DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2012-083 
 
Xxxxxxxxxxxxxx 
xxxxxxxxxxxxxx 
   

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 upon receiving the 
completed application on February 28, 2012, 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  October  25,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The applicant alleged that in 1986 he was unjustly discharged from active duty due to a 
medical  disability  that  the  Coast  Guard  erroneously  determined  had  pre-existed  his  enlistment 
and had not  been aggravated on active duty.  The applicant  alleged that  his  learning disability, 
memory loss, delusions, and hallucinations were actually aggravated by his time in service and 
so he should have received a disability retirement, instead of being discharged.  In support of this 
allegation, the applicant submitted copies of his military and medical records, which are included 
in the summary below.   
 

The applicant submitted no information about the date of discovery of the alleged error or 

explanation for his delay in applying to the Board. 
 

SUMMARY OF THE RECORD 

 
 
Hospital reports show that on May 17, 1975, at the age of 18, the applicant was hospital-
ized  following  a  motorcycle  accident.    The  emergency  room  doctor  reported  that  the  applicant 
was comatose, had suffered a “massive head trauma,” and had a compound fracture in his right 
elbow.  The applicant’s symptoms included “dysconjugated eye movement, rolling in all direc-
tions,” swelling around his eyes, right-side paralysis, jerking movements in his legs, and projec-
tile vomiting with large amounts of blood.  On June 2, 1975, the applicant was transferred to a 
convalescent  hospital with  diagnoses of “1. Closed head injury due to  motorcycle  accident.  2. 

 

 

Right hemiplegia and aphasia.  3. Comatose state secondary to diagnosis #1.  4. Contusion of the 
left  temporoparietal area.  5. Fracture, right  elbow.  6.  Multiple abrasions over chest,  abdomen 
and pelvic area.” 
 
 
About seven years later, on February 18, 1982, the applicant underwent a pre-enlistment 
physical  examination.  On  his  Report  of  Medical  History,  the  applicant  denied  that  he  had  ever 
been hospitalized, incurred a head injury, or suffered a period of unconsciousness.  He was found 
fit for enlistment. 
 

On  April  26,  1982,  the  applicant  enlisted  in  the  Coast  Guard  at  age  25.    On  May  17, 
1982, in the middle of basic training, the applicant was referred to a psychiatrist for evaluation 
because  his  trainers  believed  him  to  be  incompetent.    The  psychiatrist  stated  that  the  applicant 
related no history of psychiatric illness and should be able to complete the training.   

 
The applicant completed basic training, advanced to fireman apprentice (FA/paygrade E-
2),  and  was  assigned  to  xxxxxxxxxxxx.    On  November  5,  1982,  he  was  punished  at  mast  for 
leaving  the  icebreaker  without  his  ID  card  and  attempting  to  cash  a  check  by  using  another 
member’s ID card.   
 

 
On December 15, 1982, the applicant received written counseling on a CG-3307 (“Page 
7”) stating that he lacked the aptitude to work in the engine room and was “often overwhelmed 
by  the  simplest  tasks.”    On  December  31,  1982,  the  applicant  was  punished  at  mast  again  for 
absenting himself from his place of duty without authorization for about an hour.  Because of the 
applicant’s inaptitude in the engine room, he was reassigned to the Deck Department in January 
1983.   

 
On  May  11,  1983,  the  applicant  received  another  Page  7  stating  that  although  he  had 
“worked willingly and consistently done his best at all jobs assigned, … he is unable to under-
stand new tasks or even retain instructions on old ones for a long period. … he is willing to work 
but  due  to  a  lack  of  learning  ability  and  basic  skills  he  is  not  eligible  for  advancement  at  this 
time. … It is recommended that [he] be placed on performance probation and if no improvement 
is  made,  that  he  be  discharged  IAW  Article  12-B-9,  Personnel  Manual.”    Thereafter,  he  was 
transferred to a shore unit, Station Humboldt Bay.   

