DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-010 
 
Xxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxx 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  The application was dock-
eted on November 25, 200x, upon receipt of the applicant’s completed application and 
military and medical records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  September  25,  2003,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  correct  his  record  to  show  that  he  was  sepa-
rated  from  the  Coast  Guard  on  August  10,  200x,  for  medical  reasons  rather  than  for 
“fraudulent entry into military service.”  The applicant alleged that during boot camp, 
the  Coast  Guard  discovered  that  he  had  a  juvenile  criminal  record  that  he  had  not 
revealed to his recruiter.  Despite the discovery, the Coast Guard decided to allow him 
to stay in the service.  However, later when he became ill, the Coast Guard unfairly dis-
charged him for “fraudulent entry into military service” instead of processing him for a 
medical discharge. 

 

SUMMARY OF THE RECORD 

 
 
On  September  9,  199x,  the  applicant  signed  a  medical  prescreening  form  on 
which he certified that he had never been treated for a mental condition and that he had 
never been addicted to drugs or alcohol.  Above his signature, the form states that pro-
viding false information could result in a less than honorable discharge.  The applicant 

 

 

also  signed  a  medical  history  form,  denying  treatment  or  counseling  for  any  mental 
condition or abuse of alcohol or drugs other than marijuana.  
 

On  October  7,  199x,  the  applicant  enlisted  in  the  Coast  Guard  at  the  age  of  18.  
On that day, he signed a DD form 1966/2, certifying that he had never tried or used any 
narcotic, depressant, stimulant, hallucinogen, or marijuana.  Just below this certification 
and  above  his  signature,  the  form  stated  that  “if  any  of  the  information  is  knowingly 
false or incorrect, I could be tried in a civilian or military court and could receive a less 
than  honorable  discharge  which  could  affect  my  future  employment  opportunities.”  
On the same day, he also signed a form CG-3307, certifying that all of the information 
he  had  provided  on  his  enlistment  documents  was  current  and  still  accurate,  that  he 
had not had any involvement with the police, and that he understood that withholding 
information might result in a less than honorable discharge for fraudulent enlistment. 

 
On November 1, 199x, while at boot camp, the applicant  admitted to an officer 
that he had a juvenile criminal record for stealing a car, burgling his father’s building, 
shoving someone (assault and battery), and possessing alcohol as a minor.  He released 
his criminal records for review, and the Coast Guard decided not to discharge him for 
fraudulent enlistment although he had concealed his criminal record when he enlisted.  
Following boot camp, the applicant attended training to become an avionics technician. 

 
On July 6, 199x, the applicant reported that he had slipped and fallen on his but-
tocks and hurt his back.  The doctor reported that he complained of cervical pain “upon 
cranial rotation” and upon palpation of the C-6 and C-7 vertebrae, but that  the x-rays 
were “negative.”  He diagnosed the applicant with a cervical strain.  At a follow-up visit 
on July 8, 199x, the doctor reported that he still complained of “pain lower cervical and 
mid thoracic.” 

 
On  September  24,  199x,  the  applicant  sought  treatment  for  neck  pain.    He 
reported that for about two weeks, he had woken up with a stiff neck each morning and 
that the stiffness would diminish during the day but that he would occasionally have a 
shooting  pain.    He  also  reported  that  he  had  had  a  “pinched  nerve”  in  his  neck  five 
years  before  with  similar  symptoms.    The  doctor  found  that  he  had  a  full  range  of 
motion in his neck but “slight discomfort” at the C-7 vertebra. 

 
On June 28, 199x, the applicant underwent training in an altitude chamber.  The 
next  day,  he  reported  to  a  doctor  that  a  few  hours  after  the  training,  a  muscle  in  his 
lower  left  back  began  twitching,  followed  by  twitching  in  his  left  quadriceps  muscle.  
The second day, he reported that his neck felt stiff and had begun “making noise,” that 
his head “felt waterlogged,” and that he felt hyper and tense.  Four days after the train-
ing, he reported feeling like he had “bugs all over him” and a sunburned neck.   

 

 

 

On July 5, 199x, the applicant was treated for “the bends” in a hyperbaric recom-
pression chamber.  The doctor reported that since the training on June 28th, the appli-
cant  had  developed  neck  stiffness,  muscle  spasms,  numbness  and  tingling  on  his  face 
and feet, pruritis (itching), and an “altered mental state.”  The applicant  told him that 
during the training, he had been jolted by two significant “bounces.”  He complained of 
neck pain upon flexing or extending his neck.  The doctor also noted that 14 out of the 
18 people who had undergone the training had had some symptoms of the bends and 
that 8 had needed treatment in the hyperbaric chamber.  The diagnosis was “altitude-
exposure-induced decompression sickness Type II.”  After treatment in the hyperbaric 
chamber,  the  applicant  reported  that  his  “head  had  cleared”  and  that  he  felt  no  more 
twitching or numbness.  However, he stated that his neck was still stiff. 

 
On July 7, 199x, the applicant reported that his neck was still stiff and he still felt 
agitated  and  anxious.    He  again  underwent  treatment  in  a  hyperbaric  recompression 
chamber, which resolved more of his symptoms, but not his neck stiffness.  The doctor 
wrote that he “has had intermittent stiff neck over last 4-5 years.* … ”  At the bottom of 
the medical report, the doctor wrote “*football.”  Another doctor wrote that the appli-
cant reported a history of neck pain “for about last 4 years.” 

 
Because of the applicant’s continuing neck stiffness and pain, he was grounded 
and place on limited duty (desk work).  On August 31, 199x, he reported that he felt a 
lot better and had no pain.  However, on December 29, 200x, sneezing had caused his 
neck  to  begin  hurting  again.    He  also  complained  of  neck  pain  when  he  was  being 
treated for a sprained ankle on June 12, 200x.  

 
On August 31, 200x, the applicant  sought  treatment for insomnia and excessive 
worry about his disability and stressful family situations.  He began seeing a counselor 
and taking Zoloft, an anti-depressant medication. 

