DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2008-103 
 
xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxx  
 

FINAL DECISION ON RECONSIDERATION 

 

 
 

 

 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case on April 18, 2008, upon deter-
mining  that  the  applicant’s  request  for  reconsideration  met  the  requirements  of  33  C.F.R.  
§ 52.67(a), and assigned it to staff member J. Andrews to prepare the decision for the Board as 
required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  January  22,  2009,  is  approved  and  signed  by  the  three  duly 

BACKGROUND:  BCMR DOCKET NO. 2006-054 

In BCMR Docket No. 2006-054, the applicant, who had been discharged on September 
27, 2005, after 19 years and 2 months of active duty, because of “weight control failure,” alleged 
that his administrative discharge was erroneous and unfair and asked the Board either to vacate 
his discharge and reinstate him on active duty with back pay and allowances or to award him 
constructive service credit for active duty from September 28, 2005, through July 27, 2006—the 
date he would have been able to retire with 20 years of active duty—and to award him all back 
pay, allowances, and retirement pay.  The Board denied relief for the reasons stated in the Final 
Decision for BCMR Docket No. 2006-054, which is attached hereto,1 and only new information 
submitted since the issuance of that decision will be summarized below. 
 

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. 2006-054 are incorporated as part of the record for this 
case, BCMR Docket No. 2008-103. 

anxiety and depression; and (b) his weight probationary period should have been held in abey-
ance because, contrary to Finding 8 in the Final Decision for Docket No. 2006-054, Dr. B had 
advised him not to exercise.  He argued that although he was represented by counsel in his ori-
ginal case, the Chair should grant reconsideration because his prior counsel clearly mishandled 
the case and failed to obtain readily available, significant evidence from Dr. B.  In support of his 
disability claim, the applicant submitted publications about depression, anxiety, and compulsive 
overeating disorder and the following documents from his medical records: 
 

•  October  24,  1995—A  medical  note  shows  a  diagnosis  of  “obesity  [with]  compulsive 
overeating” and a statement that it was medically safe for the applicant to lose his excess 
body fat.  The doctor recommended Level III treatment.  On a questionnaire completed 
by the applicant, he admitted to eating when he was not hungry and between meals, but 
he answered “No” to the following questions:  “Do you go on eating binges for no appar-
ent reason?”; “Do you look forward with pleasure and anticipation to the moments when 
you can eat alone?”; “Do you plan these secret binges ahead of time?”; and “Do you eat 
sensibly before others and make up for it alone?” 

 

 

 

 

•  October  9,  1997—A  letter  advises  the  applicant  to  report  to  a  rehabilitative  clinic  on 
January 26, 1998, to attend a weight management program.  A certificate indicates that he 
completed this Level III treatment on March 5, 1998.  A letter dated February 27, 1998, 
dictates his “continuing care plan.” 

•  February 28, 2000—A medical note shows that the applicant complained of chest pain.  
The  doctor  noted  that  he  appeared  mildly  depressed,  was  diagnosed  with  anxiety,  and 
was prescribed the drug Paxil. 

•  July 18, 2000—A Report of Medical History indicates that the applicant reported feeling 
depressed and anxious because of family and work problems.  A social worker’s letter 
dated  July  31,  2000,  indicates  that  he  was  receiving  counseling  in  stress-management 
techniques for stress related to his “new supervisory position” and his mother’s cancer. 

•  March 26, 2007—The report of psychiatric examination performed by a doctor for the 
Department of Veterans Affairs (DVA) notes the applicant’s complaints of depression, 
crying spells, insomnia, lack of energy, anxiety attacks, and nervousness and states that, 
more likely than not, he meets the criteria for recurrent, moderate major depression2 and 
an “eating disorder not otherwise specified”3 and that both are “service-connected.” 

 
                                                 
2 Under Chapter 5.B.10. of the Medical Manual, a diagnosis of “major depression disorder” may be disqualifying for 
retention and trigger PDES processing.  Major depression  disorder is also a ratable disability  under the Veterans 
Affairs Schedule for Rating Disabilities (VASRD) at 33 C.F.R. § 4.130. 
3 Other than anorexia nervosa and bulimia nervosa, eating disorders are not deemed physical disabilities eligible for 
disability ratings by either the Coast Guard or the DVA.  See Medical Manual, Chap. 5.B.18.d.; 33 C.F.R. § 4.130. 
“Eating Disorder Not Otherwise Specified” includes rumination (chewing but not swallowing food); eating disorders 
that do not quite meet the strict criteria for anorexia and bulimia; and “binge-eating disorder.”  American Psychiatric 
Association,  DIAGNOSTIC  AND  STATISTICAL  MANUAL  OF  MENTAL  DISORDERS,  FOURTH  EDITION,  TEXT  REVISION 
(2000), pp. 594-95.  “Compulsive overeating disorder” is not listed as an eating disorder in the DSM. 

In support of his claim about Dr. B’s medical advice to stop exercising, the applicant sub-

mitted the following letter from Dr. B dated May 7, 2007: 
 

[The  applicant]  was  seen  by  me  on  6-10-05  at  which  time  he  had  been  on  a  diet  with  caloric 
restriction, physical activity, and an appetite suppressant and had successfully gotten down from 
271 lbs. to 257 lbs.  He presented on 5-31-05 with some vague parasthesias [numbness] in the left 
hand, aching in the left interscapular area, and base of the neck while doing an elliptical exercise 
machine  workout.    Therefore,  we  held  his  appetite  suppressant  immediately  and  we  did  indeed 
advise  him  not  to  exercise  until  we  did  a  complete  cardiac  work-up.    Stress  cardiolite  test  was 
scheduled for 6-23-05.  The subsequent stress cardiolite test 6-23-05 showed no evidence for clas-
sic  ischemic  change.    There  was,  however,  a  left  ventricular  ejection  fraction  of  only  36%  and 
therefore, a cardiac ultrasound was scheduled.  A subsequent echocardiogram was performed 7-
13-05 which showed mild hypokinesis of the intraventricular septum, otherwise normal, no flow 
abnormalities detected. 
 
