DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-049 
 
Xxxxxxxxxxxxxxxxxxxxx 
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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  September  22,  2004,  and  the  Chair  docketed  it  on  January  14,  2005,  upon 
receipt of the applicant’s military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated October 27, 2005, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant asked the Board to correct his record so that he may be eligible for 
concurrent  retirement  and  disability  pay  (CRDP),  pursuant  to  10  U.S.C.  § 1414.    The 
statute entitles retirees with more than 20 years of active service and disability ratings of 
at least 50% to receive both retirement pay and physical disability compensation.  He 
alleged that he is not being credited for several months he spent as a drilling reservist in 
1972.    He  alleged  that  these  months  are  erroneously  credited  as  inactive  service  and 
asked that the Board correct this error. 
 

The  applicant  also  alleged  that  before  he  was  medically  retired  in  1988  with  a 
60% disability rating and 19 years, 10 months, and 25 days of active duty, he asked to 
remain on active duty until he could complete 20 years of service.  However, his request 
was denied.  He alleged that his request to remain in the service until he had attained 20 
years was denied only because he hired a private attorney to represent him during his 
disability processing, which “created problems” and prejudice against him.  He stated 
that  the  Department  of  Veterans  Affairs  (DVA)  has  rated  him  as  100%  disabled.    He 

alleged that he asked the Coast Guard about his entitlement to CRDP in August 2004, 
but was denied it and advised to apply to this Board.  He alleged that he had not previ-
ously known about the BCMR. 
 

SUMMARY OF THE RECORD 

 
 
On February 21, 1966, the applicant enlisted on active duty in the regular Coast 
Guard.  On February 20, 1970, upon completing exactly four years of active duty, the 
applicant was released to the Reserve to complete the last two years of his six-year obli-
gation (through February 20, 1972).  In the Reserve, the applicant was initially assigned 
to a non-pay active status pool and did not perform drills or training.  
 
  
On January 21, 1972, the Reserve issued to the applicant what appear to be retro-
active assignment orders placing him in a drill pay status as of January 17, 1972, and 
requiring  him  to  report  for  drill on  January  18,  1972.    The  orders  note that to remain 
attached to the unit, he was required to perform at least 12 consecutive days of active 
duty training during the year and to attend scheduled drills (inactive duty).  However, 
the  applicant  did  not  endorse  the  orders  until  February  15,  1972,  on  which  day  he 
enlisted  in  the  Reserve.    His  retirement  point  statement  indicates  that  the  applicant 
received 3 retirement points for drills performed in May 1972, 4 for June, 5 for July, and 
4 for August 1972.   
 

On  September  25,  1972,  the  applicant  began  serving  on  a  voluntary,  two-year 
extended active duty (EAD) contract.  His retirement point statement for the anniver-
sary year ending February 20, 1973, includes the 16 total drill points he earned in May, 
June,  July,  and  August  1972,  and  149  points  for  his  EAD  from  September  25,  1972, 
through February 20, 1973.  The applicant continued to serve as a reservist on EAD until 
September 20, 1974, when he reenlisted in the regular Coast Guard.   

 
On  May  31,  1985,  the  applicant  accepted  a  commission  as  a  warrant  officer.  
Beginning in 1986, he began experiencing severe pain in his knees and was placed in a 
limited duty status.  His limited duty was described as “no heavy lifting, running, or 
prolonged  sitting.”    He  underwent  two  surgeries  and  also  began  experiencing  severe 
hip pain due to problems in his spine, as well as joint pain.  He never returned to a full 
duty status.   
 

On October 2, 1987, the applicant submitted a request to retire on September 30, 

1988, when he would have completed 20 years of active duty.   

 
On November 11, 1987, an Initial Medical Board (IMB) found that the applicant 
was not fit for duty and not expected to become fit for duty.  The IMB listed his dis-
abilities as follows:  (1) herniated nucleus pulposus L4-L5 and L5-S1; (2) osteoarthrititis, 
bilateral knees, right ankle, intervertebral spaces and lumbar spine; (3) status post mul-
tiple  left  knee  debridement;  (4)  old  anterior  cruciate  ligament  disruption;  (5)  bilateral 
medial degenerative joint disease (severe left knee); and (6) depression, mild.   

 

On  December  22,  1987,  the  Commandant  granted  the  applicant’s  request  for 
retirement and issued detachment and travel orders for the applicant to retire on Sep-
tember 30, 1988.  Also on December 22, 1987, the applicant acknowledged the findings 
of the IMB and stated that he would not rebut them.  

