DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-155 
 
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xxxxxxxxxxxxxxxxxxxxxxxxxxx 

 

 
 

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 on July 12, 2007, 
upon receipt of the completed application, 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  April  10,  2008,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant was honorably discharged on February 1, 2006, because of “weight control 
failure,” pursuant to Article 12.A.5. of the Personnel Manual.  Upon his discharge, he had com-
pleted 14 years, 7 months, and 22 days of active duty. 
 

The applicant asked the Board to correct his record to show that he was retired from the 
Coast  Guard  by  reason  of  physical  disability  with  a  70%  permanent  disability  rating  and  to 
award him backpay and allowances from the date of his separation.  The applicant alleged that 
“[d]uring the separation board I was given a medical evaluation by a [Coast Guard] physician 
and  they  did  not  disclose  my  service-connected  disability  to  the  board.”    He  argued  that  he 
should have been medically retired under the Coast Guard’s Physical Disability Evaluation Sys-
tem (PDES).  In support of his allegations, the applicant submitted the following documents: 

 
(1) 

 
(2) 

A  “Split-Night  Polysomnogram  Report”  dated  October  4,  2003,  shows  that  the 
applicant was diagnosed with “Severe Obstructive Sleep Apnea (OSA) (780.53-0)” and should 
use a CPAP (continuous positive airway pressure) machine while sleeping.  The report notes that 
surgery or wearing an oral appliance were also options and that weight loss and positional ther-
apy might help his OSA. 

A decision by the Department of Veterans’ Affairs (DVA) dated May 19, 2006, 
shows  that  he  was  awarded  a  70%  combined  disability  rating,  consisting  of  a  50%  rating  for 

OSA, a 10% rating for right shoulder tendonitis, a 10% rating for hypertension, a 0% rating for a 
scar on his left chest wall, and a 0% rating for a right knee meniscal tear.  The decision notes that 
a 50% rating is assigned for OSA when the veteran must use a CPAP machine while sleeping.  
Regarding his tendonitis, the DVA decision states that 10% was awarded “for painful or limited 
motion of a major joint.”  The report further stated that 

 
there  is  no  right  shoulder  tenderness  to  palpation.    No  swelling  or  deformities.    Right  shoulder 
range  of  motion  elevation  is  to  155  degrees  with  normal  to  180  degrees.    Abduction  is  to  145 
degrees with normal to 180 degrees.  Internal rotation is to 90 degrees and external rotation is to 
90 degrees with normal to 90 degrees.  There is no evidence of pain, incoordination, fatigability or 
further loss of function with exercise.  There are no additional losses expected.  Right shoulder x-
rays  show  a  normal  right  shoulder.    The  examiner  diagnosed  tendonitis,  right  shoulder.    Your 
symptoms of degenerative changes with slight loss of motion warrants a 10 percent evaluation.  
 
 
Regarding his hypertension, the DVA decision states that 10% is awarded “if diastolic 
pressure is predominantly 100 or more; or systolic pressure is predominantly 160 or more; or as a 
minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or 
more requiring continuous medication for control.”  The report notes that the applicant was diag-
nosed with hypertension in 2000 and that the condition is controlled with medication. 
 

SUMMARY OF THE RECORD 

 
 
On June 11, 1991, the applicant enlisted in the Coast Guard.  He later attended Officer 
Candidate  School  and  on  September  22,  1995,  was  appointed  an  ensign  in  the  Reserve.    He 
served on extended active duty and was promoted to lieutenant junior grade on March 21, 1997, 
and to lieutenant on March 22, 2000.  He was integrated into the regular Coast Guard on July 21, 
2000.   
 
 
On  September  7,  1994,  the  applicant  was  found  to  weigh  257  pounds,  which  was  32 
pounds overweight.  A physician completed a Command Medical Referral Form noting that he 
was medically cleared to participate in a weight loss program to achieve his maximum allowable 
weight (MAW) by April 14, 1995. 
 
 
On June 14, 1995, while attending Officer Candidate School, the applicant was advised 
on a form CG-3307 (“Page 7”) that at 231 pounds he was in compliance with the MAW standard 
for a man of his age (25 years), height (72.5 inches), and wrist size (7.5 inches).  The Page 7 
noted, however, that 231 pounds was his MAW and that if he should exceed  it in the future he 
would be required to complete a body fat determination.  
 
 
treated with various medications, which were occasionally adjusted.   
 

On  July  26,  2000,  the  applicant  was  diagnosed  with  hypertension.    Thereafter,  it  was 

On October 24, 2000, the applicant underwent a polysomnogram and was diagnosed with 
mild OSA.  He was advised to lose weight, not drink alcohol before bedtime, and optimize his 
sleeping position.  The  doctor noted that if these measures failed, the  applicant would need a 
CPAP machine. 
 

On November 15, 2000, a nutritionist advised him that it was very important for him to 
lose weight because of his hypertension and sleep apnea.  On December 7, 2000, the applicant 
underwent  a  “complete  nutrition  evaluation  and  consultation.”    The  nutritionist  recommended 
that he adopt a 1600-calorie, low fat, low salt, moderate carbohydrate diet and continue his new 
exercise program. 
 
