DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-095 
 
XXXXXXXXXXXXXX 
XXXXXXXXXXXXXX 

FINAL DECISION 

 
 
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 application on  upon 
receipt  of  a  completed  application  on  February  16,  2010,  and  subsequently  prepared  the  final 
decision for the Board as required by 33 C.F.R. § 52.61(c).   
 
 
appointed members who were designated to serve as the Board in this case.   
 

This final decision, dated November 18, 2010, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  correct  the  Report  of  Medical  Examination  (Standard 
Form 88 or Form 88) dated May 11, 1987 by removing a October 8, 1987, stamped entry, which 
stated that he was qualified for reenlistment/discharge.  He alleged that an earlier September 29, 
1987,  stamped  entry  that  stated  he  was  not  qualified  for  separation  is  the  correct  entry.    The 
applicant  alleged  that  he  was  never  advised  of  the  October  1987  entry  because  he  was  on 
terminal leave at that time.  He asserted that if he had known of the October 1987 entry he might 
have reenlisted.  
 
 
The applicant alleged that the audiometer testing results on the Form 88 were fraudulent 
because  the  doctor  who  performed  his  physical  examination  did  not  have  testing  equipment 
available at the time.  He also complained that although he listed that he had “swollen or painful 
joints’ and ‘trick’ or locked knee”’ in the past on his Report of Medical History (Standard Form 
93), the examining physician made no comment about the condition.  He asserted that problems 
with his joints and knees disqualified him for separation.   
 
 
The applicant alleged that he was treated at St. Mary’s Hospital while on active duty and 
that those records have been removed from his medical record.  He asserted that the removal of 
the hospital records calls into question the accuracy of his  medical  record.   His military  record 
contains  a  message  dated  November  20,  1985  from  his  then-unit  to  Commandant  requesting  a 

 

 

replacement for the applicant because he had undergone surgery at St Mary’s Hospital due to  a 
severe abdominal infection and abscess of the colon.      
 
 
The applicant asked that an unsigned page 7 of his pre-discharge counseling, prepared in 
accordance with Article 12-B-4(D)(4) if the Personnel Manual then in effect, be removed from 
his record.  The page 7 advised the applicant that to keep his then-current rank he was required to 
reenlist  within  24  hours  of  discharge  and  that  to  remain  in  continuous  service  status  he  was 
required to reenlist within 3 months of separation.  The page 7 also  advised the applicant about 
the receipt of medical care for 90 days after discharge, about serving in the Reserve, and about 
outpatient dental and medical care through the Department of Veterans Affairs (DVA).   
 
 
The  applicant  stated  that  he  did  not  discover  the  alleged  error  until  December  7,  2006 
upon going to the Disabled American Veterans organization.  He stated that it is in the interest of 
justice to consider his application even if untimely because he was never advised of his right to 
contest the alleged erroneous entries as evidence by the unsigned page 7.   
 
 
 

The applicant concluded his statement with the following; 

[T]he above actions have caused the petitioner to suffer through physical pain and 
the frustration of having the [DVA], to whom he turned for assistance, claim that 
no  records  of  any  medical  condition  or  treatment  are  present  in  the  official 
records.  .  .  .  It  is  imperative  that  this  Board  give  the  petitioner  the  rights  he  is 
entitled  to  and  was  wrongly  denied  upon  separation. 
  In  taking  [this] 
recommended  action  the  Board  can  correct  a  longstanding  wrong,  insure  that 
official records are complete, accurate, and correct, and possibly help insure other 
service members actually get the counseling and examinations needed to provide 
medical care upon separation.   

