DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-080 
 
XXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXX 
   

 

 
 

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 
February 2, 2007, upon receipt of the applicant’s military records,1 and subsequently prepared 
the final decision 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 February 21, 2008, is approved and signed by the three duly 

APPLICANT’S REQUEST 

 
 
 
The applicant, a LCDR retired by reason of physical disability, asked the Board to correct 
her record to show that she was retained on active duty until she became eligible for retirement 
by reason of longevity (20 years of active service), at which time she then retired with a 60% 
disability  rating  in  accordance  with  the  findings  of  the  Central  Physical  Evaluation  Board 
(CPEB).2   This correction would allow the applicant to receive both active duty retired pay and 
Department of Veterans Affairs (DVA) compensation under 10 U.S.C. § 1414.3   
                                                 
1      Upon  receipt  of  the  applicant’s  BCMR  application  on  July  27,  2006,  the  Board  ordered  her  official  military 
record from the National Personnel Records Center. In response, the Board received the applicant’s PDR but not the 
medical record.  However because the NPRC online ordering system at that time showed another registry number 
for the applicant’s military record a second request was made.  In response to the second request, the Board received 
some medical documentation, but nothing related to the applicant’s 1997 medical board.  On September 8, 1996, the 
Board requested a copy of the applicant’s Coast Guard  medical record from the Veterans Management Center at 
NPRC.  In response to this request, the Board was told that the applicant’s Coast Guard Medical record had been 
sent  to  the  Department  of  Veterans  Affairs  Office  in  Denver,  CO.    Normally,  the  Veteran  Affairs  Management 
Center will forward the Board’s request to the appropriate DVA office.  After not receiving the Coast Guard medical 
record for approximately four months, the Chair undertook a review of the BCMR application and decided to docket 
it  with  the  information  available.  Subsequently,  in  September  2007,  the  Board  again  attempted  to  obtain  the 
applicant’s Coast Guard medical record from the Denver, CO DVA office.  No record has been received to date.  
2    The  Physical  Disability  Evaluation  System  (PDES)  consist  of  several  boards,  namely,  the  medical  board,  the 
central physical evaluation board (CPEB), the Formal Physical Evaluation Board (FPEB), and the Physical Review 
Council  (PRC).    The  CPEB  is  a  permanently  established  administrative  body  convened  to  evaluate  on  a  records 

 

BACKGROUND 

 

 
On  February  25,  1997,  the  CPEB  met  and  diagnosed  the  applicant  with  pronounced 
intervertebral disc syndrome and rated the condition as 60% disabling.  The CPEB determined 
that the applicant was unfit to perform the duties of her grade or rate and recommended that she 
be permanently retired.   
 
 
In Section III (Recommendations Regarding Retention) on page 1 of the CPEB report, 
the  CPEB  was  required  to  make  recommendations  regarding  the  applicant’s  retention  by 
completing the following items: 
 
 “22.  The evaluee has between 18 and 20 years active duty and in the opinion of the CPEB, the 
evaluee  meets  the  medical  requirements  for  retention  [in  accordance  with]  Chapter  17,  CG 
[Personnel  Manual],”   to  which  the  CPEB  could  have  marked  YES,  NO,  or  NA.    The  CPEB 
checked NO. 
 
 “23.  The evaluee’s request for retention (if submitted with the medical board IAW Chap. 17, 
CG Personnel Manual) has been approved,” to which the CPEB could have marked YES, NO, or 
NA.  The CPEB marked NA. 
  
 “24.  Type of retirement if evaluee is to be retained less than 6 months (IAW Chapter 17, CG 
Personnel  Manual)  and  reevaluation  is  not  required,”  to  which  the  CPEB  could  have  marked 
YES, NO, or NA.  The CPEB marked NA.   
 
 
CPEB attorney, as follows:    
 

The second page of the CPEB report contained the signed statement of the applicant’s 

I  [CDR  G]  an  attorney  has  been  appointed  to  advise  the  evaluee  regarding 
acceptance of the [CPEB’s] findings and recommended disposition which are set 
out on the page one of this form.   
 