 
On March 8, 2001, the applicant underwent an MRI after complaining of pain in his right 
knee.    An  MRI  showed  a  “tear  of  the  anterior  horn  of  the  lateral  meniscus.”    The  applicant 
underwent arthroscopic surgery to repair the tear and then physical therapy.  At a follow-up visit 
on November 14, 2001, the applicant reported that he no longer had any knee pain and that he 
was  playing  basketball.    The  doctor  recommended  that  he  modify  his  lifestyle  to  increase  his 
exercise and change his diet. 
 
 
On January 29, 2002, the applicant was advised on a Page 7 that he weighed 304 pounds 
and was therefore 35 pounds over the MAW (269 pounds) for a man of his age (31 years), height 
(74 inches), and wrist size (8.5 inches).  In addition, his body fat was measured at 31%, whereas 
the  maximum  allowed  was  25%.    The  applicant  was  advised  that  he  was  required  to  lose  35 
pounds or to drop below 25% body fat by September 30, 2002, and that if he failed to be in com-
pliance with one of the two standards (weight or body fat) by the end of the probationary period, 
he would be processed for separation.   The Page 7 noted that a doctor had examined him on 
January 28, 2002, and certified that he would be able to lose the weight safely and that he had no 
physical  impairments  to  losing  the  weight.    In  addition,  he  was  ordered  to  undergo  weekly 
weigh-ins and to adopt a tailored weight loss program through a Health Promotion Manager. 
 
 
On  March  12,  2002,  the  applicant  sought  help  for  pain  in  his  left  knee,  which  he  had 
injured five days earlier while jogging. On March 19, 2002, the applicant reported that the pain 
in his knee seemed to be going away.  He was advised to do strengthening exercises. 
 
 
On June 3, 2002, the applicant came into compliance with the body fat standard when his 
body fat measured 24%.  However, he weighed 286 pounds, so that was established as his new 
MAW “screening weight.”  He was warned on a Page 7 that if he exceeded this new MAW, his 
body  fat would be re-measured.   In 2002, 2003, and 2004, doctors noted several times in the 
applicant’s medical records that he was obese and needed to diet and exercise. 
 
 
On October 9, 2002, the applicant sought treatment for a swollen knee and knee pain, 
which he reported having suffered for two or three weeks.  The doctor found him fit for duty but 
recommended that he participate in only low-impact activities.  On October 16, 2002, a doctor 
noted that the applicant’s knee problem was resolving and that he had a full range of motion with 
mild effusion and mild tenderness. 
 
 
On November 25, 2002, the applicant sought treatment for flu-like symptoms.  He was 
diagnosed with an upper respiratory infection (URI), prescribed Robitussin, and found fit for full 
duty.  On November 29, 2002, he again complained of flu symptoms.  He was diagnosed with 
sinusitis and found fit for duty.  On December 9, 2002, the applicant was again diagnosed with a 
URI.  He was put in “sick in quarters” status for one day.   
 

On October 4, 2003, the applicant underwent sleep testing, was diagnosed with OSA, and 

On March 4 and 25, 2003, the applicant was treated for “chronic sinusitis.”  On April 17, 
2003, he sought treatment for a cough, which he reported had begun two days before.  He was 
again diagnosed with another URI and prescribed medication.  On April 25, 2003, a doctor noted 
that the applicant’s URI was resolving. 
 
 
On July 23, 2003, the applicant was treated for a “shoulder sprain” after he fell off a bicy-
cle.  An MRI conducted on August 15, 2003, showed “supraspinatus tendinopathy” (tendonitis), 
a  “SLAP  tear  with  posterior  extension,”  and  “moderate  degenerative  disease”  at  the  acromio-
clavicular joint.  He was prescribed strengthening exercises.  At a follow-up visit on October 14, 
2003, the doctor diagnosed the problem as a “resolved AC sprain” with “minimal R.C. tendoni-
tis” and recommended that the applicant continue his strength training exercises. 
 
 
prescribed a CPAP machine to use while sleeping. 
 
 
On July 14, 2004, the applicant’s supervisor sent him an email reminding him to com-
plete a weigh-in “to properly confirm your status and get a jump start on the changes to the per-
sonal fitness program.”  The applicant responded that he would be weighed on July 21, 2004. 
 
 
On July 18, 2004, the supervisor advised the applicant that “[y]ou need to be concerned 
with  the  imposition  of  new  physical  fitness  and  weight  requirements  and  need  to  ensure  you 
don’t start off behind with the new system.  You have been previously advised to engage in rou-
tine physical exercise program including allowing to take some time during the work week in 
order to meet the minimum standards but more importantly for your own health.”  The supervi-
sor also noted that there were some gaps in the applicant’s record of weigh-ins. 
 
 
On July 22, 2004, the applicant stated that he did “not like the tone nor the implications 
that you are making” as he cannot control what notations the health technician made or failed to 
make in his record.  The applicant wrote that he was  
 

aware and concerned in regards to this new [weight standards] system.  I also have in my medical 
files reasons for my current weight and disposition.  I have addressed this topic several times with 
both you and [LCDR H] when he was here to have time to work out during the workday, then I 
worked out after hours.  Your response assumes that I have not taken due diligence in making sure 
that I am in compliance with the current weight standards.  I have taken due diligence through my 
workouts and through my constant visits to the medical staffs to address injuries and my [hyper-
tension].  I guess you forgot about the documented upper respiratory infection I had for 4 months.  
I guess you forgot about the documented separated shoulder I had that I had to rehab for 3 months.  
I also guess you forgot about the sprained MCL on my left knee that I had to rehab for 2 months.  
In addition, I am currently on three different [blood pressure] medications with the side effects of 
each  medication  is  [sic]  weight  gain  …  .    I  will  take  your  advice  and  keep  my  own  weigh-in 
records.  This way I can be assured in the future that I have the proof against any future allega-
tions. 

