DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-056 
 
Xxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR: Andrews, J. 
 
 
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  application  was 
received  on  February  3,  2003,  and  docketed  on  January  20,  2004,  upon  receipt  of  the 
applicant’s military and medical records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  February  24,  2005,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant asked the Board to correct his record to show that he was medi-
cally  retired  from  the  Coast  Guard  on  August  31,  2000,  in  lieu  of  the  honorable  dis-
charge  he  received.    He  alleged  that  he  should  have  been  processed  for  a  medical 
retirement under the Physical Disability Evaluation System (PDES).  He alleged that the 
Department of Veterans’ Affairs (DVA) has found him to be 50% disabled and that he 
was  unable  to  join  the  Reserve  just  four  months  after  his  discharge  because  of  his 
medical problems.  He alleged that, prior to his discharge, his doctor recommended that 
he be evaluated by a medical board.   

 
In  support  of  his  allegation,  the  applicant  submitted  medical  records  from  a 
spine and brain rehabilitation clinic, which he first visited on September 22, 2003.  At 
the  clinic,  the  applicant  complained  of  “significant  pain  in  the  lower  lumbar  spine” 
since an accident in 1991 when, he told the doctor, he was on active duty and received 
“multiple  compression  fractures  in  his  back”  when  his  bicycle  was  hit  by  a  car.    The 
applicant stated that the pain increased if he bent or leaned forward for more than ten 

minutes  while  working  on  cars  or  sitting  for  prolonged  periods  and  that  it  would 
waken him in the night.  The doctor noted that the applicant also had “significant neck 
complaints, mainly in the central neck region with minimal radicular components into 
the bilateral upper extremities.”  The doctor also noted an excellent range of motion in 
the applicant’s neck, and mildly decreased range of motion “throughout all planes” in 
his back.   The doctor found “abnormal mobility at the L4-L5 region.  It appears that the 
L5 spinous process is slipping under the L4 spinous process in an anterior fashion with 
posterior/anterior mobilization.  There is moderate pain with posterior/anterior mobi-
lization  throughout  the  lower  lumbar  region  and  minimal  over  the  upper  lumbar 
thoracic region.”  The doctor noted that the applicant’s compression fractures from the 
accident were “likely healed and not symptomatic” but that he might have a “spondy-
lolisthesis”  and  a  “discogenic  source  for  his  chronic  intermittent  low  back  pain.”    He 
also  noted  that  there  had  been  a  “[r]ecent  exacerbation  of  neck  pain.”    The  doctor 
referred the applicant for MRIs and xrays. 

 
On October 23, 2003, the doctor reported that a cervical MRI showed “a moder-
ately large disc herniation with disc spur complex at C5-C6 level on the left paramedian 
distribution.    There  is  some  spinal  cord  compression  associated.”    A  lumbar  MRI 
showed “evidence of previous compression fracture at L1 anteriorly as well as mild disc 
dehydration  at  the  L5-S1  level  without  evidence  of  high  intensity  zone  or  significant 
annular disruption.”  Xrays showed “considerable kyphosis at the lumbosacral junction 
with  slight  wedging  of  vertebral  body  L1  anteriorly  and  some  narrowing  of  the  disc 
space at T12-L1”;  “degenerative spurs of the bodies of L4, L3, and L2”; “straightening 
and loss of the normal cervical lordosis”; “some narrowing and encroachment upon the 
right and left intervertebral foramen at C5-6 by spurs”; and plate and screws “present 
across an old fracture of the mandible [jaw].”  The doctor reported that the applicant 
complained of “neck pain and left greater than right upper extremity radicular pain out 
to the lateral deltoid region.  He does have some intermittent back pain, but that is of 
less concern.”  The applicant was given a cervical epidural steroid injection.  The doctor 
urged  him  not  to  engage  in  contact  sports  because  of  the  high  risk  of  a  spinal  cord 
injury.  He prescribed Lortab for the applicant’s pain.  On November 4, 2003, a CT scan 
of the lumbar spine showed “[s]mall Schmorl nodes … involving the superior endplates 
of L1 and L2.” 

 
The  applicant  also  submitted  medical  records  from  a  pain  management  clinic, 
which show that he was referred to the clinic in November 2003 due to lower back pain, 
neck pain, bilateral shoulder pain, midthoracic pain, and right lower extremity (wrist) 
pain.  The doctor reported that the applicant told him this pain had begun in 1991 when 
his bicycle was hit by a car while he was serving on active duty in Italy.  The applicant 
reported that his pain was constant (20/24 hours per day), that he was taking Zanaflex 
and  Lortab  for  the  pain,  and  that  he  had  recently  had  cervical  epidural  steroid  injec-
tions,  which  had  not  reduced  his  pain.  The  applicant  also  complained  of  difficulty 
breathing  when  recumbent,  insomnia,  vertigo,  and  severe  headaches  that  had  begun 

since  the  cycling  accident,  during  which  he  had  a  “closed-head  injury”  and  a  broken 
jaw.   The pain management specialist noted that the applicant’s “pain score is 6/10”; 
that there was a full range of motion in his cervical spine; that there was some tender-
ness in the thoracic and lumbar spine and upon ventral flexion of the cervical spine; that 
he  had  “mildly  decreased  sensation  in  the  T7-T8  ulnar  distribution  of  the  left  upper 
extremity; and that he had normal reflexes and good upper and lower body strength.   
The specialist diagnosed him with “degenerative joint disease of the cervical  spine as 
well as the lumbar spine” and prescribed antidepressants, opiates, anti-inflammatories, 
Pamelor (a sleep aid), and cervical facet injections. 