“I have reviewed those findings in light of the record in the evaluee’s case, Title 
10  U.S.  Code,  Chapter  61;  the  Veterans  Administration  Schedule  for  Rating 
Disabilities, Applicable Coast Guard personnel regulations, and other applicable 
materials. 
 
I consulted with the evaluee on [March 11, 1997], and counseled [her] regarding 
acceptance  or  rejection  of  the  [CPEB’s]  findings  and  recommendations,  in 
accordance with [Commandant Instruction].   

 
                                                                                                                                                             
basis  the  fitness  for  duty  of  active  and  reserve  members  and  the  fitness  for  duty  of  members  on  the  temporary 
disability  retired  list.    See  Chapter  4.A.1.  of  the  Physical  Disability  Evaluation  System  Manual  (COMDTINST 
M1850.2C).  
3  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. 

following provision on the CPEB report: 
 

I  have  been  advised  by  the  above  named  counsel  regarding  acceptance  or 
rejection of the findings and recommended disposition of the [CPEB] and signed 
the appropriate statement below: 
 
[Check in block] I accept the [CPEB] findings and recommended disposition and 
waive my right to a Formal Physical Evaluation Board  . . .  

 
There were two other options the applicant could have chosen but did not.  They are as follows: 
 

I accept the [CPEB] findings and recommended disposition conditional upon the 
approval  of  my  attached  request  for  retention  on  active  duty  submitted  IAW 
Chapter 17 CG Personnel Manual.  If my retention request is not approved then I 
reject  the  CPEB  findings  and  recommended  disposition  and  demand  a  hearing 
before a Formal Physical Evaluation Board.   
 
I reject the [CPEB] findings and recommended disposition and demand a hearing 
before a Formal Physical Evaluation Board. 

Directly  below  the  attorney’s  signed  statement,  the  applicant  signed  and  dated  the 

 
 
On April 18, 1997, Commander, Coast Guard Personnel Command (CGPC) informed the 
applicant by letter that that office had approved the findings of the CPEB and that she would be 
permanently  retired  on  July  1,  1997,  pursuant  to  Title  10  of  the  United  States  Code.    CGPC 
directed that the applicant detach from all duties effective June 30, 1997.   
 
 
she had 19 years and 29 days of net active service and 2 months and 11 days of inactive service.4    
The applicant indicated that she began her career in the Coast Guard as  an enlisted person in 
1978.  On May 15, 1986, after attending officer candidate school, she was commissioned in the 
Coast Guard Reserve, serving on active duty.  Subsequently, she was integrated into the regular 
Coast Guard. 
 

The applicant’s DD Form 214, which she signed, shows that at the time of her retirement 

ALLEGATIONS 

 
 
The applicant alleged that she was not given information that she was eligible to request 
retention on active duty under Chapter 17-A-3.a.(1)&(2) of the Personnel Manual5 as part of her 
                                                 
4 The 2 months and 11 days of inactive duty was time spent in the delayed entry program and does not count toward 
a 20 year active duty retirement.  See Article 12.c.2. of the Personnel Manual. 
5 Chapter 17.A.3.a. of the Personnel Manual states that the following procedures have been implemented in Chapters 
3 and 4 of the PDES Manual.   
“1.  Members may append a request for retention on active duty to their Medical Board at the time they sign the 
Form CG-4920 acknowledging the medical board findings.  The request for retention then will be forwarded along 
with the Medical Board findings.   Concurrent actions will be taken on their request by Commander, (CGPC-opm-1) 
or CG-emp-a) and the [CPEB], and a coordinated reply transmitted with the CPEB findings for the acceptance or 
rejection  of  the  member.    This  procedure  is  intended  for,  but  not  limited  to,  those  members  that  are  within  six 
months of eligibility for a normal 20 year retirement.   