[The applicant’s] assertion that he was directed to stop exercising prior to completion of this car-
diac stress testing is correct.  He was indeed instructed to do this for his own safety until we could 
make further recommendations based on the test results. 
 
The cardiologist, subsequently, saw the patient on 7-22-05 and based on the 2D echocardiogram 
felt that his ejection fraction was calculated at 53%, which is considered to be normal and that the 
previously noted ejection fraction that was computer calculated by the Department of Radiology 
may have been a computer error.  It was felt at that time there was a normal cardiac examination 
and the patient may resume his full activity without restriction. 
 
In regards to whether the patient was advised to refrain from exercise until testing was completed, 
it is my policy that when patients present with chest discomfort suspicious for coronary artery dis-
ease that they not participate in strenuous activity until stress testing can be completed.  In this 
case, I specifically remember advising the patient of same, but apparently failed to dictate it into 
my progress notes. 

 
 
The applicant alleged that he properly ceased exercising based on Dr. B’s advice during 
his weight probationary period and that, therefore, his probationary period should have been sus-
pended for 52 days, from May 31 through July 22, 2005.  The applicant noted that he was placed 
on weight probation on April 13, 2005, and needed to comply with the Coast Guard’s standards 
by achieving 25% body fat or a weight of 189 pounds by December 25, 2005.  However, at the 
mid-way point, his command decided he was not making progress and initiated his discharge on 
August  10,  2005.4    He  argued  that  if  his  command  had  properly  suspended  his  probationary 
period for 52 days, “his mid-way point would have arisen only after the [Coast Guard] actually 
discharged  [him].”    He alleged  that  given  his  rate  of  weight  loss  and  body  fat  on  August  10, 
2005, “there is no reason to conclude that he would not have achieved his weight and body fat 
limitations by February 3, 2006,” which would have been the end date of his probation had it 
been suspended for 52 days.  The applicant argued that he would not have been discharged had 
his command properly suspended his probation.  In addition, he alleged, the fact “that [he] had 
on at least seven previous occasion met his weight and body fat standards through weight control 
                                                 
4 Article 2.F.6. of COMDTINST M1020.8E states that “[d]uring probation, members should demonstrate reasonable 
and consistent progress toward attaining their MAW (i.e., lose approximately half of the required weight or half the 
excess percentage of body fat by the midpoint of the probationary period).  Failure to demonstrate such reasonable 
and consistent progress may provide sufficient grounds for commanding officers to [initiate discharge] before the 
probationary period expires.” 
 

probation is clear evidence that he likely would have done so by February 3, 2006.”  The appli-
cant concluded that given his inability to exercise during 52 days of his probationary period and 
his medical diagnoses, the Coast Guard’s decision to discharge him just ten months before his 
approved retirement date “shocks the conscience.” 
 

DECISION OF THE CHAIR TO GRANT RECONSIDERATION 

 
The Chair advised the applicant that, in accordance with the Board’s regulations under  
 
33 C.F.R. § 52.67, she granted reconsideration on the basis of Dr. B’s letter because it responded 
directly to the Board’s Finding 8, which noted the following in pertinent: 
 

… [O]n August 12, 2005, after the CO received the applicant’s medical records and his request for 
retention dated August 7, 2005 (wherein the applicant alleged that his probation should have been 
suspended due to his medical complaints and testing), the CO wrote that “since being formally put 
on the program, [the applicant] has put forth a myriad of medical complaints.  All complaints were 
quickly and thoroughly assessed by qualified  medical professionals  who consistently concluded 
there were no grounds to cease weight loss activities. … [The applicant] is and has always been fit 
for full duty and fitness exercise.”  The Board finds that although the applicant apparently stopped 
exercising and dieting during his probationary period, there is insufficient evidence in the record 
to prove that he did so based on his doctor’s advice.  If Dr. B or the cardiologist actually instructed 
the applicant to stop dieting and exercising, the applicant should be able to produce written con-
firmation of this fact.  The medical notes are too vague about what advice was given and what 
decisions the applicant made on his own to overcome the presumption that the CO’s statement that 
the applicant was fit for duty and weight loss activities throughout the probationary period is cor-
rect. [Citation omitted.]  The Board finds that the applicant has not proved by a preponderance of 
the evidence that his command erred in failing to suspend his probationary period under Article 
3.A.2. of COMDTINST M1020.8E. 

 
 
The Chair further noted that the applicant had been represented by counsel in Docket No. 
2006-054 and could have and should have solicited and submitted Dr. B’s letter with his original 
application.  However, she found that “it is in the interest of justice to grant reconsideration in 
this case because it is possible that the Board would have made a different determination if [Dr. 
B’s] letter had been included with [his] original application.” 
 