 
On January 7, 1988, the applicant’s supervisor forwarded the IMB’s report to the 
Maintenance and Logistics Command.  He indicated that he could not endorse it as the 
commanding officer because he did not hold that designation.  He also noted that the 
applicant “has been advised of his right to submit a request for retention on active duty 
and does not wish to avail himself of the right.” 

 
On January 26, 1988, the Commander, Coast Guard Maintenance and Logistics 
Command Pacific, forwarded the medical board report to the Central Physical Evalua-
tion Board (CPEB).  He stated that the applicant was unable to perform the duties of his 
rate as he could not climb stairs or ladders, stand or sit still for any length of time, or 
kneel or squat.  The commanding officer noted that as an engineering officer, the appli-
cant’s duties would normally include bending and squatting to gain access to confined 
areas of a ship or files in a cabinet, sitting at a desk or computer terminal, and repetitive 
stair and ladder climbing.  He also stated that the applicant was “unable to work a full 
day at the present time due to progressively increasing pain during the workday.”  

 
On  February  3,  1988,  the  CPEB  reviewed  the  applicant’s  case.    No  copy  of  the 
CPEB report or of the applicant’s rebuttal to the report appears in the record.  A lieuten-
ant commander (LCDR R) who was neither a lawyer nor a law specialist was appointed 
to serve as the applicant’s counsel “in arriving at a decision regarding the findings and 
recommended disposition” of the CPEB.  A captain certified that there was no lawyer or 
law specialist available to serve as counsel for the applicant. 

 
On  March  4,  1988,  the  applicant  signed  a  statement  of  his  rights and  indicated 
that  he  wanted  to  appear  at  a  hearing  and  would  be  represented  by  civilian  counsel 
from the Disabled Veterans of America at his own expense. 
 
 
On March 15, 1988, the applicant appeared at a hearing before a Formal Physical 
Evaluation  Board  (FPEB)  with  LCDR  R  as  his  representative.    The  transcript  of  the 
hearing indicates that no civilian counsel was present.  LCDR R requested a 40% dis-
ability rating for the applicant’s back condition, a 30% rating for his left knee problem, 
and a 20% rating for arthritis.  The applicant testified that although he reported to an 
office each day, he could do little work because of his physical limitations and often left 
early  due  to  pain  and  weakness.    He  stated  that  he  was  given  non-urgent  desk  jobs, 
such as making corrections to contracts, and but could not sit for more than 40 minutes 
at a time without losing feeling in his right leg and foot.  He stated that when he sat on 
an airplane for 40 minutes on his way to the hearing, his right leg lost feeling.  During 
the hearing, the FPEB president asked the applicant exactly how much time in service 

he had and where he planned to retire to.  However, no one at the hearing mentioned 
any request to retain the applicant until he attained 20 years of service.   
 

The FPEB recommended that the applicant be placed on the Temporary Disabil-
ity  Retired  List  (TDRL)  with  a  60%  combined  disability  rating,  including  40%  for  his 
back condition, 20% for his left knee problem, and 10% for arthritis.  The FPEB also rec-
ommended that the applicant be placed in Home Awaiting Orders Status (HAOS) until 
his  placement  on  the  TDRL.  Also  on  March  15,  1998,  the  applicant  acknowledged 
receipt of the FPEB report and indicated that he would not rebut the findings and rec-
ommendation. 
 
 
On April 11, 1988, the Physical Review Council (PRC) concurred in the findings 
and recommendation of the FPEB and forwarded the case to the Chief Counsel’s office, 
which, after review, forwarded it to the Chief of the Office of Personnel, who approved 
the  FPEB’s  recommendation  on  April  27,  1988.    On  April  28,  1988,  the  Commandant 
issued orders for the applicant to be retired and placed on the TDRL as of May 23, 1988. 
 
 
On May 4, 1988, the Chief of the Officer Personnel Division sent a memorandum 
to  the  Chief  of  the  Office  of  Personnel  recommending  that  the  applicant  be  given 
another opportunity to rebut the findings of the FPEB.  The memorandum notes that the 
applicant had been selected for promotion to CWO3 in 1987 and, but for his disability, 
would be promoted on June 1, 1989.  The memorandum states that the Coast Guard’s 
retirement guide, COMDTINST M1800.4A, erroneously indicated that if a warrant offi-
cer whose name was on a selection list for promotion were retired due to a physical dis-
ability, he would be “retired in the higher selected grade.”  The memorandum stated 
that the applicant should have another opportunity to rebut the FPEB’s recommenda-
tion because when he waived his right to rebut, he believed he would be retired as a 
CWO3  based  on  the  erroneous  language  in  COMDTINST  M1800.4A.    The  memoran-
dum stated that the Chief Counsel had recently determined that the law that allowed 
for retirement at the higher selected grade did not apply to warrant officers.  In accord-
ance with the memorandum, the applicant was authorized to submit a rebuttal to the 
FPEB’s recommendation no later than May 20, 1988. 
 
