DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
Application for Correction of  
Coast Guard Record of: 
 
 
 

 
 
BCMR Docket  
No. 2003-003 

 

FINAL DECISION 

This  final  decision  dated  September  25,  2003,  is  signed  by  the  three  duly 

 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on October 21, 2002, upon the 
BCMR's  receipt  of  the  applicant's  complete  application  for  correction  of  his  military 
record. 
 
 
appointed members who were designated to serve as the Board in this case. 
 
The  applicant,  a  Reserve  officer,  asked  the  Board  to  correct  his record to show 
 
that  he  was  entitled  to  one-half  separation  pay  under  DOD  (Department  of  Defense) 
Financial Management regulation, Vol. 7A, CH 35,1 upon his release from active duty 
on March 30, 2001.   
 
 
The applicant, a prior enlisted member, was appointed a lieutenant junior grade 
(LTJG)  in  the  Coast  Guard  Reserve.    On  March  31,  199X,  he  was  called  to  extended 
active duty for a period of four years.  In furtherance of his call to active duty, he and 
the Coast Guard entered into an active duty agreement covering the four-year period, 
which included the following pertinent terms: 
 

                                                 
1 According to Vol. 7A, CH 35 of the DOD Financial Management Regulation, in order for a member of 
the Army, Air Force, Navy or Marine Corps to be entitled to one-half separation pay, the member must 
have been  involuntarily separated from active duty;  must have served on active duty for either five or 
six  years,  depending  on  the  commencement  date  of  active  duty;    must  have  been  separated  with  an 
honorable or general discharge; must not have been discharged at his own request, and must have been 
separated involuntarily through either denial of reenlistment or denial of continuation on active duty or 
full-time National Guard Duty. 
 
Section 350202B of this instruction states that a member separated from active duty during an initial term 
of enlistment or an initial period of obligated service is not eligible for separation pay.  It further states 
that "[t]his limitation also applies to a member who desires to reenlist or continue at the conclusion of the 
initial  term  of  enlistment  or  an  initial  period  of  obligation  and  is  denied  by  the  Military  Service 
concerned." 
 

 
 
 
 

 

 

(a) Contractor (the applicant) shall not be released from active duty 

2.  INVOLUNTARY RELEASE FROM ACTIVE DUTY 
 
 
involuntarily during the period herein specified: 
 
 
(i)  By  reason  of  a  reduction  in  numerical  strength  of  the 
military  personnel  of  the  Armed  Forces  of  the  United  States  concerned 
unless his release is in accordance with the recommendation of a board of 
officers appointed by competent authority to determine the numbers to be 
released from active duty; or 
 
 
(ii) for release other than [upon the expiration of the contract 
term] without an opportunity to be heard by a board of officers prior to 
such  release,  unless  from  active  duty  pursuant  to  sentence  of  a  court-
martial,  unexplained  absence  without  leave  of  three  months,  final 
conviction and sentence to confinement in a Federal or State penitentiary 
or correctional institution, or twice failing selection for promotion to the 
next higher grade. 
 
 
(b) If [the applicant] is involuntarily released from active duty prior 
to  the  expiration  of  the  period  of  service  under  this  agreement  (except 
when such release is pursuant to sentence of court martial, or unexplained 
absence  without  leave  of  three  months  duration,  or  final  conviction  and 
sentence to confinement in a Federal or State penitentiary or correctional 
institution,  or  when  such  release is due to a physical disability resulting 
from  [the  applicant's]  intentional  misconduct  or  willful neglect, or when 
[the applicant] is eligible for retirement pay or severance pay under any 
other  provision  of    law,  or  when  he  is  placed  on  a  temporary  disability 
retired  list,  or  when  he  is  released  for  the  purpose  of  accepting  an 
appointment or enlisting in a Regular component) he shall be entitled to 
receive an amount equal to one month's pay and allowance which he may 
otherwise  be  entitled  to  receive.    Computation  of  amounts  payable  by 
reason of such termination of this agreement shall be based on the basic 
pay, special pay, and allowances to which the [applicant] is entitled at the 
time of his release from active duty.  Fractions of a month less than fifteen 
days shall be disregarded and fifteen days or more shall be counted as one 
month. 

 
   
The applicant's record indicates that he was honorably released from active duty 
into the Reserve on March 30, XXXX, by reason of completion of required service. He 

alleged,  however,  that  he  was  released  from  active  duty  on  April  3,  XXXX,  after  a 
medical board determined that he was not fit for duty due to a physical disability2.  He 
further alleged that his active duty contract was not eligible for extension because of the 
medical board finding that he was unfit for continued active duty.   
 
