DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                        BCMR Docket No. 2011-096 
 
Xxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx 

FINAL DECISION 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.   The Chair docketed the case  after receiving the  applicant’s 
completed application on February 10, 2011, and assigned it to staff member J. Andrews to pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated November 18, 2011, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant was medically retired from the Coast Guard on December 20, 1979, with a 
50% disability rating for acute depression.  He had completed 19 years, 11 months, and 17 days 
of active duty.  He asked the Board to correct his record to show that he was retired with exactly 
20 years of active duty.  The requested correction might make him legally entitled to concurrent 
retired and disability pay (CRDP) under 10 U.S.C. § 1414.1   
 
The applicant alleged that at the time of his retirement he was serving “on heavy narcotic 
 
depression  medication.”    Previously,  he  had  earned  three  Good  Conduct  Medals  as  an  enlisted 
electrical technician and an Achievement Medal as a chief warrant officer.   However, while on 
active duty, his first wife and one of his three children died and he served two tours of duty on 
St. Paul Island in the Bering Sea without his family.  The applicant also once received a shock of 
2,000 volts of direct current while repairing a radio transmitter, which burned some of the flesh 
off  his  left  arm.    His  second  to  last  tour  of  duty  was  at  another  isolated  unit,  Johnston  Island, 
about 800 miles west of Hawaii.  During this assignment, the applicant alleged, he was exposed 
to  “hundreds  if  not  thousands  of  rusty  55  gallon  barrels  of  what  I  was  told  was  Agent  Orange 
stored, left over from Vietnam.”  Upon his return to the States after a year on Johnston Island, his 
                                                 
1  Under  10  U.S.C.  §  1414,  veterans  with  at  least  20  satisfactory  years  of  service  and  service-connected  disability 
ratings  from  the  DVA  of  at  least  50%  may  receive  concurrent  retired  and  disability  pay  (CRDP).    Prior  to  the 
enactment of CRDP, which went into effect on January 1, 2004, veterans could not receive full retirement pay and 
disability pay simultaneously. 

 

 

second wife and their child together did not meet him at the airport, and his parents informed him 
that his  wife had  filed for divorce because his  next  duty station was supposed to  be in  Alaska, 
and  she  did  not  want  to  go.    His  orders  changed,  but  she  still  divorced  him.    The  applicant 
became extremely depressed, began to see a psychiatrist, and was prescribed “several hard nar-
cotic medicines for acute depression.”   He alleged that he  also  felt responsible for the death  of 
his first wife and child.  Under the influence of his depression and these medications, he began 
driving his truck to Mexico and was gone for more than a week.  Soon thereafter, his command 
convened a medical board and, as a result, he was medically retired with a 50% disability rating 
for acute depression less than two weeks shy of the day he would have earned a 20-year retire-
ment. 
 
 
The  applicant  also  described  his  subsequent  history  of  supporting  himself  with  short-
term, part-time jobs, living in motor homes, having his son commit suicide, being estranged from 
family  members,  and  suffering  significant  medical  illnesses  since  his  medical  retirement  from 
the Coast Guard. 
 
 
Regarding the timing of his application, the applicant alleged that he had always accepted 
his  50%  disability  rating  from  the  Coast  Guard  and  did  not  seek  to  convert  it  or  increase  it 
through  the  Department  of  Veterans’  Affairs  (DVA)  until  January  2011.    He  alleged  that  he 
learned from the DVA that he should apply to the Board to have his record corrected in Decem-
ber  2010.    He  submitted  with  his  application  a  letter  he  wrote  to  the  DVA,  dated  January  18, 
2011, in which he asked “to convert my 50% USCG medical disability to a VA disability.” 
 

SUMMARY OF THE RECORD 

 
The  applicant  enlisted  on  active  duty  on  November  10,  1959,  and  was  honorably  dis-
 
charged on November 8, 1963, with a Good Conduct Medal.  He had already advanced to first 
class petty officer as an electrician’s mate (ET1).  The applicant reenlisted less than two months 
later,  on  January  2,  1964,  and  served  continuously,  earning  two  more  Good  Conduct  Medals, 
until  he  was  honorably  discharged  June  30,  1972,  to  accept  an  appointment  as  a  chief  warrant 
officer (CWO).  The applicant’s performance evaluations show that he received high marks, and 
his  rating  officials  commented  that  he  “is  a  doer  who  shuns  no  assignment  and  actively  seeks 
responsibilities  and  tasks”;  “has  done  an  outstanding  job  of  maintaining  the  electronics  equip-
ment of Group San Diego”; “attacks his collateral duty as an Aids to Navigation officer with a 
passion”;  and  “spends  many  after  duty  and  weekend  hours  on  his  assignments  for  this  com-
mand.”  He was awarded an Achievement Medal for “outstanding achievement and superior per-
formance of duty from September 1974 through September 1976,” when he served as the Officer 
in Charge of the Electronics Shop in Group San Diego. 
 
