DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-009 
 
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  upon 
receipt of the applicant’s completed application on October 19, 2010, and subsequently prepared 
the final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case.  
 

This  final  decision,  dated  July  14,  2011,  is  approved  and  signed  by  the  three  duly 

RELIEF REQUESTED AND ALLEGATIONS  

 
The applicant asked the Board to upgrade his reenlistment code from RE-3P (eligible to 
reenlist with a physical disability waiver) reenlistment code to RE-1 (eligible to reenlist).   The 
applicant enlisted in the Coast Guard on February 5, 1991, and was honorably discharged with 
severance pay on July 14, 2003, because of a physical disability, with a JFL1 separation code and 
an RE-3P reenlistment code.     
 
 
The applicant alleged that his physical disability discharge was unjust.  He stated that he 
was advised by a military lawyer to accept the severance pay and discharge because if he did not, 
he risked being discharged as unfit for duty with no severance pay.  He stated that he is currently 
a civilian police officer and has lost no time from work because of an injury.  He submitted a 
copy of a United States Civil Service Commission Certificate of Examination that showed he had 
no conditions that limited his ability to perform the duties of a police officer.  
 
The  applicant  also  submitted  a  medical  note  from  the  Department  of  Veterans  Affairs 
  
(DVA) showing the results of a September 17, 2010 pre-employment physical examination.  The 
DVA medical note indicated that “according to the [applicant], his chronic low back pain had 

                                                 
1   A JFL separation code means that the applicant was discharged with severance pay because a physical disability.   
 

resolved.”   However, the medical  report noted that the  applicant suffered from post traumatic 
stress for which he had received treatment, hypercholesterolemia, obesity, and tobacco use.   
 
 
The applicant stated that he discovered the alleged error on July 14, 2003, and that it is in 
the  interest  of  justice  to  consider  his  application  if  more  than  three  years  have  passed  since 
discovery of the error because he has held several jobs, including law enforcement and security 
positions since his discharge with no problems or loss of work due to an injury.   
 

 

BACKGROUND 

 
On October 3, 2002, a Medical Board (MB) diagnosed the applicant as suffering from 
low back pain with radiculopathy.  The MB noted that the applicant was on indefinite limited 
duty, with no sea/boat duty and stated the following:  
 

According to a review of health record, systems, and social and family histories, 
the evaluee was well until October 1999 when [the evaluee] suffered trauma while 
underway on a deployable pursuit boat. . .  He recalls feeling a sudden sharp pain 
in his lower back and lower leg, and experienced painful ambulation. 

 

 

 

 

 

 

 

 

Physical examination revealed tenderness to the lumbar area. 

Indicated radiologic studies, including x-rays, MRI, and disc myelogram revealed 
spondylolisthesis, scoliosis, retrolisthesis of L3-L4, DDD of L3-15. 

Treatment  has  consisted  of  physical  therapy,  analgesics,  NSAIDS,  steroid 
injections, and limited duty for an extended period of time.  An Initial Medical 
Board  was  convened  and  submitted  in  Oct  2000,  but  was  returned  because  the 
patient was expected to return to full duty.  However, the patient has remained on 
limited duty due to back pain ever since.   

Presently, [the evaluee] complains of back pain with prolonged sitting, bending 
and stooping, with occasional radiation to posterior/lateral left lower extremity. 

The physical examination is within normal limits, with the exception of limited 
forward bending to 45 degrees. 

It  is  the  opinion  of  the  board  that  the  diagnosis  of  low  back  pain  with 
radiculopathy is correct and that the evaluee is not fit for full duty.   

The prognosis for this patient is poor.  The patient is never expected to be fit for 
full duty. 

The additional treatment recommended included fusion of the affected vertebrae 
but  was  deemed  not  viable  due  to  involvement of  multiple  levels.    He has  had 
repeated  orthopedic  consultations  that  are  in  agreement  with  this.    His  last 
orthopedic consultation was completed 27 September 2002. 

On  December  10,  2002,  the  applicant’s  commanding  officer  (CO)  wrote  that  the 
applicant’s duties as a member assigned to Tactical Law Enforcement Team (TACLET) North 
were as boarding team member, boarding officer, boat engineer, cutter engineer of the watch, 
and  engineering  petty  officer.    The  CO  also  stated  that  the  applicant  was  limited  in  the 
performance  of  normal  MK1  duties  because  his  condition  prevented  him  from  performing 
defensive  tactics  and  from  passing  the  physical  fitness  qualification  standards  which  were 
requirements for carrying, using, or operating a weapon, as set forth in the Ordnance Manual and 
the Maritime Law Enforcement Manual.  The CO also stated that the applicant could not sit or 
stand  for  prolonged  periods,  could  not  engage  in  heavy  lifting  or  frequent  bending.    The  CO 
concurred  with  the  medical  board  that  the  applicant  could  not  perform  the  duties  normally 
assigned  to  an  MK1  in  an  underway  billet.  The  CO  stated  that  the  applicant  had  exhibited 
exceptional performance to the command, but his condition kept him in a limited duty status for 
the past 30 months.   
 