 
The applicant also submitted a copy of ALCOAST 012/03, issued on January 10, 
2003, which established the position of PDES ombudsman to help members and com-
mands understand the PDES system.  

 

SUMMARY OF THE RECORD 

 
 
On  July  31,  1986,  the  applicant  underwent  a  physical  examination  prior  to 
enlistment.  On the Report of Medical History he completed, he admitted that in 1980, 
he had been hit in the back and suffered muscles spasms, but he denied any recurrent 
back pain.  The applicant’s right-eye tested at 70/20 for distance vision and 20/40 for 
near vision, but was corrected to 20/20 for both. 
 

On September 5, 1986, the applicant enlisted in the Coast Guard.  Following boot 
camp, his first tour of duty was aboard a cutter, after which he attended “A” School to 
become an electrical technician.  Following “A” School, he spent three years at Group 
Key West.   On June 12, 1989, the applicant was treated for a corneal abrasion on his 
right eye.  No abnormalities were noted.  On September 12, 1990, he sought treatment 
for back pain and was diagnosed with a muscle strain.  He was prescribed Motrin.  At 
an optometric evaluation on October 3, 1990, the applicant was found to have an “early 
keratoconus”  right  eye.1    Without  corrective  lenses,  his  right  eye  was  found  to  have 
20/200 distance vision and 20/120 near vision. 

 
On May 7, 1991, the applicant was transferred to Italy.  On June 15, 1991, he was 
riding a bicycle when he was hit by a car.  He went to the base clinic.  The doctor found 
that  the  applicant’s  mandible  was  fractured  and  sent  him  to  a  local  civilian  hospital.  
The hospital records are not in the applicant’s military or DVA medical records.  

 
 
On June 16, 1993, the applicant reported to a new station in Honolulu.  On the 
Report  of  Medical  History  for  his  quadrennial  physical  examination  on  July  12,  1993, 
the applicant wrote “I feel great.  No meds.”  The applicant also noted that his jaw had 
                                                 
1 Keratoconus is “a noninflammatory, usually bilateral protrusion of the cornea, the apex being displaced 
downward and  nasally. … The cause is unknown, but hereditary factors may  play a role.” DORLAND’S 
ILLUSTRATED MEDICAL DICTIONARY, 25TH ED. (2000), p. 939. 

been broken in June 1991, that he was initially sent to a local hospital in Italy, and that a 
metal plate had been installed in his jaw at an Army hospital in Germany.  He did not 
mention any back injury related to the 1991 accident.  The doctor noted that the appli-
cant had the following conditions, which were not considered disqualifying:  “glasses, 
keratoconus [right eye],” “childhood asthma,” status post jaw fracture, “chronic insom-
nia,” and “chronic/recurrent” pain, numbness, and tingling in his left and right lower 
back,  which  worsened  with  prolonged  sitting.    The  doctor  noted  that  the  applicant 
reported  that  the  “initial  injury  [to  his  back]  was  forced  extension  of  back  in  football 
game at age 10.  No regular [medication], doesn’t interfere with work.”  The doctor also 
noted that the results of a back and extremity examination were within normal limits 
and that the applicant had normal sensation and a good range of motion. 
 
 
On  March  14,  1994,  the  applicant  sought  treatment  for  lower  back  pain.    The 
doctor noted that he had “chronic/recurrent LBP, EPTE [existed prior to enlistment].”  
The  doctor  took  xrays  and  prescribed  Naproxen  and  physical  therapy.    The  xrays 
showed  evidence  of  an  old  “compression  fracture  of  L1  with  anterior  wedging”  and 
“degenerative  disc  disease  at  T12-L1  and  L3-L4.”    On  March  17,  1994,  the  physical 
therapist  noted  that  the  applicant  complained  of  “recurrent  LBP,  mostly  [right  side], 
some upper lumbar since age 15.” 
 
 
He was advised to continue his physical therapy exercises and prescribed Feldene. 
 
 
chronic sinusitis, facial pain, nasal congestion, and headaches. 
 

On August 29, 1994, the applicant again  sought treatment for lower back pain.  

On April 4, 1996, the applicant underwent “functional sinus surgery” to alleviate 

On October 8, 1996, the applicant complained of having pain in his right shoul-
der for about two months.  Xrays of his shoulders revealed no evidence of fracture or 
dislocation.  The results were deemed “normal.”  He was diagnosed with rotation cuff 
tendinitis, which continued to bother him despite physical therapy.  On July 28, 1997, 
the applicant complained that his shoulder still hurt when golfing, lifting things over-
head, and throwing balls. 
 

 
On November 4, 1997, the applicant sought treatment for lower back pain, which 
had begun about nine days before when he was pulling on a cable.  On November 20, 
1997,  an  MRI  of  the  applicant’s  lumbosacral  spine  showed  a  “less  than  25%  anterior 
compression fracture of the L1 vertebral body which was present on the plain film done 
on 19 Aug 94.”  The doctor noted that the MRI “showed no significant findings and was 
consistent  with  those  identified  in  1994.”    On  November  24,  1997,  the  applicant  was 
referred for physical therapy.  The referral note states that the applicant had been taking 
Motrin and Flexeril “with marked improvement in symptoms.”  On January 30, 1998, 
the physical therapist noted that the applicant’s symptoms had improved and that the 
range of motion in his lower back was within normal limits. 

