DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2012-042 
 
XXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXX 

 

 

 
 

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section  425  of  title  14  of  the  United  States  Code.    The  Chair  docketed  the  application  upon 
receipt  of  the  applicant’s  completed  application  on  December  12,  2011,  and  subsequently 
prepared the final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  August  16,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST  

 
 
 The  applicant  asked  the  Board  to  correct  his  record  by  changing  the  reason  for  his 
honorable discharge from expiration of enlistment to retirement by reason of physical disability.  
The applicant enlisted in the Coast Guard for 4 years on December 27, 1983.  He extended his 
enlistment  on  several  occasions  to  receive  medical  treatment  and  for  completion  of  a  then-
pending medical board.1  He was discharged on August 7, 1989.   
 

ALLEGATIONS 

 
 
The  applicant  alleged  that  he  should  have  been  retired  from  active  duty  by  reason  of 
physical disability in 1989.  He asserted that the Department of Veterans Affairs (DVA), a Coast 
Guard  Medical  Board,  and  a  Coast  Guard  medical  officer  agree  that  that  he  should  have  been 
retired due to a physical disability.  He asserted that his discharge due to expiration of enlistment 
was an oversight. 
 

                                                 
1 A medical board is a clinical body comprised of 2 or more medical officers who evaluate an individual’s condition 
in  light  of  the  requirements  of  military  duty  and  provide  a  written  professional  opinion  concerning  the  evaluee’s 
physical and mental qualifications in relation to military service and makes certain recommendations regarding the 
evaluee.  The first such report in each evaluee’s case is an IMB (initial medical board) and all subsequent reports are 
DMBs (disposition medical boards).  Article 2-A-28 of the PDES Manual.   

 

 

The applicant stated that the DVA recently granted him a 100% disability rating and has 
 
compensated him  since  1989 based upon a 40% disability  rating.    He stated that the DVA has 
provided him with medical care and with books and tuition that allowed him to obtain a medical 
degree.  The applicant indicates that he is a practicing physician.   
 

The applicant stated that he should have been the Coast Guard’s responsibility.  He stated 
that he is not seeking money  from the Coast Guard and that he is not angry.  He stated that he 
just  wants  a  proper  discharge,  which  he  believes  is  retirement  by  reason  of  physical  disability.  
He stated that retirement from the Coast Guard would relieve the DVA of the responsibility for 
his medical care.  He stated that a retirement would also allow him to receive retired pay, which 
would probably be less than the disability compensation he currently receives from the DVA.    
 
 
According  to  the  applicant,  around  the  time  of  the  expiration  of  his  enlistment,  he  was 
undergoing a Medical Board, which determined that he was not fit for full duty.  He stated that 
during the Medical  Board process the Coast Guard would not let him reenlist due to a pending 
Medical Board; nor would the Coast Guard allow him to be promoted.  He alleged that none of 
the medical documentation stated that he was fit for full duty and he was told that he would be 
discharged because of his condition. 
 
 
The  applicant  stated  that  he  discovered  the  alleged  error  on  October  1,  2010  when  the 
DVA reviewed his record.   He asserted that if his application is untimely, it is in the interest of 
justice  to  consider  it  because  the  Medical  Board,  base  medical  officer,  and  the  Department  of 
Veterans Affairs (DVA) all agree that an error was made in 1989. 
 

PHYSICAL DISABILITY EVALUATION SYSTEM2  

 

The applicant underwent a Medical Board on January 20, 1988 and was diagnosed with 
generalized  seizure  disorder,  vertigo,  mild  chiari  I  malformation,  and  recent  history  of  closed 
head  trauma.    The  Narrative  Summary3  for  the  Medical  Board  indicates  that  in  1985  the 
applicant  was  in  a  motor  vehicle  accident  and  struck  his  head  against  a  window.   About  two 
weeks  after  the  accident,  the  applicant  had  sudden  generalized  tonic  clonic  seizure.    He  was 
treated  with  medication  that  appeared  to  work.    However,  about  a  year  later  in  1986,  the 
applicant was involved in another motor vehicle accident in which he struck his head against the 
rear  view  mirror.    The  narrative  summary  stated  that  the  applicant  suffered  a  sudden  loss  of 
consciousness  and  he  experienced  a  sudden  onset  of  memory  loss  in  November  1987.    The 
Medical Board opined that the applicant was unable to return to full duty and referred the case to 
the  Central  Physical  Evaluation  Board  (CPEB)4  for  disposition.   The  applicant  was  advised  of 