medical board statement.  She alleged that she was told that she “had to be within 6 months of [a] 
20  year  retirement  in  order  to  accept  the  findings  based  on  my  request  for  retention  and 
additionally I was told I could not request this because I was found permanently disabled.”  She 
stated that if she had been given adequate legal guidance she would have accepted the CPEB 
findings conditionally upon the approval of her request for retention on active duty.  She stated 
that  it  is  now  her  understanding  that  a  request  for  retention  is  not  limited  to  those  within  six 
months  of  retirement  and  the  pertinent  regulation  says  nothing  about  permanent  or  temporary 
disability.    The  applicant  claimed  that  she  is  now  ineligible  for  concurrent  receipt  of  military 
retired pay and DVA compensation because at the time of her discharge, she was approximately 
one year short of the 20 years needed for a regular retirement.  At the time she was discharged 
she had 19 years and 29 days of active service.  The applicant stated that she currently has a 70 
percent disability rating and that she is functionally 100 percent disabled.  The applicant stated 
that she discovered the  alleged error on July 18, 2006 when reading a  magazine article  about 
concurrent receipt pay and the Board received her BCMR application on July 27, 2006.    
 

VIEWS OF THE COAST GUARD 

                                                                                                                                                             
“2.  Members who have not previously requested retention on active duty, but who subsequently are found unfit for 
continued service by the CPEB, may request retention on active duty.  If they desire, the members may make an 
acceptance of the CPEB findings conditional upon approval of the retention request. 
“3.    In  the  case  of  those  members  with  more  than  18  years  but  fewer  than  20  years  active  duty,  who  have  not 
requested retention as described in subparagraph (1) above, the CPEB will append to any unfit for continued service 
finding a specific opinion as to whether or not the member meets the medical requirements for retention established 
under 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.”   
 
Article 17.A.3.b. of the Personnel Manual states that “[m]embers found unfit for continued service by a [FPEB] may 
submit a request for retention on active duty to Commander, (CGPC-opm-1) or CG-emp-1). 
 
Article 17.A.3.c. of the Personnel Manual states that “when the Physical Review Counsel or the Physical Disability 
Appeal Board has determined that a member is unfit for continued service, the member may request retention on 
active duty.    

 
 
On June 19, 2007, the Judge Advocate General of the Coast Guard submitted an advisory 
opinion  in  which  he  requested  that  the  Board  accept  the  comments  from  Commander,  Coast 
Guard Personnel Command (CGPC) as the views of the Coast Guard.   
 
 
 

CGPC recommended that the Board deny relief in this case.  CGPC stated the following: 

The applicant’s request is not timely and the applicant has failed to substantiate 
any  justification  for  the  delay  in  presenting  this  case.    She  states  that  she 
discovered the alleged error or injustice on July 18, 2006, however she has not 
substantiated this assertion nor provided any justification for delay in filing. 
 
The record received from the National Personnel Records Center and the BCMR 
does  not  contain  a  complete  copy  of  the  applicant’s  medical  record  or  PDES 
processing.    The  applicant’s  record  does  contain  the  CPEB  findings  and 
recommendation.    

 
The  applicant’s  statement  that  she  was  improperly  counseled  regarding  her 
entitlement  to  request  retention  as  a  condition  of  her  acceptance  of  the  CPEB 
findings  is  based  solely  upon  her  own  assertion.    The  record  and  information 
provided by the applicant do not support that she was improperly counseled. [The 
CPEB  report]  clearly  indicates  that  the  applicant  was  provided  legal  counsel 
before accepting the findings of the CPEB.  Additionally, since the applicant had 
over  18  years  of  service,  her  case  was  reviewed  for  consideration  of  retention 
pursuant  to  [the  Personnel  Manual]  as  indicated  in  section  III  of  [the  CPEB 
report].    The  Board  found  that  her  disability  did  not  meet  the  requirements  for 
retention.  This is the same standard that would have applied to her case had she 
submitted  such  a  request  for  retention.    Had  the  applicant  elected  to  request 
retention, her case would not have received the same adjudication regarding the 
retention request.  At the time she accepted the findings of the CPEB, she had the 
option  to  elect  a  conditional  acceptance  and  retention  request;  the  applicant 
elected not to make such an election. 
 