 
On July 20, 1998, the applicant sought treatment for pain in his left shoulder and 

was diagnosed with “tendinitis/bursitis.”  He was prescribed Tylenol with codeine. 

 
On December 1, 1998, the applicant sought treatment for neck pain, which had 
begun suddenly the day before when he had bent his head forward to look down.  On 
December 2, 1998, the doctor found that the applicant had a full range of motion in his 
neck and diagnosed a “strain/sprain.” 

On March 6, 2000, an abscess was surgically removed from the applicant’s right 

On  January  13,  2000,  an  opthamologist  noted  that  the  applicant  could  not  see 

 
On January 4, 1999, the applicant  sought treatment for lower back pain, which 
had begun two days before.  He was placed on limited duty for seven days and pre-
scribed Atarax and Naproxen. 
 
On  June  28,  1999,  the  applicant  was  transferred  to  a  cutter  based  in  Alameda, 
 
California.  On January 25, 1999, he sought treatment for his left shoulder, which he had 
hurt over the weekend playing golf.  He was diagnosed with tendinitis.  
 
 
through his right eye without a contact lens. 
 
 
forearm near the wrist.  
 
On April 11, 2000, the applicant sought help for lower back pain.  He stated that 
 
it had begun the day before as a result of “prolonged sitting in bent over position” and 
that it was consistent with episodes he had had since 1991.  A health services technician 
referred  him  to  a  doctor  for  treatment  and  to  determine  his  duty  status.    The  health 
services technician also included the notation “Med Board?”  The doctor diagnosed the 
applicant with a “lower trapezius strain,” prescribed Flexeril; noted that he was not fit 
for duty for one day; and referred the applicant to physical therapy. 
 
 
On  April  13,  2000,  a  physical  therapist  noted  that  the  applicant  stated  that  his 
wrist  had  normal  function  again.    The  physical  therapist  found  that  there  was  a  free 
range of motion in the wrist and that its strength was 5/5.  The physical therapist also 
noted that the applicant “refused [physical therapy] evaluation for his LBP [lower back 
pain].  States LBP is chronic for 9 years now.  States he was already seen by 2 [physical 
therapists and] a chiropractor in the past [and] participated in regular [physical therapy 
treatment]  sessions  [without]  significant  improvement.    [He]  would  like  to  know  if 
there are other [treatment] options.” 
 
On April 19, 2000, the applicant underwent a physical examination at the Inte-
 
grated Support Command (ISC) in Alameda in preparation for his voluntary separation 
from active duty.  On a Report of Medical History, he stated that his health was good 

with  the  exception  of  his  lower  back,  for  which  he  was  taking  Flexeril.    The  medical 
officer,  a  physician’s  assistant,  noted  that  the  applicant  had  a  keratocnus  right  eye, 
which was not considered disqualifying in that it was corrected to 20/20, and that the 
applicant complained of bilateral shoulder pain, lower back pain, and insomnia, which 
were also found not to be disqualifying.  The medical officer found him fit for release 
from active duty.  The applicant completed form CG-4057 to indicate his agreement or 
disagreement with the officer’s findings as follows: 
 

x 

 

(or) do not agree                that at the time of separation: 

I agree    
 
 
I am reasonably able to perform my current duties, or [handwritten:] w/ lower back pain 
I  have  a  high  expectation  of  recovery  in  the  near  term  from  illness,  injury  or  surgical 
procedure such that I would again be able to perform my usual duties. 

1) 
2) 

 

On May 11, 2000, the applicant complained that his back was “still sore all the 
time” and that he had had constant lower back pain since 1991, which increased with 
prolonged standing or sitting.  The same physician’s assistant who had conducted the 
applicant’s separation physical noted that there was some tenderness around the spine 
but that the applicant had a free range of motion without pain and “5/5 strength.”  He 
took xrays; prescribed Motrin and Flexeril for the pain; ordered an MRI, which he noted 
that the cutter’s health services technician “will coordinate”; and noted that the appli-
cant was FFFD (fit for full duty).  There is no evidence in the record that the MRI was 
ever completed. 

 
On  May  15,  2000,  the  physician’s  assistant  also  referred  him  to  an  orthopedist 
because the applicant complained that he had had intermittent pain in his right shoul-
der since 1998.  He noted that there might be right shoulder impingement.  

 
 
On  July  10,  2000,  the  applicant  was  treated  at  the  ISC  in  Alameda  for  a  fever, 
congestion, and cough.  He stated that he had been sick for two days and that his wife 
and child were similarly sick. 
 

On  August  31,  2000,  the  applicant  was  administratively  discharged  from  the 
Coast Guard.  His reenlistment code was RE-1 (eligible to reenlist).  His separation code 
was MBK (voluntary release or transfer to another Service component upon completion 
of required service).  His DD 214 bears the handwritten notation “mbr refuse to sign.” 

 
On January 24, 2001, the applicant underwent a physical examination to enlist in 
the Reserve.  The Report of Medical Examination shows that the doctor found that he 
had the following disqualifying conditions, which rendered him unfit for enlistment in 
the Reserve:  keratocnus right eye, which could be  corrected to 20/40; recurrent back 
pain; a right shoulder problem with a history of bursitis; and childhood asthma.  The 
report also shows that the doctor sought a waiver for the disqualifying conditions. 