On  January  23,  2003,  the  Central  Physical  Evaluation  Board  (CPEB)  considered  the 
applicant’s  case  and  found  that  he  was  unfit  for  duty  due  to  “lumbosacral  strain:  with 
characteristic pain and motion.”    The CPEB rated the condition as 10% disabling.   

 
The applicant accepted the findings and recommendations of the CPEB and waived his 
right to a formal hearing on May 23, 2003.  The Commandant’s delegate approved the CPEB 
findings  on  July  11,  2003,  and  directed  that  the  applicant  be  separated  from  the  Coast  Guard 
severance pay. 

 
On  July  14,  2003,  the  applicant  was  separated  from  the  Coast  Guard  because  of  a 

physical disability.   
 

VIEWS OF THE COAST GUARD 

 

 

On February 2, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion recommending that the Board deny the applicant’s request, in accordance 
with the memorandum from the Commander, Personnel Service Center (PSC).  

 
PSC noted that the application was not timely. With respect to the merits, PSC stated that 
the applicant was discharged from the Coast Guard and assigned an RE-3P reenlistment code in 
accordance  with  policy.    PSC  also  stated  the  applicant  is  eligible  to  reenlist  except  for  a 
disqualifying  physical  disability.    In  order  to  reenlist,  the  applicant  must  seek  reenlistment 
through  the  recruiting  process  and  persuade  a  recruiter  that  his  physical  disability  has  been 
resolved.  PSC concluded by stating that the Coast Guard is presumptively correct in the manner 
in which it processed and handled this case and that the applicant failed to substantiate any error 
or injustice in his record. 
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On March 7, 2011, the Board received the applicant’s response to the views of the Coast 
Guard. The applicant argued that the RE-3P reenlistment code is unjust because he performed his 

 

duties in an excellent manner from the date of his injury in 1999 until his discharge in 2003, even 
earning  sailor  of  the  quarter  during  this  period.2,3    The  applicant  stated  that  while  receiving 
treatment for his back, he continued to perform his duties to the best of his ability.  He stated that 
he was deployed to New York after the terrorist attacks where he was instrumental in forming 
the Coast Guard Rapid Deployment teams.   
 
 
With regard to the timeliness of his application, the applicant stated that he was unaware 
that he could have the reenlistment code changed until his congressman’s office informed that he 
could do so.  The applicant commented that if his application is untimely, so were the physical 
evaluation  boards.    In  this  regard,  he  stated  that  the  IMB  started  in  1999,  but  he  was  not 
discharged until 2003.   
 
 
The applicant alleged that his diagnosis was false and he had no disqualifying condition.  
He argued that the Board should direct that he undergo a military entrance physical (MEP) in 
order to prove the disqualifying factor has been resolved.   
 

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.  To  be  timely,  an  application  for  correction  of  a 
military record must be submitted within three years after the applicant discovered the alleged 
error or injustice.  See 33 CFR 52.22.   The applicant admitted that he discovered the alleged 
error at the time of his discharge in 2003, but argued that he did not learn that he could petition 
the  BCMR  to  upgrade  the  reenlistment  code  until  he  was  told  that  he  could  do  so  by  his 
congressman.  The applicant did not provide the date on which his congressman provided him 
with  information  about  the  BCMR.    Nor  did  the  applicant  explain  why  he  could  not  have 
obtained  knowledge  about  the  BCMR  sooner,  particularly  since  he  was  aware  of  the  error  in 
2003.  Other than contacting his congressman, the applicant did not state what other efforts he 
made, if any, to obtain a change in his reenlistment code.  Therefore the application is untimely. 
 
                                                 
2  The applicant’s military record does not contain any documentation that he was sailor of the quarter 
during the period from 1999 to 2003.  There is documentation in the military record that he was sailor of 
the quarter for the quarter ending March 31, 1994.  
  
