DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-251 
 
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FINAL DECISION ON RECONSIDERATION 

 
 
This is a proceeding for reconsideration of a the final decision in Docket No. 2007-080 
 
that was issued under the provisions of section 1552 of title 10 and section 425 of title 14 of the 
United States Code on February 21, 2008.1   Reconsideration was granted on September 8, 2009 
and it was given Docket No. 2009-251.   
 
 
the three duly appointed members who were designated to serve as the Board in this case. 
 

This final decision on reconsideration, dated June 16, 2010, is approved and signed by 

APPLICANT’S REQUEST  

 
 
The  applicant  asked  the  Board  to  reconsider  its  decision  in  BCMR  No.  2007-080, 
denying  her  request  for  a  correction  of  her  military  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.  The applicant was discharged from the Coast Guard on 
June 30, 1997, because of a physical disability that rendered her unfit to perform the duties of her 
rate and grade.  At the time of her discharge the applicant had served for 19 years and 29 days on 
                                                 
1   As noted in the original final decision, the Board was unable to obtain a complete copy of the applicant’s medical 
record from either the Personnel Records Center or the Department of Veterans’ Affairs, although several requests 
were  made for the  medical record.  However, this application can be decided on the basis of the Medical Board 
report and attachments and  the Central Physical Evaluation Board report.  
2  The Physical Disability Evaluation System (PDES) consist of several boards, namely, the Medical Board (MB), 
the Central Physical Evaluation Board (CPEB), the Formal Physical Evaluation Board (FPEB), the Physical Review 
Council  (PRC),  and  the  Physical  Disability  Appeal  Board  (PDAB).    The  CPEB  is  a  permanently  established 
administrative body convened to evaluate on a records 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).  

active duty.   On February 28, 2008, the Board denied the applicant’s request for a correction to 
her  record  because  the  application  was  untimely  and  because  a  cursory  review  of  the  merits 
revealed that the applicant failed to prove that the Coast Guard committed an error or injustice by 
not  retaining  her  on  active  duty  until  she  had  earned  a  total  of  20  years  of  active  duty.  
Subsequently,  the  applicant  requested  reconsideration  based  upon  the  submission  of  new 
evidence, in addition to alleging that the Board committed a factual error in finding her original 
application to be untimely.  Reconsideration was granted on September 8, 2009. 
 
Background Summary taken from the Original Final Decision 
 
 
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 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].   

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

 

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. 

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

 
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.3    
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 on active duty.  Subsequently, she was integrated into the regular Coast 
Guard. 
 
Applicant’s Arguments in the Original Case 
 
 
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 Manual4 as part of her 

                                                 
3 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. 
4 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.   

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  request  retention  on  active  duty]  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 on conditional 
that  her  request  for  retention  on  active  duty  be  approved.    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, but 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.      
 
Views of the Coast Guard in the Original Case 
 

                                                                                                                                                             
“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.   
“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.  
 
Article  17.A.2.a.  or  b.  of  the  Personnel  Manual  states  that  a  member  desiring  retention  on  active  duty  in  all 
circumstances should submit a letter request addressed to Commander, (CGPC) and suitability endorsed with regard 
to the criteria contained in Article 17.A.3.a. or b.     
 
Article 17.A.3.e. of the Personnel Manual states that based on the policy contained in Articles 17.A.1 and 17.A.2., 
Commander,  CGPC  determines  whether  to  retain  the  member  or  proceed  with  physical  disability  retirement  or 
separation proceedings.   
 
Article 17.A.3.f. of the Personnel Manual states that CGPC will respond by letter to all requests for retention.   

 
On June 19, 2007, the Judge Advocate General of the Coast Guard recommended that the 
Board deny relief in based upon a memorandum from the Commander, Coast Guard Personnel 
Command  (CGPC).    CGPC  noted  that  the  application  was  untimely.  CGPC  also  stated  the 
following: 

 
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 [CPEB] 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 [concurrent retirement and disability 
pay]  and  that  “there  is  a  conflict  of  interest  to  discharge  a  member  after  their 
retirement physical and 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 Reply to the Coast Guard Views in the Original Case 
 

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.  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 because her military record is above reproach, she is seriously 
disabled, and the her circumstances on their face indicated that she was a victim of error and/or 
injustice.   