On May 16, 1988, the applicant submitted a rebuttal to the FPEB’s recommenda-
 
tion.  He argued that his arthritis and the condition of his knee warranted higher dis-
ability ratings.  He did not request retention until he would attain 20 years of service. 
 
 
of the FPEB and forwarded the case to the Chief Counsel’s office.  
 
On June 21, 1988, the Commandant denied a request by the applicant to remain 
 
on active duty until he had 20 years of service.  The Commandant’s letter explains that 
“[y]our  physical  condition  does  not  met  the  criteria  in  [Article  17-A  of  the  Personnel 

On May 25, 1988, the PRC again concurred in the findings and recommendation 

Manual] for retention.  If disability retirement orders are issued, the retirement date will 
be established in accordance with [Article 17-B].”  The letter indicates that it was pre-
pared in response to a letter from the applicant dated May 25, 1988.   
 
 
On July 19, 1988, the Chief Counsel’s office completed its second review of the 
findings and recommendation of the applicant’s FPEB and forwarded it to the Chief of 
the Office of Personnel, who re-approved the FPEB’s recommendation on July 20, 1988.   
 

On July 21, 1988, the Commandant issued orders for the applicant to be placed 
on the TDRL in the grade of CWO3 as of August 19, 1988.  On July 26, 1988, the appli-
cant’s command asked that the applicant be placed in HAOS until his TDRL retirement.  
On July 28, 1988, Headquarters placed the applicant in HAOS.  
 
On August 18, 1988, the Coast Guard retired the applicant as a CWO2 with a 60% 
 
disability rating.  He was placed on the TDRL on August 19, 1988.  His DD 214 shows 
that he had completed 19 years, 10 months, and 25 days of active service and 2 years, 7 
months, and 4 days of inactive service.  It shows no days of accrued leave paid. 
 

Following  his  first  periodic  physical  examination  in  December  1989,  the  Coast 
Guard determined that the applicant’s condition was still unstable and retained him on 
the TDRL.  After his second physical examination in June 1991, the CPEB recommended 
that the applicant be permanently retired with the same disability ratings he had been 
assigned in 1988.  The applicant was assigned a law specialist and, after consultation, 
accepted the CPEB’s findings and recommendation on July 8, 1991.  After review by the 
PRC and the Chief Counsel’s office, the Chief of the Office of Personnel approved the 
CPEB’s  recommendation  and  ordered  that  the  applicant  be  permanently  retired  as  of 
August 19, 1991. 

 
The applicant’s record contains a letter from the Chief of the Coast Guard’s Pay 
Maintenance Branch dated May 21, 1992, asking the National Personnel Records Center 
for copies of certain records from the applicant’s record because the applicant was “con-
sidering employment by the federal government” and the documentation was needed 
“in determining whether or not to offset his retired pay according to the Dual Compen-
sation Statute.” 

 
A letter in the applicant’s record dated October 18, 1996, indicates that in 1994, 
the  DVA  determined  that  the  applicant  was  permanently  and  totally  disabled  and 
unemployable  for  DVA  purposes.    Therefore,  the  DVA  had  raised  his  70%  disability 
rating to 100%. 

 
On August 11, 2004, the Coast Guard corrected the applicant’s DD 214 to show 

that he was retired in pay grade CWO3. 

 

VIEWS OF THE COAST GUARD 

 
 
On  June  2,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  prepared  by  the  Coast  Guard  Personnel  Command 
(CGPC), which recommended that the Board grant relief in this case. 
 