 

BACKGROUND 

 

After serving in the Coast Guard Reserve, the applicant enlisted in the regular active duty 
Coast Guard on April 20, 1981.  He underwent a reenlistment/discharge physical examination on 
May  11,  1987.    The  report  noted  that  the  applicant  was  overweight  and  suffered  from 
hypertension and that he had a surgical scar as a result of his 1985 surgery.  On the front of the 
Standard Form 88 (report of medical examination), there is a stamped notation dated September 
29, 1987 and signed by a HS1 that the physical examination was reviewed and the examinee is 
considered  to  be  disqualified  for  reenlistment  due  his  blood  pressure  readings.    However,  a 
subsequent  stamped  notation  dated  October  8,  1987  and  signed  by  the  HS1  stated  that  the 
physical  examination  was  reviewed  and  the  examinee  is  considered  to  be  qualified  for 
reenlistment/discharge.    The  physician  noted  on  the  reverse  of  the  Form  88,  that  the  applicant 
had a repeat blood pressure reading on September 16, 1987.  The physician also stated that the 
applicant was qualified for discharge.   

 
On September 16, 1987, the applicant signed an entry terminating his health record.  The 
entry  stated  that  the  applicant  had  been  informed  of  the  findings  of  the  physical  examination 
given  to  him  on  May  11,  1987  for  discharge  and  agreed  with  the  findings  of  the  examining 

 

 

physician  and  that  he  did  not  desire  to  make  a  statement  in  rebuttal.    Right  below  the  signed 
entry, the applicant was advised of the following: 

 
You have been examined and found physically fit for separation from active duty.  
Any  defects  noted  during  this  examination  are  recorded  in  block  #74  of the  .  .  . 
medical examination (SF-88). 

 

The defects listed [on the medical forms] do not disqualify you from performance 
of  your  duties  or  entitle  you  to  disability  benefits  from  the  Coast  Guard.    To 
receive  a  disability  pension  from  the  Coast  Guard  you  must  be  found  unfit  to 
perform your duties before you are separated. 

 

After you are separated . . . any claims for disability benefits must be submitted to 
the  Veterans  Administration.    It  is  suggested  that  you  contact  the  VA  Regional 
Office nearest  your home as soon as practicable after  your separation for certain 
benefits you may be entitled to.     

 

The  applicant  was  discharged  from  the  Coast  Guard  on  October  17,  1987  with  a  RE-1 

 
  
Directly below the above entry the applicant signed an entry that stated the following:  “I 
acknowledge  receipt  of  a  copy  of  my  last  physical  examination  (SF  88),  my  international 
certificate  of  immunization  (PHS  731)  and  a  copy  of  my  chronological  record  of  service  (CG 
4057).”   
   
 
reenlistment code (eligible for reenlistment).   
 
According  to  a  rating  decision  from  the  DVA  dated  November  19,  2007,  the  applicant 
 
filed  an  original  claim  with  the  DVA  on  December  6,  2006,  approximately  19  years  after  his 
discharge.  The DVA denied his disability and compensation claims for low back injury, cervical 
injury, left knee injury, right knee injury, left foot stress fracture, bilateral hearing loss, tinnitus, 
varicose  veins,  not  otherwise  specified,  diverticulitis,  and  stress  induced  traumatic  anxiety 
neurosis.  The DVA found that there was no service connection between these conditions and the 
applicant’s military service.   
 

 

 

VIEWS OF THE COAST GUARD 

On  June  3,  2010,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  submitted  an 
advisory opinion recommending that the Board deny the applicant’s request.  The JAG noted that 
the  applicant’s  application  was  untimely.    He  also  based  his  recommendation  in  part  on  a 
memorandum on the case prepared by Commander, Personnel Service Center (PSC).  
 
 
PSC stated that the applicant voluntarily separated from the service on October 17, 1987, 
his separation physical was completed in accordance with regulation, and there were no unfitting 
or disqualifying conditions noted.  PSC noted that the applicant and the DVA had requested his 
hospital records from St. Mary’s Hospital  but were told that the records had been destroyed by 
Hurricane Ike. 
 