 
On August 9, 1983, his new command referred him for an evaluation of his “intellectual 
skills”  because  of  his  “problem  of  acquiring  new  knowledge.”    The  applicant  admitted  to  the 
psychologist that he had had difficulty learning anything since 1975, when he had hit his head on 
a  4x4  in  a  motorcycle  accident  and  was  in  a  coma  for  five  days.    The  applicant  told  the  psy-
chologist that he often did not know what was going on and had to follow or copy other people.  
The psychologist noted that the applicant complained of anxiety, nervousness, and sleep disturb-
ance  and  expressed  some  phobic  ideas.    He  recommended  that  the  applicant  be  assessed  by  a 
psychiatrist  to  determine if  medication would help and to  determine whether the  applicant  was 
becoming schizophrenic. 
 
 
On  September  13,  1983,  a  psychiatrist  reported  to  the  applicant’s  command  that  the 
applicant had arrived too late for his first appointment and skipped his rescheduled appointment.  

 

 

The psychiatrist noted that he had only had one short conversation with the applicant but that the 
possible diagnoses to be ruled out were personality disorder, developing psychosis, organic brain 
syndrome, and alcohol abuse. 
 
 
On November 21, 1983, the applicant was counseled  on a Page 7  about  having  “a very 
difficult time learning and his memory is poor, conditions reportedly caused by a prior accident.  
He  has  been  transferred  to  Group  Office  xxxxxxxxxxxxxxxx  for  closer  supervision  as  his 
condition  was  considered  by  his  supervisor  to  be  detrimental  to  his  own  well-being  under  the 
types of duty  required of his  rate at  the Station and was adversely  affecting the SAR readiness 
posture of Station xxxxxxxxxxxxxxxxx.” 
 
 
On January 18, 1984, the applicant was admitted to a hospital for a neurological and psy-
chiatric evaluation.  He told the admitting physician that he had trouble learning and “joined the 
Coast Guard to ‘unfreeze’ his mind.”  Upon his discharge from the hospital on January 27, 1984, 
a  psychiatrist  reported  that  the  applicant  showed  no  evidence  of  psychosis  and  diagnosed  him 
with “atypical organic brain syndrome, EPTE” (existed prior to enlistment) due to a motorcycle 
accident  in  1975.    The  psychiatrist  recommended  that  the  Coast  Guard  discharge  the  applicant 
for fraudulent enlistment.1 
 
 
On May 24, 1984, the applicant was counseled on another Page 7 about “his unwilling-
ness to follow given orders, to complete assigned tasks and on lying on his rack in his room in 
the BEQ, during working hours, without proper authorization.”  On June 6, 1984, the applicant 
was counseled on a Page 7 about his “inability to perform duties as duty stander/phone watch.”  
The Page 7 stated that he could not learn how to use the phone system despite repeated training.  
On June 20, 1984, the applicant was counseled about the dangers of trespassing on airport prop-
erty and taking walks on airport infields, taxiways, runways, and overruns.     
 
 
On July 18, 1984, a doctor reported that the applicant had been diagnosed with atypical 
organic brain  syndrome  caused by  a motorcycle  accident  and that, when  asked why  he did  not 
report his injury during his pre-enlistment physical examination, the applicant stated that he had 
spoken with a “forked tongue” and “lied about it.”  The doctor recommended that the applicant 
be discharged for fraudulent enlistment. 
 

On August 15, 1984, the applicant was counseled on a Page 7 about the fact that he had 
been  arrested  for  trespassing  on  airport  property  by  walking  across  the  runway  in  front  of  a 
commercial airliner that was preparing to depart.   
 