 
In 1978,  however, following his  return from  duty  on Johnston  Island,  the applicant  was 
diagnosed  with  a  “depressive  neurosis”  that  interfered  with  his  performance.    His  medical 
records  show  that  he  was  prescribed  various  anti-depressant  medications  and  was  frequently 
found not fit for duty.  However, his condition  did not improve, and his command initiated his 
medical separation under the Physical Disability Evaluation System (PDES).  An Initial Medical 
Board (IMB) report dated December 5, 1978, states that upon the applicant’s return from Johns-
ton  Island in January 1978, he discovered that his wife had left him for another man and taken 

 

 

their child and most of their possessions with her.  The applicant began living in a trailer, and his 
older two children had to live with friends and relatives.  The applicant had become very angry at 
his wife, the Coast Guard, and his country, and he had written letters to his commanding officer 
and an admiral that damaged his career.  He had also had suicidal ideations.  Following the IMB, 
the applicant’s PDES processing was delayed for six months to allow time for him to adjust to 
his divorce and to reorganize his life.  However, his condition did not improve. 
 

At  a  hearing  of  a  Formal  Physical  Evaluation  Board  (FPEB)  on  September  28,  1979,  a 
psychiatrist  testified that  during the prior 18 months, the applicant  had suffered from  a depres-
sive neurosis that had its origins in the deaths of his first wife and a child and had been exacer-
bated  by  his  unexpected  divorce  by  his  second  wife  resulting  in  him  having  very  little  contact 
with his children.  The psychiatrist was uncertain as to whether the depression would be perma-
nent.    A  chief  electrical  technician  (ETC)  testified  that  over  the  prior  18  months,  the  applicant 
(his  supervisor)  had  been  unable  to  timely  process  most  of  the  division’s  paperwork  either 
because he was on sick leave or just could not do it, and so the ETC had done most of the appli-
cant’s work for him.   
 

After deliberating the case, the FPEB advised the applicant and his counsel that their rec-
ommendation  would  be  that  the  applicant  should  be  retained  on  active  duty  until  his  20-year 
retirement date, which the president of the FPEB said  would occur in  February 1980, and then 
placed on the temporary disabled retired list (TDRL) with a 50% disability rating.  The transcript 
shows that when the applicant’s counsel questioned the recommendation for retention until Feb-
ruary  1980,  the  president  of  the  FPEB  acknowledged  that  the  recommendation  might  not  be 
approved because of the finding of unfitness but stated that the FPEB thought that the applicant 
could “use constructively the sheltering of his service relationship which we think is  actually a 
strength.  Now maybe in discussion with him, he may say that this is something that isn’t going 
to  help  or  that  he  would  prefer  not  be  the  case.    If  that’s  the  case,  we  would  honor  that  view-
point.”  Then the FPEB president asked the applicant if he would prefer to continue on duty until 
his 20-year retirement date in February 1980, and the applicant said he “would prefer not going 
back. … It would be a lot easier on me … not going back.”  Then the applicant’s counsel asked 
the applicant, “if you are returned to full active duty and go back to work on Monday morning at 
quarter  of  eight,  [will  you]  be  able  to  perform  your  duties  fully  and  completely  or  not?”    The 
applicant responded, “I don’t think I can but … uh …”  The applicant’s counsel interrupted him, 
saying  “That’s  the  answer  to  the  question.    Nothing  further.”    Shortly  thereafter,  the  FPEB 
decided  that  it  would  not  recommend  the  applicant’s  retention  and  that  he  would  be  placed  in 
home awaiting orders status  until the  case was resolved.  On November 28, 1979, the Chief of 
the  Office  of  Personnel  approved  the  FPEB’s  recommendation  and  placed  the  applicant  on  the 
TDRL effective as of December 20, 1979. 

 
The applicant’s last day of active duty was December 19, 1979, and he was placed on the 
TDRL on December 20, 1979.  A Statement of Creditable Service prepared for him on March 8, 
1984, shows that he was permanently retired on November 1, 1982, with a 50% disability rating 
and that he had 19 years, 11 months, and 17 days of active duty service and 1 month and 23 days 
of inactive service. 
 

