DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-081 
 
XXXXXXXXXXXXXXXX. 
xxxxxxxxxxxx, MK2 (Ret.)  
   

 

 
 

FINAL DECISION 

 
Author: Ulmer, D.  
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  The Chair docketed the 
case  on  March  18,  2005,  upon  receipt  of  the  applicant’s  completed  application  and 
military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated January 5, 2006, is signed by the three duly appointed 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  record  in  a  manner  that  would 
allow him to be paid for 23 days of leave that he was unable to sell back at the time of 
his retirement.   
 

APPLICANT’S ALLEGATIONS AND SUBMISSIONS 

 
 
The applicant alleged that for one and a half years prior to his retirement he was 
unable to take annual leave "because of the continuous need for medical appointments."  
In this regard, he stated, "I had surgery and soon after returning to work more medical 
appointments.  I am retired for Combat Stress and that requires a lot of appointments.  I 
was also TAD off of a cutter for this reason."  The applicant particularly pointed to the 
fact that prior to retirement he had undergone surgery on his spine. 
 

The  applicant  had  prior  military  service  and  enlisted  in  the  Coast  Guard  on 

January 22, 1996. 

 
On  April  6,  2004,  a  psychiatrist  diagnosed the  applicant  as  suffering  from  Post 
Traumatic Stress Syndrome (PTSS) and Irritable Bowel Syndrome and referred his case 
to a medical board.  1 The psychiatric report noted that the applicant had been treated 
for this mental condition for two and one-half years, with no significant improvement.   
 
 
The  applicant  submitted  medical  records  showing  that  in  approximately  April 
2004, he began a series of diagnostic tests to determine the cause of his shoulder/neck 
pain.  The diagnostic tests and dates were as follows:  x-rays on April 23, 2004, MRI of 
the  cervical  spine  without  contrast  on  May  10,  2004,  x-rays  on  June  17,  2004,  nerve 
conduction  study  on  May  4,  2004,  x-rays  of  hand  and  thumb  on  May  17,  2004,  and  a 
cervical myelogram on June 17, 2004.   The applicant underwent a surgical procedure 
on his shoulder for pain on July 21, 2004. Subsequently he had several physical therapy 
sessions.   
 

A September 21, 2004, medical entry states that the applicant had surgery on his 
cervical spine on August 23, 2004.2  On this date the applicant was placed on light duty 
as tolerated for a 60-day period.   

 
An  October  12,  2004,  post-surgical  note  indicates  that  the  applicant  was 

The applicant accepted the findings of the FPEB on December 13, 2004.  

On February 14, 2004, the applicant's retirement orders were issued stating that 

continued on light duty for 90 days.   
 
 
On December 12, 2004, the Formal Physical Disability Evaluation Board (FPEB) 
found the applicant unfit for continued duty and recommended that he be retired from 
the Coast Guard with a 50% disability rating for Post Traumatic Stress Syndrome (PTSS) 
and 10% for Irritable Colon Syndrome, for a combined 60% disability rating. 
 
 
 
 
the applicant's retirement would be effective on May 15, 2005.   
 
 
The applicant's DD Form 214 shows that the applicant was separated from active 
duty by reason of retirement on March 14, 2005, with 13 years, 1 month, and 22 days of 
active service.    
                                                 
1    The  purpose  of  a  Medical  Board  is  to  evaluate  and  report  upon  the  present  state  of  health  of  any 
member who may be referred to the medical board by an authorized convening authority and provide a 
recommendation as to whether the member is medically fit for the duties of his or her office, grade, rank, 
or  rating.    See  Chapter  3.A.  of  the  Physical  Disability  Evaluation  System  Manual  (COMDTINST 
M1850.2C).  
2   There is no indication in the documents of how long the applicant was hospitalized with this surgery.   

 

VIEWS OF THE COAST GUARD 

 
On  August  5,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request.  In recommending that the Board deny the applicant's request, the JAG stated 
the following: 
 

a.  Title 37 of the United States Code limits the number of days of leave 
[for]  which  members  of  the  uniformed  services  can  be  paid  during  the 
course of their careers to 60 days.  37 U.S.C. § 501.  Chapter 10 of the Coast 
Guard Pay Manual implements this law and states members may not be 
paid for more than 60 days of leave except when serving in support of a 
contingency  operation  or  reservists  on  active  duty  for  31-365  days.  
COMDTINST  M7220.29A,  Ch.  10-A-l.a.(2).    Neither  exception  applies  to 
the applicant, and the maximum career total of leave he is eligible to sell is 
60 days.   
 
b.  Applicant claims an injustice because he was allegedly not able to take 
leave  for  medical  reasons.    The  only  evidence  Applicant  submits  in 
support  of  his  allegation  is  his  medical  record.    Although  Applicant  did 
have  many  appointments  during  the  18  months  prior  to  his  retirement 
from active duty, Applicant took approximately 42 days of leave during 
the  period  of  time  between  May  2003  and  August  2004.    Additionally, 
Applicant  has  provided  no  evidence  indicating  that  the  Coast  Guard  in 
any  way  prevented  him  from  taking  any  leave  from  September  2004  -- 
when  he  had  back  surgery  --  until  his  retirement  from  active  duty  in 
March 2005. 
 
c.  The Coast Guard created no error and worked no injustice; Applicant is 
not entitled to relief.    

