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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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
CG | BCMR | Discharge and Reenlistment Codes | 2008-103
SUMMARY OF APPLICANT’S REQUEST FOR RECONSIDERATION In his request for reconsideration, the applicant argued that his administrative discharge was erroneous and unfair because (a) he should have been processed for a physical disability separation under the Coast Guard’s physical disability evaluation system (PDES) because he had been diagnosed with a compulsive overeating disorder since 1995 and had also suffered from 1 The Final Decision and case file for BCMR Docket No. Failure to...
CG | BCMR | Discharge and Reenlistment Codes | 2006-054
command an email stating that he had measured the applicant at 23% body fat. The applicant was medically cleared for weight probation on April 13, 2005, with a weight of 259 pounds and 33% body fat. Although the applicant alleged that his discharge was based on the results of the hydrostatic testing, whereas COMDTINST M1020.8E mandates measurement by tape, the discharge orders issued on August 30, 2005, were clearly based on the weight and tape-measure body fat measurements made near the...
CG | BCMR | Advancement and Promotion | 2007-072
He stated that his health and weight loss records clearly prove that if his condition had been timely diagnosed and treated, he would have been in compliance with the Coast Guard’s fitness standards in time to be advanced on September 1, 2006. He alleged that it should be removed because (a) Dr. R told him that, because of his PTSD and medications, a weight-loss program “would be detrimental to my recovery”; (b) two of his PTSD medications, Effexor and Nortrip- tyline, caused his weight...
CG | BCMR | Disability Cases | 2010-224
The IMB reported on June 12, 1996, that the applicant had been “placed on the weight program and given intermittent Progesterone ther- apy for amenorrhea secondary to Polycystic Ovary Disease.” The IMB stated that she was fit for full duty despite her obesity and polycystic ovarian disease and that the “prognosis for this patient will depend on the vigor with which she pursues weight control because Polycystic Ovary Disease is associated with and thought to cause over weight.” The IMB stated...
CG | BCMR | Discharge and Reenlistment Codes | 2004-127
Screening [MAW]. states that members exceeding their weight and fat standards shall be placed on probation to lose the excess weight and fat. It further states the following.
CG | BCMR | Retirement Cases | 2011-238
On September 26, 2000, the applicant’s CO advised her in a letter that he would be rec- ommending her discharge from the Coast Guard for weight control failure. The PSC stated that the applicant was dis- charged due to weight control failure when she had 19 years, 2 months, and 5 days of active duty. 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 recommendation to the command as to the...
CG | BCMR | Other Cases | 2007-129
APPLICANT’S ALLEGATIONS The applicant stated that COMDTINST M1020.8E (Weight and Physical Fitness Standards for the Coast Guard) then in effect, required that a page 7 be prepared and placed in the military record to document the assignment of a new maximum allowable weight for a member who exceeded his or her original maximum allowable weight but who was within their required body fat percentage. CGPC stated that while the page 7 entries regarding adjusted maximum allowable screening...
CG | BCMR | Education Benefits | 2002-073
The applicant was placed on weight probation for a period of 12 months and was expected to lose the excess weight within that period. The Coast Guard incorrectly stated the applicant's MAW in both the XXXXXXXXXXX and the XXXXXXXXXXXX page 7s documenting her probationary status. None of the medical officers recommended against placing the applicant in a weight loss program or stated that because of her medical conditions it was impossible for her to comply with weight standards, except for...
CG | BCMR | Other Cases | 2010-140
The page 7 advised the applicant that she was required to lose the weight and/or body fat by July 17, 2009, and that if she failed to reach weight compliance by the end of the probationary period, she would be recommended for separation. she acknowledged with her signature: On November 2, 2009, the following page 7 was placed in the applicant’s record which On this date you have been determined to be 7 pounds over your MAW and 3% over your maximum allowable body fat. the evidence that the...
CG | BCMR | Discharge and Reenlistment Codes | 2010-140
The page 7 advised the applicant that she was required to lose the weight and/or body fat by July 17, 2009, and that if she failed to reach weight compliance by the end of the probationary period, she would be recommended for separation. she acknowledged with her signature: On November 2, 2009, the following page 7 was placed in the applicant’s record which On this date you have been determined to be 7 pounds over your MAW and 3% over your maximum allowable body fat. the evidence that the...