 
An initial medical board (IMB) met in the applicant's case on February 22, XXXX, 
and found the applicant not fit for duty due to bilateral knee and patellar degenerative 
joint disease.  The medical board indicated that the applicant's case should be referred 
to the Central Physical Evaluation Board (CPEB).   
 
A  CPEB  was  never  convened  in  the  applicant's  case.  A  representative  of  the 
 
Commander, Coast Guard Personnel Command (CGPC), stated that the applicant was 
fit  for  separation  in  accordance  with  Article  2.C.2.b.  of  the  Physical  Disability 
Evaluation Manual (PDES).   This provision states, in part, the following:  
 

[The disability law] and this disability evaluation system [PDES] are not to 
be misused to bestow compensation benefits on those who are voluntarily 
or  mandatorily  retiring  or  separating  [from  the  Coast  Guard]  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.   

 
Views of the Coast Guard  
 
On  March  31,  2003,  the  Board  received  an  advisory  opinion  from  the  Chief 
 
Counsel of the Coast Guard recommending that the Board deny the applicant's request 
for relief.   
 
 
The  Chief  Counsel  stated  that  the  applicant  alleged  that  due  to  the  "not  fit  for 
duty"  finding  by  the  IMB  he  was  not  eligible  to  remain  on  active  duty,  and  that  he 
should have been separated from the Coast Guard at the expiration of his active duty 
contract  due  to  physical  disability  and  given  severance  pay.    He  stated  that  the 
applicant's voluntary release from active duty was proper and made without error.  In 
this regard, the Chief Counsel stated the following: 
 

(1)  . . . The sole basis for a physical disability determination in the Coast 
Guard  is  unfitness  to  perform  duty  .  .  .  Article  2.C.2.a  [of  the  PDES 
Manual];  10  U.S.C.  §  1201  .  .  .  Coast  Guard  regulations  interpret  these 
statutes to prohibit use of this authority to bestow compensation benefits 
on those who are retiring or separating and have continued on unlimited 
active duty while tolerating impairments that have not actually precluded 

                                                 
2   The advisory opinion explained that CGPC had ordered the applicant, who was on terminal leave at 
the time, discharged on April 3, 2001, but he was actually discharged by his unit on March 30, 2001, the 
expiration date of his active duty contract. 

Coast  Guard  service. 
  Continued 
performance of duty until a service member is scheduled for separation or 
retirement for reasons other than physical disability creates a presumption 
of  fitness  for  duty  .  .  .  Furthermore,  this  presumption  may  only  be 
overcome if it is established by a preponderance of the evidence that : 1) 
the  service  member,  because  of  disability,  was  physically  unable  to 
perform  adequately  in  his  assigned  duties;  or  2)  acute,  grave  illness  or 
injury, or other deterioration of the member's physical condition occurred 
immediately  prior  to  or  coincident  with  processing  for  separation  or 
retirement  for  reasons  other  than  physical  disability  which  rendered  the 
service member unfit for further duty.  Id., Article 2.C.2.b(1). 
  
(2)    Furthermore,  service  members  being  processed  for  separation  or 
retirement  for  reason  other  than  physical  disability  shall  not  be  referred 
for  disability  evaluation  unless  their  physical  condition  reasonably 
prompts doubt that they are fit to continue to perform adequately in their 
assigned duties.  PDES Manual, Article 2.C.2.b(2). .  . 
 
(3)  In the instant case, the applicant has not proved by a preponderance of 
the evidence that he was unable to fulfill his duties while on active duty 
prior to and coincident with his voluntary release from active duty.  The 
record in the instant case shows that the Applicant performed his duties in 
a  highly  satisfactory  manner  during  his  active  duty  contract  up  to  and 
including the time of his release from active duty.  Therefore, there was no 
basis to evaluate Applicant under PDES for physical disability separation 
nor was there any legal basis to grant the applicant severance pay.   
 
The  Chief  Counsel  stated  that  absent  strong  evidence  to  the  contrary, 
 
government officials are presumed to have carried out their duties correctly, lawfully, 
and  in  good  faith.    Arens  v.  United  States,  969  F.2d  1034,  1037  (D.C.  Cir.  1992).    He 
argued that the applicant has failed to rebut the presumption of regularity in this case.   
 
 
opinion as Enclosure (1).  GCPC stated the following: 
 

A  memorandum  from  the  Commander,  CGPC  was  attached  to  the  advisory 

  PDES  Manual,  Article  2.C.2.b. 