                                                 
2  The PDES is a Coast Guard structure composed of administrative boards and reviewing and approving authorities 
whose  common  purpose  is  evaluating  members  for  their  physical  ability  to  continue  the  required  performance  of 
their  duties  and  the  equitable  application  of  the  laws  relating  to  separation  or  retirement  of  members  because  of 
physical disability.  Article 2-A-37 of the PDES Manual (1988) 
3 The narrative summary for a medical board presents a summary of the pertinent data concerning each complaint, 
symptom, disease, injury or disability presented by the evaluee, which causes or is believed by the medical board to 
cause impairment of the evaluee’s physical condition.  Article 3-G-3.a. of the PDES Manual.   
4  The  CPEB  is  a  permanently  established  administrative  body  convened  to  evaluate  the  physical  fitness  of  active 
duty and reserve members to perform their assigned duties based upon the record.   

 

 

the  Medical  Board  findings  and  recommendations  which  he  acknowledged  with  his  signature.  
He declined to submit a statement in rebuttal.    

 
The  CPEB  considered  the  January  1988  Medical  Board  and  determined  that  the 
applicant’s case was not sufficiently resolved to make a final determination.  The CPEB directed 
that a Disposition Medical Board (DMB)  5 be convened on or about August 1, 1988 and report 
back to the CPEB.  The CPEB ordered the DMB to obtain a neurology consult.   

 
The  DMB  met  on  September  20,  1988  and  considered  the  Narrative  Summary  medical 
evaluation.    The  diagnoses  were  a  generalized  seizure  disorder  versus  post  traumatic  seizure, 
benign  positional  vertigo,  resolved,  mild  chiari  I  Malformation,  and  history  of  closed  head 
trauma.  The Narrative Summary for the DMB included the following prognosis: 

 
The near  future prognosis for this patient  is  considered uncertain  in  terms of his 
seizure disorder.  Prognosis for a diagnosis of post traumatic epilepsy is felt to be 
much better than that of a diagnosis of generalized seizure disorder.  So far, both 
diagnoses  have  been  mentioned  by  consulting  neurologists.  Hopefully,  a  final 
determination as to which diagnosis is appropriate can be made at the time of his 
next  six  month  neurology  appointment  .  .  .   At  that  time  he  will  have  been  one 
year  on  an  anticonvulsant.    Therefore,  the  board  considers  the  patient  able  to 
resume all duties of his rate and rank with the exception that he is not fit for sea 
or isolated duty.  No additional treatment is recommended at this time.  [Emphasis 
added.] 
 
 
On  September  28,  1988,  the  applicant  signed  a  “Patient’s  Statement  Regarding  the 
Findings  of  His  [Disposition]  Medical  Board.”    He  was  informed  of  the  diagnoses  and  that  he 
was fit to resume the duties of his rate, except that he was not fit for sea or isolated duty.  He did 
not  submit  a  statement  in  rebuttal  to  the  findings  and  recommendation  of  the  MB.   The  DMB 
was forwarded to the CPEB for action. 
 
 
On  December  22,  1988  the  CPEB  met  and  considered  the  September  28,  1988  DMB.  
The  CPEB  determined  that  the  applicant’s  case  was  not  sufficiently  resolved  to  a  make  a  final 
determination.   The  CPEB  directed  that  another  DMB  be  convened  on  or  about April  1,  1989.  
The CPEB directed the DMB to obtain a neurology consult.  
 