3 Alcohol Incident.  The applicant’s military record indicates that on March 30, 2001, he was involved in a serious 
motor  vehicle  accident  that  resulted  in  his  receiving  near  fatal  injuries.    He  was  charged  with  driving  under  the 
influence of alcohol.  His blood alcohol level tested at .29.  The administrative remarks page (page 7) dated June 8, 
2001 states that the applicant spent nearly a week in the hospital and almost a month convalescing from injuries 
sustained in the accident.  The page 7 informed the applicant that this was his second alcohol incident and normally 
a member with two alcohol incidents would be separated from the Coast Guard, but the command was seeking his 
retention in the service.  On August 31, 2001, Commander, Coast Guard Personnel Command (CGPC) approved the 
applicant’s retention provided the applicant complete an appropriate treatment and aftercare program. 

 
3.  The applicant argued that if his application is untimely, the Board should excuse the 
untimeliness because he served and performed his duties in an exceptional manner even while 
being treated for his injury.  He noted that during the period he was being treated for his back 
injury he was deployed to New York after the terrorist attacks. The Board agrees that despite 
incurring  his  second  alcohol  incident  that  involved  a  vehicle  accident  in  which  he  sustained 
serious  injuries  during  his  limited  duty  period,  the  applicant’s  performance  of  his  assigned 
limited  duties  was  generally  good.    However,  the  applicant’s  good  performance  while  in  a 
limited duty status does not explain why he could not have submitted his application within three 
years  after  his  discharge  from  the  Coast  Guard; nor  does  it  persuade  the  Board  to  excuse  the 
untimeliness.   
 
 
4.  The Board notes the applicant’s argument that if his application is untimely, the Board 
should  consider  that  the  physical  evaluation  boards  acted  untimely  in  resolving  his  physical 
disability issue because his back problem was diagnosed in 1999 and he was not discharged until 
2003.  However, the applicant has not shown that he was prejudiced by the length of time it took 
the PDES to resolve his case or that the Coast Guard acted in a deliberate dilatory manner in 
evaluating  his  physical  disability.    The  applicant  was  allowed  to  remain  on  active  duty  in  a 
limited duty status for over 30 months, which allowed time for him to heal as much as possible 
and  time  for  the  physical  evaluation  boards  to  determine  whether  his  physical  disability  was 
permanent. The Board is not persuaded to excuse the applicant’s untimeliness because it took 
over 30 months for the Coast Guard to determine whether the applicant should be discharged 
because  of  a  physical  disability.    Additionally,  there  is  no  time  period  for  completion  of 
processing under the Physical Disability Evaluation System.    
 

5.  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."  The court further stated that "the longer the delay has 
been and the weaker the reasons are for the delay, the more compelling the merits would need to 
be to justify a full review."  Id. at 164, 165.   See also Dickson v. Secretary of Defense, 68 F.3d 
1396 (D.C. Cir. 1995). 
 

4.  With respect to the merits, the Board finds that the applicant is not likely to prevail.   
The applicant was discharged due to a physical disability.    He did not object to the CPEB’s 
findings and recommendations that he was unfit  for duty due to a lumbar strain with pain on 
motion  and  that  he  should  be  discharged  because  of  the  disability  with  severance  pay.    The 
applicant waived his right to a formal hearing on the issues related to the CPEB’s findings and 
recommendations.  The fact that current or recent civilian physical examinations show that his 
back problem has resolved does not prove that his 2002 diagnosis was incorrect. The applicant’s 
then-CO noted that the applicant had been in a limited duty status for over 30 months and that he 
could not perform all of his assigned duties because of his disability.    

 
5.  Nor has the applicant shown that his reenlistment code is erroneous.  It was assigned 
in accordance with the Separation Program Designator Handbook.    The applicant argued that 
his reenlistment code should be changed so that he can reenlist.  The Board notes that an RE-3P 

code is not a bar to reenlistment.  The applicant is eligible to reenlist if he can persuade a branch 
of  the  armed  services  that  he  no  longer  has  a  back  problem.    However,  to  be  considered  for 
enlistment in the armed forces, the applicant should apply through his local recruiting office and 
present them with the evidence that he has presented to this Board.  The Board notes that before 
applying  for  reenlistment  the  applicant  may  want  to  consider  addressing  his  current  PTSD 
diagnosis.      
 

6.  Accordingly, the Board finds that it is not in the interest of justice to waive the statute 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

of limitations in this case and it should be denied because it is untimely.    

 
 
 

The  application  of  former  XXXXXXXXXXXXXXXX,  for  correction  of  his  military 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Troy D. Byers 

 

 
 Francis H. Esposito 

 

 

 
 Dana Ledger  

 

 

 

 

 

 

 

 

 

 

 

 

 

record is denied.