 
 
On July 27, 2004, the supervisor invited the applicant to come talk about his concerns as 
his intention had been simply to remind the applicant of the need to verify his weigh-in record.  
The supervisor stated that he knew about the respiratory infection and shoulder separation but 
did not recall the knee injury or the side effects of his medications.  The supervisor stated that he 

had never been told that the applicant’s conditions or medications provided a medical reason or 
justification for his weight gain. 
 
 
On October 27, 2004, the applicant was treated for “back pain, musculoskeletal strain” 
following a car accident.  He was prescribed Motrin and valium.  An x-ray of his lumbar spine 
showed no abnormalities. 
 
On November 19, 2004, a Page 7 was prepared  noting that  the applicant weighed 342 
 
pounds, which was 56 pounds above his MAW screening weight of 286 pounds.  In addition, his 
body fat measured at 36%.  He was advised on a Page 7 that because his probationary period 
would exceed 36 weeks (probationary periods are computed to allow for weight loss at the rate 
of one pound per week), he did not qualify for a probationary period and would be processed for 
separation. 
 

On December 9, 2004, the applicant’s commanding officer recommended that the appli-

Also on November 19, 2004, the applicant’s physician completed a Command Medical 
Referral Form, which showed that the applicant was 55 pounds overweight; that there was no 
underlying medical condition that caused the weight gain; that it was safe for the applicant to 
lose the excess weight through diet and fitness activities; and that the applicant had been coun-
seled on diet and exercise.  Laboratory reports dated November 9, 2004, indicate that no under-
lying medical causes of the weight gain were discovered. 
 
 
cant be separated for failing to meet the weight standards.   
 
 
On January 14, 2005, the applicant was informed that the Coast Guard would be conven-
ing a board of officers to determine whether he should be required to show cause for retention in 
the Service.   
 
 
On  February  22,  2005,  the  applicant  submitted  a  statement  for  consideration  by  the 
Determination Board.  He wrote that as of February 17, 2005, he had lost 18 pounds and 3 inches 
from his waist in just 12 weeks.  He stated that he was losing on average 1.5 pounds per week 
and  was  confident  that  he  could  be  in  compliance  with  the  standards  within  36  weeks.    He 
attached to his statement a chart showing that in October 2004, he weighed 342 pounds and had 
36% body fat; on December 2, 2004, he weighed 341 pounds; on January 6, 2005, he weighed 
330 pounds; and on February 17, 2005, he weighed 324 and had 34% body fat. 
 

On March 2, 2005, a Determination Board convened to determine whether the applicant 
should be required to show cause for retention on active duty.  The board found that he should be 
required to show cause for the following reasons: 
 

(a)  [The applicant] is in violation of Commandant Instruction M1020.8E, Weight/Physical Fitness 
Standards for Coast Guard Military Personnel.  He exceeded the maximum allowable weight and 
body fat beyond the limits of the maximum probationary period of 36 weeks.  In accordance with 
COMDTINST  M1020.8E,  this  requires  an  individual  to  be  processed  for  separation  from  the 
Service. 
 
(b)  While [the applicant] is  in  violation of the standards, he  has taken noteworthy initiative to 
reduce his weight and percentage body fat.  This Board notes his 12-week reduction in weight by 

18 pounds and percentage body fat by 2 percent.  It is conceivable that with his continued diligent 
effort, [he] could bring himself to within the prescribed limits during the remaining special board 
process.  Although we recommend he show cause for retention, we feel his continued progress and 
success in this are should be reviewed and taken into consideration at the Board of Inquiry. 

 
 
On March 7, 2005, the applicant was informed of the results of the Determination Board 
and of the fact that he would be required to show cause for retention before a Board of Inquiry.  
He was informed that he could appear in person and be represented by counsel. 
 
 
On  March  28,  2005,  the  applicant  underwent  a  physical  examination  pursuant  to  the 
separation proceedings.  On his Report of Medical History, aside from kidney stones and aller-
gies, the applicant past medical problems he noted were his hypertension and his knee surgery in 
2001.  He told the doctor that the knee was “no problem now.”  He listed the medications he was 
taking for hypertension, and the doctor noted that they “need monitoring.”  The applicant was 
found fit for duty or separation. 
 

On  July  19,  2005,  a  Board  of  Inquiry  (BOI)  held  a  hearing  for  the  applicant  to  show 
cause why he should be retained on active duty.  Following the hearing and after reviewing his 
records, the BOI recommended that the applicant be discharged because he 
 

did not show cause for retention on Active Duty.  The respondent provided no evidence to refute 
the government’s position that he was in violation of the Weight/Physical Fitness Standards for 
Coast  Guard  Military  Personnel  Manual  (COMDTINST  M1020.8E).    Evidence  presented  indi-
cated  he  was  56  lbs  over  his  maximum  allowable  weight  (MAW)  and  11%  over  his  maximum 
allowable body fat when evaluated by Headquarters Support Command (HSC) in October 2004.  
HSC followed the procedures in COMDTINST M1020.8E, paragraph 2.G. and began processing 
[him] for separation.  The respondent did not present any evidence that the government improperly 
followed the procedures as established in COMDTINST M1020.8E.  Also, [he] presented no offi-
cial medical evidence precluding him from or waiving him from the requirements of the weight 
program. 
 