 
On April  3,  1989,  the  DMB  met  to  consider  the  applicant’s  case.   A  neurology  consult 
was obtained.  The applicant’s diagnoses were  probable post traumatic seizure disorder, benign 
positional  vertigo,  resolved,  mild  chiari  I  malformation,  and  history  of  closed  head  trauma 
August 1985.  The Narrative Summary for the DMB stated that the applicant was fit for full duty. 
The Narrative Summary stated that the applicant had been on anticonvulsant therapy for over a 
year  without  seizure  activity  and  that  that  amounted  to  a  good  prognosis.    The  Narrative 
Summary also stated: 

                                                 
5 The Disposition Medical Board (DMB) is the report of a medical board ordered by the President of the CPEB to 
reevaluate those conditions addressed by an initial medical board.  DMB’s are usually ordered when the president of 
the CPEB or the convened CPEB feels that the evaluee’s case was not sufficiently stable at the time of the IMB for 
adjudication of the case.  Article 2-A-12. of the PDES. 

 

 

 

[The applicant] is still not out of the period of time where a seizure could occur.  
On  the  other  hand  the  percentage,  although  not  stated  in  the  neurology  consult, 
would  be  so  slim  the  board  believes  there  should  be  no  restriction  as  to  the 
evaluee’s  duties.    Also,  the  question  of  whether  the  patient  has  a  generalized 
seizure  disorder  or  post  traumatic  seizure  disorder  was  never  fully  clarified  as 
requested  on  the  referral  SF  513  although  the  neurology  consult  did  start  off 
narrative by stating that the patient “suffers from post traumatic epilepsy.”  From 
the  neurologist’s  standpoint  he  did  not  see  any  reason  the  evaluee  could  not  be 
returned to full duties and the board concurs with this.  The evaluee should never 
be  so  far  away  from  medical  treatment  that  he  could  not  obtain  periodic 
prescription  refills,  drug  levels  and  an  annual  physical  exam.    Should  another 
head  injury  occur  or  seizure  activity  develop  then  a  medical  board  should  be 
reopened.    No  additional  treatment  other  than  those  mentioned  .  .  .  are 
recommended.    It  is  the  recommendation  of  the  board  that  [the  applicant]  be 
referred to the CPEB for adjudication.   

 
 
On April 5, 1989, the applicant signed a  “Patient’s Statement Regarding the Findings of 
the [Disposition] Medical Board.”  The applicant acknowledged the diagnoses and that his case 
was referred to the CPEB.  The applicant did not desire to submit a statement in rebuttal to the 
Medical Board’s findings and recommendations.6   
 
 
On April 25, 1989, the CPEB met and found the applicant fit for full duty.  On May 30, 
1989,  an  attorney  signed  a  statement  that  he  was  appointed  to  advise  the  applicant  regarding 
acceptance  of  the  CPEB  findings  and  recommended  disposition.    The  attorney  noted  that  the 
applicant could not reject the CPEB’s fitness for full duty determination pursuant to Article 4-A-
14.a. of the Physical Disability Evaluation System (PDES) Manual.  This provision states that  
 

[w]hen  an  evaluee  is  found  FFD  (fit  for  duty)7  by  the  CPEB,  the  evaluee  may 
not reject, but may submit a rebuttal in writing to the CPEB which may include 
a  request  for  reconsideration  of  the  fit  for  duty  finding  or  request  a  FPEB 
(Formal  Physical  Evaluation  Board).    The  rebuttal  shall  be  submitted  via  the 
member’s chain of command with a copy forwarded directly to Commandant    
 . . .  
 

(The  record  does  not  contain  any  documentation  that  the  applicant  submitted  a  rebuttal  to  the 
CPEB’s findings and recommendation.) 
                                                 
6  The  Patient’s  Statement  regarding  the  medical  board  signed  by  the  applicant  also  included  the  following 
acknowledgments: 

“I  feel  that  all  my  impairments  have  been  evaluated  adequately  by  the  Medical  Board,  and  that  these  diagnosis 
(listed above) will be considered by the CPEB for its independent evaluation.  