 
The  applicant  pointed  to  the  statement  from  the  Coast  Guard  lawyer  who  advised  her 
while her case was in the PDES process in support of her contention that she was confused about 
the retention issue.  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’s 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 Council 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 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.  He stated that some officers with less than 18 years of active service 
who requested retention with a positive command endorsement were also retained.   
 
 
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: 
 

 
 
The applicant also submitted a letter from the Assistant Training Officer for whom she 
worked prior to retirement.  This individual stated 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 herself or others beyond her retirement in 1997.   
 
 Board’s Findings and Conclusions in Original Case 
 
 
conclusions:   
 

In  BCMR  No  2007-080,  the  Board  reached  the  following  pertinent  findings  and 

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.   

 

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.   
 

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.  

 
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.   

there 

 
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. 
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 

is  nothing  on 

this  statement 

  Again, 

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.    

 
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 her application and the lack of probable 
success on the merits, the Board finds that it is not in the interest to waive the 
statute of limitations in this case.   

 

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

and because of its lack of apparent merit.   

 

BCMR NO. 2009-251 (RECONSIDERATION OF ORIGINAL CASE) 

 

The applicant was granted reconsideration after she submitted new evidence in support of 
her original allegation that she was misled or confused about her eligibility to request retention 
on  active  duty  under  Chapter  17  of  the  Personnel  Manual  during  her  PDES  processing.  The 
applicant also submitted evidence showing that the Board may have committed a factual error in 
finding her original application untimely.  The law authorizing the receipt of both retirement and 
disability pay was enacted on December 28, 2001 but amended significantly on November 24, 
2003.    See  10  U.S.C.  §  1414.    Therefore,  the  date  on  which  the  Board  based  its  finding  of 
untimeliness  of  the  original  application  is  arguably  incorrect  under  the  circumstances  of  the 
applicant’s case.   
 

The  applicant’s  new  evidence  consisted  of  a  copy  of  the  MB  report,  the  Patient’s 
Statement Regarding the Findings of the MB, and her CO’s endorsement to the MB.  The MB 
stated that the applicant was not fit for full duty, was not expected to return to full duty, and was 
not fit for worldwide assignment due to back, spine, and other conditions.  “However it is clear 
that she is able to carry out all her currently assigned duties.”    

 
The Patient’s Statement Regarding the Findings of the MB listed 8 different diagnoses 
and recommended that the applicant’s case be referred to the CPEB because she was unfit for 
duty to physical disability.  The applicant indicated by her signature that she did not desire to 
submit  a  rebuttal  to  the  findings  and  recommendations  of  the  MB.    The  applicant  also 
acknowledged the following by signing the Patient’s statement:  “I further understand that the 
[MB’s] opinions and recommendations are not binding on the Coast Guard and that my case will 
be subjected to review and final disposition by high authority.”  
 
  
The applicant’s CO agreed with the MB that she was not fit for world wide assignment 
by reason of physical disability, but she was fit for her then-currently assigned duties.  The CO 
recommended that the applicant “be assigned [to her current unit] until she is tour complete and 
has completed 20 years of service, June 1998.”   The CO stated that although the applicant was 
normally assigned to the marine and safety field, her then-current duties were as a performance 
consultant,  which  involved  working  in  classrooms,  facilitating  work  groups,  one-on-one 
consultations and travel to outlying units.  The CO further stated the following: 
 

[The applicant] is limited in the performance of the normal duties of her grade and 
the marine safety career path due to the medical conditions . . .  It is expected that 
she will never be able to function fully as needed for her to continue a career in 
marine  safety  or  afloat  duties.    She  is,  however,  capable  of  performing  her 
currently  assigned  duties  as  a  performance  consultant.    She  has  contributed 
significantly  to  propelling  the  momentum  of  shared  focus  on  performance 
improvement in the Coast Guard.   
 