 

 

PSC stated that the applicant had applied for and was granted disability benefits from the  
 
Social  Security  Administration  for  injuries,  illnesses  or  conditions  that  were  incurred  in  his 
civilian workplace.  PSC noted that the applicant also applied for and was denied DVA benefits 
because his conditions could not be connected to his service in the military.  PSC asserted that 
the Coast Guard cannot connect any of the applicant’s conditions or injuries with service in the 
military.  PSC noted that the applicant’s medical records show that he had a work-related injury 
to  his  right  knee  and  left  ankle  in  his  civilian  job  when  he  slipped  and  fell  on  an  icy  ramp  in 
January 2001.  Another medical injury indicated that the applicant also fell in the 1990’s when 
he slipped on oil when stepping out of a toll booth and injured his right knee, left foot, left ankle, 
hip, and lower back.   

 

 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On  July  7,  2010,  the  Board  received  the  applicant’s  response  to  the  views  of  the  Coast 
Guard.    He  disagreed  with  them.      He  argued  that  it  is  in  the  interest  of  justice  to  waive  the 
untimeliness  because  he  was  never  counseled  regarding  his  discharge  rights  and  that  he  was 
unaware  of  the  entries  on  the  SF-88  because  he  had  no  reason  to  obtain  or  review  his  records 
before applying for DVA compensation in 2006.   

 
With regard to the notation on the SF-88 dated September 29, 1987, stating that he was 
disqualified for reenlistment, he stated that it was not made on the date of the examination, which 
was May 11, 1987.  He argued that because of this disqualification statement on the SF-88, the 
Commander, CG Group Key West rejected his intention to reenlist.  After this rejection, he took 
terminal leave.  He argued that at no time was he ever aware of the October 1987 notation that he 
was  qualified  for  reenlistment.    He  stated  that  even  if  hearing  tests  are  required  only  for 
enlistment as the Coast Guard suggested, the audiograms in his record are fraudulent and should 
not be there.   

 
The applicant denied that he voluntarily separated from the Service but was told that he 
was ineligible for reenlistment per the September 29, 1987 entry.  He also argued that the Coast 
Guard failed to maintain his medical record as evidenced by the alleged missing records from St. 
Mary’s  hospital.    He  stated  that  the  records  of  the  doctor  who  performed  his  surgery  were 
destroyed in 2002.   
 

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.   

 
 
 2. The application was not timely.  The applicant had been discharged for approximately 
seventeen years before he filed this application with the Board.  To be timely, an application for 
correction  of  a  military  record  must  be  submitted  within  three  years  after  the  alleged  error  or 
injustice was discovered or should have been discovered.  See 33 CFR 52.22.   

 

 

 

3.  However, the Board may still consider the application on the merits, if it finds 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  in  assessing  whether  the  interest  of  justice  supports  a  waiver  of  the  statute  of 
limitations, the Board "should analyze both the reasons for the delay and the potential merits of 
the claim based on a cursory review."  See also  Dickson v. Secretary of Defense, 68 F.3d 1396 
(D.C. Cir. 1995).  

 
4.    Although  the  applicant  alleged  that  he  discovered  the  alleged  error  on  December  7, 
2006, he argued that it is in the interest of justice to waive the statute of limitations in his case 
because he was not aware of the October 1987 entry stating that he was qualified for reenlistment 
or  discharge  and  because  his  records  from  St.  Mary’s  Hospital  are  not  in  his  record  and  have 
been destroyed.  However, the record indicates that on September 16, 1987, the applicant was on 
board the command because on that date he signed a document terminating his health record.  In 
doing so, he acknowledged that he had a discharge physical examination, acknowledged that he 
agreed with it, and acknowledged that he did not desire to write a statement in rebuttal. He was 
also  informed  on  the  document  terminating  his  health  record  that  he  had  been  found  fit  for 
separation and any defects listed on the SF-88 did not render him unfit to perform his duties.  He 
was also told that after his separation any claims for disability  benefits must be submitted to the 
DVA and that he should contact the DVA as soon as possible.  The applicant also acknowledged 
on this document that he had received a copy of his last physical examination.  Therefore, even if 
the two stamped entries were not on the SF-88 that the applicant received, the doctor’s signature 
and affirmation on the page 2 of the document that the applicant was qualified for discharge were 
there.  Additionally, the applicant signed his DD Form 214 showing that he was discharged due 
to expiration of enlistment (voluntary separation) with an RE-1 reenlistment code, allowing him 
to  reenlist  if  he  wanted  to.    With  regard  to  the  missing  medical  records,  the  record  establishes 
that the applicant was told to go to the DVA immediately after discharge.  If he had done so, his 
hospital records would now be in his record.  In light of the evidence, the Board is satisfied that 
the  applicant  was  on  notice  that  he  was  found  fit  for  discharge.  If  he  disagreed  with  that 
assessment,  he  should  have  sought  to  correct  it  immediately  and  not  wait  19  years  to  do  so.  
Accordingly,  the  Board  is  not  persuaded  to  excuse  the  untimeliness  of  the  application  in  this 
case.   
 

