower back and he requested narcotics.  I 
am beginning to suspect drug seeking behavior or manipulation.” 
 
 
general reasons.” 
 

On  September  27,  2010,  the  applicant  was  honorably  discharged  for  “miscellaneous/ 

VIEWS OF THE COAST GUARD 

On October 16, 2012, the Judge Advocate General (JAG) submitted an advisory opinion 

 
 
in which he recommended that the Board deny relief in this case.   
 
The JAG stated that the applicant was evaluated by an MEB that determined he suffered 
 
from  post-traumatic epilepsy, which rendered him  ineligible  for  worldwide assignment.   Based 
on  that  determination,  the  applicant  was  processed  for  an  honorable  discharge,  not  a  hardship 
discharge.  Before he was separated, however, the applicant was also tentatively diagnosed with 
a general seizure disorder—a diagnosis that the MEB had not specifically addressed.  The appli-
cant  waived  his  right  to  have  the  MEB  repeated  for  the  seizure  disorder  diagnosis  “in  order  to 
speed up his separation from the Service.”   
 

The JAG noted that the applicant has alleged that he was coerced to sign this waiver with 
threats  of  non-judicial  punishment  (NJP)  and  dishonorable  discharge  but  that  he  submitted  no 
evidence of the alleged threats.  He pointed out that the applicant’s signature on the Certificate of 
Full and Fair Hearing, waiving his right to an MEB for the seizure disorder diagnosis, was wit-
nessed by a Navy JAG and that there is no evidence of any coercion in the record.  Therefore, the 
JAG  concluded  that  there  is  insufficient  evidence  to  overcome  the  presumption  of  regularity 
accorded the applicant’s military  records and the actions of the military and medical  personnel 
who handled his case. 

 
The JAG also adopted the findings and analysis provided in a memorandum on the case 
prepared  by  the  Personnel  Service  Center  (PSC).    PSC  stated  that  the  applicant  was  diagnosed 
with post-traumatic epilepsy while on active duty.  An MEB evaluated his fitness for duty, and 
the  results  and  his  entitlement  to  a  Physical  Evaluation  Board  (PEB)  under  the  PDES  were 
explained to the applicant.  The applicant was also tentatively diagnosed with a  general seizure 
disorder, which had not been evaluated by the MEB.  “Both conditions were the proximate result 
of service in the Coast Guard.”  However, the applicant waived his right to an MEB for the latter 
condition and requested an expeditious discharge even though he was advised that he would not 
receive any disability, retirement, or severance pay or any compensation whatsoever.  Therefore, 
the applicant  was honorably discharged for miscellaneous/general  reasons.  PSC recommended 
that the applicant’s request be denied.  
 

 

 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
Guard and invited him to respond within 30 days.  No response has been received.       

On  November  5,  2012,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast 

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.  

The application was timely filed within three years of the applicant’s separation. 
 

2. 

4. 

 
3. 

The  applicant  alleged  that  he  was  unjustly  coerced  to  accept  an  administrative 
discharge  and  should  have  been  medically  separated  under  the  PDES.    The  Board  begins  its 
analysis  in  every  case  by  presuming  that  the  disputed  information  in  the  applicant’s  military 
record is correct  as it appears in his  record, and the applicant bears the burden of proving by a 
preponderance  of  the  evidence  that  the  disputed  information  is  erroneous  or  unjust.2    Absent 
evidence to  the contrary, the Board presumes that  Coast  Guard officials and other Government 
employees have carried out their duties “correctly, lawfully, and in good faith.”3  
 
 
The  applicant’s  military  and  medical  records  show  that  while  on  active  duty,  he 
was properly informed of his medical diagnoses and his rights to processing under the PDES for 
disability  severance  or  retired  pay  but  formally  waived  those  rights  because  he  wanted  to  be 
expeditiously  discharged  so  that  he  could  return  to  his  family  in  Xxxxxxxx,  XX.    The  records 
further  show  that  he  was  encouraged  by  his  military  doctors  to  stay  in  the  Coast  Guard  long 
enough to complete PDES processing and that his Sector Commander encouraged him to consult 
an attorney so that he would understand what he was giving up by waiving his rights.  The record 
shows that the applicant did consult an attorney but nevertheless opted to waive his rights under 
the PDES so that he could be expeditiously discharged. 
 