  
Applicant’s Arguments on Reconsideration 
 
 
The applicant put forth a new allegation in her request for reconsideration.  She alleged 
that  the  X  mark  in  the  “No”  box  to  item  22  on  the  CPEB  form  that  reads  “the  evaluee  has 
between  18  and  20  years  active  duty  and  in  the  opinion  of  the  CPEB  meets  the  medical 
requirements for retention IAW Chap. 17, [Personnel Manual]” was a typographical error and 
the  X  mark  should  have  been  placed  in  the  Yes  box.    The  applicant  stated  that  there  is  no 
evidence in the CPEB report, the Medical Board (MB), or the command endorsement to the MB 
that  supports  the  CPEB  recommendation  that  she  did  not  meet  the  medical  requirements  for 
retention  in  accordance  with  Chapter  17  of  the  Personnel  Manual.    She  also  noted  that  the 
military  lawyer  assigned  to  advise  her  with  regard  to  her  CPEB  stated  that  she  was  confused 
about the “X” in the  “NO” block on the CPEB form and that she challenged the mark.  She 
stated that her PDES lawyer wrote that he does “not recall contacting or discussing her retention 
with the Coast Guard.  If I had, I believe that I would remember doing so.  As a result of all these 
factors and my limited recollection, I would urge the BCMR to grant relief.”   
 
 
The applicant also alleged that the new evidence calls into question some of the findings 
made by the Board in the original case.  In this regard, she challenged the finding that states in 
pertinent part: 
 

[T]he 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.   

 
In response to that finding, the applicant argued that she consulted the Personnel Manual 
 
even though it was not mentioned in the March 5, 1997 letter to her from Commander, CGPC or 
the Patient’s Statement Regarding the Findings of the MB.  She alleges that it was her honest 
belief that her command and MB felt that she would not be discharged until June 1998 because 
she was fit to perform the duties of her then-current assignment and would be able to complete 
20  years  of  service.   The  applicant  stated  that  even  after  reading  chapter  17  of  the  Personnel 
Manual,  she  still  believed  that  because  her  disability  was  permanent  she  was  not  eligible  for 
retention on active duty.   She stated that she did not know there was a difference between a 
retirement under Chapter 61 (disability) and a retirement for longevity, until she read the article 
about concurrent receipt pay in 2006.  She stated that before she read the article, she believed 

that she was entitled to concurrent receipt pay “since no one spends 19 years in the military not 
expecting to be considered a retiree when retired.”  She alleged that because of confusion with 
regard Item 22, the CPEB form has been redesigned to avoid such confusion. 
 
 
In  addition,  regarding  the  Board’s  finding  in  the  original  case  that  it  was  the  CO’s 
responsibility to inform her about the opportunity to request retention, the applicant stated that 
she believed the CO had done so in his endorsement to the MB by requesting that she remain on 
active duty to complete 20 years of service.   
 

The applicant also disagreed with the Board’s finding in the original case, which stated in 

pertinent part: 
 

 [The applicant’s] 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. 

 
In regard to this finding, the applicant argued that her signature and that of her attorney merely 
indicate  that  she  understood  what  she  was  counseled  on,  which  was  that  she  had  not  met  the 
Coast  Guard’s  requirement  for  retention  and  that  the  CPEB’s  decision  could  not  be  contested 
because she was found permanently disabled.   
 
 
 

The applicant concluded her statement to the Board with the following: 

I sincerely believe that several errors were made and not caught, and although I 
consider myself a very astute, intelligent individual, I put my faith in my PDES 
lawyer to explain what appeared to be a process with no recourse for me.  I began 
my career with the Coast Guard on a delayed entry enlistment in February 1978, 
and left the Coast Guard on July 1, 1997.   
 