The  applicant  contends  that  she  would  have  remained  on  active  duty  for  the 
additional year to gain eligibility for CRDP and that “there is a conflict of interest 
to  discharge  a  member  after  their  retirement  physical  and  to  avoid  CRDP.”  
CRDP was not legislatively enacted until after her retirement and therefore had no 
bearing on her election to accept the findings of the CPEB in 1997.  The PDES 
process provides for a fair and impartial review of the service member’s record 
and  the  applicant’s  record  supports  that  she  was  provided  legal  counsel,  due 
process and her case was adjudicated according to Coast Guard policy.  There is 
no error or injustice presented in this case.   

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On October 11, 2007, the Board received the applicant’s reply to the views of the Coast 
Guard.    She  disagreed  with  them.   She  stated  that  the  Coast  Guard  took  the  position  that  her 
application  was  untimely  since  it  was  submitted  more  than  three  years  after  her  retirement  in 
1997.    She  stated  that  10  U.S.C.  §  1551  counts  the  time  from  the  later  of  when  the  error  or 
injustice occurred and when it was discovered.  She stated that she did not discover the alleged 
error  until  2006  when  reading  a  magazine  article  on  concurrent  receipt  of  military  and  DVA 
benefits.    It  was  then  that  she  learned  the  various  retired  statuses  and  the  implication  of  the 
different types of retirement.  She stated that as soon as she learned of the alleged injustice she 
contacted her Senator and was advised to seek relief from the BCMR.  She submitted an email 
string showing that she contacted her Senator on May 5, 2006.  The applicant argued that even if 
the Board determines that her application is untimely, the statute of limitation should be waived 
and her case considered on the merits in the interest of justice.  In this regard, she argued that her 
military record is above reproach, that she is seriously disabled, and that her circumstances on 
their face indicated that she was a victim of error and/or injustice.   

 
The applicant noted that the advisory opinion stated that her BCMR file did not contain a 
complete coy of her medical record or PDES processing.  She indicated that she attempted to 

 

 

obtain  these  records  from  National  Personnel  Records  Center  (NPRC)  and  the  DVA  but  they 
were unable to locate additional documentation related to the CPEB proceedings other than the 
findings.  She stated that Coast Guard Headquarters also informed her on October 9, 2007 that 
there were no pertinent records at Headquarters.  She argued that the Coast Guard did not assert 
that  there  were  any  gaps  in  her  record  that  made  it  impossible  for  them  to  respond  to  the 
application.  The applicant also stated that “to the extent that [she] submits that she could in fact 
have been retained for the few months needed to complete 20 years’ active duty . . . reference to 
her OERs and overall PDR is proper, and [she] encouraged the board to do so.” 

 
The  applicant  pointed  to  the  statement  from  the  Coast  Guard  lawyer  who  advised  her 
while her case was in the PDES process.  She stated that CDR G points to the confusing form 
used at the time and acknowledged that the applicant could very well have been confused.  She 
stated that she was under the impression that because § III block 22 on the CPEB report was 
marked  “No”  and  block  23  was  marked  “N/A”  she  was  ineligible  for  the  relief  provided  in 
Chapter 17 of the Personnel Manual.  She recalled that she discussed this with her lawyer and 
was led to believe that she could not request such relief.  She noted that today the Coast Guard 
uses  a  20-page  guide  and  clearer  forms  to  make  certain  that  evaluees  are  fully  and  clearly 
informed; but she argued that these improved measures were not in place when she had to decide 
what to do.  She stated again that it was her understanding that because she was more than six 
months from eligibility for a 20-year retirement and was found by the CPEB to be permanently 
disabled, she was ineligible for retention under Article 17 of the Personnel Manual, which was 
erroneous.   

 
The applicant stated that the Coast Guard implication that it would have been futile for 
her to seek retention because the CPEB found that she did not meet the medical requirements is 
without merit.  She argued that the CPEB made this finding without any input from her.  Second, 
she argued that the CPEB would not have had final authority on her retention if she had checked 
that  option  on  the  CPEB  form.    She  stated  that  if  she  had  requested  retention  and  the 
Commandant had disapproved it, she would have been entitled to a full and fair hearing before 
the FPEB.  The applicant noted that a request for retention may be submitted even after action by 
the Physical Review Councl and the Physical Disability Evaluation Board.  She stated that the 
advisory opinion furnishes no information whatever as to the actual pattern and practice followed 
by  the  Coast  Guard  with  respect  to  retention  requests.    She  stated  that  the  PEB  attorney’s 
statement makes it clear that retention requests from personnel in the applicant’s position were 
favorably considered.   