 
On September 12, 1984, the applicant’s command convened a medical board to evaluate 
the  applicant  due  to  his  “inability  to  retain  basic  instruction  and  his  ineptness  at  performing 
tasks.”  On November 28, 1984, the medical board reported that the applicant was unfit for duty 
and  should  be  referred  to  a  Central  Physical  Evaluation  Board  (CPEB)  due  to  his  diagnosed 
“atypical organic brain syndrome, chronic, EPTE,” which “existed prior to enlistment” and was 
“not aggravated by service.”  The medical board reported that in 1975 the applicant had 
                                                 
1 Under Article 12-B-18(b)(2) of the Personnel Manual then in effect, a member could be discharged for misconduct 
if  he  obtained  “a  fraudulent  enlistment,  induction,  or  period  of  active  service  through  any  deliberate  material 
misrepresentation, omission or concealment which if known at the time might have resulted in rejection.” 

 

 

 

sustained a severe head injury in a motorcycle accident.  He was in a coma for several days and 
stayed  in  a  convalescent  home  for  3  months.    Ever  since  the  accident,  he  has  experienced  poor 
concentration and great difficulty in learning new tasks.  … In 1982 he enlisted in the Coast Guard 
but concealed his history of head injury. … The remainder of the past  medical  history including 
the review of systems was noncontributory. 

On June 28, 1985, the Commandant disapproved the applicant’s request to be retained on 

 
 
On January 30, 1985, the applicant submitted a rebuttal to the medical board’s findings.  
The  applicant  stated  that  he  was  highly  motivated  to  continue  serving  in  the  Coast  Guard  and 
asked the medical to “consider the impact of occupational or other forms of therapy on my con-
dition and address the possibility of rehabilitation.”  The applicant stated that he had made sig-
nificant progress since he enlisted and that being discharged would hinder his improvement.  He 
also argued that a “discharge for reasons other than expiration of enlistment could make it diffi-
cult to find work.”  He asked to be retained until the end of his enlistment. 
 
On  February  6,  1985,  the  applicant’s  commanding  officer  forwarded  the  medical  board 
 
report  and  the  applicant’s  rebuttal  to  the  Coast  Guard  Personnel  Command  (CGPC)  and  con-
curred with the medical board’s findings.  He noted that the applicant could be assigned to only 
the simplest tasks, such as base cleanup, general housekeeping, and duty driver because he was 
not capable of performing more complex tasks. 
 
 
active duty until his enlistment expired. 
 
 
On  August  31,  1985,  the  applicant  requested  reconsideration  by  the  CPEB.    (Although 
the CPEB’s report is not in the record, other records show that the CPEB recommended that the 
applicant  be  discharged  with  a  30%  disability  rating  due  to  atypical  organic  brain  syndrome 
which pre-existed his enlistment and was not incurred in or aggravated by his military service.)  
The applicant  argued that because the applicant  was found fit for duty upon his enlistment, the 
CPEB’s report should show that all 30% of his disability rating was due to aggravation while on 
active  duty.    The  applicant  also  asked  whether  the  CPEB’s  finding  of  no  aggravation  was  an 
attempt to punish him for fraudulent enlistment. 
 
On  September  4,  1985,  the  applicant’s  request  for  reconsideration  by  the  CPEB  was 
 
denied because he had not submitted any knew evidence.  The CPEB noted that all members are 
found fit for duty upon enlistment or they would not be enlisted and that there would be no need 
for the CPEB if that were the only consideration.  The CPEB denied any inclination or attempt to 
punish the applicant for fraudulent enlistment.  The CPEB stated that it “does not act in a puni-
tive manner even when there are alleged wrong-doings by the evaluee.  The CPEB prides itself 
in diligently working for impaired Coast Guard personnel, providing any and all benefits the law 
allows on the basis of the submitted documentation.” 
 
 
 
On September 23, 1985, the applicant’s command informed CGPC that the applicant had 
rejected the findings and recommendation of the CPEB and demanded a Formal Physical Evalu-
ation Board (FPEB).  On October 15, 1985, the Commandant notified the applicant that an FPEB 
would  convene  on  October  31,  1985,  and  appointed  a  lieutenant  commander  to  serve  as  the 
applicant’s attorney for the proceeding. 