 
 
CGPC stated that when the applicant was transferred to the TDRL on August 19, 
1988, he had completed 19 years, 10 months, and 25 days of active service for retirement 
purposes.  In addition, his record showed 2 years and 7 months of “inactive status for 
pay purposes,” during which he was ordered to perform inactive duty training.  How-
ever, CGPC stated, in light of the assignment orders dated January 21, 1972, it appears 
that  the  applicant’s  record  may  be  erroneous  in  that  between  January  and  September 
1972,  the  applicant  “would  have  been  expected  to  attend  scheduled  drills.”    CGPC 
stated that it could find no records of drills in the applicant’s record.  Moreover, CGPC 
stated that “due to the lack of available information in his record and since the Appli-
cant  has  been  retired  for  nearly  17  years,  we  do  not  oppose  granting  the  Applicant 
credit to obtain a total of 20 years of service.”  
 

APPLICABLE LAW 

 

Under 10 U.S.C. § 1414, which was enacted on December 28, 2001, veterans with 
at least 20 years of active service and disability ratings from the DVA of at least 50% 
may receive concurrent retired and disability pay as follows: 

 
(a)(1)  Subject  to  subsection  (b), a  member  or  former  member  of  the  uniformed  services 
who is entitled for any month to retired pay and who is also entitled for that month to 
veterans' disability compensation for a qualifying service-connected disability (hereinaf-
ter  in  this  section  referred  to  as  a  ‘qualified  retiree’)  is  entitled  to  be  paid  both  for  that 
month  without  regard  to  sections  5304  and  5305  of  title  38  [which  statutes  prohibit 
receipt of both disability retirement pay and retirement pay for years of service]. …   
    (2) Qualifying service-connected disability.  In this section, the term ‘qualifying service-
connected disability’ means a service-connected disability or combination of service-con-
nected disabilities that is rated as not less than 50 percent disabling by the Secretary of 
Veterans Affairs. 
(b) Special rules for chapter 61 disability retirees. 
    (1) Career retirees. The retired pay of a member retired under chapter 61 of this title 
with 20 years or more of service otherwise creditable under section 1405 of this title , or at 
least  20  years  of  service  computed  under  section  12732  of  this  title,  at  the  time  of  the 
member's retirement is subject to reduction under sections 5304 and 5305 of title 38, but 
only to the extent that the amount of the member's [disability] retired pay under chapter 
61 of this title exceeds the amount of retired pay to which the member would have been 
entitled  under any  other provision of  law based  upon the member's service in  the uni-
formed services if the member had not been retired under chapter 61 of this title. 
     (2) Disability retirees with less than 20 years of service. Subsection (a) does not apply 
to a member retired under chapter 61 of this title with less than 20 years of service other-

wise creditable under section 1405 of this title, or with less than 20 years of service com-
puted under section 12732 of this title, at the time of the member's retirement. … 

 
Under  Article  17-A-2(b)  of  the  Personnel  Manual  in  effect  in  1988,  “[m]embers 
 
who have at least 18 but less than 20 years’ service at the time they are found unfit for 
duty … will be retained on active duty until they complete 20 years of service if they 
meet the following criteria: 
 

“1. They can perform useful service in an established billet for their grade, 
specialty, or rating. 
“2.  Their  retention  will  not be detrimental  to  their  health  nor a  hazard  to 
their associates.” 

Article  17.A.2.b. of  the  Personnel  Manual  currently  in  effect  contains  the  same 

 
 
language. 
 
 
Article  17-A-3  provided  the  procedure  for  members  who  wished  to  remain  on 
active  duty  in  accordance  with  Article  17-A-2(b)  until  attain  20  years  of  service.    It 
allowed such members to append a request to remain on active duty to their acknowl-
edgment of the findings of the IMB or to the report of the CPEB, the FPEB, or the PRC.  
Subparagraph (a)(3) of Article 17-A-3 provided that for “those members having greater 
than 18  but  less  than  20  years  [of]  active  duty,  who  have  not  requested  retention as 
described in subparagraph (1) above, the CPEB will append to any NFD finding a spe-
cific  opinion  as  to  whether  or  not  the  member  meets  the  medical  requirements  for 
retention established in this chapter.  This provision is intended to encourage members 
who are approaching eligibility for a normal 20 year retirement to conditionally accept 
the CPEB findings and request retention on active duty.”  Subparagraph (e) provided 
that the Commandant “will respond to all requests for retention by letter.” 
 
 
Article 17-A-5 provided that a member retired due to a physical disability should 
be retired 10 working days following the date of the Commandant’s order but that the 
“retirement date may be delayed for not more than 6 months if a member has request-
ed, in accordance with the provisions of Section 17-A hereof, retention on active duty 
and the member’s request has been approved.” 
 

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: 
 

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

1. 
§ 1552.   
 

2. 