 
On  October  30,  200x,  the  applicant  sought  non-punitive  treatment  for  alcohol 
abuse  and  depression.    He  stated  that  he  had  been  having  neck  pain  and  was  getting 
into  a  “rut”  with  depression  and  alcohol.    He  reported  having  between  24  and  36 
“drinks”  per  week.    He  asked  for  the  cause  of  his  neck  pain  to  be  investigated  and 
treated.  He was referred for an MRI and grounded as unfit for aviation duty.  He was 
never again found fit for aviation duty. 

 
On  November  1,  200x,  the  applicant’s  counselor  diagnosed  him  with  chronic 

pain and a possible adjustment disorder with depression. 

 
On December 14, 200x, the applicant reported that ever since getting the bends, 
he had had intermittent episodes of neck pain.  He was taught stretching exercises and 
prescribed  Percocet,  a  potentially  addictive  pain  killer.    The  doctor  noted  that  he  was 
grounded because of the medications he was taking (Percocet and Zoloft).   

 

 

 
On January 8, 200x, a doctor reported that the applicant had fallen on ice, which 
had greatly increased his neck pain.  An x-ray had revealed a lucency, which indicated 
an old fracture of the spinous process of the C-7 vertebra.   

 
On  February  1,  200x,  the  applicant  was  screened  for  addictions.    He  was  diag-
nosed with (1) ongoing alcohol dependence and (2) amphetamine dependence that was 
in sustained remission. 

 
On February 2, 200x, the applicant’s executive officer (XO) prepared an entry for 
his record stating that because he had been found to be alcohol dependent, he had been 
recommended  for  Level  III  inpatient  treatment.    The  applicant  was  advised  that  as  a 
condition of his employment by the Coast Guard, he could not consume alcoholic bev-
erages for the remainder of his career. 

 
On February 22, 200x, the applicant saw an orthopedic surgeon who noted that 
an x-ray that day had shown that his C-6 spiny process was in two parts.  He stated that 
the  applicant  reported  having  significant  neck  pain  and  much  milder  pain  in  other 
joints since undergoing training in an altitude chamber. 

 
On March 5, 200x, a “cervical spine bone scan” ruled out the presence of a tumor. 
 
On March 19, 200x, the applicant underwent a physical examination pursuant to 
evaluation  by  an  Initial  Medical  Board  (IMB).    The  examiner  noted  his  chronic  neck 
pain, among other conditions.  

 
On March 30, 200x, a doctor noted that at an appointment on March 21, 200x, the 
applicant  had  reported  having  used  all  of  the  45  Percocet  tablets  that  had  been  dis-
pensed  to  him  on  February  8,  200x.    The  doctor  stated  that  he  talked  to  the  applicant 
about the potential for addiction and about tolerance and the lessening of effectiveness.  
The applicant told him that he understood about lessening effectiveness because, before 
enlisting,  he  had  used  intravenous  methamphetamine  for  about  one  month  but  was 
“never able to reach the same high” he had received the first time.  The doctor also not-
ed that during the physical examination on March 19, 200x, the applicant had told him 
that  before  entering  the  Coast  Guard  he  had  been  diagnosed  with  attention-deficit/ 
hyperactivity  disorder  (ADHD),  borderline  personality  disorder,  and  an  attachment 
(separation) disorder. 

 
On  April  2,  200x,  the  applicant’s  psychologist  reported  that  his  diagnoses  were 
dysthymic disorder and polysubstance dependence in remission.  She stated that “treat-
ment of his chronic pain is complicated by [his] history of addictive behavior.” 

 

 

 

On April 10, 200x, the applicant reported that his neck pain was “less acute since 

starting the [physical therapy].” 

 
On April 10, 200x, the applicant’s supervisor, the unit’s engineering officer, made 
an entry in his record stating that the applicant had failed to keep him informed of the 
fact  that  he  had  been  prescribed  a  medicine  that  precluded  him  from  performing  his 
duties, which included operating machinery, acting as a safety observer, and working 
on aircraft.  The officer also noted that the had been found sleeping on watch on Febru-
ary 21, 200x, and that his actions had created unsafe conditions in the workplace. 

 
On April 16, 200x, the applicant was treated for warts.  A senior medical officer 
noted that the applicant began “cracking jokes about resuming use of injected meth[am-
phetamine after] his discharge.” 

 
On  April  24,  200x,  the  XO  advised  him  that  he  had  not  earned  his  command’s 
recommendation for advancement.  The reasons cited included his failure to inform his 
supervisor about the medication he was taking and his financial irresponsibility in fail-
ing to pay certain bills. 

 
On April 25, 200x, the applicant’s physical therapist noted that he had reported a 
slight (“10%”) overall improvement and zero episodes of intense pain since beginning 
physical therapy, but that he had not been compliant in doing his exercises at home. 

 
On May 12, 200x, military police were called to the applicant’s home to investi-
gate  a  verbal  altercation  in  which  he  was  involved.    They  found  him  to  be  “highly 
intoxicated,”  in  violation  of  the  previous  restriction,  and  they  removed  him  from  his 
home to prevent the situation from deteriorating. 

 
On  May  14,  200x,  the  IMB  noted  that  the  applicant’s  diagnoses  were  (1)  dys-
thymic disorder, (2) “alcohol dependence [with] psychological dependence,” (3) “poly-
substance dependence, provisional, in remission,” and (4) chronic neck pain.  The IMB 
noted that the applicant’s medical records indicated that he was in good health until he 
underwent  training  in  an  altitude  chamber  on  June  28,  200x,  but  that  no  laboratory 
studies were  done  at that  time.  It further noted that he had “related a past history of 
intermittent stiff neck over the previous 4-5 years from football.”  The IMB found that 
the range of motion in his neck was limited by pain and that the applicant had a “very 
flat” affect, had poor eye contact, and “appeared very tired and much older than age.”  
The IMB concluded that he was unable to perform his duties as an aircrewman because 
of his chronic neck pain and dysthymic disorder and recommended that he be referred 
to a Central Physical Evaluation Board (CPEB).  The applicant was advised of the IMB’s 
findings and indicated that he would submit a rebuttal. 