 
 
The  JAG  attached  a  memorandum  from  Commander,  Coast  Guard  Personnel 
Command  (CGPC)  as  Enclosure  (1)  to  the  advisory  opinion  and  asked  the  Board  to 
accept it as part of the advisory opinion. 
 
 
CGPC  stated  that  the  applicant's  March  31,  2005  leave  and  earnings  statement 
showed that the applicant had already sold 31 days of leave during his military career 
and that he sold an additional 29 days of accrued leave upon his retirement, for a total 
of 60 days.  CGPC further stated that the applicant had 35 days of unused leave at the 
time of his retirement for which he may not receive pay.   
 

 
CGPC  stated  that  according  to  "Direct  Access  record,  Absence  Summary  by 
Employee" the last date for which the applicant was charged any leave was August 6, 
2004.    CGPC  also  stated  that  this  document  indicated  that  the  applicant  was  on  sick 
leave from August 27 through September 27, 2004.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On August 2, 2005, the BCMR sent the applicant a copy of the views of the Coast 
Guard  and  invited  him  to  respond.    The  BCMR  did  not  receive  a  reply  from  the 
applicant. 
 

APPLICABLE LAW 

 
Section 501(b)(3) of title 37 of the United States Code states that the number of 
 
days of leave for which payment can be made may not exceed sixty, less the number of 
days for which payment was previously made under this section of law. 
 
 
Article 7.A.20.a. of the Personnel Manual (COMDTINST M1000.6A) states, "Each 
member on active duty . . . is entitled to a lump sum leave payment for unused earned 
leave accrued to his or her credit on date of discharge, separation from active duty, or 
the  date  preceding  the  effective  date  of  first  extension  of  enlistment  regardless  of 
duration, to a maximum career total of 60 days."    
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's  military  record  and  submissions,  the  Coast  Guard's  submissions,  and 
applicable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.  The application was timely. 

 
2.  The applicant failed to prove that the Coast Guard committed an error by not 
allowing  him  to  sell  approximately  23  days  of  accrued  leave  upon  his  retirement  by 
reason of physical disability.  The law limits the number of leave days that may be sold 
during a person's military career to 60, with limited exceptions.  Earlier in his career, the 
applicant  sold  31  days  of  accrued  leave  and  therefore  was  only  eligible  to  sell  an 
additional  29  days  upon  his  retirement,  which  the  Coast  Guard  allowed  him  to  do.  
Accordingly, the Coast Guard did not commit an error by not allowing the applicant to 
sell leave in excess of that permitted by law.   

 
3.  Neither has the applicant persuaded the Board that he suffered an injustice of 
a nature that would require corrective action by this Board.  See Reale v. United States, 

208 Ct. Cl. 1010, 1011, cert denied, 429 U.S. 854 (1976), stating that injustice, when not 
error, is treatment by the military authorities that "shocks the sense of justice."  In this 
regard,  the  Board  notes  that  even  though  the  applicant  had  numerous  medical 
appointments  during  the  year  and  a  half  immediately  prior  to  his  retirement,  he  has 
submitted  insufficient  evidence  to  show  that  he  could  not  have  arranged  to  take 
approximately 23 days of leave in total or in part prior to his retirement.  The applicant 
was on notice on April 23, 2004, that he would probably be separated from the Coast 
Guard due to mental disability because on this day the treating psychiatrist informed 
the applicant that his case would be referred to a medical board. The applicant should 
have  planned  at  that  time  to  begin  disposing  of  his  accrued  leave.  He  presented  no 
evidence that he made requests for leave prior to or after his surgery.   There appears to 
be  no  reason  that  the  applicant  could  not  have  taken  leave  during  this  period, 
particularly  during  the  approximately  five  months  that  he  was  on  light  duty.  
Moreover, the applicant does not deny that he was aware of the leave sell back policy, 
and the Board notes that early in his career he benefited from the policy by selling 31 
days of accrued leave.  

 
4.      It  is  unfortunate  that  the  applicant  lost  approximately  23  days  of  accrued 
leave, but the Coast Guard committed neither an error nor an injustice in this situation.   
 

Accordingly, the applicant’s request should be denied.  

5. 
 
 
 

The application of MK2 XXXXXXXXXXXXXXX, USCG (Ret.), for correction of his 

ORDER 

 

 
 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 

 
 

 

 
 

 
 

 

 
 

 
 

 

 
 

 
 

 

 
 

 
 

 

______________________________  
 Stephen H. Barber 

______________________________ 
 Harold C. Davis, M.D. 

______________________________ 

 

 

 

 

 

 

 David Morgan Frost