 
The applicant alleged that he was coerced to waive his rights under the PDES and 
accept  the  administrative  discharge,  but  he  submitted  no  evidence  to  support  this  claim.    He 
alleged  that  he  was  threatened  with  NJP  for  insubordination  and  a  dishonorable  discharge,  but 
dishonorable  discharges  can  only  be  issued  by  a  court-martial.4    The  applicant  had  already 
received  NJP  for  insubordination  on  March  30,  2009,  and  so  he  cannot  have  been  unfamiliar 
with the limits of NJP for such an offense, which does not include any type of discharge.  The 
record supports the applicant’s claim that a charge of insubordination was pending against him at 
the time of his  separation.  However, the fact  that  if he had remained on active duty, he  might 
have received some NJP from the Sector Commander—or even be tried by court-martial—does 
not prove that his waiver of his rights under the PDES was coerced.  In Wright v. United States, 

                                                 
2 33 C.F.R. § 52.24(b).   
3 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
4 Coast Guard Personnel Manual, Article 12.B.2.f.5. 

 

 

2008 U.S. Claims LEXIS 96 *1 (April 7, 2008), the U.S. Court of Federal Claims stated that “a 
decision to retire is not rendered involuntary merely because the servicemember is faced with an 
undesirable choice.”  And in Christie v. United States, 207 Ct. Cl. 333, 337-8 (1975), the court 
held the following: 

 

This court has enunciated a principle, now firmly established, for determining whether a resigna-
tion is voluntarily tendered.  The element of voluntariness is vitiated only when the resignation is 
submitted under duress brought on by Government action.  …  The tripart test for such duress is: 
“(1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no 
other alternative; and (3) that said circumstances were the results of coercive acts of the opposite 
party.”    [Citations  and  indentation  omitted.]  …  Duress  is  not  measured  by  the  employee’s 
subjective evaluation of a situation.  Rather, the test is an objective one. …   

 
The  record  before  the  Board  shows  that  the  applicant  was  encouraged  to  and  could  have 
remained in the Service for PDES processing to determine his entitlement to disability severance 
or retirement pay, but he chose not to.  The evidence of record does not support his claim that he 
waived his right to PDES processing under duress or coercion. 
 

5. 

The record shows that the applicant strongly desired to return to his family home 
in  Xxxxxxxx,  Xxxxxxxx,  instead  of  working  at  the  Sector  office  long  enough  for  his  PDES 
processing  to  be  completed.    He  complained  that  his  commute  by  bus  was  too  burdensome 
because he could  not  drive,  and it was unsafe for him to live alone.   His doctors supported his 
request  to  transfer  to  the  unit  closest  to  his  family  home.    However,  the  record  shows  that  the 
applicant was offered housing in  the Sector  barracks  so that he would not need to  commute or 
live alone, but he chose not to move into the barracks because he did not want to store or get rid 
of some of his apartment furnishings.  Moreover, the applicant was not allowed to work near the 
water; the closest unit to his family home was an Aids to Navigation unit on the xxxxxx River; 
and  there  was  no  non-water-related  Coast  Guard  unit  within  200  miles  of  his  family  home  in 
Xxxxxxxx.    The  closest  military  hospital  to  Xxxxxxxx  was  80  miles  away.    In  light  of  these 
facts, the Board finds that the Coast Guard committed no error or injustice in refusing to transfer 
the applicant to a unit that would allow him to live with his family in Xxxxxxxx. 
 

6. 

The  record  shows  that  the  applicant’s  physician,  Dr.  T,  thought  that  he  should 
have  a  mental  competency  test  to  determine  whether  he  was  mentally  competent  to  waive  his 
rights under the PDES, and the doctor who completed his pre-separation physical examination in 
September 2010 thought that he should be tested to see if he was mentally incompetent due to a 
TBI.  Dr. T scheduled an appointment with a psychiatrist in August 2010 to determine his mental 
competency, but there is no report of that psychiatric examination in the record before the Board.  
If  the  applicant  was  mentally  incompetent  to  make  decisions  in  2010,  then  the  waiver  of  his 
rights  under  the  PDES  was  invalid.    However,  the  record  shows  that  he  was  under  psychiatric 
care at the time of his discharge and had been for some time, but no doctor had diagnosed him as 
mentally incompetent.  The fact that the applicant was discharged after presumably undergoing 
the  competency  examination  scheduled  by  Dr.  T  strongly  suggests  that  he  was  not  mentally 
incompetent.5    In  the  absence  of  any  evidence  that  the  applicant  was  mentally  incompetent  to 

                                                 
5 33 C.F.R. § 52.24(b); Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 
F.2d 804, 813 (Ct. Cl. 1979). 

 

 

waive his right to PDES processing in 2010, the Board finds insufficient grounds to set aside his 
waiver  or  administrative  discharge  or  to  correct  his  discharge  to  reflect  a  medical  disability 
separation. 

 
7. 

 

Accordingly, the applicant’s request should be denied.   

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 
 
 
 

 

 

 

The  application  of  former  xxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

  

 
 Philip B. Busch 

 

 

 
 Ashley A. Darbo 

 

 

 

 
 

 
 
 Alexander G. Garza, MD 

 
 

 
 

 

 

 
 

 

 

 
 

 

 

 

military record is denied.