 

 

 
 
On  November  1,  1985,  the  FPEB  convened  to  hear  and  deliberate  the  applicant’s  case.  
The  applicant’s  counsel  argued  that  the  Coast  Guard  “bought”  the  applicant  “lock,  stock,  and 
barrel,” when it enlisted him; that he was presumed fit for duty at that time; and that the FPEB 
should therefore find that the applicant’s condition was incurred in or at least aggravated by his 
military service.   The applicant  testified that before enlisting he  had lived with  his  parents  and 
held various jobs such as serving popcorn and performing KP duty but “most of them I couldn’t 
hold.”    When  asked  what  had  caused  him  to  be  fired  so  often,  the  applicant  said  that  it  was 
because  of  his  mental  status  due  to  a  motorcycle  accident  he  had  been  in  in  1975  and  that  he 
found certain jobs to be too complicated.   
 

On November 14, 1985, the FPEB submitted a report recommending that the applicant be 
discharged  without  severance  pay  because  he  was  30%  disabled  by  a  condition  that  was  not 
incurred or aggravated on active duty.  The FPEB reported the following: 
 

Atypical Organic Brain Syndrome, chronic – manifested by difficulty in learning new tasks, slow 
in responses and personality difficulty related to his original organic deficit “Head injury second-
ary to motorcycle accident”. 
 
Present Condition – 30% 
Condition at Enlistment – 30% 
Aggravated by Service – None 
 
EXPLANATORY  STATEMENT:  The  aspect  of  the  evaluee’s  condition  which  renders  him  not 
fit for duty is the learning difficulty.  Entries in the evaluee’s records provide clear and convincing 
evidence that there has been no increase in this learning difficulty during his period of service. 

 
On  November  25,  1985,  the  applicant  submitted  a  rebuttal  to  the  FPEB’s  report.    He 
 
argued  that  the  FPEB  erred  in  finding  that  his  “disability  existed  in  its  entirety  prior  to  enlist-
ment, without any aggravation during active duty.”  The applicant argued that because a member 
is presumed fit for duty upon enlistment and he was found fit for duty upon enlistment and dur-
ing basic training, all 30% of his impairment should be attributed to aggravation while on active 
duty.  He noted that there is “no evidence to substantiate what the extent of my impairment was 
at the time of enlistment (if any).”  However, he also said that he had “managed to take care of 
my disability fairly well over the last 10 years.” 
 
 
On  December  2,  1985,  a  three-member  Physical  Review  Council  reviewed  the  FPEB’s 
report and the applicant’s rebuttal and concurred in the FPEB’s findings.  The case was referred 
to the Office of the Chief Counsel to review for legal sufficiency. 
 
 
 
On February 18, 1986, the Office of the Chief Counsel advised CGPC that the evidence 
supported the FPEB’s finding that the applicant’s condition had not been aggravated by his Coast 
Guard service.  In addition, the Chief Counsel stated that because the applicant had written in a 
letter dated January 30, 1985, that he did not want the reason for his discharge shown on his DD 
214  to  be  disability  because  he  thought  it  would make  it  difficult  for  him  to  find  work,  CGPC 
should consider discharging the applicant for the “convenience of the Government” instead.  On 

 

 

February 25, 1986, CGPC  responded, stating that it would discharge the  applicant  for the  con-
venience of the Government in accordance with Article 12-B-12a(6) of the Personnel Manual.”2   
 
 
On  March  12,  1986,  the  delegate  of  the  Commandant  approved  the  recommendation  of 
the FPEB.  On March 15, 1986, CGPC directed the applicant’s command to discharge him with a 
JDM separation code within 30 days.3 
 
On April 15, 1986, the applicant received an honorable discharge for the “convenience of 
 
the  Government”  with  a  JDM  separation  code.    He  had  completed  3  years,  11  months,  and  20 
days of active duty. 
 