 

 

 

 

VIEWS OF THE COAST GUARD 

On  July  11,  2011,  the Judge  Advocate  General  (JAG)  of  the  Coast  Guard  submitted  an 
advisory opinion in which he recommended that the Board deny relief “if the Board decides not 
to  consider  the  applicant’s  claim  based  on  its  untimely  submission”  but  to  grant  relief  if  the 
Board “decides that it would be in the interest of justice to excuse the failure to file timely.” 

 
The  JAG  first  argued  that  the  application  should  be  denied  for  untimeliness.    He  noted 
that the applicant was retired in 1979 and “has failed to provide any documentation or justifica-
tion regarding the lengthy delay in filing his BCMR.”  However, the JAG noted that the Board 
may waive the three-year statute of limitations if the Board finds that it is in the interest of justice 
to do so.  In this regard, the JAG stated that “the decision to medically retire the applicant a few 
weeks  shy  of  his  statutorily  mandated  20-year  active  duty  retirement  appears  to  be  contrary  to 
CG policy and inconsistent with past BCMR findings.” 

 
The  JAG  stated  that  the  applicant  appeared  before  a  Formal  Physical  Evaluation  Board 
on September 28, 1979, and was represented by appointed military counsel.  He was found unfit 
for duty and placed on the TDRL with a 50% disability rating as of December 20, 1979, when he 
had 19 years, 11 months, and 17 days of active duty service.  The JAG stated that although the 
applicant was afforded due process under the PDES,  
 

the record does not reflect that it was in the CG’s best interest and certainly not in the applicant’s 
best interest to  medically retire the applicant two  weeks shy of a 20-year active duty retirement.  
When analyzing the FPEB’s transcript, the Board initially wanted to recommend the applicant to 
return to duty until his 20-year active duty retirement date.  The Board commented heavily on the 
applicant’s outstanding military career and its reluctance to end such with 19 plus years of service.  
The Board acknowledged the “temporary” nature in which it found the applicant’s disability to be 
and how the Board was “reticent to terminate the applicant’s relationship with the Service which 
has been such a significant part of his life.”  The Board indicated its potentially conflicting results 
of finding the applicant unfit in terms of functionality but disinclined to have him retire any earlier 
than his normal retirement date. 

 
 
The JAG stated that despite the FPEB’s inclination, the applicant’s counsel was dissatis-
fied and “[a]lthough we can only speculate as to why the applicant’s counsel pursued an alternate 
determination by the Board, it calls into question counsel’s effective assistance as it pertains to 
anything  other  than  the  applicant’s  unfitness  for  duty  determination.”    The  JAG  noted  that  the 
applicant  could  have  accepted the  FPEB’s initial  findings and requested a waiver to  remain on 
active duty until his 20-year retirement date or could have asked to be placed on the  TDRL on 
his 20-year retirement date.   Instead, the counsel posed questions to the applicant that “elicited 
responses  that  appear  contrary  to  applicant’s  best  interest  regarding  applicant’s  ability  to  con-
tinue on active duty.”  The JAG noted that at the time, Article 17.A.2.b. of the Personnel Manual 
stated  that  “[m]embers  who  have  at  least  18  but  fewer  than  20  years  of  service  when  they  are 
found unfit for continued service … will remain on active duty until they complete 20 years of 
service  if  they  meet  these  criteria:  (1)  They  perform  useful  service  in  an  established  billet  for 
their grade, specialty, or rating;  (2) Their retention will not  be detrimental  to  their health nor a 
hazard  to  their  associates.”    The  JAG  stated  that  it  appears  from  the  FPEB  transcript  that  the 
FPEB would have followed this policy but for the applicant’s counsel’s intervention, and there is 
no evidence that the applicant did not qualify for continued service until his 20-year retirement 

 

 

date under the policy.  Therefore, the JAG believes that the applicant should have remained on 
active  duty  until  his  20-year  retirement  date  based  on  his  condition  and  the  policy  at  the  time.  
The JAG noted that if the BCMR waives the statute of limitations and grants relief in this case, 
“[a]ny relief granted should be in accordance with the policy and law during the time-frame of 
the applicant’s computed 20-year retirement date.  Any monetary retirement benefits should be 
offset  by  corresponding  disability  payments  as  prescribed  by  applicable  laws  in  effect  at  that 
time.  Calculations of any back-pay should also correspond with applicable law and regulations 
during  the  appropriate  time-frame(s).”    The  JAG  noted  that  his  recommendation  was  based  on 
the  unique  circumstances  of  the  case  and  “should  not  be  viewed  as  establishing/setting  new 
precedent.” 