 
The applicant argued that if she had been afforded an opportunity to request retention, 
either by submission to the CPEB or in a live “full and fair” FPEB hearing, she could have made 
a very strong case for retention for the few months remaining before her 20 years were complete.  
She  stated  that  she  was  serving  as  a  Training  Officer  at  Training  Center  Petaluma  and  her 
command wanted her to remain on active duty, where she was slated to “fleet up” to the Branch 
Chief  position.    She  stated  that  her  chain  of  command  was  shocked  that  she  was  not  being 
retained, as is evidenced by a statement from her then executive officer.   

 

The applicant stated that she fully understands that the concurrent receipt legislation was 
not enacted until after she was retired.  Nonetheless, the applicant stated that had she correctly 
understood her options, she would have requested retention.   

Statement from the  applicant’s PEB Attorney 
 
 
The applicant’s PEB attorney wrote that Item 22 in Section III of the CPEB Form stated 
“The  evaluee  has  between  18  and  20  years  active  duty  and  in  the  opinion  of  the  CPEB,  the 
evaluee meets the medical requirements for the retention IAW Chap 17, CG PERSMAN” with 
three  boxes  for  a  mark  of  yes,  no,  or  na  was  often  the  source  of  confusion.    The  applicant’s 
counsel stated that the assumption was that if the box was marked “no” the member did not have 
between 18 and 20 years of service and that the box was only marked yes if the member had 
between 18 and 20 years of service.  He stated that item 22 was rarely marked no for members 
with over 18 years of service.  He stated that the CPEB form has been revised to remove the 
language contained in item 22 and that the decision to retain a member found unfit for medical 
reasons is ultimately a personnel decision that involves the member, command, and the needs of 
the service.   
 
 
The  applicant’s  counsel  stated  that  if  the  applicant  had  requested  retention  until  she 
completed  20  years  of  active  service  with  a  positive  command  endorsement,  she  would  have 
been retained.  He stated that the applicant’s then XO’s statement supports the probability that 
the applicant would have received a positive command endorsement for retention.  He stated that 
to  the  best  of  his  knowledge,  an  officer  with  18  or  more  years  was  all  but  assured  of  being 
retained  to  complete  20  years  of  service  if  that  officer’s  command  was  willing  to  retain  the 
officer in their command.  He stated that some officers with less than 18 years of active service 
who requested retention with a positive command endorsement were also retained.   
 
 
The applicant’s PEB attorney stated that until 2001, he represented all LCDRs (pay grade 
O-4) and above being evaluated in the PDES program.  With respect to the allegation that he 
failed to advise the applicant of her right to ask for retention pursuant to the Personnel Manual, 
the PEB attorney stated that he remembered speaking to the applicant on more than one occasion 
and  that  if  his  recollection  was  correct,  he  remembered  her  concerns  or  dilemma  about  being 
involuntarily retired.  “She seemed confused or uncertain about what she should do in light of 
her findings and the confusion created by sections 3. 22 and 23 on her [CPEB form].  She was 
reluctant to accept her findings, despite the 60 percent rating.  There would be only one obvious 
reason for her reluctance to accept a 60 percent rating and that would be because she wanted to 
be retained.”  The applicant’s PEB attorney further stated: 
 

 

It’s  very  difficult  to  reconstruct  the  events  associated  with  this  case  without 
having a copy of [the applicant’s] initial medical board, command endorsement, 
and  my  notes.    Based  on  the  known  circumstances,  [the  applicant]  could  very 
easily have been confused by the information on her [CPEB form] and she may 
have concluded that her command had not supported her retention.  Furthermore, 
I do not recall contacting her command or discussing her retention with the Coast 
Guard.  If I had, I believe that I would remember doing so.  As a result of all of 
these factors and my limited recollections, I would urge the BCMR to grant relief.   