[The  applicant’s]  record  indicates  his  official  struggle  with  his  weight  began  in  January  2002, 
when he  was  found to exceed the limits of the Coast Guard’s legacy  weight program instituted 
under COMDTINST M1020.8C.  [His] own testimony indicates that he embarked on a “Fad Diet” 
to gain compliance with the program and was found to be in compliance shortly before his PCS 
transfer in July of 2002. 
 
Base on the testimony of  witnesses [the applicant] gained weight after arriving at  his  new duty 
station, and was very likely overweight for the majority of the time since 2002. … Several months 
prior to the update of … [COMDTINST M1020.8E], [the applicant] was reminded by his supervi-
sor about the impending update and the need for him to determine what impact it may have on his 
weight status.  In that correspondence, via email, the supervisor also reminded [the applicant] that 
he  had  been  previously  advised  to  engage  in  a  routine  physical  fitness/exercise  program.    [The 
applicant] contends that he started working out several times but was unable to stay on a fitness 
program due to multiple injuries incurred during physical fitness activities.  Also, the command 
provided [him] with time during the workday to participate in a fitness program.  There are multi-
ple exercise programs that [he] could have participated in despite his injuries.  It appeared to the 
board [he] failed to either take the personal initiative or the advice of his supervisors to get serious 
about losing weight prior to the promulgation of the Weight/Physical Fitness Standards for Coast 
Guard Military Personnel Manual (COMDTINST M1020.8E). 

On October 6, 2005, the applicant weighed 313 pounds and had 30% body fat. 

 
 

 

On October 7, 2005, the applicant’s counsel submitted a rebuttal to the report of the BOI.  
The rebuttal states that the BOI failed to consider the quality of the applicant’s many years of 
service; the medical conditions that led to his weight gain and prevented him from exercising; 
and his “current commitment to leading a healthy lifestyle.”  The rebuttal also asserts that the 
applicant did attempt to lose weight prior to the October 2004 weigh-in but could not because he 
“aggravated  pre-existing  injuries  while  exercising  and  trying  to  lose  weight:    he  injured  his 
shoulder in a bicycle accident and injured his knee while running.  In addition, [the applicant] 
was involved in a car accident in October 2004 where he injured his back.”  The rebuttal alleges 
that the applicant tried to join a Ship Shape program in July 2004, but his entry was delayed until 
January  2005.    The  rebuttal  complained  that  the  BOI  failed  to  acknowledge  the  applicant’s 
efforts and injuries. 
 
 
The applicant’s rebuttal to the BOI report further alleged that the BOI ignored the recom-
mendation of the Determination Board that the BOI take into consideration the applicant’s recent 
efforts and progress in losing weight.  The rebuttal claimed that by the time the BOI met, the 
applicant had lost 23 pounds and 8% of his body fat from his high of 341 pounds and 38% body 
fat.  The rebuttal stated that because of his progress, the applicant now qualified for a probation-
ary period, and so the Coast Guard should “not give up on him and cast him aside.” 
 

On October 14, 2005, the BOI responded to the applicant’s rebuttal.  The BOI stated that 
the report shows that the board did review the applicant’s performance record, which contained 
many fair and average  marks, before issuing its recommendation based  on its finding that the 
applicant had not proved that he should be retained.  The BOI noted that its report referred to the 
applicant’s injuries in 2004, showing that the Board members took them into consideration but 
found that he still could have participated in a weight loss program.  The BOI further noted that 
testimony  during  the  applicant’s  hearing  had  revealed  that  when  the  applicant’s  supervisors 
counseled him in the summer of 2004 that the weight standards were going to be more strict and 
that he needed to lose weight to meet them, the applicant “responded defensively” and his super-
visor “did not notice [him] take any initiative until [he] was notified that he was to be processed 
for separation.”  In addition, “[s]everal of the [applicant’s] witnesses who observed [him] around 
the  summer  and  fall  of  2004  testified  that  they  only  noticed  [him]  take  his  weight  seriously 
around the time of the implementation of the new policy. … There was also evidence that the 
respondent participated in some sports programs during the summer of 2004 despite his injuries. 
… [He] played on a men’s basketball team and other sports … .”  The BOI noted that the appli-
cant submitted some new medical records with his rebuttal, but that the records show that he was 
able to exercise in the summer and fall of 2004. 

 
The BOI’s response to the rebuttal further stated that the applicant failed to sufficiently 
address his diet even though his own mother is a nutritionist.  The applicant admitted that he did 
not begin a diet until November 2004.  The BOI stated that the applicant had access to many 
other sources of information and help aside from the Ship Shape program but did not use them 
and “did not take initiative until it was too late.”  The BOI further noted that the applicant’s body 
fat had not diminished from 30% since the date of the BOI hearing on July 19, 2005, and that he 
remained out of compliance with the Coast Guard’s weight standards nearly a year after being 
informed that he would be processed for separation due to his weight.  The BOI concluded that  

 
[r]egardless of whether diet or exercise alone would have resulted in sufficient weight loss or loss 
of body fat, the [applicant] did not begin either until after the new Weight/Physical Fitness Stan-
dards policy took effect, despite warning from his superiors that failing to take action could jeop-
ardize his future in the Coast Guard. The hearing before the Board of Inquiry was a show cause 
hearing at which the [applicant] had the burden to show cause why he should be retained.  [He] 
presented witnesses and documents to the Board of Inquiry for that purpose, which the Board con-
sidered.  Ultimately, the Board was not swayed by the evidence the respondent presented.  There 
is no serious suggestion in [the applicant’s rebuttal] that the hearing was not fair and impartial; 
there is merely dissatisfaction with the [BOI’s] recommendation. 
 