 

 

 

On May 15, 200x, the applicant submitted a statement rebutting the IMB’s find-
ing that he had injured his neck playing football before he enlisted.  He stated that the 
finding was false.  He stated that after he got the bends, one Coast Guard doctor asked 
him if he had ever played football, and the applicant answered affirmatively.  When the 
doctor asked him if he had ever been injured, he had stated that he had “pulled a mus-
cle  or  two  but  nothing  serious.”    He  stated  that  the  doctor  had  never  asked  him  if  he 
had  injured  his  neck  playing  football.    The  applicant  also  stated  that  the  IMB  report 
indicating that  he had  suffered from neck pain for four or five years was “completely 
inaccurate.”  He stated that he had never had a problem with his neck until he got the 
bends.    In  addition,  he  wrote  that  the  statement  that  the  condition  of  his  neck  had 
improved with physical therapy was false.  He said that although the frequency of acute 
pain episodes had decreased, the “constant underlying pain” had increased.  He stated 
that getting the bends had had a very negative effect on his life since he was in pain all 
the time and had significant physical limitations. 

 
On  May  16,  200x,  the  IMB  issued  an  addendum  in  response  to  the  applicant’s 
statement.  The IMB flagged the instances in the applicant’s medical record where his 
doctors had noted his mentioning a pre-enlistment history of neck pain.  The IMB also 
noted  that  the  applicant  had  been  “disengaged”  by  his  physical  therapist  on  May  15, 
200x, because of his lack of compliance with the exercise regimen. 

 
On  May  16,  200x,  the  applicant’s  commanding  officer  (CO)  forwarded  the  IMB 
report to the Coast Guard Personnel Command (CGPC), concurring in the findings and 
strongly recommending that  he be discharged.  He  stated that  the applicant  had been 
removed from flight duties and assigned to administrative and technical  duties in the 
avionics  shop.    He  also  stated  that  the  applicant  had  “been  involved  in  documented 
incidents  throughout  his  tenure  at  this  command  that  have  demonstrated  poor  judg-
ment and are not in keeping with the Coast Guard’s core values.” 

 
On June 4, 200x, the applicant was arrested by military police for driving while 

intoxicated (DWI), with a blood alcohol content of 0.145. 

 
On June 11, 200x, a master chief at the applicant’s unit sent an email noting that 
because the applicant was taking pain killers for his neck pain, he had never been able 
to  enter  the  Level  III  inpatient  treatment  program.    The  master  chief  stated  that  the 
applicant  was  in a “Catch-22” situation and that  holding him accountable for abusing 
alcohol  after  he  had  referred  himself  for  treatment  and  was  unable  to  enter treatment 
presented a “fairness issue.”  The master chief recommended discharging the applicant 
as soon as possible before he did something that would embarrass the Coast Guard. 

 
On June 13, 200x, the Administrative Division of CGPC, which oversees the proc-
essing of members through the Physical Disability Evaluation System (PDES), sent the 

 

 

IMB  report  to  CGPC’s  Enlisted  Separations  Section  because  its  review  of  the  file  had 
indicated that the applicant “may have enlisted fraudulently.”  

 
On June 15, 200x, CGPC advised the applicant’s command that the applicant was 
being considered “for discharge due to fraudulent enlistment” because he had admitted 
that he had had “problems with drug addition” prior to his enlistment, that he had used 
intravenous methamphetamine, and that at age 15, he had been diagnosed with ADHD, 
borderline personality disorder, and separation disorder.  Therefore, the applicant was 
to be given an opportunity to make a statement in his defense. 

 
On June 18, 200x, the XO made an entry in the applicant’s record stating that the 
May 12, 200x, incident during which he was found intoxicated and removed from his 
home  by  the  military police  had  been  his  first  “alcohol  incident”  and  that  any  further 
incidents would result in his separation from the Coast Guard.  The applicant acknowl-
edged this warning with his signature.   

 
On  June  26,  200x,  the  XO  made  another  entry  in  the  applicant’s  record  stating 
that the applicant’s June 4, 200x, arrest for DWI was his second “alcohol incident” and 
that he would be processed for separation. 

 
On July 11, 200x, the applicant submitted a statement on his own behalf regard-
ing his proposed discharge for fraudulent enlistment.  He alleged, regarding the infor-
mation that was being used against him, either that he had not disclosed it because his 
recruiter had told him that he did not have to report anything that occurred before his 
18th birthday or that he had disclosed it during basic training.  He stated that  he had 
fully  disclosed  the  information  that  he  was  being  accused  of  withholding,  and  he 
alleged that his discharge for fraudulent enlistment was “a tactic derived from financial 
motives to avoid the Coast Guard’s long term responsibilities” for his injury. 

 
On  July  13,  200x,  the  applicant’s  CO  submitted  his  request  for  the  applicant’s 
immediate discharge along with the applicant’s own statement to CGPC.  He stated that 
the applicant had had three recent alcohol incidents, the third having occurred on July 
11, 200x, when the applicant was involved in an altercation with his supervisor, admit-
ted to having drunk alcohol the night before, and was charged with being absent with-
out leave (AWOL) and failing to obey an order. 

 
On July 23, 200x, CGPC ordered the applicant’s command to separate  him with 
an honorable discharge by reason of misconduct due to fraudulent enlistment, in accor-
dance with Article 12.B.18. of the Personnel Manual, no later than August 21, 200x. 

 
On  July  31,  200x,  the  XO  made  an  entry  in  the  applicant’s  record  stating  that 
because  he  was  about  to  be  discharged,  the  charges  against  him  for  failing  to  obey  a 
lawful order and being absent without leave would not be prosecuted.  However, the 

 

 

XO warned him that any further breach of discipline would result in disciplinary action 
and a delay of his discharge. 