 
The Chair further advised the applicant that she was not granting reconsideration on the 
grounds of the applicant’s diagnosed compulsive overeating disorder “because the diagnosis was 
known to the Board and because under Section 3.E. of COMDTINST M1020.8E[5] [the Coast 
Guard manual for weight standards] and Chapter 5.B.18.d. of the Medical Manual,[6] members 
                                                 
5 Article 3.E. of COMDTINST M1020.8E states that “[c]ases involving members who display tendencies toward 
compulsive overeating or are diagnosed with an eating disorder shall be handled in accordance with the provisions 
of the Medical Manual, COMDTINST M6000.1 (series).”   
6 Chapter 5.B.18.d. of the Medical Manual states that “[e]ating disorders have a potential to affect fitness for duty, 
but the diagnosis of an eating disorder does not automatically mean the member is unsuitable for continued service. 
Individuals suspected of having an eating disorder shall be referred for evaluation by an Armed Forces psychiatrist 
or Armed Forces clinical psychologist. Treatment may be authorized in accordance with the same criteria as other 
mental conditions.”  This regulation also states that members with anorexia nervosa and bulimia nervosa that do not 
respond  to  treatment  shall  be  processed  under  the  PDES, whereas  members  with  “eating  disorders  not  otherwise 
specified  …  [s]hall  be  processed  in  accordance  with  Chapter  12.B.12  …  of  the  Personnel  Manual,  …  if  the 
condition significantly impacts or has the potential to significantly impact performance of duties (health, mission, 
and safety).” 

with compulsive overeating disorders that cause them to be unfit for duty due to obesity are not 
processed for physical disability separations but are, like [the applicant], administratively sepa-
rated for the convenience of the government under Article 12.B.12. of the Personnel Manual.”7  
 

APPLICANT’S RESPONSE TO THE CHAIR 

 
 
The applicant responded to the Chair’s letter alleging that it is not clear that he could not 
have been processed under the PDES due to his diagnosed compulsive overeating disorder.  He 
argued  that  regardless  of  the  regulations,  “it  is  clear  that  he  did  have  medical  conditions  that 
interfered with his ability to meet the Coast Guard weight and body fat standards,” and therefore 
his  administrative  discharge  for  obesity  was  not  appropriate.    The  applicant  also  argued  that 
because of his diagnosed compulsive overeating disorder, under Chapter 5.B.1. of the Medical 
Manual,8 the Coast Guard should have referred him for six months of treatment in 2005 instead 
of discharging him.  The applicant’s response to the Chair was forwarded to the Coast Guard as 
additional information. 
 

VIEWS OF THE COAST GUARD 

On September 2, 2008, the Judge Advocate General (JAG) of the Coast Guard recom-

 
 
mended that the Board deny the requested relief. 
 
 
The JAG argued that based upon the Chair’s analysis granting reconsideration, “the only 
question presented is whether the applicant’s commanding officer [CO] abused his discretion by 
recommending  the  applicant’s  discharge  for  weight  control  failure  based  [on  Dr.  B’s]  letter.”  
The JAG argued that the CO did not abuse his discretion or commit error or injustice in initiating 
the applicant’s discharge. 
 
 
The JAG argued that “the Board should conclude the applicant has not proved by a pre-
ponderance of the evidence that applicant’s command erred in failing to suspend his probation-

                                                 
7 Article 12.B.12. of the Personnel Manual authorizes the administrative discharge of members for obesity “provided 
a medical officer certifies a proximate cause of the obesity is excessive voluntary intake of food or drink, rather than 
organic or other similar causes apparently beyond the member’s control.” 
8 Chapter 5.B.1. of the Medical Manual states the following with respect to psychiatric conditions:   

General  The following diagnostic categories conform to DSM IV-R and indicate the appropriate 
reference for disposition. In determining qualification for appointment, enlistment, and induction, 
or appropriate disposition (when the condition has been determined to be disqualifying for reten-
tion in accordance with paragraph 3-F-16), the diagnosis appears under DSM IV Axis I or Axis II. 
Conditions generally considered treatable and not grounds for immediate separation, mental health 
treatment  may be authorized for  members  when  medically necessary to relieve suffering and/or 
maintain fitness for unrestricted duty. The decision to provide treatment for mental health condi-
tions will be based on a review of all factors, including the opinion of experts, probability of a 
successful outcome, and the presence of other physical or mental conditions. 
a.  If  a  successful  outcome  (availability  for  worldwide  assignment)  is  not  realized  within  six 
months of the initiation of therapy, the patient's condition must be reassessed. If the reassessment 
indicates that the prognosis for a successful outcome is poor, the member shall be processed for 
discharge  pursuant  to  Chapter  12  of  the  Personnel  Manual  or  through  the  Physical  Disability 
Evaluation System. 

ary period under Articles 2.F.3. or 3.A.2. of COMDTINST M1020.8F.”9  The JAG stated that 
the intent of Article 2.F.3. is “to distinguish between physiological conditions that make weight 
loss  difficult  or  impossible,  and  physical  conditions  that  may  restrict  a  member’s  ability  to 
exercise but are not a physiological impediment to weight loss.  Abeyance requests will general-
ly not be granted for purely physical ailments, such as twisted ankles, pulled muscles, broken 
bones, etc., that make it difficult to exercise, but have no physiological impact on food intake.”  
The  JAG  stated  that  the  applicant’s  assertion  that  he  should  have  been  granted  an  abeyance 
because he was told by Dr. B not to exercise “runs contrary to Coast Guard policy as it pertains 
to  [Article  2.F.3.]”    He  stated  that  Dr.  B’s  May  7,  2007,  letter  indicates  that  he  advised  the 
applicant “not to participate in strenuous activity/exercise until stress testing can be completed,” 
but does not indicate that he made any medical determination that the applicant had a medical 
condition that prevented him from losing weight by, for example, changing his diet and caloric 
intake or light exercise.   
 

Moreover,  the  JAG  argued,  the  applicant  was  not  found  unfit  for  duty  while  he  was 
awaiting  the  cardiologist’s  determination,  so  he  did  not  meet  standard  for  an  abeyance  under 
Article 3.A.2.  Therefore, he concluded that Dr. B’s letter “clearly falls short of the two ways in 
which the applicant could have been granted an abeyance from his probationary period.” 
 