On November 15, 2005, a Board of Review convened to review the BOI recommendation 
and decide whether the applicant “has or has not established that he should be retained in the 
Service.”  The Board of Review approved the recommendation for discharge. 
 
 
failure.”  
 

On  February  1,  2006,  the  applicant  was  honorably  discharged  for  “weight  control 

VIEWS OF THE COAST GUARD 

 
 
On December 13, 2007, the Judge Advocate General (JAG) of the Coast Guard recom-
mended that the Board deny the requested relief.  In so doing, the JAG adopted the findings and 
analysis provided in a memorandum on the case prepared by the Coast Guard Personnel Com-
mand (CGPC). 
 
 
CGPC stated that after the applicant was found to be 56 pounds overweight and to exceed 
the maximum allowable body fat of 25% at 36% on November 19, 2004, he was advised that he 
would be administratively separated because his weight probationary period would have exceed-
ed more than 36 weeks.  CGPC stated that the applicant was accorded all due process prior to his 
discharge on February 1, 2006, including a Determination Board convened on March 2, 2005; a 
Board of Inquiry convened on July 19, 2005; and a Board of Review convened on November 15, 
2005.  CGPC stated that there is no evidence of any wrongdoing and that his physician “operated 
within the scope of applicable policy.” 
 
 
CGPC stated that although the applicant had certain medical conditions, “none of these 
conditions presented impairment or were disqualifying from continued military service as out-
lined in [the PDES Manual and the Medical Manual].  The applicant was able to perform the 
duties of his rank prior to discharge and had he not been discharged for weight control failure, 
his record up until his discharged does not support that he suffered from a condition that would 
warrant PDES processing or that presented an inability to perform his duties.”  CGPC argued 
that under the PDES Manual, if “a member being processed for separation for reasons other than 
physical disability adequately performs the duties of his or her office, grade, rank or rating, the 
member is presumed fit for duty even though medical evidence indicates he or she has impair-
ments.” 
 
 
CGPC further stated that the Medical Manual “does not classify sleep apnea or hyper-
tension, when controllable through medication or external means, as disqualifying conditions for 
retention.  Regarding the other DVA disability [rating] for tendonitis of his right shoulder, the 

applicant’s record does not support that he suffered any inability to perform his duties, other than 
temporarily during period of rehabilitation as noted in his medical record.”  CGPC noted that 
although the applicant twice complained of a right shoulder strain while on active duty, at the 
time of his separation physical examination, he did not complain of current shoulder pain and he 
met the physical standards for retention.  Moreover, CGPC argued that DVA disability ratings 
“are not determinative of the issues involved in military disability determinations.  The evalua-
tion of the applicant at the time of his discharge is not affected by a subsequent [DVA] disability 
rating.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On January 17, 2008, the applicant responded to the views of the Coast Guard. The appli-
cant argued that if he did not qualify for PDES processing because he worked on active duty for 
two years after being diagnosed with OSA, “it should have been clearly stated in the March 28, 
2005, medical report.  Nowhere in that report was my sleep apnea listed. … It is clear that they 
did not list this physical disability because it would at least warrant a closer look at my medical 
history.”  The applicant alleged that the Coast Guard did not consider the affects of the OSA on 
his performance and denied having received due process since there was no PDES processing. 

 
The  applicant  disagreed  with  the  Coast  Guard’s  claim  that  he  was  able  to  perform  his 
duties adequately despite the OSA, hypertension, and tendonitis.  He noted that on one form, a 
doctor noted that his hypertension needed to be monitored and that his hypertension medications 
“were  consistently  being  adjusted  to  bring  my  hypertension  under  control.”    The  applicant 
argued that his OSA should not be dismissed as “a mere impairment” and that he should have 
been granted a hearing by a medical board to determine his status.  He stated that at the very 
least, he should have received “a medical severance package if not a medical retirement” because 
of his condition. 
 

 

APPLICABLE LAW 

 
Fitness and Administrative Separation Regulations 
 
 
COMDTINST  M1020.8E  provided  the  “Weight/Physical  Fitness  Standards  for  Coast 
Guard  Military  Personnel”  in  2005.    Article  2.D.1.  states  that  all  military  personnel  will  be 
weighed each October and April, but COs may screen members against standards anytime they 
deem it necessary.  Article 2.E.1. states that members not in compliance with MAW and body fat 
standards “shall be referred to a medical officer or local physician, who shall make a recommen-
dation to the command as to the member’s health, whether or not weight and/or body fat loss 
would  be  detrimental  to  the  member’s  health,  and  the  member’s  ability  to  participate  in  each 
component of the monthly fitness assessment.”  Article 2.E.4. states that a member with a medi-
cal  condition  that  precludes  his  or  her  participation  in  fitness  activities  is  still  responsible  for 
meeting MAW standards within the timeline specified by the probationary period.  Article 2.F.3. 
states that if a doctor determines that the member has a medical condition—such as a thyroid 
condition—that actually prevents him from losing weight or body fat at the required rate, the CO 
may request permission from Headquarters to hold the probation in abeyance.   
 