An application to the Board must be filed within three years of when the 
applicant discovers the alleged error in his record. 10 U.S.C. § 1552(b).  The applicant 
knew or should have known that his request for retention had been denied and that he 
had  been  retired  about  one  month  shy  of  the  day  he  would  have  completed  twenty 
years of active service at the time of his temporary retirement in 1988 or at least upon 
his permanent retirement in 1991.  Thus, his application was untimely. 
 

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 sup-
ports a waiver of the statute of limitations, the Board "should analyze both the reasons 
for  the  delay  and  the  potential  merits  of  the  claim  based  on  a  cursory  review."    The 
court further stated that "the longer the delay has been and the weaker the reasons are 
for the delay, the more compelling the merits would need to be to justify a full review."  
Id. at 164, 165.   See also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995).   

 
4. 

A cursory review of the record indicates that it may well have merit as the 
Coast  Guard  has  recommended  that  the  Board  grant  relief.    Moreover,  although  the 
applicant  waited  more  than  15  years  to  seek  correction  of  his  record,  his  delay  is 
explained by the fact that CRDP was not enacted until December 28, 2001.  The require-
ment of having 20 years of active service to be eligible for CRDP could not have been 
known  earlier  than  December  28,  2001,  and  the  applicant  did  submit  his  application 
within three years of that date.  To deny this application on the basis of untimeliness 
would defeat this applicant's claim for CDRP because his military record would show 
that he has less than 20 years of active service.  Therefore, the Board finds that it is in the 
interest of justice to excuse the application’s untimeliness and consider it on the merits 
of the applicant’s request. 

 
5. 

From  February  21,  1966,  to  February  20,  1970,  and  from  September  25, 
1972, until his disability retirement on August 18, 1988, the applicant completed a total 
of  19  years,  10  months,  and  25  days  of  active  duty.    He  also  completed  2  years,  7 
months,  and  4  days  of  inactive  duty  from  February  21,  1970,  through  September  24, 
1972.  During the last eight months of the latter period, he was in a “drill pay status” 
under  orders  to  perform  scheduled  drills.    The  applicant  alleged  that  those  eight 
months should be counted as active duty.  However, under Article 2.A.2. of the Reserve 
Policy Manual, drilling by a reservist—even in a pay status—counts as  inactive duty.  
Under Article 12.C.2. of the Personnel Manual, only active duty, such as extended active 
duty and active duty for training, counts toward a regular retirement.  According to the 
retirement point statement in the applicant’s record, he did not perform any active duty 
during the anniversary year ending February 20, 1973, until he began EAD on Septem-
ber 25, 1972.  He received 149 points for his 149 consecutive days of EAD between Sep-
tember  25,  1972,  and  February  20,  1973.    The  applicant’s  eight  months  in  a  drill  pay 

status from January 17, 1972, to September 24, 1972, included only inactive duty (drills), 
which cannot be counted toward a regular, 20-year retirement.1  
 

6. 

 Under Article 17-A-2(b) of the Personnel Manual in effect in 1988, as well 
as the corresponding regulation currently in effect, a disabled member with more than 
18 years of active duty need only be retained on active duty to the point of attaining 20 
years if “[t]hey can perform useful service in an established billet for their grade, spe-
cialty,  or  rating”  and  if  “[t]heir  retention  will  not  be  detrimental  to  their  health  nor  a 
hazard  to  their  associates.”    The  record  indicates  that  on  May  25,  1988,  the  applicant 
requested  retention,  and  the  Commandant  denied  his  request  on  June  21,  1988.    As 
there is no evidence in the record indicating that retention would have been detrimental 
to  the  applicant’s  health  or  a  hazard  to  his  associates,  the  Board  presumes  that  the 
Commandant decided that the applicant could not perform useful service in an estab-
lished billet for his grade, specialty, or rating.   
 

7. 