 
On June 13, 2001, the applicant underwent a physical examination for his claim 
for medical benefits from the DVA.  On January 25, 2002, he received a 30% rating for 
his keratocnus right eye; a 10% rating for “status post L1 compression fracture, residu-
als”; and a 10% rating for “residuals, status post right wrist surgical removal of mass.”  
His combined disability rating was calculated at 40%.  These conditions were found to 
be “service-connected,” and the ratings were backdated to September 1, 2000. 
 
 
The DVA’s rating report stated that with a contact lens, the applicant’s vision in 
his  right  eye  is  20/20,  but  whenever  a  contact  lens  is  medically  required,  30%  is  the 
minimum evaluation allowed for the disability.   
 

Regarding  the  10%  rating  for  “status  post  L1  compression  fracture,  residuals,” 
the report noted that a 10% rating is assigned “for slightly limited motion of the lumbar 
spine, or demonstrable deformity of a vertebral body from fracture with muscle spasm 
or limited motion.  A higher evaluation of 20 percent is not warranted unless there is a 
moderate  limitation  of  motion  of  the  lumbar  spine,  or  demonstrable  deformity  of  a 
vertebral body from fracture with slight limitation of motion.”  The report noted that 
under 38 C.F.R. 4.59, “findings of painful, unstable, or malaligned joints due to healed 
injury should be at least entitled to the minimum compensable rating (10 percent) for 
the joint.” 

 
Regarding the applicant’s right wrist, the DVA’s report stated that the applicant 
complained  of  a  constant  ache  with  sharp  pains  upon  “turning  objects  or  holding 
objects tightly.  However, the “examiner states that there is no pain, weakness, lack of 
stability, incoordination, or fatigue noted” but that the applicant was “status post right 
wrist surgery with residual symptoms” and therefore entitled to the 10% rating.  

 
The DVA also found that the applicant had service-connected “residuals, status 
post  nasal  surgery,  with  chronic  nasal  congestion”  but  that  it  was  0%  disabling.    The 
DVA denied service-connection for a cervical spine condition because there was no evi-
dence of one in his military medical records and because, upon examination, he denied 
neck pain and had a normal range of motion with no spasms or tenderness; for insom-
nia;  for  a right  knee  condition;  headaches;  a  left  foot  condition; tendinitis  in  the  right 
shoulder rotator cuff and the left shoulder; and a right forearm nerve condition.  

 
On July 22, 2002, the  DVA awarded the applicant an additional 10% rating for 
“residuals,  status  post  mandibular  fracture.”  The  report  stated  that  the  10%  rating  is 
“granted whenever there is indication of limited inter-incisal movement between 31 and 
40 mm, or lateral excursion between 0 and 4 mm.”  The additional 10% rating raised his 
combined rating to 50%. 
 

VIEWS OF THE COAST GUARD 

 

On May 28, 2004, the Judge Advocate General (JAG) of the Coast Guard submit-
ted an advisory opinion in which he recommended that the Board deny the applicant’s 
request.  The JAG based his recommendation on a memorandum on the case prepared 
by the Coast Guard Personnel Command (CGPC). 

 
CGPC stated that the applicant’s medical records show that he “suffered from a 
variety of injuries and conditions during his military service … .  Despite these condi-
tions, the Applicant continued in the service for several years and appeared to suffer no 
impairments that interfered with his performance of duty.”  CGPC noted that the appli-
cant had been found fit for duty at the time of his separation physical and that he was 
authorized to reenlist.  CGPC noted that he “continued to receive therapeutic treatment 
for his conditions until his separation.  However, there is no evidence that any of these 
conditions prevented him from performing his duties.” 

 
CGPC  stated  that  “there  is  no  evidence  that  [at  the  time  of  his  separation]  the 
Applicant’s back condition or any other condition was considered as possibly disquali-
fying for service.”  CGPC argued that if the applicant believed he was disqualified for 
separation  because  of  his  back  pain,  he  should  have  indicated  his  objection  with  the 
finding that he was fit for duty rather than indicating that he agreed with the finding 
“except for lower back pain.”  CGPC stated that because the applicant continued to per-
form his duties satisfactorily until his separation, he must be presumed fit for duty. 

 
CGPC  stated  that  “the  physical  standards  used  to  evaluate  the  Applicant  for 
separation or retention and enlistment into the Reserve within 6 months of separation 
are the same.”  CGPC stated that the applicant has submitted no evidence to prove that 
his  “medical  condition  remained  the  same  for  the  four-month  period”  between  his 
separation and attempt to enlist in the Reserve.  Therefore, CGPC argued, the applicant 
has not “overcome[] the presumption of regularity that Coast Guard officials used the 
same evaluation standards and made appropriate findings and determinations for both 
physical exams.” 

 
CGPC stated that when a veteran’s service-connected medical conditions worsen 
following  separation  the  DVA  is  the  appropriate  venue  for  treatment  and  rating.  
Regarding the DVA’s ratings, CGPC argued that the DVA’s and military’s evaluation 
systems  “are  different  and  serve  different  purposes  …  .    The  military  services  first 
determine  unfitness  for  duty  and  then  rate  only  the  extent  that  the  unfitting  medical 
condition or conditions prevent the member form performing their duties. … Accord-
ingly, [D]VA ratings are not determinative of the issues involved in military disability 
rating determinations.” 