 
On  August  10,  200x,  the  applicant  was  honorably  discharged  under  Article 
12.B.18. of the Personnel Manual for “fraudulent entry into military service” with a cor-
responding JDA separation code and an RE-4 reenlistment code, meaning that he is not 
eligible to reenlist. 

 
On  March  28,  200x,  the  Department  of  Veterans  Affairs  (DVA)  awarded  the 
applicant a 10-percent disability rating for his neck condition under VASRD code 5290 
because its examiner found that the applicant had a normal range of motion in his neck 
but  complained  of  pain.    The  DVA  found  that  the  applicant  had  not  proved  that  his 
depression  was  service-connected.    However,  on  June  19,  200x,  the  DVA  granted 
service-connection  for  the  applicant’s  depression  and  found  him  to  have  been  50  per-
cent disabled by it from the date of his discharge.  His combined disability rating is 60 
percent. 
 

VIEWS OF THE COAST GUARD 

 
Opinion of the CPEB 

 
In  response  to  a  request  from  the  BCMR,  the  applicant’s  medical  file  was 
reviewed by a CPEB, which alleged that if a CPEB had reviewed the file prior to his dis-
charge, the following findings would have been made: 

 
  His dysthymia did not render him unfit for duty as it was controllable with 

medication; 

  His alcoholism was not a ratable disability; 
  His polysubstance dependence was not a ratable disability; and 
  His chronic neck pain existed prior to his enlistment, was not aggravated by 
Coast Guard service, was not unfitting for military duty, and would therefore 
have been rated at 0 percent. 

 
The  CPEB  alleged  that  the  applicant  could  have  been  administratively  dis-
charged  for  a  “condition,  not  a  disability,”  for  “alcohol  rehabilitation  failure,”  or  for 
“personal drug abuse.” 
 
Advisory Opinion of the Chief Counsel 

 
On March 31, 2003, the Chief Counsel of the Coast Guard submitted an advisory 
opinion  in  which  he  recommended  that  the  Board  deny  the  applicant  the  requested 
relief.  However, he stated that he “would not object” if the Board granted alternative 
relief  by  changing  the  applicant’s  narrative  reason  for  discharge  from  “fraudulent 

 

 

entry”  to  “condition,  not  a  disability.”    He  did  not  recommend  upgrading  the  appli-
cant’s  reenlistment  code.    He  based  his  recommendation  in  part  on  the  memorandum 
on the case prepared by CGPC, which is summarized below.   

 
The  Chief  Counsel  argued  that  the  applicant  has  not  proved  that  the  Coast 
Guard  committed  an  error  or  injustice  in  discharging  him.    He  stated  that  the  Coast 
Guard  is  entitled  to  administratively  discharge  any  member  found  to  have  an  undis-
closed physical condition that would have precluded enlistment had the condition been 
discovered prior to enlistment.  He stated that when a member is found to have fraudu-
lently procured enlistment by failing to disclose a known, disqualifying condition, the 
member is subject to discharge for misconduct in accordance with Article 12.B.18. of the 
Personnel Manual (PM).  He argued, however, that because the Coast Guard “wished to 
honor  the  Applicant’s  request  for  ‘non  punitive’  treatment,  there  is  sufficient  basis  to 
change  the  discharge  to  a  voluntary  honorable  discharge  …  due  to  a  condition,  not  a 
disability, that interferes with performance of duty under Article 12-B-12.” 

 
The  Chief  Counsel  argued  that  “disability  statutes  do  not  preclude  disciplinary 
separation.  The regulations provide that even if a member is in the process of a disabil-
ity  evaluation  when  disciplinary  action  for  misconduct  commences,  the  punitive  or 
administrative discharge that results will foreclose and supersede any eligibility for dis-
ability retirement or payment.” 

 
The Chief Counsel further argued that the findings of the DVA have “no bearing 
or legal moment on the Coast Guard’s medical findings.”  He argued that under Coast 
PDES  regulations,  the  “sole  basis  for  a  physical  disability  determination  in  the  Coast 
Guard is unfitness to perform duty. …  Coast Guard regulations interpret these statutes 
to  prohibit  use  of  this  authority  to  bestow  compensation  benefits  on  those  who  are 
retiring  or  separating  and  have  continued  on  unlimited  active  duty  while  tolerating 
impairments that have not actually precluded Coast Guard service.” 

 

CGPC Memorandum 

 
The Commander of CGPC stated that the applicant’s claim that he had previous-
ly  disclosed  the  information  for  which  he  was  being  discharged  during  boot  camp  is 
without merit because the record indicates that the boot camp investigation concerned 
purely his prior criminal record and not his prior drug and alcohol abuse and psychiat-
ric diagnoses, which would have disqualified him for enlistment.  Commander, CGPC, 
stated that although the discharge for fraudulent enlistment was appropriate, the appli-
cant’s  “documented  effort  to  seek  ‘non-punitive’  treatment  for  these  conditions,  com-
mencing in October, 200x” is a mitigating factor that should be considered. 

 
Commander,  CGPC,  stated  that  no  promises  were  made  to  the  applicant  that 
disclosures he made to his doctors would not be used against him.  However, he stated,  

 

 

 
I am convinced it was in the best interest of the member and the Coast Guard to encour-
age  his  complete  honesty  to  obtain  the  best  possible  medical  treatment.  …    I  find  that 
both the  Coast Guard and the  Applicant found themselves in a “Catch-22” situation, in 
that their best interests were served by the Applicant finally being honest about his his-
tory  prior  to  enlistment.    However,  Coast  Guard  policy  would  require  the  Applicant’s 
separation for fraudulent enlistment.  Though I find the Applicant’s behavior during the 
entire  matter  to  be  unacceptable  and  reject  any  assertion  that  he  was  victimized  by  the 
Coast  Guard,  I  believe  that  in  the  interest  of  justice,  the  Applicant’s  separation  for 
fraudulent enlistment should be changed.  
 