 
The JAG also adopted the findings and analysis of the case  provided in a memorandum 
by  the  Personnel  Service  Center  (PSC),  which  recommended  that  the  Board  deny  relief.    The 
PSC noted that the applicant was found to be 50% disabled by “depressive neurosis; substantially 
impaired  social  and  industrial  relationships;  and  with  a  functional  disability  outlook  labeled  as 
severe.”  The PSC also noted that during the FPEB hearing, the applicant responded to his coun-
sel’s questions by stating that he would prefer not  to  return to  duty and that he did  not  believe 
that he would be able to perform his duties “fully and completely” if he were ordered to return to 
duty the next Monday morning at 7:45.  The PSC further stated that 
 

we  are  unable  to  precisely  determine  how  or  why  December  19,  1979,  was  the  date  chosen  and 
approved as the applicant’s final day on active duty.  We can only speculate now that due to the 
need to maintain good order and discipline and under the prevailing circumstances surrounding the 
applicant’s  diagnosed  medical  condition,  it  was  in  the  Coast  Guard’s  and  the  applicant’s  best 
interest that he be separated sooner rather than later. 
 
… We understand that retiring the applicant approximately 13 days short of having completed 20 
years  of  active  duty  service  does  appear  to  create  an  injustice;  however,  under  the  Doctrine  of 
Laches, the applicant’s 30+ year delay in applying to the Board has prejudiced the Coast Guard’s 
ability to produce more evidence to show that the disputed military record is correct and just. See 
Lebrun v. England, 212 F. Supp. 2d 5, 13 (D.D.C. 2002).  It’s also important to mention that the 
applicant and his counsel were aware of the member’s years of service, which was seriously con-
sidered by the Board, but in the end the applicant opted not to return to work to complete his 20 
years of service and accepted the [FPEB’s] findings to place him on the TDRL. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On August 3, 2011, the Board received the applicant’s response to the views of the Coast 
Guard.  The  applicant  repeated some of his  allegations and  described how he had continued to 
suffer  greatly  from  depression  following  his  separation  from  the  Coast  Guard.    He  noted  that 
because his wife divorced him because she did not want to go to Alaska with him, he “took all 
my Coast Guard records to the dump” and did not have a copy of his DD 214, showing that he 
had  been  medically  retired.    In  addition,  he  once  took  all  of  his  medals  and  his  sword  and  left 
them on an admiral’s doorstep.  Several months after his discharge, he quit the drugs he had been 
prescribed “cold turkey” and “rolled around on the carpet at home for days.”  Later, he believed 
he had been retired with 20 years of service. 
 
 

 

 

 

 

SUMMARY OF THE LAW 

On  December  28,  2001,  President  Bush  signed  the  National  Defense  Authorization  Act 
for  Fiscal  Year  2002,  Public  Law  107-107,2  and  Section  641  of  the  act  stated  the  following  in 
pertinent part:  
 

SEC.  641.  CONTINGENT  AUTHORITY  FOR  CONCURRENT  RECEIPT  OF  MILITARY 
RETIRED  PAY  AND  VETERANS’  DISABILITY  COMPENSATION  AND  ENHANCEMENT 
OF SPECIAL COMPENSATION AUTHORITY. 

(a) RESTORATION OF RETIRED PAY BENEFITS.--Chapter 71 of title 10, United States Code, 
is amended by adding at the end the following new section: 

Ҥ  1414.  Members  eligible  for  retired  pay  who  have  service-connected  disabilities:  payment  of 
retired pay and veterans’ disability compensation; contingent authority 
 
“(a) PAYMENT OF BOTH RETIRED PAY AND COMPENSATION.--Subject to subsection (b), 
a member or former member of the uniformed services who is entitled to retired pay (other than as 
specified in subsection (c)) and who is also entitled to veterans’ disability compensation is entitled 
to be paid both without regard to sections 5304 and 5305 of title 38, subject to the enactment of 
qualifying offsetting legislation as specified in subsection (f). 
 
“(b)  SPECIAL  RULE  FOR  CHAPTER  61  CAREER  RETIREES.--The  retired  pay  of  a  member 
retired under chapter 61 of this title [disability retirement] with 20 years or more of service other-
wise creditable under section 1405 of this title at the time of the member’s retirement is subject to 
reduction under sections 5304 and 5305 of title 38, but only to the extent  that the amount of the 
member’s retired pay under chapter 61 of this title exceeds the amount of retired pay to which the 
member would have been entitled under any other provision of law based upon the member’s ser-
vice in the uniformed services if the member had not been retired under chapter 61 of this title. 
 