The JAG stated that “[h]aving a limitation on exercise does not automatically invoke an 
abeyance” and argued that with no medical determination that the applicant could not safely lose 
weight,  his  CO  was  “under  no  obligation  to  request  an  abeyance  pursuant  to [Article]  2.F.3.”  
The JAG pointed out that under Quinton v. United States, 64 Fed. Cl. 118, 124 (2005), et alia, 
“[a]bsent strong evidence to the contrary, military officers, like other government officials, are 
presumed to have carried out their duties correctly, lawfully, and in good faith.”  The JAG also 
noted that in 2005 the applicant could have sought a medical determination that his probationary 
period should be held in abeyance, but he apparently did not do so.   
 
 
 The JAG stated that the applicant “was afforded every opportunity to comply with Coast 
Guard policy regarding weight and body fat standards.  [He] has been on and off weight proba-
tion throughout his career and was well aware of the guidelines.  Instead of actively pursuing his 
                                                 
9 COMDTINST M1020.8F was published in April 2006, after the applicant’s discharge.  COMDTINST M1020.8E 
was in effect in August 2005.  Much of the language in the two editions is the same.  Article 2.F.3. of COMDTINST 
M1020.8E states that if a doctor determines that a member’s “medication or medical treatment or condition prevents 
them from losing weight or body fat at the required rate,” the member’s CO may request authority from CGPC to 
hold the probationary period in abeyance to prevent penalizing a member “who, through no fault of his or her own, 
is battling a  medical condition that  makes  weight loss challenging or impossible.  Once the abeyance period has 
passed (i.e., once the patient’s condition has stabilized), the probationary period will resume with the length of the 
probationary period based on the member’s current weight.”  Article 3.A. of this manual states the following: 
1.  Members who incur an injury or illness during a probationary period that may adversely affect 
their weight loss should be referred to a medical officer or contract physician to determine whether 
it is medically safe and feasible for the member to continue the weight loss regimen. 
2.  Members who are determined to be in a not-fit-for-duty status for a period of 30 days or less 
shall  have  their  probationary  period  held  in  abeyance  until  they  are  restored  to  fit-for-full-duty 
status,  provided  they  have  a  physician’s  determination  that  the  physical  condition  precludes 
weight loss.  See Enclosure (4), example 4, for the proper working of the Administrative Remarks 
entry.  If a member will be in a not-fit-for-duty status for longer than 30 days, the provision of 
Paragraph 2.F.3. above will apply. 

prescribed weight loss regimen, [the applicant] failed to demonstrate reasonable and consistent 
progress, which prompted the commanding officer’s decision to initiate discharge procedures.”  
The JAG also pointed out that under Article 2.H.2. of the COMDTINST, members who are dis-
charged because of obesity “may request reenlistment to their former rate provided they comply 
with MAW or maximum percent body fat, meet appearance standards and have been out of the 
service no more than 24 months.” 
 
The JAG also stated that, should the Board recommend granting relief, the decision must 
 
be reviewed under 33 C.F.R. § 52.64 because the applicant has challenged “a significant issue of 
Coast Guard policy.”  The JAG concluded that the applicant’s 
 

failure to adhere to Coast Guard policy runs contrary to Coast Guard core values and counter to 
good  order  and discipline  especially  from  senior  enlisted  [personnel].   The  Coast  Guard  can  ill 
afford the introduction of doubt in the minds of fellow crew members regarding its true commit-
ment to or equitable administration of the weight program.  The applicant should not be afforded 
an  administrative  scheme  to  circumvent  proscribed  policy  regarding  the  Coast  Guard’s  weight 
restrictions.  Moreover, the applicant  would  have been able to apply  for reenlistment  within 24 
months of his discharge, but his continued non-compliance of well established Coast Guard policy 
regarding the weight program has precluded this opportunity. 

 
 
The JAG also attached to the advisory opinion a memorandum on the case prepared by 
the  Coast  Guard  Personnel  Command  (CGPC).    CGPC  pointed  out  that  under  Article  2.E.  of 
COMDTINST M1020.8E, even a member who has a medical condition that makes fitness acti-
vities detrimental to his health must comply with Coast Guard weight standards within his proba-
tionary  period.10  CGPC stated that Article 2.F.  allows the abeyance of  a  probationary period 
                                                 
10 Article 2.E. of COMDTINST M1020.8E states the following: 

1. 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 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. The 
unit  commanding  officer  shall  prepare  the  top  portion  of  the  Command  Medical  Referral  Form 
(CG-6050), Enclosure (3); the bottom portion will be completed by the medical officer or local 
physician. This form shall be filed in the member’s Health Record. 
2. If a  medical officer or local physician determines that  any  weight or body  fat loss  would be 
detrimental to the member’s health, the commanding officer shall initiate an Initial Medical Board 
(IMB)  through  the  Physical  Disability  Evaluation  System  (PDES),  COMDTINST  M1850.2 
(series).  If  the  condition  is  not  disqualifying  for  retention  as  per  chapter  3.F  of  the  Medical 
Manual, COMDTINST M6000.1 (series), the commanding officer shall process the individual for 
discharge in accordance with Paragraph 2.G. If a medical officer or local physician determines that 
any weight or body fat loss would be temporarily detrimental to the member’s health, the member 
should be processed in accordance with Paragraph 3.A. [requiring an abeyance if the member is 
not fit for full duty]. 
3. A member with an underlying medical condition that limits or prohibits his/her participation in 
a specific portion of the fitness assessment will be excused from only that portion of the fitness 
assessment,  but  must  continue  to  participate  in  weekly  fitness  enhancing  activities  outlined  in 
his/her  detailed  fitness  plan.    The physician  will  document  his  or  her  findings  in  the  member’s 
health record. 
4. A  member  found to  have  an  underlying  medical condition that  would  make  fitness  activities 
detrimental to his/her health is still responsible for meeting MAW standards within the timeline 
specified by the probationary period.   

only  if  the  member  has  a  medical  condition  or  is  taking  medication  that  prevents  them  from 
losing  weight  or  body  fat.    CGPC  quoted  from  the  edition  of  the  manual  published  in  2006, 
COMDTINST M1020.8F, in which the following explanation was added to Article 2.F.3.:  
 

The intent of this provision is to distinguish between physiological conditions that make weight 
loss difficult or impossible, and physical conditions that may restrict a member’s ability to exer-
cise but are not a physiological impediment to weight loss. Abeyance requests will generally not 
be granted for purely physical ailments, such as twisted ankles, pulled muscles, broken bones, etc. 
that make it difficult to exercise, but have no physiological impact on food intake. 