Views of the Coast Guard on Reconsideration 

 

 
On  January  27,  2010,  the  Judge  Advocate  General  (JAG)  submitted  a  memorandum 
asking the Board to accept the comments from the Personnel Service Command, (PSC) as the 
advisory opinion.  PSC recommended relief and stated the following: 
 

According to [finding and conclusion 10 of the final decision in the original case], 
“the  argument  and  evidence  suggesting  that  [the  applicant]  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.”  The persuasive proof cited by the 
Board as being needed to grant relief is found in newly submitted [MB and the 
CO’s endorsement].  Collectively, [the MB and CO’s endorsement] demonstrate 
through a preponderance of evidence that the applicant was wronged in not being 
allowed  to  remain  on  active  duty  in  order  to  complete  20  years  of  satisfactory 
service.  Through the MB and CO’s endorsement, it can be reasonably assumed 
that the applicant could have and should have been retained in her current active 
duty status.   
 
According  to  [Chapter  1.A.  of  the  PDES  Manual],  “the  PDES  exists  to  ensure 
equitable application of the provisions of title 10, United States Code, Chapter 61, 
which relates to the separation or retirement of  military personnel by reason of 
physical  disability.    These  laws  were  enacted  primarily  for  the  purpose  of 
maintaining  a  vital  and  fit  military  organization  will  full  consciousness  of  the 
necessity  for  maximum  use  of  the  available  work  force.    These  laws  provide 
benefits  for  eligible  members  whose  military  service  is  terminated  due  to  a 
service-connected  disability,  and  they  prevent  the  arbitrary  separation  from  the 
service of those members who incur a disability injury or disease, yet remain fit 
for  duty.”    In  accordance  with  the  policy  prescribed  in  this  COMDTINST,  the 
applicant  is  found  to  have  been  administratively  processed  incorrectly.    The 
applicant should have been allowed to remain in her current assignment pursuant 
to the recommendation of the [MB] as well as her commanding officer . . .  
 
According to [Article 17.A.2. of the Personnel Manual], “members who have at 
least 18 but fewer than 20 years service when they are found unfit for continued 
service  or  who  remain  on  active  duty  under Article  17  who  attain  18  years  of 
service will remain on active duty until they complete 20 years of service if they 
meet these criteria: 
 

•  They  can  perform  useful  service  in  an  established  billet  for  their  grade, 

specialty, or rating. 
 

associates. 

•  Their  retention  will  not  be  detrimental  to  their  health  nor  a  hazard  to  their 

 
In light of the new evidence submitted for consideration not available to [PSC] 
during the applicant’s first petition, [PSC] finds it within reason that a wrong was 
committed by the Coast Guard.  Had a member today, with all the same merits of 
the  case  as  the  applicant’s  asked  to  be  retained  on  active  duty,  that  member’s 
request would be granted.  Therefore, in the interest of equity for the applicant . . . 
PSC recommends the Board grant relief to the applicant.   
  

 
Applicant’s Reply to the Views of the Coast Guard on Reconsideration 
 
 
the Coast Guard in the current case.  She stated that she had no objection to them.   

On February 16, 2010, the Board received the applicant’s response to the views of 

 

FINDINGS AND CONCLUSIONS ON RECONSIDERATION 

 

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

 
1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

of the United States Code.  The request for reconsideration was timely.  
 
 
2. The applicant has met the requirements for reconsideration of Docket No. 2007-080, in 
accordance  with  the  Board's  rules  at  33  CFR  52.67  through  the  submission  of  new  relevant 
evidence that was not considered by the Board in the original proceeding.   The new evidence 
consisted of the MB report which diagnosed the applicant with several medical conditions, found 
that she was unfit for full duty, and found that she was able to perform the duties of her then-
current assignment.  The applicant also submitted the Patient’s Statement Regarding the Findings 
of  the  MB  in  which  she  signed  that  she  did  not  desire  to  submit  a  rebuttal  to  the  MB.    The 
applicant also submitted her CO’s endorsement to the MB wherein he agreed that she was unfit 
for full duty, but was capable of performing her then-current duties.  The CO also recommended 
that the applicant be retained for approximately one year so that she would have 20 years of total 
active duty upon retirement.5     
 

3.  The applicant asked the Board, as she did in the original application, to correct her 
record to credit her with approximately one  year of active duty that she did not serve.  To be 
entitled  to  such  credit  the  applicant  must  prove  that  her  retirement  by  reason  of  physical 
disability with 19 years and 29 days of active duty instead of being retained on active duty until 
she reached 20 years of service was in error or unjust.  
 