“(c)  EXCEPTION.--Subsection  (a)  does  not  apply  to  a  member  retired  under  chapter  61  of  this 
title with less than 20 years of service otherwise creditable under section 1405 of this title at the 
time of the member’s retirement. 

•  •  • 

“(e)  EFFECTIVE  DATE.--If  qualifying  offsetting  legislation  (as  defined  in  subsection  (f))  is 
enacted, the provisions of subsection (a) shall take effect on— 

“(1) the first day of the first month beginning after the date of the enactment of such qua-

lifying offsetting legislation; or 

“(2) the first day of the fiscal year that begins in the calendar year in which such legisla-

tion is enacted, if that date is later than the date specified in paragraph (1). 
 
“(f) EFFECTIVENESS CONTINGENT ON ENACTMENT OF OFFSETTING LEGISLATION. 

(1) The provisions of subsection (a) shall be effective only if— 

“(A) the President, in the budget for any fiscal year, proposes the enactment of 

legislation that, if enacted, would be qualifying offsetting legislation; and 

“(B) after that budget is submitted to Congress, there is enacted qualifying off-

setting legislation. …” 

 
 
Under 10 U.S.C. § 1414(a)(1), “[s]ubject to subsection (b), a member or former member 
of the uniformed services who is entitled for any month to retired pay and who is also entitled for 
that  month  to  veterans’  disability  compensation  for  a  qualifying  service-connected  disability 

                                                 
2 National Defense Authorization Act for Fiscal Year 2002, Pub. L. 107-107, 115 Stat. 1012 (Dec. 28, 2001). 

 

 

(hereinafter in this section referred to as a “qualified retiree”) is entitled to be paid both for that 
month without regard to sections 5304 and 5305 of title 38 [laws requiring offsets].”  Paragraph 
(a)(2)  defines  a  “qualifying  service-connected  disability”  as  a  “service-connected  disability  or 
combination of service-connected disabilities that is rated as not less than 50 percent disabling by 
the Secretary of Veterans Affairs.” 
 

PRIOR CRDP CASES BEFORE THE BCMR 

 
BCMR Docket No. 2010-139 
 
 
In BCMR Docket No. 2010-139, the applicant had been medically retired on October 14, 
2000, with a 40% disability rating for fibromyalgia and having completed 19 years and 4 months 
of active duty.  The applicant alleged that she had rejected retention until her 20-year retirement 
date based on poor legal advice.  The records showed that she was advised that she could request 
retention until her 20-year retirement date; that she requested retention; and that her request was 
granted.  However, the applicant also asked to be transferred to a unit in her hometown for her 
final  year  on  active  duty,  and  when  her  transfer  request  was  denied  based  on  the  needs  of  the 
Service, she withdrew her request for retention until her 20-year retirement date and was medi-
cally  retired.    The  Coast  Guard  recommended  that  the  Board  deny  relief  because  the  applicant 
had been offered but  rejected  retention  until  her  20-year retirement date,  and the  Board denied 
relief, finding that 
 

[u]nlike the applicants in BCMR Docket Nos. 2009-251 and 2005-049, the applicant was not erro-
neously or unjustly denied retention until her 20th active duty anniversary.  She was counseled by 
an attorney and initially requested retention, and her request was approved.  The record shows that 
she then voluntarily rejected retention  until  her 20th anniversary because she  wanted to  move  to 
Tampa.   The  applicant  has  not  shown  that  the  Coast  Guard’s  denial  of  her  request  to  transfer  to 
Tampa for a year was erroneous or unjust. 

 
BCMR Docket Nos. 2007-080 and 2009-251 
 
 
In  BCMR  Docket  No.  2007-080,  the  applicant  had  been  medically  retired  with  a  60% 
disability rating and 19 years and 29 days of active duty after the CPEB reported that she did not 
meet  the  standards  for  retention  until  her  20th  active  duty  anniversary.    She  had  not  requested 
retention, and she argued that her CPEB attorney told her that because she was so disabled and 
was  more  than  6  months  from  her  20th  anniversary,  she  could  not  request  retention.    She  also 
argued that the form used to accept or reject the CPEB results misled her into thinking she could 
not request retention because the CPEB had noted that she did not meet the standards for reten-
tion and marked “NA” in a block concerning her right to request retention as if it were inapplica-
ble to her case.  The applicant submitted a statement from the attorney who had counseled her, 
and he supported her claim that the form was misleading and that she might have been confused 
about  her  right  to  request  retention.  He  also  stated  that,  in  his  experience  working  with  CPEB 
evaluees, if the applicant had requested retention, she would have been retained.  The applicant 
also  submitted  a  letter  from  her  last  supervisor,  who  stated  that  if  the  applicant  had  requested 
retention, the command would have supported her request. 
 