 
Article  2.F.1.  of  COMDTINST  M1020.8E  states  that  “overweight  members  who  also 
exceed their maximum body fat percentage shall be placed on probation, during which they must 
lose their excess weight or body fat.  The probationary period cannot equal or exceed thirty-six 
weeks, however.”  Article 1.A.3. states that healthy weight loss “should be at a rate of 0.5 to 1.0 
pound per week.”  Article 2.F.4. states that the probation period “shall equal the amount of time 
it would take the member to lose all excess weight at an average of one pound per week or one 
percent body fat per month, whichever is greater.”  Article 2.F.5. states that “[m]embers whose 
probationary period has been determined to be equal to or greater than 36 weeks both by weight 
calculations and by body fat calculations … shall be processed for separation.” 
 
 
Article  2.G.1.  of  COMDTINST  M1020.8E  states  that  “[m]embers  who  exceed  their 
MAW and body fat percentage to such an  extent that they would be placed in a probationary 
period of 36 weeks or more, fail to demonstrate reasonable and consistent progress during proba-
tion, or fail to attain their MAW or body fat by the end of their probation … shall be processed 
for separation.” 
 
 
Article 12.A.15.c.1.g. of the Personnel Manual authorizes the separation “for cause” of 
officers  who  fail  to  meet  the  Coast  Guard’s  established  weight  standards.    Under  Article 
12.A.15.e., any commanding officer who finds that an officer should be considered for separa-
tion shall refer the matter to CGPC, who after reviewing the records may refer the officer’s case 
to a Determination Board to decide whether the officer should be required to “show cause” for 
his or her retention on active duty at a hearing.  Under Article 12.A.15.f.6., if the Determination 
Board, based on a review of the record, finds that the officer should be required to show cause 
for  retention,  the  officer  is  notified  and  CGPC  convenes  a  Board  of  Inquiry.    The  officer  is 
appointed counsel to represent him or her before the BOI.  Under Article 12.A.15.g., prior to the 
BOI, the officer must undergo a physical examination to determine his fitness for duty and sepa-
ration.  “If the officer has a condition which requires him or her to enter the physical disability 
evaluation system or a serious disease or injury intervenes, … the officer concerned is normally 
processed concurrently for cause under this Article and in the physical disability evaluation sys-
tem. A final determination on the officer’s status normally will not be made until both processes 
are completed.”  Art. 12.A.15.g. 
 
 
Article 12.A.15.h.1. of the Personnel Manual states that a BOI  “affords  officers a fair, 
impartial  hearing  at  which  they  have  an  opportunity  to  establish  their  retention  in  the  Coast 
Guard is warranted.  The officers concerned may  present evidence to refute matters of record 
offered against them or otherwise establish they should be retained. The board of inquiry will 
consider all relevant evidence presented at the hearing and make findings and a recommendation 
based on a preponderance of evidence.”  At the hearing, “the officer concerned has the opportu-
nity to present evidence to refute matters of record offered against him or her or otherwise estab-
lish the Service should retain him or her.”  Art. 12.A.15.h.3.c.  Under Article 12.A.15.h.3.k.(1), 
in deciding whether to recommend retention or separation, the BOI may take into consideration 
an officer’s recent improvements but that recent improvement resulting “from an unusual effort 
on the officer’s part after learning he or she was recommended for separation for cause … does 
not  overcome  a  pattern  of  ineffectiveness.    The  board  may  consider  improved  performance 
together  with  other  evidence  in  the  record  to  determine  whether  the  officer  has  overcome  the 
pattern.”   

 

Under Article 12.A.15.i., when a BOI recommends separation, the case is reviewed by a 
Board  of  Review  to  decide  whether  the  officer  should  be  retained  or  separated.    Under 
12.A.15.h.8.c., an officer has a right to submit to the Board of Review a rebuttal to the report of 
the BOI, and if he does, the Recorder of the BOI may submit a written response to that rebuttal.  
If the Board of Review does not decide that the officer should be retained in the Service, the 
Commandant exercises final authority to approve separation. 
 
Disability Statutes 
 
 
Title 10 U.S.C. § 1201 provides that a member who is found to be “unfit to perform the 
duties of the member’s office, grade, rank, or rating because of physical disability incurred while 
entitled to basic pay” may be retired if the disability is (1) permanent 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.   
 
Provisions of the Medical Manual (COMDTINST M6000.1B) 

 
Article 3.F.1. of the Medical Manual provides that members with medical conditions that 
“are normally disqualifying” for retention in the Service shall be referred to an Initial Medical 
Board  for  possible  processing  under  the  PDES.    Article  3.F.15.l.  states  that  obstructive  sleep 
apnea (OSA) may be disqualifying for retention on active duty “when not correctable by use of 
CPAP or surgical means.”  Article 3.F.12.a.(2)(a) states that a shoulder condition may be dis-
qualifying for retention if the maximum abduction (sideways elevation) or forward elevation of 
the arm is less than 90 degrees—i.e., perpendicular to the body and parallel to the ground.  Arti-
cle 3.F.8.c.(2)(a) states that hypertension may be disqualifying for retention if the member’s dia-
stolic pressure consistently measures higher than 90 mm Hg despite medical treatment. 