 
The JAG argued that the applicant “never disputed the finding that he was medi-
cally fit for separation and never requested to be considered by the PDES.  Even if he 

had, the presumptions embedded in the system would have likely precluded any find-
ing in his favor based on the fact that he was already being processed for separation and 
that he continued to perform his assigned duties despite the existence of physical ail-
ments.”  The JAG argued that under Article 2.C.2.c. of the PDES Manual and 10 U.S.C. 
§ 1201, the “sole standard for a physical disability determination in the Coast Guard is 
unfitness to perform duty.” 

 
The  JAG  argued  that  under  Lord  v.  United  States,  2  Ct.  Cl.  749,  754  (1983),  the 
applicant’s  DVA  rating  “is  not  determinative  of  the  same  issues  involved  in  military 
disability cases.”  The JAG argued that “[a]ny long-term diminution in [the applicant’s] 
earning capacity attributable to military service is properly a matter for determination 
by the [DVA], not the Coast Guard or the BCMR.”  The JAG also argued that the “pro-
cedures and presumptions applicable to the DVA evaluation process are fundamentally 
different  from  and  often  more  favorable  to  the  veteran  than  those  applied  under  the 
PDES.  The DVA is not limited to the time of the Applicant’s discharge.  If a service-
connected  condition  later  becomes  disabling,  the  DVA  may  award  compensation  on 
that basis.” 

 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On June 1, 2004, the BCMR sent the applicant a copy of the Chief Counsel’s advi-
sory opinion and invited him to respond within 30 days.  He was granted two 60-day 
extensions and responded on October 28, 2004.   

 
The applicant stated that while riding his bicycle to his base in Italy in 1991, he 
was hit by a car and sustained two fractures to his mandible, bruised ribs, head trauma, 
and a neck injury.  He stated that later, while assigned to the 14th District, he was unable 
to perform color guard duties “due to my inability to stand at attention, carry flags, or 
salute for long periods of time  because of the damage to my neck and back  from the 
accident in Italy.”  He stated that the medical staff in the 14th District repeatedly treated 
him  for  back  pain  and  because  his  arms  would  fall  asleep  when  extended  above  his 
shoulders for any length of time. 

 
The  applicant  stated  that  later,  after  he  was  transferred  to  a  cutter,  one  physi-
cian’s assistant told him that his neck and back pain were his “cross to bear.”  He com-
plained and asked for another one.  The new physician’s assistant arranged for MRIs 
and xrays of his neck and back.  However, his cutter was deployed to Alaska, and the 
Executive  Officer  did  not  allow  him  to  skip  the  deployment  because  he  was  the  only 
ET1 on board.  Therefore, he did not receive the tests.  He stated that he tried again to 
get  the  MRIs  when  the  cutter  took  on  stores  in  Washington  State,  but  the  Executive 
Officer denied his request.  He was discharged soon thereafter without having had the 
tests. 

 

The  applicant  alleged  that  upon  his  discharge,  he  was  supposed  to  go  directly 
into the Reserve.  However, someone in his PERSRU (Personnel Reporting Unit) failed 
to  process  his  paperwork,  so  he  had  to  apply  and  take  a  physical  examination.    He 
alleged that at the examination, the doctor “just laughed about my existing conditions 
and stated that there would be no way that I would be allowed into the Coast Guard or 
any other branch of service.” 

 
The  applicant  alleged  that  after  his  discharge,  a  pain  management  doctor  and 
orthopedic surgeon told him that he had a “severe ruptured disc that had been that way 
for a long period of time” and that he probably had nerve damage since he had “loss of 
feeling  in  both  arms,  loss  in  range  of  motion,  and  loss  of  strength  in  both  arms  and 
hands.”  The doctors advised that he undergo surgery as soon as possible, so he had “a 
diskectomy and a level 1 cervical fusion.” 
 

SUMMARY OF APPLICABLE LAW 

 
Disability Statutes 
 
 
Title 10 U.S.C. § 1201 provides that a member who is found to be “unfit to per-
form the duties of the member’s office, grade, rank, or rating because of physical dis-
ability incurred while entitled to basic pay” may be retired or discharged by reason of 
physical disability.  If the disability is “at least 30 percent under the standard schedule 
of  rating  disabilities  in  use  by  the  Department  of  Veterans  Affairs  at  the  time  of  the 
determination,” the member is retired.  If the disability is rated at only 10 or 20 percent 
under the schedule, the member is discharged with severance pay. 10 U.S.C. § 1203.   
 
Provisions of the Personnel Manual  
 
 
Article 12.B.6.a. provides that “[b]efore discharge ..., retirement, or release from 
active duty …, every enlisted member … , shall be given a complete physical examina-
tion.  …    the  examination  results  shall  be  recorded  on  Standard  Form  88.”    Article 
12.B.6.b. provides that “[w]hen the physical examination is completed and the member 
is found physically qualified for separation, the member will be advised and required to 
sign a statement on the reverse side of the Chronological Record of Service, CG-4057, 
agreeing  or  disagreeing  with  the  findings.”    Article  12.B.6.c.  provides  that  when  “a 
member objects to a finding of physically qualified for separation, the Standard Form 88 
together with the member’s written objections shall be sent immediately to Commander 
(CGPC-epm-1) for review.  If necessary the member may remain in service beyond the 
enlistment expiration date.”  
 