5.  Even though the Board is not persuaded to excuse the untimeliness of the application 
based on the applicant’s reason for not filing his application within the time period allowed, the 
Board  must  still  perform  a  cursory  review  of  the  merits  in  deciding  whether  to  excuse  the 
applicant’s  untimely  filing.    A  review  of  the  merits  indicates  that  the  applicant  is  not  likely  to 
prevail on his request for a change in the reason for his discharge, as discussed below.   

 
6.  The applicant alleged that he was not aware of the HS1 entry of September 29, 1987 
stating  that  upon  review  of  the  physical  examination  the  applicant  was  considered  to  be 
disqualified  for  reenlistment  due  to  his  blood  pressure  readings.    Nor  was  he  aware  of  the 
subsequent October 8, 1987 entry by the same HS1 who stated that upon review of the physical 
examination the applicant was qualified for reenlistment/ discharge.   The first and second entries 
could  both  be  accurate.    However,  more  important  than  the  two  HS1  entries  is  the  examining 
doctor’s  finding  that  the  applicant  was  fit  for  discharge  on  the  reverse  of  the  SF-88.  

 

 

Additionally,  as  stated  in  finding  4  above,  the  applicant  signed  entries  on  September  16,  1987 
acknowledging  receiving  the  physical  examination  for  the  purpose  of  discharge,  that  he  was 
found  fit  for  separation,  that  his  obesity  and  hypertension  did  not  interfere  with  his  ability  to 
perform  his  duties, and that  after separation  any  claims for disability benefits  must be made to 
the DVA.  He also acknowledged receiving a copy of the SF-88 where the examining physician 
found that he  was qualified for discharge.  Therefore, the preponderance of the evidence is  that 
the examining physician found the applicant fit for discharge, that the applicant was aware of it, 
and that he did not disagree with that finding.   

 
7.    The  applicant  has  not  shown  by  a  preponderance  of  the  evidence  that  the  HS1’s 
October 8, 1987 entry is inaccurate.  It could have been made to correct the September 29, 1987 
entry.    In  this  regard,  the  Board  notes  that  the  HS1  stamped  that  he  reviewed  the  physical 
examination  and  noted  disqualification  for  reenlistment.    However,  it  is  the  doctor’s 
determination that is persuasive to the Board and he found the applicant fit for discharge.   After 
19  years  the  Board  has  no  way  of  knowing  if  either  of  the  entries  is  invalid  or  the  reasoning 
behind them.   However, the evidence shows that the examining physician found the applicant to 
be  fit  for  discharge  and  the  applicant  acknowledged  as  much  on  the  document  closing  out  his 
health record.  Therefore, the Board finds insufficient evidence to prove that the October 8, 1987 
entry is erroneous.   