 
Article 3.B.6. provides that “[w]hen a member  has an impairment (in accordance with 
section 3-F of this Manual) an Initial Medical Board shall be convened only if the conditions 
listed in paragraph 2-C-2.(b) [of the PDES Manual] are also met.  Otherwise the member is suit-
able for separation.” 
 
Provisions of the PDES Manual (COMDTINST M1850.2C)  
 
 
2.C.2. states the following: 

The PDES Manual governs the separation of members due to physical disability.  Chapter 

 
b. 
The law that provides  for disability retirement or separation (10 U.S.C., chapter 61) is 
designed to compensate members whose military service is terminated due to a physical disability 
that has rendered him or her unfit for continued duty.  That law and this disability evaluation sys-
tem are not to be misused to bestow compensation benefits on those who are voluntarily or man-
datorily retiring or separating and have theretofore drawn  pay and allowances, received promo-
tions,  and  continued  on  unlimited  active  duty  status  while  tolerating  physical  impairments  that 
have not actually precluded Coast Guard service.  The following policies apply. 
 

(a) 

(b) 

the member, because of disability, was physically unable to perform adequately 

Continued  performance  of  duty  until  a  service  member  is  scheduled  for  separation  or 
   (1) 
retirement for reasons other than physical disability creates a presumption of fitness for duty.  This 
presumption may be overcome if it is established by a preponderance of the evidence that: 
 
 
in his or her assigned duties; or 
 
 
acute,  grave  illness  or  injury,  or  other  deterioration  of  the  member’s  physical 
condition occurred immediately prior to or coincident with processing for separation or retirement 
for reasons other than physical disability which rendered the service member unfit for further duty. 
 
    (2)  A member being processed for separation or retirement for reasons other than physical 
disability  shall  not  be  referred  for  disability  evaluation  unless  the  conditions  in  paragraphs 
2.C.2.b.(1)(a) or (b) are met. 
 
c. 
If a member being processed for separation or retirement for reasons other than physical 
disability adequately performed the duties of his or her office, grade, rank or rating, the member is 
presumed fit for duty even though medical evidence indicates he or she has impairments. 

f. 
The  following  standards  and  criteria  will  not  be  used  as  the  sole  basis  for  making 
determinations  that an evaluee is unfit  for continued  military  service by reason of physical dis-
ability. 
 
   (1) 
graphic location and under every conceivable circumstance. … 
 
   (2) 

Inability  to  perform  all  duties  of  his  or  her  office,  grade,  rank  or  rating  in  every  geo-

Inability to satisfy the standards for initial entry into military service … . 

Inability to qualify for specialized duties requiring a high degree of physical fitness, such 

   (4) 
as flying … . 
 
   (5) 
evaluation or that may be unfitting for a member in a different office, grade, rank or rating. 
 
   (6) 

Pending voluntary or involuntary separation, retirement, or release to inactive status. 

The  presence  of  one  or  more  physical  defects  that  are  sufficient  to  require  referral  for 

•  •  • 

•  •  • 

•  •  • 

i. 
The existence of a physical defect or condition that is ratable under the standard schedule 
for rating disabilities in use by the [DVA] does not of itself provide justification for, or entitlement 
to, separation or retirement from military service because of physical disability.  Although a mem-
ber may have physical impairments ratable in accordance with the VASRD, such impairments do 
not necessarily render him or her unfit for military duty … Such a member should apply to the 
[DVA] for disability compensation after release from active duty. 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

 
 
submissions, the Coast Guard's submissions, and applicable law: 
 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  

The application was timely. 

The  Board begins  each  case presuming that the  applicant’s military  records are 
correct and that Coast Guard officials, including his doctors, have acted correctly and in good 

 

1. 

 
2. 

faith in performing their duties.1  The applicant bears the burden of proving, by a preponderance 
of the evidence, that he was entitled to PDES processing and a disability rating upon separation.2   

 
3. 

 
4. 

 
5. 

The applicant alleged that the Coast Guard should have processed him under the 
PDES and assigned him a disability rating because of the medical conditions that the DVA found 
to be service connected and ratable as of the date of his discharge.  The DVA awarded him a 
50% rating for obstructive sleep apnea (OSA), a 10% rating for right shoulder tendonitis, and a 
10%  rating  for  hypertension.    However,  the  DVA  assigns  ratings  for  all  service-connected 
disabilities ratable under the VASRD in accordance with how the disabilities affect a veteran’s 
civilian employment,3 whereas the Coast Guard assigns disability ratings only when a medical 
condition renders the member permanently unfit to perform continued active duty at the time of 
separation.4  DVA ratings are “not determinative of the same issues involved in military disabil-
ity cases.”5  Therefore, the fact that the DVA assigned the applicant a 70% combined disability 
rating  as  of  the  date  of  his  discharge  does  not  prove  that  the  Coast  Guard  erred  in  failing  to 
process him under the PDES and separate or retire him by reason of disability. 