 
The  applicant’s  Department  of  Veterans’  Affairs  (DVA)  medical  records  show  that  he 
underwent a psychological evaluation in March 2000.  The psychologist stated that the applicant 
was “status  post severe  head injury  with  organic personality changes and impairment  in  cogni-
tion.”  He stated that the applicant was also severely depressed and should be treated for depres-
sion. 
 
 
The applicant’s DVA records also show that he has repeatedly sought disability benefits 
from  the  DVA  based  on  diagnoses  of  atypical  organic  brain  syndrome  and  schizophrenic  dis-
order.  However, the DVA has consistently denied service-connection for these conditions after 
finding  that  they  were  not  incurred  during  or  aggravated  while  on  active  duty.    The  DVA  has 
provided  him  with  vocational  testing  and  counseling.    The  DVA  records  also  show  that  the 
applicant applied for Social Security disability benefits.  On January 11, 2006, the Board of Vet-
erans’ Appeals issued a decision finding that neither the atypical organic brain syndrome nor the 
schizophrenic disorder was incurred in or aggravated by the applicant’s military service. 
   

VIEWS OF THE COAST GUARD 

 
 
On July 19, 2012, the Judge Advocate General  (JAG) submitted an advisory opinion in 
which he recommended that the Board deny relief in this case.  In so doing, the JAG adopted the 
findings and analysis provided in a memorandum on the case prepared by the Personnel Service 
Center (PSC).   
 
 
PSC stated that the applicant was hospitalized while comatose with a severe head trauma 
on May 17, 1975, and that he did not disclose any of that information when he enlisted in 1982.  
PSC noted that the records show that the applicant repeatedly admitted that he had incurred his 
learning disability, which was what caused him to be unfit for duty, in a motorcycle accident in 
1975; that the applicant  stated in his rebuttal to the medical board report that his condition had 
improved  while  on  active  duty;  and  that  the  FPEB  found,  based  on  ample  evidence,  that  there 
had been no increase in or aggravation of the applicant’s learning disability since his enlistment.  
PSC also noted that the DVA and the Board of Veterans’ Appeals have also reviewed the case 

                                                 
2 Article 12-B-12(a)(6) of the Personnel Manual then in effect  authorized CGPC to discharge  members before the 
end of their enlistments “under various authorized programs and circumstances.” 
3 Under M1900.4B, the  manual for preparing DD 214s then in effect, the JDM  separation code corresponds to an 
early discharge “under various authorized programs and circumstances” in accordance with Article 12-B-12(a)(6) of 
the Personnel Manual. 

 

 

and concluded that the applicant’s disability was neither incurred in nor aggravated by his mili-
tary service. 
 
 
PSC  argued  that  a  member  “is  not  entitled  to  disability  retirement  if  clear  and  unmis-
takeable evidence demonstrates that the disability existed before the member’s entrance on active 
duty and was not aggravated by active military service.”  PSC argued that the evidence of record 
and particularly the FPEB’s findings constitutes such clear and unmistakeable evidence. 
 
 
PSC argued that the applicant has not rebutted the presumption of regularity by showing 
any  causal  nexus  between  his  military  service  and  his  learning  disability.    PSC  stated  that  the 
psychiatrist’s  finding  on  May  17,  1982,  that  the  applicant  should  be  able  to  complete  recruit 
training was “a far cry from being declared fit for duty.”  PSC noted that the applicant’s learning 
disability was well documented throughout his career beginning with recruit training. 
 
PSC  noted  that  the  applicant  received  all  due  process  under  the  regulations  as  his  case 
 
was evaluated by a medical board, CPEB, FPEB, Physical Review Council, and the Office of the 
Chief  Counsel  and  that all  made  “consistent  findings  that  his  condition  was  neither  caused  nor 
aggravated by service.”  PSC concluded that the applicant has failed to prove by a preponderance 
of  the  evidence  that  his  lack  of  a  disability  retirement  from  the  Coast  Guard  is  erroneous  or 
unjust and his petition should be denied. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On August 6, 2012, the Board received the applicant’s response to the views of the Coast 
Guard.    He  asked  how  he  can  be  denied  a  disability  retirement  from  the  Coast  Guard  when  so 
many  records show that  he was  found to  be 30% disabled.  The applicant wrote that he would 
“get back with you later on the details,” but no submitted no further information.4 

FINDINGS AND CONCLUSIONS 

 

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

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

1. 