 

 
 
CGPC alleged that although Dr. B’s letter indicates that the applicant was instructed not 
to exercise from June 10 to July 22, 2005, there is no indication it would have been detrimental 
to his health to reduce his caloric intake or otherwise change his diet.  CGPC argued that Article 
2.E. of COMDTINST M1020.8E clearly indicates that personnel are still responsible for comply-
ing with Coast Guard weight and body fat standards within the probationary period regardless of 
their ability to participate in an exercise program.  CGPC alleged that in June and July 2005, it 
“was still possible for the applicant to lose weight with a healthy diet combined with controlled 
caloric intake.” 
 
 
CGPC further noted that for military service members, a “diagnosis of compulsive over-
eating  is  specifically  addressed  through  administrative  channels  and  does  not  warrant  PDES 
processing.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On October 13, 2008, the applicant responded to the views of the Coast Guard. The appli-
cant argued that the Coast Guard “disposed” of him after nearly 20 years of service even though 
he “suffered from diagnosed medical conditions that affected his ability to meet the weight and 
body fat standards of the Coast Guard.  That is error and injustice in the extreme.  Indeed, it was 
brutal and wholly unnecessary.”  The applicant argued that the record shows that he was diag-
nosed  with  compulsive  overeating  disorder,  which  “directly  affected  his  ability  to  control  his 
caloric intake and meet Coast Guard weight and body fat standards.”  The applicant noted that he 
also suffered from anxiety and depression, which are known to affect appetite and weight. 

 
The applicant argued that the Coast Guard’s position was unjust because he was advised 
by Dr. B not to take the appetite suppressant he had been prescribed and not to exercise, which is 
“an essential component of most weight loss programs.”  The applicant alleged that the fact that 
he  had  previously  achieved  his  MAW  during  at  least  seven  prior  probationary  periods  shows 
that, if his probation had been properly  held in abeyance for 52 days, he would have met his 
MAW within the probationary period.  Moreover, the applicant noted, if his probation had been 
held in abeyance in accordance with Article 3.A.4. of COMDTINST M1020.8E,11 his probation-
ary period would have been recalculated at the end of the abeyance.  He alleged that if the Coast 
Guard had held his probationary period in abeyance until the cardiologist decided he could exer-

                                                 
11 Article 3.A.4. of COMDTINST M1020.8E states that “[t]he day following the determination of fit-for-full-duty or 
decision by medical authority to lift the abeyance, the probationary period shall be adjusted with the length of the 
probationary period based on the member’s weight at that time.” 

cise, his probationary period would not have ended till April 2006, about three months prior to 
his retirement date. 

 
The applicant alleged that the Coast Guard also failed to refer him to a dietician for coun-
seling on proper nutrition and methods to reduce body fat through healthy nutritional choices, as 
required  by  Article  4.C.4.  of  COMDTINST  M1020.8E.12    The  applicant  also  alleged  that  the 
physician who completed the Command Referral Forms on April 13, July 22, and August 10, 
2005, certifying that he had no underlying medical conditions that impeded his ability to lose 
weight  “clearly  erred”  because  the  applicant’s  diagnosed  compulsive  overeating  disorder  and 
treatment for depression were documented in his medical record. 

 
The applicant also argued that Dr. B’s letter proves not only that he was instructed not to 
exercise but also that it was not safe for him to continue his weight loss regime, which should 
have triggered an abeyance under Article 3.A.1. of COMDTINST M1020.8E.  He argued that his 
probationary period should have been held in abeyance for 52 days because, “apart from dieting, 
[he had to] stop [his weight loss] regime for a period of 52 days.” 

 
The applicant alleged that the Coast Guard’s claim that it had to discharge the applicant 
for obesity “to send a message to its personnel that weight and body fat standards are taken seri-
ously … simply is untrue.”  He stated that what truly shocks the sense of justice is the involun-
tary separation within months of retirement of a member who suffered from an eating disorder, 
depression, and anxiety.  The Coast Guard’s action has caused him “emotional, psychological, 
and financial devastation.”  He further alleged that the applicant’s command used the weight pro-
gram to discharge him “due to their misguided perception that he was a substandard performer.”  
He  alleged  that  he  had  been  an  “exceptionally  capable  and  dedicated”  petty  officer  who  won 
numerous prestigious awards and commendations and who “never committed misconduct.”13 
 

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 applicant’s request for reconsideration was timely submitted under 33 C.F.R. § 52.67(e). 

1. 

 
2.  

The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair,  acting 
pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case with-
out a hearing.  The Board concurs in that recommendation. 

                                                 
12  Article  4.C.4.  states  that  commanding  officers  must  ensure  that  overweight  members  are  referred  to  a  doctor 
before formally placing them on weight probation and are also referred for “a one-time visit to a registered dietician 
for counseling on proper nutrition methods to reduce excess body fat through healthy nutritional choices.” 
13 The applicant’s record contains many high performance evaluation marks, awards, and commendations, as well as 
many low marks and two old non-judicial punishments for offenses.  Professional performance and conduct, how-
ever, are not criteria  for, or germane to, a  member’s entitlement to an abeyance of a  weight probationary period 
under COMDTINST M1020.8E or to processing under the PDES Manual (unless a disability resulted from an act of 
misconduct).  