Article 1.G.4.c. states that “[a] person enlisting in the Coast Guard Reserve within 
24 hours after discharge from the Regular Coast Guard is not required to take a physical 
examination  provided  the  person  was  found  to  be  physically  qualified  by  a  complete 

physical examination no more than one year prior to discharge, and provided the appli-
cant's medical history during the last 12 months has been satisfactory.”  Article 1.G.4.d. 
states that “[a] person who does NOT enlist in the Coast Guard Reserve within 24 hours 
after discharge from the Regular Coast Guard … must take a physical exam in accor-
dance with the Coast Guard Recruiting Manual, COMDTINST M1100.2 (series), and be 
processed through a Coast Guard recruiting office.” 
 
Provisions of the Medical Manual (COMDTINST M6000.1B) 

 
Article 3.F.1.a. of the Medical Manual states that the physical standards provided 
in  the  article  must  be  met  for  retention  in  the  service,  sea  duty,  or  for  “enlist-
ment/reenlistment of prior service USCG personnel within 6 months of discharge from 
active duty in the Regular Coast Guard.”  Article 3.F.2. states that the list of “normally 
disqualifying conditions” contained in the article is neither all-inclusive nor “a mandate 
that possession of one or more of the listed conditions or physical defects means auto-
matic retirement or separation.”   

 
Article 3.F. of the Medical Manual provides that members  with  medical  condi-
tions that “are normally disqualifying” for retention in the Service shall be referred to 
an IMB  or a waiver shall be requested by their commands.  Article 3.F.5.b.(f) states that 
a normally disqualifying condition is “[w]hen vision is correctable only by use of con-
tact lenses or other corrective device.”  Article 3.F.12.a.(2)(a) requires each arm, at the 
shoulder, to have forward elevation to 90 degrees and abduction (side elevation) to 90 
degrees.  Article 3.F.12.a.(c) requires that each wrist have a “total range, extension plus 
flexion, of 15 [degrees].”  Article 3.F.13.c. states that herniation of a disc in the spine is 
normally disqualifying if there are “[m]ore than mild symptoms following appropriate 
treatment  of  remediable  measures,  with  sufficient  objective  findings  to  demonstrate 
interference with the satisfactory performance of duty.” 

 
Article 3.F.1.c. of the Medical Manual states the following: 
 
Fitness  for  Duty.    Members  are  ordinarily  considered  fit  for  duty  unless  they  have  a 
physical  impairment  (or  impairments)  which  interferes  with  the  performance  of  the 
duties of their grade or rating.  A determination of fitness or unfitness depends upon the 
individual’s ability to reasonably perform those duties.  Members considered temporar-
ily or permanently unfit for duty shall be referred to an Initial Medical Board for appro-
priate disposition. 
 
Article 3.B.6. provides that “[w]hen a member has an impairment (in accordance 
with section 3-F of this Manual) an Initial Medical Board shall be convened only if the 
conditions listed in paragraph 2-C-2.(b) [of the PDES Manual] are also met.  Otherwise 
the member is suitable for separation.” 
  
Provisions of the PDES Manual (COMDTINST M1850.2C)  

 
 
Chapter 2.A.15. of the PDES Manual defines “fit for duty” as “[t]he status of a 
member who is physically and mentally able to perform the duties of office, grade, rank 
or rating.  This includes specialized duty such as duty involving flying or diving only if 
the performance of the specialized duty is a requirement of the member’s enlisted rat-
ing.” 
 

Chapter 2.C.2. states the following: 
 
b. 
The law that provides for disability retirement or separation (10 U.S.C., chapter 
61)  is  designed  to  compensate  members  whose  military  service  is  terminated  due  to  a 
physical disability that has rendered him or her unfit for continued duty.  That law and 
this disability evaluation system are not to be misused to bestow compensation benefits 
on those who are voluntarily or mandatorily retiring or separating and have theretofore 
drawn  pay  and  allowances,  received  promotions,  and  continued  on  unlimited  active 
duty status while tolerating physical impairments that have not actually precluded Coast 
Guard service.  The following policies apply. 
 
Continued performance of duty until a service member is scheduled for separa-
   (1) 
tion or retirement for reasons other than physical disability creates a presumption of fit-
ness for duty.  This presumption may be overcome if it is established by a preponderance 
of the evidence that: 
 
 
adequately in his or her assigned duties; or 
 
 
acute,  grave  illness  or  injury,  or  other  deterioration  of  the  member’s 
physical condition occurred immediately prior to or coincident with processing for sepa-
ration or retirement for reasons other than physical disability which rendered the service 
member unfit for further duty. 
 
    (2)  A  member  being  processed  for  separation  or  retirement  for  reasons  other  than 
physical disability shall not be referred for disability evaluation unless the conditions in 
paragraphs 2.C.2.b.(1)(a) or (b) are met. 
 
c. 
If a member being processed for separation or retirement for reasons other than 
physical  disability  adequately  performed  the  duties  of  his  or  her  office,  grade,  rank  or 
rating, the member is presumed fit for duty even though medical evidence indicates he 
or she has impairments. 

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

(b) 

(a) 

•  •  • 

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

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

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

 

•  •  • 

Inability to qualify for specialized duties requiring a high degree of physical fit-

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

   (4) 
ness, such as flying … . 
 
   (5) 
The presence of one or more physical defects that are sufficient to require referral 
for evaluation or that may be unfitting for a member in a different office, grade, rank or 
rating. 
 