Commander, CGPC, stated that he concurred in the findings of the CPEB that the 
applicant should be discharged for a “condition, not a disability.”  However, he argued, 
because of the applicant’s disqualifying conditions and his demonstrated unreliability, 
his reenlistment code should remain RE-4. 

 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS1 

 
On  April  1,  2003,  the  BCMR  sent  the  applicant  a  copy  of  the  Chief  Counsel’s 
advisory opinion and invited him to respond within 30 days.  The applicant requested 
and  was  granted  an  extension  and  responded  on  June  10,  2003.    In  his  response,  the 
applicant stated that the Coast Guard had never provided him with alcohol rehabilita-
tion treatment because, he was told, he was not fit for duty because of his neck condi-
tion.  He alleged that before he revealed his problems with alcoholism and depression, 
he  never  got  into  trouble,  but  thereafter,  “they  immediately  began  writing  me  up  for 
every situation that I was involved in, even if I was not in the wrong.”  He alleged that 
if the Coast Guard had timely provided rehabilitation treatment, he would have gotten 
“back on the right track.”  He alleged that they once told him that he could stay in the 
Service if he would divorce his wife, but he refused.   

 
In  support  of  his  allegation  that  he  had  never  injured  his  neck  playing  football 
prior to his enlistment, he submitted  a statement from the athletic director of his high 
school.  The athletic director wrote that  the applicant  had only played football during 
his  freshman  year,  that  during  that  year  “he  received  no  injuries  of  any  kind  and  he 
played the entire season,” and that, to his knowledge, the applicant never played high 
school sports after his freshman year. 

 
In  addition,  the  applicant  submitted  a  statement  from  his  mother,  who  stated 
that  the  applicant  had  lived  with  her  from  age  12  to  15  years  and  was  never  injured 
during that period.  She stated that during his freshman year, the applicant played foot-
ball and track.  
 

                                                 
1  The BCMR sent the Chief Counsel a copy of the applicant’s response.  On June 19, 2003, the Chief Coun-
sel informed the BCMR that the Coast Guard would not submit a supplemental opinion. 

 

 

SUMMARY OF APPLICABLE LAW 

 
Disability Statutes 
 
 
Title 10 U.S.C. § 1201 provides that a member who is found to be “unfit to per-
form  the  duties  of  the  member’s  office,  grade,  rank,  or  rating  because  of  physical  dis-
ability incurred while entitled to basic pay” may be retired if the disability is (1) perma-
nent  and  stable,  (2)  not  a  result of  misconduct,  and  (3)  for  members  with  less  than  20 
years of service, “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.”  Title 10 
U.S.C.  § 1203  provides  that  such  a  member  whose  disability  is  rated  at  only  10  or  20 
percent  under  the  VASRD  shall  be  discharged  with  severance  pay.    Title  10  U.S.C. 
§ 1214  states  that  “[n]o  member  of  the  armed  forces  may  be  retired  or  separated  for 
physical disability without a full and fair hearing if he demands it.” 
 
Veterans Affairs Schedule for Rating Disabilities (38 C.F.R. part 4) 
 

VASRD code 5290 is for rating limitations of motion of the cervical spine caused 
by the fracture of a vertebra.  Possible ratings are 30% for a severe limitation, 20% for 
moderate limitation, and 10% for slight limitation of motion. 

 

 Provisions of the Personnel Manual (COMDTINST M1000.6)  
 

PM  Article  12.B.1.e.1.,  which  concerns  “Cases  Involving  Concurrent  Disability 

Evaluation and Disciplinary Action,” states the following: 
 

Disability  statutes  do  not  preclude  disciplinary  separation.  The  separations 
described  here  supersede  disability  separation  or  retirement.    If  Commander, 
(CGPC-adm)  is  processing  a  member  for  disability  while  simultaneously  Com-
mander,  (CGPC-epm-1)  is  evaluating  him  or  her  for  an  involuntary  administrative 
separation for misconduct or disciplinary proceedings which could result in a puni-
tive  discharge  or  an  unsuspended  punitive  discharge  is  pending,  Commander, 
(CGPC-adm)  suspends  the  disability  evaluation  and  Commander,  (CGPC-epm-1) 
considers  the  disciplinary  action.    If  the  action  taken  does  not  include  punitive  or 
administrative  discharge  for  misconduct,  Commander,  (CGPC-epm-1)  sends  or 
returns the case to Commander, (CGPC-adm) for processing.  If the action includes 
either  a  punitive  or  administrative  discharge  for  misconduct,  the  medical  board 
report shall be filed in the terminated member's medical personnel data record. 

 
PM  Article  12.B.18.b.(2)  authorizes  the  Commander  of  CGPC  to  discharge  a 
 
member  for  misconduct  upon  discovery  that  the  member  “[p]rocure[d]  a  fraudulent 
enlistment,  induction,  or  period  of  active  service  through  any  deliberate  material  mis-
representation,  omission  or  concealment  which,  if  known  at  the  time,  might  have 
resulted in rejection.”  It goes on to specifically encompass the concealment of the mem-
ber’s  pre-enlistment  medical  history  or  criminal  records.  PM  Article  12.B.18.a.  states 

 

 

that  the  discharge  may  be  honorable,  general,  or  other  than  honorable.    PM  Articles 
12.B.5.  and  12.B.18.e.  provide  that  members  who  are  considered  for  such  a  discharge 
and  have  less  than  eight  years  of  service  are  not  entitled  to  a  hearing  before  an 
Administrative Discharge Board but may submit statements on their own behalf.  They 
are only entitled to counsel if something other than an honorable discharge is contem-
plated. 
 