The applicant asked the Chair to grant reconsideration based on two different alle-
gations of error regarding the procedures that led to his discharge:  (a) his alleged entitlement to 
a physical disability separation and (b) his command’s failure to grant him an abeyance of his 
weight probationary period.  The Chair granted reconsideration based on the latter claim because 
information in Dr. B’s May 7, 2007, letter contradicted a statement in Finding 8 in the Board’s 
Final Decision.  However, the Chair did not grant reconsideration based on the applicant’s argu-
ment that he was entitled to a physical disability separation.  The Board finds that the record con-
tains no substantial evidence14 to support the applicant’s claim that while serving on active duty 
he suffered from a physical disability that rendered him unfit for continued service and entitled 
him to PDES processing and a physical disability separation.  The fact that he had been treated 
for anxiety and mild depression due to stressful events in his life is not proof that he was unfit for 
duty because of a disqualifying anxiety disorder or major depression.  Compulsive overeating 
disorder is not a physical disability under the VASRD.15  Members whose compulsive overeating 
prevents them from meeting Coast Guard weight standards or from achieving compliance during 
weight probationary periods are not processed for disability separations; instead, they are, like 
the  applicant,  discharged  administratively  under  Article  12.B.12.  of  the  Personnel  Manual.  
Therefore, the Board concurs in the Chair’s decision to grant reconsideration only on the issue of 
whether the Coast Guard erred in failing to grant the applicant an abeyance of his weight proba-
tionary period. 

 
3. 

 
4. 

The  applicant  alleged  that  his  weight  probationary  period  in  2005  should  have 
been held in abeyance because he was told not to exercise by Dr. B and also not to take a previ-
ously prescribed appetite suppressant.  He produced a letter from Dr. B, dated May 7, 2007, in 
which Dr. B wrote the following:  “In regards to whether the patient was advised to refrain from 
exercise until testing was completed, it is my policy that when patients present with chest dis-
comfort suspicious for coronary artery disease that they not participate in strenuous activity until 
stress  testing  can  be  completed.    In  this  case,  I  specifically  remember  advising  the  patient  of 
same, but apparently failed to dictate it into my progress notes.”  It is not clear from the letter 
whether this advice was given on May 31, 2005, or June 10, 2005, but it is clear that the appli-
cant was verbally advised not to “exercise” or “participate in strenuous activity” for more than a 
month while he was on weight probation.  Of course, the word “exercise” could theoretically be 
interpreted so broadly  as to preclude even walking, but  given  Dr.  B’s reference to “strenuous 
activity,” the Board will not interpret it thus.  In light of Dr. B’s prohibition of strenuous activity, 
the  Board  must  determine  whether  the  applicant  was  entitled  to  an  abeyance  and  whether  the 
applicant would not have been separated had Dr. B made note of his advice in the applicant’s 
medical record. 

                                                 
14 In this regard, the Board notes that the finding of the doctor for the DVA that the applicant suffered from service-
connected recurrent, moderate major depression in March 2007 does not prove that he suffered from this condition 
at the time of his discharge in September 2005. DVA ratings are “not determinative of the same issues involved in 
military disability cases.”  Lord v. United States, 2 Cl. Ct. 749, 754 (1983); see also Kirwin v. United States, 23 Cl. 
Ct. 497, 507 (1991) (“The VA rating is irrelevant to the question of plaintiff’s fitness for duty at the time of his dis-
charge.”);  Dzialo  v.  United  States,  5  Cl.  Ct.  554,  565  (1984)  (holding  that  a  VA  disability  rating  “is  in  no  way 
determinative on the issue of plaintiff’s eligibility for disability retirement pay. A long line of decisions have so held 
in similar circumstances, because the ratings of the VA and armed forces are made for different purposes.”). 
15 33 C.F.R. § 4.130. 

 
5. 

Article 2.F.3. of COMDTINST M1020.8E states that if a doctor determines that a 
member’s “medication or medical treatment or condition prevents them from losing weight or 
body fat at the required rate,” the member’s CO may request authority from CGPC to hold the 
probationary period in abeyance to prevent penalizing a member “who, through no fault of his or 
her  own,  is  battling  a  medical  condition  that  makes  weight  loss  challenging  or  impossible.”  
Article 2.E.4. of the manual states that a “member found to have an underlying medical condition 
that would make fitness activities detrimental to his/her health is still responsible for meeting 
MAW  standards  within  the  timeline  specified  by  the  probationary  period.”    CGPC  explained 
these  regulations  by  noting  that  under  Coast  Guard  policy,  the  phrase  “medical  condition”  in 
Article 2.F.3. was intended to denote a physiological condition that prevented weight loss and 
not just any condition that precluded strenuous activity.  CGPC pointed out that in next edition of 
the manual, COMDTINST M1020.8F, which was issued in April 2006, language was added to 
explain that the “intent of this provision is to distinguish between physiological conditions that 
make weight loss difficult or impossible, and physical conditions that may restrict a member’s 
ability to exercise but are not a physiological impediment to weight loss.  Abeyance requests will 
generally  not  be  granted  for  purely  physical  ailments,  such  as  twisted  ankles,  pulled  muscles, 
broken bones, etc., that make it difficult to exercise, but have no physiological impact on food 
intake.”  While this explanation was not in the regulation in 2005, the policy is consistent with 
that applied in a prior case, BCMR Docket No. 2007-155, which concerned an officer’s adminis-
trative separation for obesity under the provisions of COMDTINST M1020.8E despite several 
conditions that impeded his ability to exercise.  In Finding 6 of the Final Decision for Docket 
No. 2007-155, the Board found the following: 

 
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 members 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 previously 
received fitness and nutritional counseling. 
 