   (6) 
status. 
 
i. 
The existence of a physical defect or condition that is ratable under the standard 
schedule for rating disabilities in use by the [DVA] does not of itself provide justification 
for, or entitlement to, separation or retirement from military service because of physical 
disability.    Although  a  member  may  have  physical  impairments  ratable  in  accordance 
with the VASRD, such impairments do not necessarily render him or her unfit for mili-
tary duty … Such a member should apply to the [DVA] for disability compensation after 
release from active duty. 
 
Chapter  3.D.7.  states  that  a  “member  who  is  being  processed  for  separation … 
shall not normally be referred for physical disability evaluation. … [A]bsence of a sig-
nificant  decrease  in  the  level  of  a  member’s  continued  performance  up  to  the time  of 
separation or retirement satisfies the presumption that the member is fit to perform the 
duties of his or her office, grade, rank or rating (see paragraph 2.C.2.).” 
 

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 appli-
cable law: 
 

1. 

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

§ 1552.  The application was timely. 

 
2. 

The applicant alleged that when he decided to leave the Coast Guard, he 
should have been processed under the PDES and retired by reason of physical disabil-
ity.  However, the record indicates that following his separation physical examination 
on April 19, 2000, he agreed with the medical officer’s finding that he was fit for separa-
tion,  and  he  agreed  that  he  was  “reasonably  able  to  perform  [his]  current  duties” 
although he suffered from lower back pain.  Chapter 2.C.2.b. of the PDES Manual pro-
vides that the disability “law and this disability evaluation system are not to be misused 
to bestow compensation benefits on those who are voluntarily or mandatorily retiring 
or  separating  and  have  theretofore  drawn  pay  and  allowances,  received  promotions, 
and  continued  on  unlimited  active  duty  status  while  tolerating  physical  impairments 
that have not actually precluded Coast Guard service.”  The record indicates that, at the 
time  the  applicant  decided  to  leave  the  Service,  he  was  ably  performing  sea  duty 
although he had been tolerating bouts of lower back pain and a keratocnus right eye for 

years.  Chapter 3.D.7. states that a “member who is being processed for separation … 
shall not normally be referred for physical disability evaluation. … [A]bsence of a sig-
nificant  decrease  in  the  level  of  a  member’s  continued  performance  up  to  the time  of 
separation or retirement satisfies the presumption that the member is fit to perform the 
duties of his or her office, grade, rank or rating.”  There is no evidence in the record of a 
significant decrease in the applicant’s performance during the year prior to his volun-
tary separation. 

 
3. 

The applicant alleged that he should have been processed under the PDES 
because a health services technician made the notation “Med Board?” in his record on 
April 11, 2000, and because on May 11, 2000, a medical officer ordered an MRI that was 
never performed.  However, the purpose of the health services technician’s notation is 
unclear.  If the applicant himself inquired about receiving a medical board evaluation, 
the health services technician might have made this notation simply to draw the appli-
cant’s inquiry to the medical officer’s attention.  The medical officer who saw the appli-
cant after the health services technician did not make any corresponding notation about 
a medical board in the applicant’s record and did not begin PDES processing.  In addi-
tion, although he ordered an MRI on May 11, 2000, he also noted that the applicant was 
fit  for  full  duty.    The  fact  that  an  MRI  was  ordered  but  not  performed  prior  to  the 
applicant’s  discharge—perhaps  because  he  was  performing  sea  duty—does  not  per-
suade  the  Board  that  he  was  unfit  for  continued  service  or  separation.    There  is  no 
evidence  in  the  record  that  any  doctor  or  medical  officer  thought  that  the  applicant 
might be unfit for continued service prior to his separation on August 31, 2000.   

 
4. 

Under  Chapter  2.C.2.b.(1)  of  the  PDES  Manual,  if  a  separating  member 
has continued to perform duty without limitation, he is presumed fit.  Under Chapter 
2.C.2.b.(1) and (2), PDES processing may only be started if “(a) the member, because of 
disability, was physically unable to perform adequately in his or her assigned duties; or 
(b) acute, grave illness or injury, or other deterioration of the member’s physical condi-
tion  occurred  immediately  prior  to  or  coincident  with  processing  for  separation  or 
retirement for reasons other than physical disability which rendered the service mem-
ber unfit for further duty.”  The record indicates that the applicant was performing sea 
duty without limitation prior to his separation, and there is no evidence of any acute 
injury  in  the  months  prior to  his  separation  that  rendered  him  unfit  for  further  duty.  
Even if, as he alleged, the applicant could not perform color guard duties, this inability 
would not have entitled him to PDES processing because under Chapter 2.C.2.f. of the 
PDES Manual, the inability to perform every possible duty to which a member could be 
assigned cannot be the sole basis PDES processing.  Therefore, the Board finds that the 
applicant  has  not  proved  that  the  Coast  Guard  erred  in  finding  him  fit  for  continued 
service and for separation or in refusing to process him through the PDES prior to sepa-
ration. 
 

5. 