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

 

2. 

 Under 10 U.S.C. § 1552(b), an application to the Board must be filed within three 
years of the date the applicant discovers the alleged error or injustice.  The applicant did not state 
when he discovered the error, but his records show that he knew in 1986 that he was being dis-
charged because of a disability that the Coast Guard had found was not incurred in or aggravated 
by  his  military  service.   The  applicant  was  represented  by  counsel  at  that  time.   Therefore,  the 
Board finds that the preponderance of the evidence shows that the applicant knew of the alleged 
error in his record in 1986, and his application is untimely. 

 

                                                 
4  BCMR  staff  members  have  recently  spoken  by  telephone  to  both  the  applicant  and  his  representative  about  a 
related matter, and neither mentioned any intention to submit more evidence or arguments. 

 

 

3. 

Pursuant  to  10  U.S.C.  §  1552(b),  the  Board  may  excuse  the  untimeliness  of  an 
application  if  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 to determine 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 instructed 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  164-65;  see  Dickson  v.  Secretary  of 
Defense, 68 F.3d 1396 (D.C. Cir. 1995).   

 
4. 

Regarding  the  reasons  for  the  delay,  the  Board  notes  that  the  applicant  did  not 
explain his long delay in submitting his application, and the record shows that during the delay 
he  was  able  to  apply  for  DVA  benefits  and  to  appeal  their  denial.    However,  the  record  also 
shows  that  the  applicant  suffers  from  a  significant  learning  disability  that  prevents  him  from 
retaining information.  The Board finds that this disability provides sufficient explanation for the 
delay of his application.   
 

5. 

Regarding the merits of the case, the Board finds that the applicant’s medical and 
military records amply support the Coast Guard’s  determination that his learning disability was 
incurred  before  he  enlisted  and  was  not  aggravated  during  his  enlistment.     The  record  clearly 
shows that the applicant incurred his head injury and learning disability in a motorcycle accident 
that occurred about seven years before he enlisted; that he could not hold a job before he enlisted 
and found some jobs too complicated; that he intentionally lied during his pre-enlistment physi-
cal  examination  to  gain  his  enlistment;  that  his  learning  disability  was  apparent  during  recruit 
training and continued throughout his enlistment; and that there is no evidence that the applicant 
sustained any head injuries that might have aggravated his learning disability while he served on 
active  duty.    Because  the  applicant’s  disability  was  incurred  before  he  enlisted  and  was  not 
aggravated while he served on active duty, there are no grounds for correcting his record to show 
entitlement to disabled retired pay because under 10 U.S.C. § 1201, only disabilities incurred or 
aggravated  in  the  line  of  duty  can  be  compensated  with  a  disability  retirement.    Based  on  the 
record before it, the Board finds that the applicant’s claim cannot prevail on the merits. 
 
 
Therefore, although the delay of the application may be attributable to the appli-
cant’s  disability,  given  the  lack  of  evidence  of  any  error  or  injustice  on  the  part  of  the  Coast 
Guard  and  the  ample  evidence  supporting  the  Coast  Guard’s  determination,  the  Board  will  not 
waive the statute of limitations.  The application should be denied. 
 
 

6. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 
 
 

 

 

The  application  of  former  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for 

ORDER 

 

 
 

 
 

 
 

  

 
 H. Quinton Lucie 

 

 

 
 James H. Martin 

 

 

 
 
 Paul B. Oman 

 

 

 

 

 

 

 

 

 

 

 

 

correction of his military record is denied.