The  Board  is  not  persuaded  that  “compulsive  overeating  disorder”  is  the  type  of  underlying 
medical condition contemplated in Article 2.F.3. of COMDTINST M1020.8E to justify an abey-
ance of weight probation.  It is not a physiological condition and it is not even a defined mental 
illness or disorder under the American Psychiatric Association’s Diagnostic and Statistical Man-
ual of Mental Disorders, Fourth Edition (DSM), which is relied on by the Coast Guard in identi-
fying mental illness and disorders.  The DSM lists only anorexia nervosa, bulimia nervosa, and 
eating disorders “not otherwise specified” in its discussion of eating disorders.16  The last cate-
gory includes a “binge-eating disorder,” but the applicant’s responses to the medical question-
naire in 1995 indicate that his diagnosis of “compulsive overeating disorder” was based not on 
binge eating, but on regularly overeating at and between meals.   

 

                                                 
16 See American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FOURTH 
EDITION, TEXT REVISION (2000), pp. 583-95.     

6. 

The  applicant  was  unable  to  participate  in  strenuous  activity  for  several  weeks 
during his weight probationary period, but like the applicant in Docket No. 2007-155, he was 
still required by  Article  2.E.4. of COMDTINST  M1020.8E to achieve compliance with Coast 
Guard weight and/or body fat standards within his probationary period, presumably by adopting 
a healthy, low calorie diet.  There is no evidence that any doctor ever found that weight and/or 
body  fat  loss  would  be  detrimental  to  the  applicant’s  health,  as  stated  in  Articles  2.E.1.  and 
3.A.1. of the manual.  Nor is there any evidence that he was unfit for duty during his probation-
ary period, as required for an abeyance under Article 3.A.2.  Under Article 2.E.3., Dr. B’s advice 
excused the applicant only from participating in strenuous activity and taking the appetite sup-
pressant Phentermine,  and he was required to continue with the rest of his fitness/weight loss 
regime.  The records show that the applicant had been placed on weight probation several times 
previously and had received counseling from dieticians and medical professionals throughout his 
career, as well as treatment for compulsive overeating.  In light of these facts, the Board finds 
that the Coast Guard did not commit error or injustice by not granting the applicant an abeyance 
of his weight probationary period even though he could not participate in strenuous activity and 
could not take a prescribed appetite suppressant. 

The applicant alleged that he was not referred to a dietician when he was placed 
on weight probation in April 2005, as required by Article 4.C.4. of COMDTINST M1020.8E.  
However, Dr. B’s medical notes dated April 13, 2005, indicate that he was referred to a dietician.  
Even assuming arguendo that the applicant did not meet with a dietician immediately before or 
during the probationary period in 2005, the lack of another consultation with a dietician would 
constitute  harmless  error17  in  this  case  because  the  record  shows  that  the  applicant  received 
counseling from dieticians and medical professionals because of his obesity on numerous occa-
sions  throughout  his  military  career.    The  Board  does  not  believe  that  the  applicant  lacked 
knowledge of healthy eating habits for weight loss during his probationary period. 

 
7. 

 
8. 

The applicant alleged that under Chapter 5.B.1. of the Medical Manual, instead of 
discharging  the  applicant,  the  Coast  Guard  should  have  provided  therapy  for  his  compulsive 
overeating disorder.  The record shows that in 1995, when the applicant was first diagnosed with 
compulsive overeating, a doctor recommended Level III treatment, and the applicant underwent 
such treatment at an addiction rehabilitation clinic in 1998.  However, despite the intensive ther-
apy, he was again on weight probation in 2000, 2001, 2002, 2003, 2004, and 2005.  The appli-
cant  also  had  access  to  counselors  through  the  Employee  Assistance  Program,  health  services 
technicians,  and  military  medical  officers.    Nothing  in  Chapter  5.B.1.  waives  the  regulations 
requiring the administrative separation18 of obese members who fail weight probation or who fail 
                                                 
17  Quinton  v.  United  States,  64  Fed.  Cl.  118,  125  (2005)  (finding  that  harmlessness  requires  that  there  be  “no 
substantial nexus or connection” between the proven error and the prejudicial record that the applicant wants the 
Board to remove or correct); Engels v. United States, 678 F.2d 173, 175 (Ct. Cl. 1982) (finding that an error in an 
officer’s military record is harmless unless the error is “causally linked with” the record the officer wants corrected); 
Hary v. United States, 618 F.2d 704, 707-09 (Ct. Cl. 1980) (finding that the plaintiff had to show that the proven 
error  “substantially  affected  the  decision  to  separate  him”  because  “harmless  error  …  will  not  warrant  judicial 
relief.”).   
18  Article  2.G.1.  of  COMDTINST  M1020.8E  states  that  “[m]embers  who  exceed  their  MAW  and  body  fat  per-
centage  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 probation, or fail to attain their MAW or body fat by the end 
of  their  probation  …  shall  be  processed  for  separation.”    Article  2.F.6.  states  that  “[d]uring  probation,  members 

 
9. 

 
10. 

to make both reasonable and consistent during weight probation.  The Board finds that the provi-
sions in Chapter 5.B.1. did not entitle the applicant to retention on active duty or an abeyance of 
his probationary period. 