 

 

The JAG recommended denying relief, and the Board denied relief based on the applica-
 
tion’s  untimeliness  and  on  the  lack  of  evidence  that  the  applicant  was  not  told  that  she  could 
request  retention.    The  Board  found  that  under  the  applicable  regulations,  the  applicant’s  com-
mand presumably informed her of her right to request retention.  The Board also found that the 
applicant  had  not  proved  that  she  had  been  miscounseled  by  her  attorney  about  her  right  to 
request retention since the attorney did not say so in his statement on her behalf. 
 
The  applicant  in  BCMR  Docket  No.  2007-080,  however,  requested  reconsideration  and 
 
submitted probative new evidence supporting her claim that she was confused about her right to 
request  retention  on  active  duty.    The  applicant  submitted  a  copy  of  her  Initial  Medical  Board 
(IMB) report and her commanding officer’s (CO’s) endorsement to the report, which were not in 
the record when Docket  No. 2007-080 was considered.  The CO wrote in his endorsement that 
the applicant was able to carry out all of her assigned duties and recommended that she remain in 
her assignment until she had completed 20 years of service.  The applicant also argued that the 
CPEB made a typographical error in marking the box indicating that she did not meet the stan-
dards  for  retention  since  nothing  in  the  IMB  report  or  the  CO’s  endorsement  supported  such  a 
finding.  Her request for reconsideration was granted and, upon further review in BCMR Docket 
No. 2009-251, the JAG recommended that the Board grant relief, finding that the IMB report and 
the 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 satisfac-
tory service.”  The Board agreed with the JAG and granted relief by changing her retirement date 
to her 20th active duty anniversary. 
 
BCMR Docket No. 2005-049 
 

In  BCMR  Docket  No.  2005-049,  the  applicant  had  been  placed  on  the  TDRL  in  1988 
with a 60% disability rating and 19 years, 10 months, and 25 days of active duty and 2 years, 7 
months, and 4 days of inactive service.  He had asked to be retained on active duty until he could 
complete 20 years of service, but his request was denied.  The JAG recommended that the Board 
grant relief and noted that the applicant’s drill records had been lost.  The Board found that the 
application was untimely but excused the untimeliness because the applicant had filed it within 
three  years  of  the  enactment  of  Public  Law  107-107  on  December  28,  2001. The  Board  found 
that  at  the  time  of  his  placement  on  the  TDRL,  “the  applicant  was  physically  able  to  perform 
some useful work for the Coast Guard, even though pain prohibited him from working full days 
and from performing all of the physical tasks that might be expected of an engineering officer in 
certain billets.”  The Board granted relief by correcting the date of the applicant’s placement on 
the TDRL to his 20th active duty anniversary based on the following reasoning: 
 

8. 
In  a  memorandum  to  the  Board  dated  July  2,  1976,  the  delegate  of  the  Secretary  stated 
that in deciding whether a veteran’s discharge is unduly severe, the Board may take into account 
current  standards  and  mores.    Similarly,  the  Board  may  consider  in  this  case  whether  the  appli-
cant’s separation one month and five days shy of a 20-year retirement was unduly severe and not 
in accordance with current standards even if the Commandant did not clearly abuse his discretion 
in 1988 in deciding that the applicant could not perform useful service in his grade or billet.  The 
written standards for retention under Article 17.A.2.b. of the Personnel Manual have not changed 
since 1988.  However, the  fact  that both the JAG and CGPC recommended that the Board grant 
relief strongly suggests that today, a CWO in the applicant’s circumstances would not be separated 
one month and five days shy of his 20th active duty anniversary but would be retained until he had 

 

 

 

completed  20  years  of  active  service.   The  Board  notes  that  because  a  veteran  could  not  receive 
duplicate benefits (concurrent retirement and disability pay) in 1988, the impact of the Comman-
dant’s decision at the time was much less severe than the impact such a decision would have today.  
Therefore, the applicant’s request likely received less consideration than it would today following 
the authorization of CRDP under 10 U.S.C. § 1414. 
 