In his endorsement to the IMB report, the Commander, Maintenance and 
Logistics Command Pacific, stated that the applicant could not perform the usual duties 
of an engineering officer because he could not squat or bend to gain access to confined 
areas of a ship or a low cabinet drawer, could not sit at a desk or computer terminal for 
prolonged periods, and could not climb stair or ladders repetitively.  He also stated that 
the applicant was “unable to work a full day at the present time due to progressively 
increasing pain during the workday.”  However, the applicant was apparently still per-
forming some duties during the months between the IMB and the day the Commandant 
ordered his retirement.  At the FPEB hearing, the applicant stated that he reported for 
work each day and performed deskwork, such as amending contracts, though he could 
not sit for prolonged periods.  As an example of a prolonged period, the applicant noted 
that when he sat on an airplane for 40 minutes on his way to the hearing, his right leg 
lost  feeling.    Moreover,  the  Board  notes  that  the  applicant’s  command  did  not  seek 
HAOS for him until July 26, 1988, after the Commandant denied his request for reten-
tion and ordered his separation on August 18, 1988.  In addition, a letter in the appli-
cant’s  record  dated  May  21,  1992,  indicates  that  the  Coast  Guard  was  interested  in 
hiring him at that time.  Therefore, the Board concludes that the preponderance of the 
evidence indicates that, at the time of his separation, the applicant was physically able 
to  perform  some  useful  work  for  the  Coast  Guard,  even  though  pain  prohibited  him 
from  working  full  days  and  from  performing  all  of  the  physical  tasks  that  might  be 
expected of an engineering officer in certain billets. 
 

                                                 
1  Drilling,  if  performed  regularly  so  that  the  member  earns  at  least  50  points  in  the  anniversary  year, 
counts toward a non-regular, Reserve retirement, under 10 U.S.C. § 12732.  However, to receive a non-
regular, Reserve retirement, the member’s last 6 years of service must have been in a Reserve component.  
10  U.S.C.  § 12731.    Because  the  applicant  was  a  member  of  the  regular  Coast  Guard  at  the  time  of  his 
retirement, he is ineligible for a Reserve retirement. 

8. 

 
In a memorandum to the Board dated July 2, 1976, the delegate of the Sec-
retary stated that in deciding whether a veteran’s discharge is unduly severe, the Board 
may take into account current standards and mores.  Similarly, the Board may consider 
in this case whether the applicant’s separation one month and five days shy of a 20-year 
retirement was unduly severe and not in accordance with current standards even if the 
Commandant did not clearly abuse his discretion in 1988 in deciding that the applicant 
could not perform useful service in his grade or billet.  The written standards for reten-
tion  under  Article  17.A.2.b.  of  the  Personnel  Manual  have  not  changed  since  1988.  
However,  the  fact  that  both  the  JAG  and  CGPC  recommended  that  the  Board  grant 
relief strongly suggests that today, a CWO in the applicant’s circumstances would not 
be separated one month and five days shy of his 20th active duty anniversary but would 
be  retained  until  he  had  completed  20  years  of  active  service.    The  Board  notes  that 
because a veteran could not receive duplicate benefits (concurrent retirement and dis-
ability pay) in 1988, the impact of the Commandant’s decision at the time was much less 
severe  than  the  impact  such  a  decision  would  have  today.    Therefore,  the  applicant’s 
request likely received less consideration than it would today following the authoriza-
tion of CRDP under 10 U.S.C. § 1414.  
 

9. 

“Injustice”  as  used  in  10  U.S.C.  § 1552(a)  is  “treatment  by  the  military 
authorities that shocks the sense of justice, but is not technically illegal.” Reale v. United 
States,  208  Ct.  Cl.  1010,  1011  (1976);  Decision  of  the  Deputy  General  Counsel,  BCMR 
Docket No. 2001-043.  “The BCMR has the authority to decide on a case-by-case basis if 
the Coast Guard has committed an error or injustice.”  Decision of the Deputy General 
Counsel, BCMR Docket No. 2002-040.  In light of all the circumstances of the applicant’s 
case, the Board finds that, in retrospect, his temporary retirement one month and five 
days shy of 20 years shocks the sense of justice. 

 
10.  Accordingly, the applicant’s request should  be granted by correcting his 
record to show that he was temporarily retired on September 25, 1988, upon completing 
exactly 20 years of active service and by awarding him any amount he may be due as a 
result of this correction.  The applicant may thereafter be eligible for and apply to the 
Coast Guard for CRDP. 
 
 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 

 
 
 

The application of retired CWO xxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

ORDER 

 

The  Coast  Guard  shall  pay  him  any  amount  he  may  be  due  as  a  result  of  this 

his military record is granted as follows: 
 
 
The Coast Guard shall correct his record to show that he was retained on active 
duty in accordance with Article 17-A-2(b) of the Personnel Manual and placed on the 
Temporary Disability Retired List (TDRL) on September 25, 1988, upon completion of 
20 years, 00 months, and 00 days of active service, instead of on August 19, 1988. 
 
 
correction. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 Kathryn Sinniger 

 
 Jordan S. Fried 

 

 
 
 Steven J. Pecinovsky