 
8.  The applicant argued that he was not aware of the October 1987 entry because he was 
on terminal leave.  The applicant’s military record contains a statement of intent which indicates 
that the applicant intended to take annual leave prior to reenlisting or separating.  However, there 
is no documentation showing when the applicant actually began annual leave.  It appears that if 
he took terminal leave, it did not begin until after September 16, 2007, the date he signed his DD 
214 and document terminating his health record.    

 
9.    The  applicant  has  offered  no  evidence  except  for  his  own  allegation  that  the 
audiometer  readings  on  the  SF-88  are  false.    This  is  insufficient  evidence  to  prove  his  claim.  
Further his claim that his knee problems disqualified him for separation lacks proof.  He noted 
that  he  had  problems  with  his  knees  and  joints  when  he  completed  his  medical  history,  but 
apparently the examining physician did not find his joints and knees to be problematic.  

 
10.    There  is  evidence  in  military  record  that  the  applicant’s  then-CO  noted  that  the 
applicant had been hospitalized due to an abdominal infection.  However, there are no records of 
the  applicant’s  hospital  stay  in  the  record.    The  Board  has  no  way  of  knowing  if  these  records 
were ever in the military medical record, but if not, they should have been.  However, the SF-88 
notes  that  the  applicant  had  a  surgical  scar  from  bowel  surgery,  which  indicates  that  the 
examining  physician  was  aware  of  the  surgery,  but  he  did  not  find  that the  applicant’s  surgery 
was  disqualifying  for  separation.    According  to  the  Coast  Guard  and  DVA,  the  applicant’s 
hospital  records  were  destroyed  by  Hurricane  Ike  in  2008.    However,  if  the  applicant  had  not 
waited for 19 years to submit his application, the Board would likely have been able to obtain a 
copy.  As the records related to the applicant’s hospital stay have been destroyed, a Board order 
directing the Coast Guard to place them in the record would be futile.   

 

 

 

11.    The  applicant’s  request  to  have  an  unsigned  page  7  removed  from  the  record  is 
noted.  However, since it is unsigned by both the applicant and the command, the Board fails to 
see  how  it  is  prejudicial  to  the  applicant.    The  applicant  claims  that  it  proves  that  he  did  not 
receive the counseling to which he was entitled upon separation.  Indeed Article 12-B-4.d. of the 
Personnel Manual requires counseling on the consequences of not reenlisting within 24 hours of 
discharge.  The applicant’s claim that he would have reenlisted if it had not been for the  HS1’s 
erroneous  September  29,  1987  stamped  entry  on  the  SF-88,  is  not  convincing.    In  this  regard, 
how could he have known of the September 29, 1987 stamped entry if he was on terminal leave 
as he claimed.  In addition, his DD 214 clearly shows that he was eligible to reenlist with an RE-
1  reenlistment  code.    The  other  information  on  the  page  7,  such  as  having  90  days  to  file  for 
dental care from the DVA, has nothing to do with the applicant’s claim about being disqualified 
for  separation.    The  page  7  would  only  have  advised  the  applicant  about  the  dangers  of  not 
reenlisting within 24 hours, about temporary health care, and about filing with the DVA within 
90 days of discharge for dental care.  The Board fails to see how not receiving this information 
has any bearing on the issue of the applicant’s qualification for discharge or the loss of  the St. 
Mary’s Hospital records.  

 
12.  Therefore, due to the passage of time, the lack of a persuasive reason for not filing 
his application in a timely manner, and the probable lack of success on the merits of his claim, 
the  Board  finds  that  it  is  not  in  the  interest  of  justice  to  waive  the  statute  of  limitations in  this 
case.   

 
13.    Accordingly,  the  Board  finds  that  the  application  should  be  denied  because  it  is 

untimely and because it lacks merit.   

 

[ORDER AND SIGNATURES ON NEXT PAGE]

 
 

 

 

The application of former XXXXXXXXXX, USCG, for correction of his military record 

 

ORDER 

 

        

 
 Bruce D. Burkley 

 

 

 
 Robert F. Parker 

 

 

 

 

 
 
 Thomas H. Van Horn 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

is denied.