 
PM  Article  20.A.2.e.  defines  an  “alcohol  incident”  as  “[a]ny  behavior  in  which 
the  use  or  abuse  of  alcohol  is  determined  to  be  a  significant  or  causative  factor  and 
which results in the member’s loss of ability to perform assigned duties, brings discredit 
upon the Uniformed Services, or is a violation of the Uniform Code of Military Justice 
(UCMJ) or federal, state, or local laws.”  Under Article 20.B.2.g., after the first such inci-
dent, the member must be advised in writing on a form CG-3307 that a second “alcohol 
incident” will normally result in his discharge.  Article 20.B.2.h.2. provides that “mem-
bers involved in a second alcohol incident will normally be processed for separation.”  
 
 
Under  PM  Article  20.C.3.c.,  a  “drug  incident”  occurs  when  a  member’s  CO  is 
persuaded, based upon tests or testimony, that a member has willfully used an illegal 
drug by a preponderance of the evidence.  Article 20.C.4. states that a member must be 
processed for separation after the first such incident. 
 
 
Under PM Article 12.B.12.a.12., members with certain medical conditions that do 
not constitute physical disabilities but that do interfere with their performance of duty 
may be discharged administratively for the convenience of the government. 
 
Separation Program Designator (SPD) Handbook 
 
 
The SPD Handbook states that members with no entitlement to an ADB who are 
involuntarily  discharged because they  have “procured a fraudulent enlistment, induc-
tion, or period of military service through deliberate material misrepresentation, omis-
sion  or  concealment”  may  be  assigned  a  JDA  separation  code,  an  RE-4  reenlistment 
code, and “fraudulent entry into military service” as the narrative reason for separation 
shown on their discharge forms.   
 
 
The SPD Handbook states that members with no entitlement to an ADB who are 
involuntarily discharged “when a condition, not a physical disability, interferes with the 
performance of duty” may be assigned a JFV separation code, “condition, not a disabil-
ity” as a narrative reason for separation, and an RE-4 or RE-3G or RE-3X (which mean 
eligible for reenlistment except for the disqualifying condition) reenlistment code.  

 

 

 

Provisions of the Medical Manual (COMDTINST M6000.1B) 

 
Chapter 3.F. of the Medical Manual provides that members with medical condi-
tions that are disqualifying for continuation in the Service shall be referred to an IMB by 
their commands.  Chapter 3.F.1.c. of the Medical Manual states the following: 

 
Fitness  for  Duty.    Members  are  ordinarily  considered  fit  for  duty  unless  they  have  a 
physical  impairment  (or  impairments)  which  interferes  with  the  performance  of  the 
duties of their grade or rating.  A determination of fitness or unfitness depends upon the 
individual’s ability to reasonably perform those duties.  Members considered temporar-
ily or permanently unfit for duty shall be referred to an Initial Medical Board for appro-
priate disposition. 

 
 
Chapter  3.G.  of the  Medical  Manual  provides  that  avionics  technicians,  such  as 
the applicant,  and other aircrew members must pass special examinations to be fit for 
their aviation duties.  Chapter 3.G.2.e.(1), which concerns when a medical board should 
be convened, provides that “[e]xcept for enlisted personnel in aviation ratings, fitness to 
perform aviation duties is a determination independent of the determination of fitness 
for continued service.” 
 
Provisions of the PDES Manual (COMDTINST M1850.2C)  
 
 
The PDES Manual governs the separation of members due to physical disability.  
Chapter 3 provides that an IMB of two medical officers shall conduct a thorough medi-
cal  examination,  review  all  available  records,  and  issue  a  report  with  a  narrative 
description  of  the  member’s  impairments,  an  opinion  as  to  the  member’s  fitness  for 
duty and potential for further military service, and if the member is found unfit, a refer-
ral  to  a  CPEB.    The  member  is  advised  about  the  PDES,  provided  a  copy  of  the  IMB 
report, and permitted to submit a response to the report.   
 
 
Chapter 4 provides that a CPEB, composed of at least one senior commissioned 
officer and one medical officer (not members of the IMB), shall review the IMB report, 
the  CO’s  endorsement,  and  the  member’s  medical  records  and  issue  a  report  on 
whether  the  member  is  fit  or  unfit  for  duty  and,  if  unfit,  whether  the  disability  was 
incurred or aggravated while he served on active duty and what percentage of disabil-
ity rating is warranted. 
 

Chapter  3.I.8.  provides  that  before  forwarding  an  IMB  report  to  the  CPEB,  a 
member’s CO must carefully screen it to look for conditions that existed prior to entry 
and “[s]hould it appear there may have been a fraudulent  enlistment, the record shall 
be forwarded to [CGPC].” 
 
 
Chapter  2.C.5.a.  provides  that  “clear  and  convincing  evidence  is  required  to 
establish  the  existence  of  any  injury  or  disease  before  a  member’s  entrance  into  the 

 

 

Coast  Guard.”    Chapter  2.B.4.  provides  that  “[i]njury  or  disease  is  presumed  to  be 
incurred in the line of duty.  The presumption stands unless rebutted by clear and con-
vincing evidence.” 
 
 
Chapter 2.C.2.a. provides that the “sole standard” that a CPEB or FPEB may use 
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 dis-
ease or injury incurred or aggravated through military service.” 
 

Chapter  2.A.47.  defines  being  “unfit  for  continued  duty”  as  the  “status  of  an 
individual member who is physically and/or mentally unable to perform the duties of 
office,  grade,  rank,  or  rating  because  of  physical  disability  incurred  while  entitled  to 
basic pay.  The status of unfitness applies to individuals unable to perform specialized 
duty, such as duty involving flying or diving, only if the performance of the specialized 
duty is a requirement of the member’s enlisted rating.” 

 
Chapter  2.B.1.  states  that  members  are  presumed  to  be  fit  for  duty  when  they 
enter the Coast Guard and that “[a]ny increase in the degree of a preservice impairment 
which  occurs  during  active  service  is  presumed  to  be  due  to  aggravation  unless  it  is 
shown to be due to the natural progression of the disease or injury which existed prior 
to entry on active duty.”  
 