Regarding the applicant’s fitness for duty, under Article 3.F.15.l. of the Medical 
Manual, OSA is only disqualifying for retention on active duty “when not correctable by use of 
CPAP or surgical means.”  The record shows that the applicant was prescribed a CPAP machine, 
and he has failed to prove that his condition was not “correctable” by the use of it while he was 
serving on active duty.  Article 3.F.12.a.(2)(a) of the Medical Manual states that a shoulder con-
dition such as tendonitis is only disqualifying for retention if the member cannot raise his arm to 
the front and the side to at least 90 degrees—i.e., perpendicular to the body and parallel to the 
ground.  His medical records and the DVA’s report show that the range of motion in his shoulder 
greatly exceeds the minimum necessary to be considered fit for duty.  Likewise, the applicant 
failed to show that, prior to his discharge, his hypertension was not sufficiently controlled by 
medication  to  make  him  fit  for  duty  in  accordance  with  Article  3.F.8.c.(2)(a)  of  the  Medical 
Manual.  The Board finds that the applicant has failed to prove by a preponderance of the evi-
dence that any of his medical conditions (aside from obesity) rendered him unfit for duty—either 
separately or when considered together—at the time of his discharge. 

Moreover, Chapter 2.C.2.b. of the PDES Manual states that the PDES is “not to 
be misused to bestow compensation benefits on those who are voluntarily or mandatorily retiring 
or separating and have theretofore drawn pay and allowances, received promotions, and contin-
ued on unlimited active duty status while tolerating physical impairments that have not actually 
precluded  Coast  Guard  service.”    The  record  shows  that  the  applicant  was  being  mandatorily 
separated because of obesity and, although he was prescribed treatment (CPAP and hypertension 
medications) for two ongoing medical conditions, he continued to perform duty in a fit for full 

                                                 
1 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) (holding that “absent strong evidence to the contrary,” government officials are presumed to have acted 
“lawfully, correctly, and in good faith”). 
2 33 C.F.R. § 52.24(b).   
3 38 C.F.R.§ 4.1. 
4 PDES Manual, Chaps. 2.C.3.a.(3)(a), 2.C.2.i., 9.A.1.c.(1), and 9.A.2.b. 
5 Lord v. United States, 2 Ct. Cl. 749, 754 (1983). 

6. 

duty status until his discharge.  The applicant has not overcome the presumption of fitness pro-
vided under Chapter 2.C.2.b.1. to show that he was entitled to evaluation by a medical board 
prior to his separation for obesity. 
 
 
The applicant alleged that in discharging him for obesity, the Coast Guard failed 
to consider that he had injured his knee, shoulder, and back or that weight gain is a side effect of 
his  hypertension  medications.    However,  several  times  during  the  applicant’s  military  career, 
doctors with access to his medical records certified that there were no underlying medical causes 
for his weight gain and that there was nothing to prevent him from dieting and exercising to lose 
weight.  The fact that the applicant took medications listing weight gain as a possible side effect, 
had arthroscopic knee surgery in 2001, developed tendonitis in his right shoulder in the summer 
of 2003, and strained his back in October 2004 does not persuade the Board that his doctors erred 
in certifying that he had no medical condition that prevented him from dieting and exercising to 
lose weight to attain his MAW.  Under Article 2.E.4. of COMDTINST M1020.8E, even mem-
bers with injuries that preclude certain fitness activities are expected to lose weight as necessary 
to attain their MAWs.  The record shows that the applicant had been placed on weight probation 
a few times before the Coast Guard’s new fitness standards went into effect in 2004 and had pre-
viously  received  fitness  and  nutritional  counseling.    His  supervisors  reminded  him  months  in 
advance of the October 2004 weigh-in that he needed to ensure that he would meet the new fit-
ness standards.  Yet he was 56 pounds overweight at the weigh-in, which meant that he did not 
qualify for a probationary period under Article 2.F.1. of COMDTINST M1020.8E and so had to 
be processed for separation under Article 2.F.5. 

The applicant argued that the recommendation of the BOI was unreasonable and 
unfair because by the time of his BOI hearing, he had reduced his body fat to 30% and would 
have qualified for a probationary period.  He pointed out that although the Determination Board 
found that he should have to “show cause” for retention, it also recommended that the BOI take 
into consideration any continued progress in losing weight.  Under Article 12.A.15.h.3.k.(1), in 
deciding whether to recommend retention or separation, a BOI may take into consideration an 
officer’s recent improvement, but recent improvement does not necessarily resolve the matter in 
favor of retention as the BOI must “determine whether the officer has overcome the pattern” of 
behavior that led to the “show cause” hearing.  The BOI Recorder’s response to the applicant’s 
rebuttal shows that the BOI did consider his weight loss efforts following his notification that he 
would be separated due to obesity but were not persuaded that he should be retained.  It is clear 
from both the BOI report and the Recorder’s response that the BOI thought that the applicant 
should have responded to his doctors’ and supervisors’ advice and the nutritional counseling he 
received  long  before  November  2004  and  that  they  considered  his  recent  weight-loss  efforts 
under  threat  of  separation  to  be  “too  little,  too  late.”    Given  that  the  applicant  weighed  342 
pounds—56  pounds  above  his  MAW—in  November  2004,  despite  his physicians’  advice  and 
supervisors’ warnings, and weighed 313 pounds—still 27 pounds above his MAW—in October 
2005, this Board cannot conclude that the BOI’s recommendation was unreasonable or unfair. 

The preponderance of the evidence in the record shows that the applicant received 
all due process with respect to his discharge for obesity and that he was not entitled to PDES 
processing or a disability rating from the Coast Guard. 

 
7. 

 
8. 

 

Accordingly, the applicant’s request should be denied. 

9. 
 

ORDER 

 

The application of former LT xxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

 
 

his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Dorothy J. Ulmer 

 

 

 

 
 
 Thomas H. Van Horn 

 

 

 
 
 Darren S. Wall