[T]he  applicant  was  correctly  separated  due  to  his  scheduled  voluntary 
release  from  active  service,  which  created  a  presumption  of  fitness  for 
duty.  The record indicates that at some point during his period of active 
duty,  the  applicant  began  to  experience  pain  in  his  right  knee  when 
exercising.    When  seen  by  medical  personnel,  he  was  prescribed  Motrin 
and other therapy, advised to take it easy, and returned to full duty status.  
There is no indication that the applicant was unable to perform his normal 
duties  due  to  this  condition.    Approaching  the  termination  of  his  active 
duty  agreement,  the  applicant  voluntarily  requested  an  18-month 

Applicant's Response to the Views of the Coast Guard 
 
 
A copy of the views of the Coast Guard was mailed to the applicant on April 7, 
2003,  for  a  reply.    The  applicant  did  not  submit  a  response  to  the  views  of  the  Coast 
Guard.   
 
 
 

APPLICATION LAW AND REGULATION 

extension  in  late  December  XXXX,  which  was  approved  on  January  22, 
XXXX.  In January he also returned to the [medical] clinic with complaints 
of  recurring  knee  pain  and  requested  an  evaluation  by  orthopedic 
specialists.    After  being  diagnosed  with  degenerative  joint disease in his 
right knee on February 7, [XXXX] the applicant voluntarily requested that 
the  authorization  to  extend  for  an  18-month  period  be  cancelled.    On 
February 13, his request [to cancel the 18-month extension] was granted    . 
. . 
 

 

 
 
Section 1174(c) of Title 10 of the United States Code states that a member of an 
armed force, other than a regular officer, and who has completed six or more, but less 
than  20  years  of  service  immediately  before  release,  is  entitled  to  separation  pay,  as 
determined  by  the  Secretary  concerned,  provided  that  the  member  was  involuntarily 
released from active duty or not accepted for an additional tour of duty for which the 
member volunteered. 
 
 
Article 10-I-3 of the Coast Guard Pay Manual (COMDTINST M7220.29A) states 
the  following:    "Involuntarily  Released  Defined.    A  Reservist  is  considered  to  be 
involuntarily released when a tour of AD (active duty) is completed, volunteers for an 
additional tour of duty, and the Coast Guard does not extend or accept the volunteer 
request for the additional tour of duty.  This includes a Reserve member who is released 
upon reaching the mandatory age limitation of 60 years.  A member whose request is 
denied  for  a  period  of  additional  duty  of  shorter  duration  than  that  permitted  under 
applicable regulations is not to be regarded as having been involuntarily released. " 
 
 
Article  10-J-1.  of  the  Coast  Guard  Pay  Manual  states  that  active  duty  enlisted 
members  and  Reserve  officers  may  be  entitled  to  a  lump  sum  of  separation  pay 
provided:  "a.  The member is involuntarily  . . . discharged, separated, or released; or b.  
The  member  was  not  accepted  for  an  additional  tour  of  [active  duty]  for  which  the 
member volunteered." 
 
Article 10-J-2 provides in part that members are not eligible for separation pay if 
 
"[t]he  Reserve  officer  declines  a  regular  appointment."      In  addition,  Article  10-J-2.j. 
states  that  a  reserve  officer  on  the  active  duty  list  when  discharged  must  have 

completed six years of active duty prior to discharge, and an officer not on the active 
duty list must have had at least six years of continuous active duty prior to discharge to 
be eligible for separation pay.   
 

FINDINGS AND CONCLUSIONS 

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

 
 
The  Board  makes  the  following  findings  of  fact  and  conclusions  of  law  on  the 
basis  of  the  applicant's  record  and  submissions,  the  Coast  Guard's  submission,  and 
applicable law: 
 
 
title 10, United States Code.   The application was timely.   
 
 
2.    The  applicant  requested  an  oral  hearing.    The  Chair,  under  section  52.31  of 
title 33, Code of Federal Regulations, recommended disposition on the merits without a 
hearing.  The Board concurred in that recommendation. 
 