In his August 12, 2005, letter to CGPC recommending the applicant’s discharge, 
his CO stated that “since being formally put on the program, [the applicant] has put forth a myr-
iad of medical complaints.  All complaints were quickly and thoroughly assessed by qualified 
medical professionals who consistently concluded there were no  grounds to cease  weight loss 
activities. … [The applicant] is and has always been fit for full duty and fitness exercise.”  In his 
request for retention, which was also submitted to CGPC, the applicant stated that since May 31, 
2005, he had been under medical care and undergoing testing for pain in his back, chest, neck, 
and left arm.   He stated that he  had had to discontinue aerobic exercise and Phentermine and 
asked that his weight probationary period be held in abeyance “until all medical issues are identi-
fied and I am returned to a fit for full duty status.”  This information was reviewed by the appli-
cant’s  CO  before  he  submitted  the  recommendation  for  discharge  and  by  the  District  Com-
mander,  who  stated  that  he  had  carefully  reviewed  the  matter  and  concurred  with  the  CO’s 
recommendation.    After  the  recommendation  was  forwarded  to  CGPC,  the  applicant  emailed 
CGPC  information  about  his  medical  condition,  Dr.  B’s  advice,  and  weight  loss  and  again 
argued that he should receive an abeyance and should not be discharged.  Therefore, although 
Dr. B’s letter about his advice to stop strenuous activity was not in the record when the CO’s 
recommendation for discharge was reviewed and approved by CGPC, the Board is not persuaded 
that the applicant’s request for an abeyance was not carefully investigated and considered.  The 
Board  notes  in  this  regard  that  even  after  the  recommendation  for  discharge  was  formally 
approved, the Coast Guard ordered hydrostatic testing of his weight and body fat to assess his 
condition.  The applicant’s CO, District Commander, and CGPC were all aware of his request for 
an abeyance and had access to his medical records and doctors, and their decision to discharge 
him shows that they agreed that he was not entitled to an abeyance under the regulations.  Absent 
evidence to the contrary, the Board must presume that these officers carried out their duties “cor-
rectly, lawfully, and in good faith.”19  The applicant has submitted insufficient evidence to over-
come this presumption and to prove by a preponderance of the evidence that they were mistaken 
in their assessment of his entitlement to an abeyance under the Coast Guard’s regulations. 

The  applicant  repeated  his  allegation  that  his  separation  for  obesity,  without 
retirement, after completing 19 years and 2 months of active duty was very unjust.  The appli-
cant’s separation without retirement after 19 years and 2 months of service may seem shocking, 
but the Board finds that it was not the applicant’s “treatment by military authorities”20 that was 
shocking.    The  record  indicates  that  in  2004,  the  applicant  was  noted  to  be  overweight  upon 
arriving at his new unit within a few months of undergoing abdominoplasty to attain compliance 
within a weight probationary period.  Rather than immediately place him on weight probation, 
                                                                                                                                                             
should demonstrate reasonable and consistent progress toward attaining their MAW (i.e., lose approximately half of 
the required weight or half the excess percentage of body fat by the midpoint of the probationary period).  Failure to 
demonstrate  such  reasonable  and  consistent  progress  may  provide  sufficient  grounds  for  commanding  officers  to 
[initiate discharge] before the probationary period expires.” 
19 Arens v. United States, 969 F.2d 1034, 1037 (1990); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979); 33 
C.F.R. § 52.24(b). 
20 For the purposes of the BCMRs, “‘[i]njustice’, when not also ‘error’, is treatment by the military authorities, that 
shocks the sense of justice, but is not technically illegal.” Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976).   

the command gave him a “grace period” to come into compliance before the April 2005 weigh-
in, and the applicant agreed to do so.  Instead of doing so and despite repeated counseling about 
his  weight  and  appearance,  the  applicant  gained  32  pounds  prior  to  the April  2005  weigh-in.  
When his supervisor counseled him in April 2005 and reminded him that he could be discharged 
for failing to attain compliance with the weight standards, the applicant told his supervisor that 
the Coast Guard would not discharge him for obesity because he was a chief petty officer with 
more than 18 years of service.  The applicant was warned about the regulations several times in 
2005 and throughout his career about the consequence (discharge) of failing to meet the stan-
dards.  Instead of heeding those warnings in 2005, as he had always done in the past, the appli-
cant lost only 5 of 70 pounds by August 2, 2005—about a week before his probation mid point—
when  he  was  told  that  he  would  in  fact  be  discharged  as  he  had  been  warned.   Although  the 
applicant claims that he was losing weight, the records of his weigh-ins and counseling support 
the command’s determination that he was not making  “reasonable  and consistent progress” in  
his weight-loss program at least in part because he refused to believe the regulations would be 
enforced against a chief petty officer about a year shy of earning a 20-year retirement.  More-
over, under Article 2.H.2. of COMDTINST M1020.8E, even the applicant’s discharge did not 
prevent him from earning 20-year retirement, because he could have qualified for reenlistment 
simply by complying with the weight standards within two years his discharge.  The fact that the 
applicant did not make progress and actually gained weight during the “grace period” given him 
by his command from late 2004 through April 12, 2005; failed to make “reasonable and consis-
tent progress” during his weight probationary period, resulting in his discharge ten months shy of 
his retirement date; and failed to achieve compliance with the weight or body fat standards with-
in two years of his discharge is surprising.  However, the Coast Guard’s decision to discharge 
him rather than to ignore his non-compliance with weight standards and weight-probation regula-
tions is not “treatment by military authorities that shocks the sense of justice.”21 

The applicant has not proved by a preponderance of the evidence that the Coast 
Guard committed error or injustice when it discharged him for weight control failure on Septem-
ber 27, 2005.  The Board is not persuaded that, because the applicant had more than 18 years of 
service when he was placed on weight probation and more than 19 years of service on his date of 
discharge, the Coast Guard was not entitled to enforce its weight and fitness policies and regula-
tions. 

 
11. 

 
12. 

 

 
 

Accordingly, the applicant’s request for relief should be denied. 

 
 

[ORDER AND SIGNATURES APPEAR ON THE NEXT PAGE] 

                                                 
21 Id. 

ORDER 

 

 

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

military record is denied. 
 
 
 
 
 

   

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

        

 
 Bruce D. Burkley 

 

 

 
 Patrick B. Kernan 

 

 

 

 
 David A. Trissell