 
The  applicant  alleged  that  his  50%  combined  disability  rating  from  the 
DVA  proves  that  he  should  have  received  a  rating  under  the  Coast  Guard’s  PDES. 
However, as the JAG argued, under Lord v. United States, 2 Ct. Cl. 749, 754 (1983), the 
applicant’s  DVA  rating  “is  not  determinative  of  the  same  issues  involved  in  military 
disability  cases.”    Moreover,  the  applicant’s  50%  combined  rating  from  the  DVA 
includes the following: 
 

(a)  30% rating for a keratocnus right eye.  The record indicates that the applicant 
served ably in the Coast Guard for more than 10 years with his keratocnus right eye and 
that it did not interfere with his performance of duty.  Although under Article 3.F.5.b.(f) 
of the Medical Manual, such a condition is sometimes considered disqualifying because 
it requires the use of contact lenses, the applicant has not proved that he was entitled to 
PDES processing because of his eye condition. 

 
(b) 10% rating for the residuals of having previously broken his mandible.  There 
is no evidence in the record that the applicant complained of pain in or a problem with 
his  mandible  prior  to  his  separation  or  that  any  such  pain  or  problem  rendered  him 
unfit for continued service. 

 
(c) 10% rating for the residuals of having had an abscess removed from his wrist.  
The record indicates that on April 13, 2000, just six days before his separation physical 
examination, the applicant told his physical therapist that his wrist was back to normal 
following  the  surgery,  and  the  physical  therapist  found  that  he  had  a  free  range  of 
motion and full strength in the wrist.  
 

(d) 10% rating for the residuals of having had an L1 compression fracture.  The 
record  indicates  that  although  the  applicant  periodically  sought  treatment  for  lower 
back pain throughout his military service, he continued to perform active duty despite 
the impairment.  Moreover, the medical officer who examined him on April 19, 2000, 
and May 11, 2000, noted that he had a free range of motion in his back and that he was 
fit for full duty. 
  
Therefore, even in light of the DVA’s ratings, the Board is not persuaded that the Coast 
Guard erred in finding that the applicant was fit for separation. 
 
 
The applicant alleged that the fact that he failed a physical examination to 
join the Reserve on January 21, 2001, proves that he should have been processed under 
the  PDES  and  retired  from  active  duty  by  reason  of  physical  disability.    His  Reserve 
entry  physical  occurred  approximately  four  and  one-half  months  after  his  separation 
from active duty.  Therefore, under Article 3.F.1.a. of the Medical Manual, the medical 
standards for the applicant’s Reserve entry physical examination were supposed to be 
the  same  as  those  applied  for  his  separation  physical  examination  on  April  19,  2000.  
The fact that he passed the first examination in April 2000 but failed the second in Janu-

6. 

ary  2001  seems  anomalous  if  the  same  standards  were  used.    However,  as  the  Coast 
Guard argued, the applicant has submitted no evidence to prove that his several condi-
tions did not worsen shortly after his separation from active duty on August 31, 2000.  
Absent  evidence  to  the  contrary,  the  Board  must  presume  that  the  officers  who  con-
ducted  the  applicant’s  separation  and  Reserve  entry  examinations  performed  their 
duties correctly.2  Even assuming arguendo that his condition did not worsen during the 
four and one-half months between August 31, 2000, and January 21, 2001, this does not 
prove that the applicant’s separation physical was erroneous, as the Board could just as 
easily conclude that the Reserve entry physical examination was erroneous.3 
 

7. 

The  applicant  alleged  that  he  should  not  have  been  required  to  take  a 
physical examination at all because he had planned to and tried to enlist in the Reserve 
on  September  1,  2000.    Under  Article  1.G.4.c.  of  the  Personnel  Manual,  “[a]  person 
enlisting in the Coast Guard Reserve within 24 hours after discharge from the Regular 
Coast  Guard  is  not  required  to  take  a  physical  examination  provided  the  person  was 
found to be physically qualified by a complete physical examination no more than one 
year prior to discharge, and provided the applicant's medical history during the last 12 
months has been satisfactory.”  Although the applicant’s DD 214 shows that he was dis-
charged  from  active  duty,  his  separation  code  was  appropriate  for  a  member  being 
released  into  the  Reserve.    The  applicant  alleged  that  he  was  denied  enlistment  only 
because someone in his PERSRU failed to process his paperwork.  However, he has not 
asked the Board to correct his record in this regard.  Moreover, because the applicant 
had  no  obligated  Reserve  service  remaining  upon  his  separation  from  active  duty,  to 
enter  the  Reserve  on  September  1,  2000,  he  would  have  had  to  sign  a  new  Reserve 
enlistment contract.  The applicant has submitted no evidence to show that he actually 
completed the paperwork necessary to enter the Reserve on September 1, 2000. 

 
8. 

Accordingly,  the  applicant’s  request  for  a  retirement  from  the  Coast 

Guard by reason of physical disability should be denied. 

 

ORDER 

 

The  application  of  former  XXXXXXXXXXXXXXXXXXXXXXXX,  USCG,  for  cor-

rection of his military record is denied.  
 
 
 
 
 
 
                                                 
2  33  C.F.R.  § 52.24(b).    See  Arens  v.  United  States,  969  F.2d  1034,  1037  (Fed.  Cir.  1992);  Sanders  v.  United 
States, 594 F.2d 804, 813 (Ct. Cl. 1979) (holding that “absent strong evidence to the contrary,” government 
officials are presumed to have acted “lawfully, correctly, and in good faith”). 
3  As the applicant has not asked the Board to instate him in the Reserve, this issue need not be addressed. 

        

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 

 
 

 
 

 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 

 

 
 

 
 

 

 
 

 
 

 

 Harold C. Davis, MD  

 

 
 Audrey Roh 

 

 

 

 
 
 Marc J. Weinberger