“I understand that the medical board’s report with my rebuttal, if any, will become part of my official record. 

“I further understand that the Medical Board’s opinions and recommendations are not binding on the Coast Guard 
and that my case will be subjected to review and final disposition by higher authority.”  

7    Fit  for  duty  is  the  status  of  a  member  who  is  physically  and  mentally  able  to  perform  the  duties  of 
office, grade, rank or rating.  Article 2-A-15 of the PDES Manual.   

 

 

On June 6, 1989, the President of the Physical Review Council8 forwarded the case to the 

 
 
Chief Counsel of the Coast Guard for legal review.    
 

On June 15, 1989, the Chief Counsel of the Coast Guard reviewed the CPEB and found 
the proceedings to be in acceptable form and technically correct. The Chief Counsel also found 
the findings and recommendation to be supported by the evidence of record.     
 
 
On  June  20,  1989,  the Acting  Chief  of  the  Office  of  Personnel  and  Training  took  final 
action  on  the  CPEB  and  approved  the  findings  and  recommendation  of  the  CPEB.    The  final 
action directed that the applicant not be retired or separated by reason of physical disability.   
 
 
On August 7, 1989, the applicant was discharged from the Coast Guard due to expiration 
of enlistment, with an RE-1 (eligible to reenlist) reenlistment code. His military record contains a 
DD  214  with  his  signature  verifying  this  information.    Other  documents  in  the  military  record 
show that on August 8, 1989, the applicant enlisted in the Coast Guard Reserve for 3 years.  He 
was honorably discharged from the Reserve on August 7, 1992.    
 

DVA MEDICAL RECORDS 

 
 
The applicant filed a claim with the DVA on October 10, 1989.  The DVA granted him a 
40% disability rating for post-traumatic seizure disorder and 10% disability rating for dizziness 
described as positional vertigo residuals of close head trauma.    In its rating decision, the DVA 
noted that a 1988 Medical Board was the only Coast Guard medical record it had pertaining to 
the applicant.  It also noted that the applicant stated during his DVA medical examination that he 
had  been  able  to  keep  his  seizures  under  control  but  experienced  occasional  dizziness.  
According to the rating decision, the applicant also stated that his last seizure was in September 
1989.  The rating decision stated that the applicant could have had a seizure in September 1989 
“since the last Medical Board was in 1988 and they let him stay on active duty, did not give him 
severance pay and let him out because his term of enlistment had expired.”  
 
 
DVA documentation indicates that the applicant’s DVA disability rating for post traumatic 
seizure  disorder  has  changed  several  times.    In  a  May  18,  2007  DVA  rating  decision,  the 
applicant was given a 100% disability rating because the applicant was hospitalized on April 27, 
2007 for treatment after having three grand mall seizures on April 26, 2007.   The rating decision 
stated  that  the  100%  disability  rating  was  not  permanent  since  there  was  a  likelihood  of 
improvement.    
  

DVA records indicate that on April 27, 2010, the DVA modified the applicant’s disability 
rating to a combined 90% that included post-traumatic seizure disorder, injures to the right and 
left shoulders, and dizziness described as positional vertigo residual of closed-head injury.   
 

                                                 
8 The Physical Review Council is a three member review body responsible for ensuring that physical disability cases 
are accorded fair and uniform consideration under applicable laws, policies, and directions.   Article 6-A-.1. of the 
PDES  Manual.    Subsection  6-A-3  states,  in  pertinent  part,  that  the  President  of  the  PRC  reviews  the  records  and 
recommended findings of all CPEBs that have been accepted by the evaluees.    