9. 
“Injustice”  as  used  in  10  U.S.C.  § 1552(a)  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);  Decision  of  the  Deputy  General  Counsel,  BCMR  Docket  No.  2001-043.    “The 
BCMR  has the authority to decide on a case-by-case basis if the Coast Guard has committed an 
error  or  injustice.”    Decision  of  the  Deputy  General  Counsel,  BCMR  Docket  No.  2002-040.    In 
light of all the circumstances of the applicant’s case, the Board finds that, in retrospect, his tempo-
rary retirement one month and five days shy of 20 years shocks the sense of justice. 

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: 
 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.   

1. 
 
2. 

Under 10 U.S.C. § 1552 and 33 C.F.R. § 52.22, an application to the Board must 
be filed within three years after the applicant discovers or reasonably should have discovered the 
alleged error in her record.  The Board finds that the applicant knew or should have known that 
he had not been credited with 20 years of active duty service upon his retirement in 1979.  There-
fore, his application was untimely. 

 
3. 

Pursuant  to  10  U.S.C.  §  1552(b),  the  Board  may  excuse  the  untimeliness  of  an 
application  if  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 to determine 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 instructed 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.”3     

 
4. 

 
The  record  shows  that  the  applicant  was  retired  from  the  Coast  Guard  in  1979 
with  disabling  depression  that  prevented  him  from  performing  his  duties,  such  as  processing 
paperwork on the job.  There is no evidence that the applicant’s mental condition has alleviated 
in  the  interim,  and  he  apparently  never  sought  additional  monetary  benefits  from  the  DVA, 
despite frequent employment problems, until quite recently.  Therefore, the Board finds that the 
preponderance of the  evidence shows that the  applicant’s  depression substantially  explains and 
excuses his failure to file his BCMR application sooner.  Moreover, there is no way the applicant 
could have known about the benefit of a 20-year retirement prior to the enactment of CRDP on 
December 28, 2001,  and there is  no evidence that  the applicant  was informed of CRDP  by the 
Coast Guard or the DVA following its enactment in 2001 or its effective date in 2004.  Given the 
Coast Guard’s recommendation in the advisory opinion indicating that his claim has some merit, 

                                                 
3  Allen  v.  Card,  799  F.  Supp.  158,  164-5  (D.D.C.  1992);  see  also  Dickson  v.  Secretary  of  Defense,  68  F.3d  1396 
(D.C. Cir. 1995). 

 

 

the Board finds that it is in the interest of justice to excuse the application’s untimeliness and to 
decide the case on the merits. 
 

5. 

The record shows that the applicant was medically retired  with  a 50% disability 
rating on December 20, 1979, just thirteen days shy of the date he would have qualified for a full 
20-year regular retirement.  At the time, he was suffering from disabling depression, and a sub-
ordinate  had  been  performing  many  of  his  duties  for  the  previous  18  months.    Under  Article 
17.A.2.b. of the Personnel Manual then in effect, the policy was to retain disabled members with 
more  than  18  years  of  active  duty  until  their  20-year  retirement  date  if  they  would  not  be  a 
hazard  to  themselves  or  others  and  they  could  perform  useful  service.    Although  the  FPEB 
initially advised the applicant and his counsel that they would recommend retention pursuant to 
this policy, the FPEB apparently changed its recommendation based on the applicant’s admission 
that he did not want to return to full duty and  that, if returned, he did not think he could “fully 
and  completely”  perform  his  assigned  duties  as  a  CWO  in  charge  of  an  electronics  division, 
which is far different from being able to perform “useful” service.  In addition, the transcript of 
the FPEB hearing reveals no inquiry into whether the applicant would be a hazard to himself or 
others if returned to duty pending his 20-year retirement date. 

 
6. 

The transcript of the FPEB hearing shows that when the applicant was asked on 
September  28,  1979,  about  whether  he  wanted  to  return  to  active  duty  until  his  20-year  retire-
ment  date—in  lieu  of  remaining  “home  awaiting  orders”  until  his  medical  retirement  was 
approved—he was misinformed by the FPEB president about how long he would have to serve 
on  active  duty.    The  president  of  the  FPEB  stated  that  the  applicant’s  20-year  retirement  date 
would occur sometime in February 1980, when in fact it was in the first week of January 1980.  
Although the applicant’s attorney should have known the correct date and corrected the error, he 
did not.  Given the applicant’s break in service and depressed mental condition, it is possible that 
when he said he did not want to return to duty, he was confused by the FPEB president’s state-
ment and believed that attaining a 20-year retirement would require a month  or more of active 
duty that he would not actually have had to serve. 

 
7. 