Chapter 2.C.11.a. provides that “[i]f a member is being processed for a disability 
retirement or separation, and proceedings to administratively separate the member for 
misconduct, disciplinary proceedings which could result in a punitive discharge of the 
member  …  final  action  on  the  disability  evaluation  proceedings  will  be  suspended.  
Chapter 2.C.11.b. provides that “[i]f the court martial or administrative process does not 
result  in  the  execution  of  a  punitive  or  an  administrative  discharge,  the  disability 
evaluation  process  will  resume.    If  a  punitive  or  administrative  discharge  is  executed, 
the disability evaluation case will be closed and the proceedings filed in the member’s 
official medical record.” 
 

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 appli-
cable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.  The application was timely. 

 
2. 

The  applicant  alleged  that  his  discharge  for  fraudulent  enlistment  was 
erroneous because he had previously revealed his juvenile criminal record during boot 

 

 

camp, and the Coast Guard had decided not to discharge him for fraudulent enlistment 
at  that  time.    However,  the  record  indicates  that  the  applicant  was  not  discharged 
because  of  his  concealment  of  his  juvenile  criminal  record  but  because  of  his  conceal-
ment of his pre-enlistment drug and alcohol abuse and pre-enlistment psychiatric diag-
noses of ADHD, personality disorder, and attachment/separation disorder.  The record 
indicates that the applicant was duly informed of the reason for his proposed discharge 
and  permitted  to  submit  a  statement  on  his  own  behalf,  in  accordance  with  his  rights 
under  Articles  12.B.5.  and  12.B.18.e.  of  the  Personnel  Manual.    In  deciding  not  to  dis-
charge  him  for  fraudulent  enlistment  when  he  revealed  his  juvenile  criminal  record 
during boot camp, the Coast Guard did not waive its right to discharge him for fraudu-
lent enlistment at a later date upon the discovery of further concealed information. 

 
3. 

The record indicates that while enlisting, the applicant failed to reveal his 
prior drug use and psychiatric diagnoses on his enlistment forms.  Moreover, he signed 
sworn statements certifying that he had not lied on the forms.  Later, in seeking treat-
ment  for  his  alcohol  addiction  and  mental  condition,  he  admitted  to  pre-enlistment 
intravenous  drug  use  and  three  psychiatric  diagnoses.    Had  he  not  lied  to  the  Coast 
Guard  about  these  matters  on  his  enlistment  forms,  he  might  have  been  rejected  for 
enlistment.  Under Article 12.B.18.b.(2), therefore, the Coast Guard was entitled to dis-
charge him for fraudulent enlistment.  Moreover, as he was duly advised of the Coast 
Guard’s  intention  and  allowed  to  submit  a  statement  on  his  own  behalf,  he  was  pro-
vided all due process under the Personnel Manual.  Under Articles 12.B.5. and 12.B.18. 
of the Personnel Manual, he was not entitled to a hearing because he had less than eight 
years of active service, and he was not entitled to counsel because a less than honorable 
discharge was not contemplated. 

 
4. 

The  applicant  alleged  that  he  should  have  received  a  medical  discharge 
because of his injured neck.  However, under Article 12.B.1.e.1. of the Personnel Manual 
and Chapter 2.C.11.a. of the PDES Manual, when a member undergoing PDES process-
ing for a physical disability is also subject to separation for misconduct, such as fraudu-
lent  enlistment,  under  Article  12.B.18.  of  the  Personnel  Manual,  the  member’s  PDES 
processing is suspended and not resumed unless the member is not discharged because 
of the misconduct.  In this case, the record indicates that the applicant’s PDES process-
ing  was  suspended  when  his  fraudulent  concealment  of  his  pre-enlistment  drug  use 
and  psychiatric  diagnoses  was  discovered.    Because  he  was  ultimately  discharged  for 
fraudulent  enlistment,  his  PDES  processing  was  not  resumed.    The  applicant  has  not 
proved  that  the  Coast  Guard  committed  any  error  in  not  medically  separating  him 
under the PDES. 

 
5. 

The applicant has insisted that he never injured his neck playing football 
and that his neck was not injured prior to his training in the altitude chamber on June 
28,  199x.    However,  his  medical  record  shows  that  on  September  24,  199x,  and  twice 
after  his  altitude  chamber  training,  the  applicant  told  doctors  that  he  had  had  pain  in 

 

 

his neck intermittently during the previous four or five years, indicating that the pain 
had occurred before his enlistment in 199x.  The only evidence that this pre-enlistment 
neck  pain  resulted  from  a  football  injury,  however,  is  a  single,  unelaborated  footnote 
with the word “football” in a doctor’s notes of a medical consultation. 

 
6. 

Absent  evidence  to  the  contrary,  the  Board  presumes  that  government 
officials, including the applicant’s doctors, have acted correctly, lawfully,  and in good 
faith.  See  Arens  v.  United  States,  969  F.2d  1034,  1037  (Fed.  Cir.  1992);  Sanders  v.  United 
States, 594 F.2d 804, 813 (Ct. Cl. 1979).  The applicant has submitted nothing to explain 
why three different doctors would have erroneously reported his admission that he had 
had  neck  pain  before  his  enlistment.    The  Board  finds  that  the  preponderance  of  the 
evidence  in  the  record  indicates  that  the  applicant  experienced  intermittent  neck  pain 
prior  to  his  enlistment.    However,  given  the  statements  submitted  by  his  mother  and 
coach  and  the  fact  that  Chapter  2.C.5.a.  requires  “clear  and  convincing  evidence”  that 
any injury occurred before a member’s enlistment, there is insufficient evidence in the 
record to conclude that he had injured his neck playing football. 

 
7. 