4.  The applicant alleged that the MB’s and the CO’s statements prove that she requested 
retention,  and  that  she  believed  that  she  would  be  retained  on  active  duty  based  on  those 
statements.  Related to this allegation is her argument that the CPEB committed a typographical 
error when it placed a mark of “X” in the No block to question 22, which read:  “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],” 
The applicant continued to argue, as she did in the original application, that she was misled by 
her CPEB attorney into believing that she could not request retention because her disability was 
diagnosed as permanent.  She also contended that she continued in that belief even after reading 
Chapter 17 of the Personnel Manual for herself.  The Board begins its analysis by presuming that 

                                                 
5  The  Chair  also  granted  reconsideration  in  the  interest  of  justice  because  the  Board’s  finding  that  the  original 
application was untimely because it was not submitted within three years of December 28, 2001, the date the Board 
determined that the concurrent receipt law was enacted was arguably incorrect under the applicant’s circumstances.  
The applicant presented evidence that the concurrent receipt pay law was significantly amended on November 24, 
2003.  Using this later date, the original application would have been timely.  Confusion existed because an older 
version  of  concurrent  receipt  existed  until  November  24,  2003.    The  recent  law  is  much  more  expansive  and 
inclusive than the older version, and if the applicant had 20 years of active duty at the time of retirement she would 
be eligible for concurrent receipt pay under the amended law.   

the  applicant’s  military  record  is  correct,  and  the  applicant  bears  the  burden  of  proving  by  a 
preponderance of the evidence that the record is erroneous or unjust.  See, 33 C.F.R. § 52.24(b).   
 

6.  The JAG  determined, and the  Board agreed,  that the new evidence proves that the 
applicant suffered a “wrong” when she was retired with 19 years and 29 days of service due to a 
physical disability, instead of being retained until she earned 20 years of active duty. The Board 
interprets “wrong” to mean that the Coast Guard committed an injustice against the applicant.    
For the purposes of the BCMRs, “‘[i]njustice’, when not also ‘error’, 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).  In this regard, the JAG stated that it is Coast Guard policy to 
retain a member with at least 18 but less than 20 years of service.  The JAG further stated that  
“Had a member today, with all the same merits of the case as the applicant’s asked to be retained 
on active duty, that member’s request would be granted.”  Although there is no evidence that the 
applicant actually requested retention, the Coast Guard should have verified whether or not she 
wanted to remain on active duty in light of the MB’s and CO’s strong recommendations that she 
be retained.    

 
7.  Moreover, the Board finds that the applicant met the requirements for retention under 
Chapter 17.A.2.b.of the Coast Guard Personnel Manual, which states that members with a least 
18  years  but  fewer  than  20  years  service  will  be  retained  on  active  duty  if  they  can  perform 
useful service and their retention is not detrimental to their health or a hazard to others.  The MB 
report  and  CO’s  endorsement  to  the  MB  establish  that  the  applicant  was  able  to  perform  the 
duties to which she was then-currently assigned, and neither indicated that her retention would 
be a danger to herself or to others.  Therefore, the Coast Guard should have retained the applicant 
on active duty or at the very least obtained verification that she did not want to remain on active 
duty.   Its failure to do constituted an injustice. 

 
8.  Accordingly, the applicant is entitled to relief.   
 

 

ORDER 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

  

 

 
 
 Philip B. Busch 

                     

 

    

 

 
 Vicki J. Ray 

 

 

   
 Kathryn Sinniger 

 

 

 

 

 

 

 

 

  

The application of XXXXXXXXXXXXX, USCG (Ret.), for correction of her military 
record upon reconsideration is granted.  Her record shall be corrected to show that she was not 
retired on June 30, 1997, but that she was retained on active duty until she had earned 20 years, 
00 months, and 00 days of active duty.  Her record shall be further corrected to show that upon 
completing  her  20th  year  of  active  duty  she  retired  due  to  physical  disability  with  a  60% 
disability  rating  in  accordance  with  the  CPEB.    The  Coast  Guard  shall  pay  the  applicant  the 
amount due as a result of this correction.