 
In a memorandum to the Board dated July 2, 1976, the delegate of the Secretary 
stated that in deciding whether a veteran’s discharge is unduly severe, the Board may take into 
account current standards and mores.  Similarly, the Board may consider in this case whether the 
applicant’s  separation  thirteen  days  shy  of  a  20-year  retirement  was  unduly  severe  and  not  in 
accordance  with  current  standards  even  if  the  Chief  of  the  Office  of  Personnel  did  not  clearly 
abuse his discretion on November 28, 1979, in deciding that the applicant should not be retained 
on active duty an additional thirteen days beyond December 19, 1979.  The written standards for 
retention under Article 17.A.2.b. of the Personnel Manual have not changed since 1979.  How-
ever, because of the enactment of CRDP,  a CWO in the applicant’s circumstances today  would 
not be separated thirteen days shy of his 20th active duty anniversary but would be retained until 
he  had  completed  20  years  of  active  duty.    The  Board  notes  that  because  a  veteran  could  not 
receive  duplicate  benefits  (concurrent  retirement  and  disability  pay)  in  1979,  the  impact  of  the 
decision  at  the  time  was  much  less  severe  than  the  impact  such  a  decision  would  have  today.  
Therefore, the applicant, his attorney, the members of the FPEB, and the Chief of the Office of 
Personnel presumably paid much less attention to this issue in 1979 than they would today fol-
lowing the authorization of CRDP under 10 U.S.C. § 1414.  In fact, the Board believes it is quite 

 

 

possible  that  on  November  28,  1979,  the  Chief  of  the  Office  of  Personnel,  an  admiral,  was 
unaware that in authorizing the applicant’s placement on the TDRL as of December 20, 1979, he 
was depriving the applicant of a 20-year retirement by just thirteen days. 
 

8. 

In light of all the circumstances of this case, the Board is persuaded that the appli-

cant’s  medical  retirement  for  depression  just  thirteen  days  before  he  qualified  for  a  regular,  
20-year retirement constitutes an injustice.4  The PSC argued that the applicant’s claim should be 
barred  by  the  doctrine  of  laches  because  the  passage  of  time  has  prejudiced  the  Coast  Guard’s 
ability  to  produce  evidence  to  prove  that  the  applicant’s  retirement  date  is  correct  and  just.    It 
may be that, aside from misstating the applicant’s 20-year retirement date during the FPEB, the 
Coast  Guard  committed  no  error  or  injustice  in  medically  retiring  him  on  December  20,  1979.  
However,  Congress  did  not  limit  the  injustices  that  can  be  corrected  under  §  1552  to  those 
caused by the military services.  Even if an injustice in an applicant’s record was not caused by 
the  Coast  Guard,  the  Board  may  still  correct  it.5    In  addition,  the  BCMR  has  the  authority  to 
decide whether an injustice exists  in  an applicant’s record  on a case-by-case basis.6  Given the 
evidence that the applicant and his counsel persuaded the FPEB not to recommend retaining him 
until  his  20-year  retirement  date,  the  Board  is  not  convinced  that  the  Coast  Guard  caused  the 
injustice in the applicant’s military record, but it is nonetheless persuaded by all of the circum-
stances  of  this  case  that  the  applicant’s  retirement  date  is  unjust  and  requires  correction  under  
10 U.S.C. § 1552. 

 
9. 

Accordingly,  the  applicant’s  request  should  be  granted  by  correcting  his  TDRL 
retirement date to his 20th active duty anniversary so that he shall have exactly 20 years of active 
duty and by paying him any amount due as a result of this correction in accordance with applica-
ble laws and regulations.   
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

                                                 
4 Under 10 U.S.C. § 1552(a), the Board may correct both errors and injustices in military records.   
5 41 Op. Att’y Gen.  94 (1952) (finding that “[t]he words ‘error’ and ‘injustice’ as used in this section do not have a 
limited or technical meaning and, to be made the basis for remedial action, the ‘error’ or ‘injustice’ need not have 
been caused by the service involved.”). 
6 Decision of the Deputy General Counsel, BCMR Docket No. 2001-043. 

 

 

ORDER 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG  (Retired),  for 

correction of his military record is granted.   

 
The Coast Guard shall correct the date of his  placement on the TDRL to  his 20th active 
duty  anniversary  so  that  he  shall  be  credited  with  exactly  20  years  of  active  duty.    The  Coast 
Guard shall pay him any amount due as a result of this correction in accordance with applicable 
laws and regulations. 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 

 

 

 
 Evan R. Franke 

 

 

 
 Randall J. Kaplan 

 

 

 
 H. Quinton Lucie