 

In  early  1998,  my  staff  and  I  drafted  a  20  page  “Questions  &  Answers”  guide 
intended  to  help  our  PDES  clients  better  understand  the  Coast  Guard’s  PDES 
process.    The  guide  addresses  retention  requests.    This  guide  has  been  made 
available  to  all  of  our  PDES  clients  since  1998.    It  is  updated  annually.    [The 
applicant] would not have had the benefit of this guide and possibly not even the 
benefit of receiving a letter from GCPC or counsel addressing her right to request 
retention  

 
 
The applicant also submitted a letter from the Assistant Training Officer for whom she 
worked prior to retirement.  This individual stated that the applicant’s skills in the training field 
were highly sought after.  He stated that she never needed a back brace, a walker or wheelchair 
to complete her work and she was never a hazard to those with whom she worked.  He further 
stated as follows: 
 

Based  on  my  personal  observations,  it  is  my  opinion  that  [the  applicant]  could 
have  continued  her  excellent  performance  of  duties  in  the  billet  assigned  at 
Training Center Petaluma, without presenting a hazard to those with whom she 
served, beyond her retirement in 1997.  Though I am not a medical specialist, it is 
also my opinion that she could also have continued her training and performance 
consulting duties in a training and administrative work environment beyond her 
retirement, without being a detriment to her own health.   

2.  The applicant requested an oral hearing before the Board.  The Chair, acting pursuant 
to  33  C.F.R.  § 52.31,  denied  the  request  and  recommended  disposition  of  the  case  without  a 
hearing.  The Board concurs in that recommendation. 

 
 
 3.  The applicant's request for correction of her record to show that she had the necessary 
20 years of service for a regular active duty retirement is not timely. To be timely, an application 
or  request  for  correction  of  a  military  record  must  be  submitted  within  three  years  after  the 
applicant discovered or should have discovered the alleged error or injustice.  See 33 CFR 52.22.   
The applicant claimed that she did not discover the alleged injustice until July 18, 2006, when 
reading an article in a military related magazine about concurrent receipt pay.  However, the law 
establishing  concurrent  receipt  pay  was  enacted  on  December  28,  2001  and  therefore  the 
applicant should have filed her application within three years of the date the law was enacted.  
Therefore, her application is not timely.   
 

 

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.   
 

 
5.  The applicant has failed to prove that she was not given information about requesting 
retention on active duty under Chapter 17 of the Personnel Manual as part of her medical board 
statement.  Neither the applicant, nor the Board was able to locate a copy of her medical board.  
The Board attempts to find all pertinent military records; however, according to 33 CFR § 52.24, 
the  applicant  has  the  burden  of  proof  and  it  is  the  applicant’s  responsibility  “to  procure  and 
submit  with  his  or  her  application  such  evidence,  including  official  records,  as  the  applicant 
desires to present in support of his or her case.”  Moreover, as discussed below, having the actual 
medical board report would not strengthen the applicant’s case.   

 
6.  The Board finds that the medical board probably would not have been of assistance to 
the  applicant  in  proving  that  she  was  provided  with  erroneous  information  about  requesting 
retention on active duty.   Pursuant to Chapter 3 of the Physical Disability Evaluations Systems 
(PDES) Manual, neither the Medical Board Report nor the “Patient’s Statement Regarding the 
Findings of the Medical Board,” samples of which are in the PDES Manual, contained an entry 
or question about retention.   The “Patient’s Statement Regarding the Findings of the Medical 
Board,” which the applicant would have been required to complete, explained the findings of the 
medical board to the applicant and required that she affirmatively indicate whether she desired to 
submit or not submit a rebuttal to the medical board.  Again, there is nothing on this statement 
that  required  an  acknowledgement  of  the  opportunity  to  request  retention.    Article  3.H.  and 
Exhibit 3-4 of the PDES Manual indicate that it is the responsibility of the applicant’s command 
to  inform  her  about  the  opportunity  to  request  retention  after  receipt  of  the  medical  board.  
Accordingly,  the  Board  presumes  that  the  applicant’s  command  notified  her  of  her  right  to 
request  retention  under  the  Personnel  Manual  upon  completion  of  the  medical  board  in 
accordance with the regulation. The applicant’s current statement to the contrary about an event 
that occurred approximately nine years ago is insufficient to prove error or injustice on the part 
of the Coast Guard.    