 

 

 

    

  

VIEWS OF THE COAST GUARD 

 
 
On February 24, 2012, the Judge Advocate General (JAG) of the Coast Guard submitted 
an  advisory  opinion  recommending  that  the  Board  deny  relief.    The  JAG  stated  that  the 
application  was  untimely  since  the  applicant  was  discharged  in  1989  and  knew  or  should  have 
known the circumstances surrounding his release from active duty at that time.  The JAG argued 
that the applicant has not provided a rationale for waiting until 2010 to file an application with 
the  Board.    The  JAG  noted  that  the  Board  has  the  authority  to  waive  the  three-year  statute  of 
limitations  if  it  is  in  the  interest  of  justice  to  do  so.    The  JAG  argued  that  “due  to  the 
approximately  twenty-year  delay  in  bringing  his  claim,  the  lack  of  a  persuasive  reason  for  not 
acting sooner, and the probable lack of success on the merits of his application, the Board should 
find that it is not in the interest of justice to waive the statute of limitations” 
 
The JAG stated that the applicant based his argument that he should have been medically 
 
retired instead of discharged on a subsequent 2007 100% DVA disability rating.  The JAG stated 
that  it  is  a  well-settled  principal  that  a  member  may  have  physical  impairments  ratable  in 
accordance  with  the  VASRD  (Veterans  Administration  Schedule  for  Rating  Disabilities),  but 
such impairments may not necessarily render the member unfit for military duty.  The JAG cited 
the  final  decision  in  BCMR  No.  2009-086,  where  the  Board  ruled  that  “Although  the  DVA 
granted the applicant a disability rating for [his condition] this Board has consistently held that a 
disability  rating  from  the  DVA  does  not  by  itself  establish  that  the  Coast  Guard  committed  an 
error or injustice by finding the applicant fit for separation.” 
 
 
The  JAG  stated  that  in  addition  to  the  approval  of  the  1989  CPEB  that  found  the 
applicant fit for full duty, the applicant underwent a separation physical on January 23, 1989, that 
found  him  fit  for  separation,  and  the  applicant  agreed  with  that  determination  by  signing  and 
acknowledging such on  a  “Termination of Health Record” document (on July 21, 1989).     The 
JAG also stated the following: 
 

The  applicant  has  provided  no  evidence  to  suggest  he  did  not  agree  with  the 
findings  of  his  separation  physical.    The  Coast  Guard  Medical  Manual 
(COMDTINST  M6000.1  Series)  Article  3.B.5.a.  states,  “that  any  member 
undergoing  separation  from  the  service  who  disagrees  with  the  assumption  of 
fitness  for  duty  and  claims  to  have  a  physical  disability  shall  submit  written 
objections within 10 days of signing the chronological record of service to CGPC 
(now  PSC).    The  member  is  responsible  for  submitting  copies  of  the  following 
along  with  written  objections:  (1)  report  of  medical  examination  (SF-88)l  (2) 
Report  of  Medical  History  (SF-93);  signed  copy  of  chronological  record  of 
service  (CG-44057);  [3]  appropriate  consultations  and  reports;  and  (5)  other 
pertinent documentation.”  (BCMR Docket No. 2008-083).   

 
 
The  JAG  stated  that  he  agreed  with  the  memorandum  submitted  by  the  Commander, 
Personnel  Service  Command  (PSC)  and  asked  that  it  be  accepted  as  a  part  of  the  advisory 
opinion.   
 

 

 

PSC  stated  that  the  Coast  Guard’s  PDES  determined  that  the  applicant  was  fit  for  full 
 
duty  and  was  thus  not  entitled  to  be  medically  retired  or  separated.    In  this  regard,  PSC  stated 
that Article 2.C.2.b. of the PDES Manual states, “The law that provides for disability retirement 
or separation . . . is designed to compensate a member whose military service is terminated due 
to a physical disability that has rendered him or her unfit for continued duty.”  
 
 
PSC stated that the applicant was given a disability a DVA rating after his discharge from 
the  Coast  Guard  and  that  it  is  important  to  note  that  DVA  disability  ratings  and Armed  Forces 
disability  ratings  are  made  for  different  purposes.    The  DVA  determines  to  what  extent  a 
veteran’s civilian earning capacity has been reduce as a result of specific injuries or combination 
of injuries.  The Armed Forces, on the other hand, determines to what extent a member has been 
rendered  unfit  to  perform  the  duties  of  his  office,  grade,  rank,  or  rating  because  of  physical 
disability.  Therefore, DVA ratings are not determinative of issues relative to military disability 
retirement cases.    
 