Although  the  CPEB  alleged  that  the  applicant’s  neck  condition  was  not 
aggravated  by  his  military  service,  the  record  strongly  supports  a  contrary  finding.  
First,  on  July  6,  199x,  a  doctor  investigating  pain  around  the  applicant’s  C-6  and  C-7 
vertebrae  reported  that  x-rays  of  the  applicant’s  neck  were  “negative,”  indicating  no 
sign  of  fracture,  whereas  on  January  8,  200x,  x-rays  showed  a  healed  fracture  in  the 
spinous process of the C-7 vertebra, and on  February 22, 200x, an orthopedic surgeon 
determined  that  the  applicant’s  C-6  spinous  process  was  fractured  in  two  parts.    Sec-
ond,  prior  to  enlistment,  the  applicant’s  pain  was  apparently  intermittent,  but  by  late 
200x and early 200x, it had become much more frequent.  Therefore, the Board finds that 
the  applicant’s  neck  condition  was  clearly  aggravated  by  his  military  service.2    How-
ever,  as  stated  above,  under  Article  12.B.1.e.1.  of  the  Personnel  Manual  and  Chapter 
2.C.11.a.  of  the  PDES  Manual,  the  Coast  Guard  committed  no  error  in  suspending  his 
PDES  processing  when  it  discovered  his  fraudulent  concealment  of  his  pre-enlistment 
drug use and psychiatric diagnoses and began processing him for misconduct in accor-
dance with Article 12.B.18. of the Personnel Manual.  Therefore, the fact that the appli-
cant’s  neck  condition  was  aggravated  by  his  military  service,  though  germane  to  the 
DVA’s finding that the condition was service-connected, is immaterial to the outcome of 
this decision.  

 
8. 

The  CPEB  alleged  that,  in  lieu  of  being  discharged  for  fraudulent  enlist-
ment, the applicant could have been discharged for drug abuse or alcohol abuse.  How-
                                                 
2 Moreover, in light of the fact that the applicant was an avionics technician—whose duties include flying 
as part of an aircrew—and had been grounded for months because of the medication he was prescribed 
for his neck pain, the Board does not agree that the applicant’s neck condition did not render him unfit 
for  the  duties  of  his  rating,  in  accordance  with  Chapters  2.C.2.a.  and  2.A.47.  of  the  PDES  Manual  and 
Chapter 3.G.2.e.(1) of the Medical Manual. 

 

 

ever, there is no  evidence in the record that  the applicant  ever used or tested positive 
for illegal drugs while serving on active duty.  Admissions of pre-enlistment drug use 
do  not  constitute  a  “drug  incident”  under  Article  20.C.3.  of  the  Personnel  Manual.  
Therefore,  there  was  no  basis  in  the  record  for  discharging  him  for  drug  abuse.  
Although the applicant did have two “alcohol incidents” in his record, the record also 
indicates that he was not notified of the possible consequences of the first incident until 
June  18,  200x,  after  the  second  incident  had  already  occurred  on  June  4,  200x.    More-
over, the only alcohol-related narrative reason for discharge used by the Coast Guard is 
“alcohol  rehabilitation  failure,”  but  the  applicant  was  never  sent  to  the  rehabilitation 
program  his  doctors  recommended  because  of  the  medication  he  was  taking  for  his 
aggravated  neck  pain.    Therefore,  the  Board  finds  that  it  would  have  been  erroneous 
and unfair for the Coast Guard to have discharged him for “alcohol rehabilitation fail-
ure.” 

 
9. 

The Commander of CGPC recommended that the applicant be discharged 
for  a  “condition,  not  a  disability”  rather than  for  fraudulent  enlistment,  and  the  Chief 
Counsel  stated  that  he  would  not  object  to  such  a  correction.    Commander,  CGPC, 
pointed  out  that  the  applicant  voluntarily  reported  his  alcoholism  and  pre-enlistment 
medical history and was in a “Catch-22” situation in that he needed to admit his medi-
cal history to get proper treatment but, in doing so, risked being discharged for miscon-
duct.    Commander,  CGPC,  further  stated  that,  as  a  matter  of  policy,  it  is  in  the  Coast 
Guard’s interest to encourage members to be honest about their medical history.  Dis-
charging  members  in  the  applicant’s  situation  for  fraudulent  enlistment  discourages 
such honesty.  Therefore, he concluded that, although the Coast Guard did not legally 
err in discharging the applicant for fraudulent enlistment, it would be in the interest of 
justice to change his narrative reason for separation to “condition, not a disability.”  For 
the reasons stated by the Commander of CGPC, the Board finds that it would be in the 
interest of justice to change the applicant’s narrative reason for discharge to “condition, 
not a disability.”  The Board notes that the applicant has been diagnosed with at least 
two  conditions—unresolved  alcoholism  and  the  personality  disorder—that  sometimes 
render members unfit for military service but do not count as physical disabilities that 
entitle members to PDES processing and disability ratings. Coast Guard Medical Man-
ual, Chapters 3.F.16.c., 5.B.2., and 5.B.5.a.  

 
10. 

Furthermore,  the  Board  also  agrees  with  the  Commander  of  CGPC  that 
the applicant’s reenlistment code should remain RE-4 because the record indicates that 
he  has  a  disregard  for  the  truth,  unresolved  psychiatric  diagnoses,  and  a  recurrent 
problem with alcohol.  

 
11.  Accordingly, the Board should correct the applicant’s record to show that 
he  was  discharged  for  a  “condition,  not  a  disability”  with  a  JFV  separation  code,  in 
accordance with Article 12.B.12. of the Personnel Manual, but no  correction  should be 
made to his reenlistment code. 

 

 

 

 

 

ORDER 

 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

his military record is granted in part as follows: 
 
 
His DD form 214 shall be corrected to show that he was discharged by reason of 
a  “CONDITION,  NOT  A  DISABILITY”  with  a  JFV  separation  code,  under  Article 
12.B.12. of the Personnel Manual.  The correction to his DD 214 shall be made by issuing 
him a new DD 214, not by issuing a form DD 215.   
 

His RE-4 reenlistment code shall remain unchanged. 

 
 

 
 

 
 

 
 

 
 

 
 

______________________________ 
 Margot Bester 

______________________________ 
 Donald A. Pedersen 

______________________________. 
 Dorothy J. Ulmer