3.  The applicant is seeking one-half separation pay due to an alleged involuntary 
 
release  from  active  duty  rather  than  severance  pay  due  to  physical  disability.    The 
Board  is  persuaded  in  this  finding  by  the  fact  that  the  applicant  never  mentions 
COMDTINST M1850.2C (Physical Disability and Evaluation Systems (PDES) Manual), 
which  is  the  controlling  regulation  for  such  discharges  from  the  Coast  Guard.    In 
addition,  to  obtain  severance  pay  by  reason  of  physical  disability,  the  applicant  must 
prove that he was unfit to perform the duties of his grade at the time of his release from 
active  duty  and  either  request  to  be  discharged  or  retired  from  the  Coast  Guard  by 
reason of that physical disability.  He has requested neither a finding of unfitness for 
duty nor a physical disability discharge or retirement from the Coast Guard.  
 
 
4. For the reasons discussed below, the applicant's assertion that he is entitled to 
"one-half  separation  pay  per  DOD  Financial  Management  Regulation,  Vol A, CH 35," 
because his active duty contract was not eligible for an extension due to a finding by a 
medical board that he was unfit for duty is without merit.  
 
 
5. The DOD instruction is not binding in this case because the Coast Guard is not 
a  part  of  the  Department  of  Defense.  Chapter  10  of  the  Coast  Guard  Pay  Manual 
implements  section  1174  of  title  10  of  the  United  States  Code  and  therefore  governs 
separation pay for Coast Guard members.  Article 10-J-1 of the Pay Manual states that a 
Reserve  officer  may  be  entitled  to  separation  pay  if  he  is  involuntarily  released  from 
active duty and was not accepted for an additional tour of duty for which the member 
volunteered.  Further,  Article  10-I-3  of  the  Pay  Manual  states  that  a  Reservist  is 
involuntarily  released  when  a  tour  of  active  duty  is  completed  and  the  Reservist 
volunteered for an additional tour of duty, which the Coast Guard declined to accept.   
The  applicant,  a  Reserve  officer,  was  not  eligible  for  separation  pay  under  the  Coast 
Guard Pay Manual because he has not shown by a preponderance of the evidence that 

his release from active duty was involuntary. The evidence in this case shows that the 
applicant had completed his active duty contract to term and he did not volunteer for 
an additional tour of duty, which the Coast Guard declined to accept.   
 
 
6.  In this regard, CGPC stated that in December XXXX the applicant requested 
an  18-month  extension  of  his  active  duty  contract,  which  was  approved  in  January 
XXXX. According to CGPC, after the applicant was diagnosed with degenerative joint 
disease  in  February  XXXX,  the  applicant  voluntarily  requested  cancellation  of  the  18-
month extension, which CGPC approved on February 18, XXXX.  The applicant has not 
rebutted  this  assertion  and  has  presented  nothing  to  show  that  his  request  for 
cancellation  of  the  18-month  extension  was  anything  other  than  a  voluntary  act. 
Therefore, under the Coast Guard Pay Manual, the applicant's release from active duty 
was  voluntary  and  separation  pay  is  not  authorized.      The  Board  will  not  speculate 
about any actions the Coast Guard may have taken if the applicant had not requested 
the cancellation of the approved 18-month extension.   
 
 
7. The applicant cannot use the fact that a medical board determined that he was 
unfit  for  active  duty  to  establish  entitlement  to  non-disability  separation  pay.    The 
eligibility  requirements  for  disability  severance  and  non-disability  separation  pay  are 
separate and distinct and governed by different regulations.  
 
 
8.  Chapter 61 of title 10 of the United States Code and COMDTINST M1850.2C 
are  the  bases  for  obtaining  a  discharge  or  retirement  from  the  Coast  Guard  due  to 
physical disability.  If the applicant's contention is that he was unfit for duty at the time 
of  his  release  from  active  duty  and  should  have  been processed through the Physical 
Disability  Evaluation  System,  he  should  file  a  new  application  with  the  Board 
presenting those allegations.  As stated above, we do not interpret his current request as 
one for a physical disability discharge or retirement from the Coast Guard. 
 
 
9.    Under  the  circumstances  presented  here,  we  find  that  the  applicant  is  not 
entitled  to  separation  pay  because  his  release  from  the  active  duty  Coast  Guard  was 
voluntary.   He has not established an error or injustice on the part of the Coast Guard 
in releasing him from active duty without separation pay. 
 
 
 
 
 
 
 
 
 
 
 

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

 
 
 
 
 
 
 
 

 
 

[ORDER AND SIGNATURES ON NEXT PAGE] 

The  application  of  xxxxxxxxxxxxxxx,  USCGR,  for  the  correction  of  his  military 

ORDER 

 

 

 

 
 
record is denied.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
______________________________  
 Julia Andrews 

 

 

 

 

 
______________________________ 
 Margot Bester 

 

 

 

 

 
______________________________ 
 Felisa C. Garmon