 
PSC  stated  that  applicant  has  not  established  an  error  or  injustice  in  his  PDES  process.  
Therefore, the Coast Guard is presumptively correct and the applicant has failed to substantiate 
any error of injustice with regard to his record.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On or about March 12, 2012, the Board received the applicant’s response to the advisory 

 
 
opinion.  The applicant disagreed with it. 
 
 
The applicant argued that he was never found fit for full duty and he continued to rely on 
the 1988 Disposition Medical Board that found him fit for duty, except for sea or isolated duty.  
He argued that if he was not fit for sea or isolated duty, he was not fit for full duty.   
 
 
With respect to the advisory opinion’s comments  on the untimeliness of his application, 
the  applicant  stated  that  he  is  not  seeking  any  financial  gain  from  the  Coast  Guard.    He  stated 
that he would never have left the Coast Guard if he could have been promoted.  He stated that the 
last statement that he signed was February 1, 1988, stated that he was not fit for duty.  He argued 
that his final discharge was not signed by a doctor but by a chief hospital service technician.   
 
 
He stated that a finding of fit for full duty should state just that with no limitations. 
 
 
a disqualifying factor for correcting a gross error, because the error still occurred.     
 

The  applicant  stated  that  the  “fit  for  duty  with  exceptions”  comment  was  a  gross  error.  

The applicant stated that the time period allowed for “reporting a claim” should never be 

FINDINGS AND CONCLUSIONS 

 

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

military record and submissions, the Coast Guard's submission and applicable law: 
 

 

 

1. The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

 
of the United States Code.  
 
 
2.    The  application  was  not  timely.    An  application  for  correction  of  a  military  record 
must be submitted within three years after the applicant discovered the alleged error or injustice.  
See 33 CFR 52.22.   This application was submitted approximately 20 years after final action on 
the  applicant’s  CPEB  and  his  August  1989  discharge  from  the  Coast  Guard.    Although  the 
applicant  claimed  that  he  did  not  discover  the  error  until  2010  when  the  DVA  reviewed  his 
records, all of the information that was necessary for the applicant to know of the alleged error 
was available to the applicant in 1989.  The applicant knew at the time of his discharge in 1989 
that  the  basis  for  his  discharge  was  expiration  of  enlistment  and  not  physical  disability.    He 
signed a DD 214 with this information on it. 
 
 
3.   However, the Board may still consider the application on the merits, if it finds it is in 
the interest of justice to do so. In Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992), the court 
stated  that  in  assessing  whether  the  interest  of  justice  supports  a  waiver  of  the  statute  of 
limitations, the Board "should analyze both the reasons for the delay and the potential merits of 
the  claim  based  on  a  cursory  review."    The  court  further  stated  that  "the  longer  the  delay  has 
been and the weaker the reasons are for the delay, the more compelling the merits would need to 
be to justify a full review."  Id. at 164, 165.   
  