4.  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."    For  the  reasons  discussed  below,  the  Board,  having 
performed a cursory review of the merits in this case, finds it unlikely that the  applicant will 
prevail on the merits of her claim and therefore finds that it is not in the interest of justice to 
waive the statute of limitations in this case.  

 
7.  The applicant alleged but failed to prove by a preponderance of the evidence that her 
CPEB attorney erroneously advised her that she could not request retention because she was not 
within 6 months of having 20 years of active service and because her disability was permanent.   
Contrary to the applicant’s contention, her CPEB attorney verified by his signature on page 2 of 
the CPEB form that he had reviewed the findings on page one of the CPEB report (that included 
section III) in the applicant’s case, as well as the applicable laws and regulations, and that he had 
consulted  and  counseled  her  regarding  acceptance  or  rejections  of  the  findings  and 
recommendations.  Moreover, the applicant acknowledged that she had been counseled by her 
PEB  attorney  with  respect  to  accepting  or  rejecting  the  CPEB  findings  and  recommended 
disposition and that she accepted them and waived her right to a FPEB. 

 
8.    In addition, the Board finds it highly improbable that the applicant’s PDES attorney 
would  have  provided  such  erroneous  advice  since  the  Personnel  Manual  clearly  states  that  an 
evaluee may request retention not only after the medical board, the CPEB, and the FPEB, but 
also  after  findings  of  unfitness  by  the  Physical  Review  Council  and  the  Physical  Disability 
Appeal  Board,  which  are  the  last  two  steps  available  in  the  PDES  process.    Indeed,  the 
applicant’s CPEB attorney stated that he remembered speaking to the applicant on more than one 
occasion and remembered that she had concerns about being involuntarily retired.  However, he 
never  stated  that  he  advised  the  applicant  that  she  could  not  submit  a  request  for  retention 
because she was not within 6 months of having 20 years of active duty or because her disability 
was of a permanent nature.  Therefore, the Board concludes that the applicant’s PEB attorney 
performed his duties in accordance with applicable regulations and did not provide advice that 
was  inconsistent  with  Coast  Guard  regulations.    The  evidence  offered  by  the  applicant  is 
insufficient to prove otherwise.    

 
9.   In addition, the Board presumes that the applicant read the CPEB report and that if 
she was confused by any of the information on that form she had the opportunity to discuss it in 
detail with her attorney at that time.   Further, she could have read Chapter 17 of the Personnel 
Manual  for  herself.      The  Board  notes  that  each  of  the  three  options  in  section  III  regarding 
retention on the CPEB report form mentions Chapter 17 of the Personnel Manual.  Confusion, if 
any, could have been cleared up by reading the Personnel Manual.   

 
10.  The argument and evidence suggesting that she might have been allowed to remain 
on active duty, if she had requested it, do not prove that the Coast Guard committed an error or 
injustice in processing the applicant for separation under the PDES.  Without persuasive proof of 
error or injustice on the part of the Coast Guard, the Board will not correct this applicant’s record 
to grant her a year of active duty that she did not earn.   
 

11.      Due  to  the  untimeliness  of  the  applicant’s  application  and  the  probable  lack  of 
success on the merits, the Board finds that it is not in the interest of justice to waive the statute of 
limitations in this case.   

 

 
12.  Accordingly, the application should be denied because it is untimely and because of 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

its lack of apparent merit.   
 
 
 

 
 
 
 

The  application  of  XXXXXXXXXXX,  USCG  (retired),  for  correction  of  her  military 

ORDER 

 

record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 

 

 

 
 

 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 

 

 
 

 
 

 

 

 
 

 
 

 

 

 
 

 

 
 Nancy L. Friedman 

 

 

 
 Patrick B. Kernan 

 

 

 

 
 Donald A. Pedersen