 
3.  The applicant argued that the Board should excuse the untimeliness because a medical 
board,  a  base  medical  officer,  and  the  DVA  agreed  that  an  error  was  committed  when  he  was 
discharged due to expiration of enlistment instead of a medical retirement.  The applicant relies 
on  the  September  20,  1988  DMB  for  his  conclusion  that  he  was  never  found  fit  for  full  duty.  
The September 1988 DMB that stated that the applicant was fit for full duty, except for sea and 
isolated duty, was only an interim step in the PDES process.  A subsequent DMB met on April 3, 
1989 and  found the applicant  fit for full duty  and  the CPEB  reviewed the applicant’s case and 
found him fit for full duty on April 25, 1989.    Evidence of record proves that the applicant was 
aware  of  the  1989  fit  for  full  duty  finding  because  he  signed  a  patient’s  rights  statement  with 
regard  to  the  Medical  Board  and  because  his  attorney  counsel  signed  a  statement  that  he  had 
counseled the applicant on the findings of the CPEB’s fitness for full duty determination.    The 
applicant’s statement that the Medical Board agreed that he was not fit for duty in 1989 or at the 
time  of  his  August  1989  discharge  is  not  supported  by  the  record;  nor  is  his  assertion  that  the 
DVA agreed that he should have been retired persuasive to the Board.  In this regard, the DVA, 
like the applicant,  apparently  relied on an interim  Medical  Board  finding  and not the April 25, 
1989  CPEB  and  final  action  that  determined  the  applicant  was  fit  for  full  duty.    Last,  the 
applicant’s statement that a base medical officer agreed that he should have been retired fails for 
lack  of  evidence.    The  applicant  presented  no  evidence  that  after  the  1989  CPEB’s  fit  for  full 
duty determination that a base medical officer had a different medical opinion.  The applicant’s 
reason for not filing his application sooner is not supported by the evidence and is not persuasive 
to the Board.   
 
4.  Although the applicant’s reason for not filing his application timely is not persuasive, 
 
the Board, in accordance with Allen, the Board must perform a cursory review of the merits in 
making a determination whether it is in the interest of justice to excuse the untimeliness and to 

 

 

consider  the  application  on  the  full  merits.      A  cursory  review  of  the  merits  reveals  that  the 
applicant  is  not  likely  to  prevail  on  his  claim  that  he  should  have  been  retired  by  reason  of 
physical  disability  instead  of  discharged  by  expiration  of  enlistment.  In  this  regard,  the  Board 
finds  that  the  applicant  suffered  a  head  injury  in  1985  from  which  complications  arose.    He 
entered the PDES to determine his fitness for duty with his initial Medical Board on January 20, 
1988.  Because his condition was not sufficiently resolved to make a final determination at that 
time, the CPEB ordered two subsequent DMBs.  As a result of a finding of fitness for full duty 
by the last disposition medical board, the applicant’s case was referred to the CPEB.  The CBEP 
found  the  applicant  fit  for  full  duty  on  April  25,  1989  and  that  finding  was  approved  by  the 
Acting  Chief  of  the  Office  of  Personnel  and  Training  on  June  20,  1989.    At  each  step  of  the 
PDES  process,  the  applicant  was  afforded  his  due  process  rights.  He  signed  statements 
acknowledging the findings and recommendations of each medical board and he had counsel to 
advise him about the findings and recommendations of the CPEB.   He did not submit a rebuttal 
to medical boards or the CPEB findings and recommendations.  He has pointed to no error in the 
PDES process that found him fit for duty. 
 
 
5.  The applicant received an honorable discharge and an RE-1 reenlistment code, which 
means that he was eligible to reenlist.  He chose not to reenlist on active duty.  His suggestion 
that  he  was  somehow  forced  out  of  the  service  or  treated  unfairly  with  regard  to  allegedly  not 
being retained in the service is not supported by the record.  The Board notes that he enlisted in 
the Coast Guard Reserve immediately after his discharge from active duty.     
 

 
6.   Additionally, the Board notes that the DVA granted the applicant a disability rating 
after  his  discharge.    However  the  DVA  disability  rating  does  not  prove  the  Coast  Guard’s 
determinations are erroneous.  The applicant has presented no evidence, except for his statement, 
that the April 1989 finding of fit for full duty was erroneous or unjust.     
 

7.    Therefore,  due  to  the  applicant’s  approximately  twenty-year  delay  in  bringing  his 
claim, the lack of a persuasive reason for not acting sooner, and the probable lack of success on 
the merits of his application, the Board finds that it is not in the interest of justice to waive the 
statute of limitations.   

 
8.  The application is untimely and should be denied.   

 

 

 

The  application  of  former  XXXXXXXXXXXXXXXXXX,  USCG  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Marion T. Cordova 

 

 

 
 Anthony C. DeFelice 

 

 

 
 Rebecca D. Orban 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

military record is denied.