DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1998-027 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section 
1552  of  title  10,  United  States  Code.    It  was  commenced  on  December  8,  1997, 
upon the BCMR’s receipt of the applicant’s application.   
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated December 10, 1998, is signed by the three duly 

REQUEST FOR RELIEF 

 
The applicant, a former xxxxxxxxxxxxxx in the Coast Guard, was honora-
 
bly discharged with severance pay on July 16, 199x, due to a medical disability.  
Prior to her discharge, on April 10, 199x, a Physical Evaluation Board (PEB) had 
determined her disability rating to be 10 percent.  The applicant asked the Board 
to correct her military record by increasing her disability rating to 30 percent. 
  

APPLICANT’S ALLEGATIONS 

 
 
The  applicant  alleged  that  in  determining  her  disability  rating,  the  PEB 
“did not take into consideration all [her] disabilities upon discharge, especially 
the  neurocognitive  dysfunction,  which  was  not  diagnosed  in  service  due  to  an 
incomplete examination.”  She alleged that she had an attention deficit disorder 
(ADD), which should have been diagnosed prior to her discharge. 
 
 
In support of her allegation, the applicant submitted the report of a neu-
ropsychological examination, which was conducted by a private psychologist on 
October 25, 199x, three months after her discharge.  The report listed the results 

of thirteen neuropsychological tests.  Most of the results of those tests were listed 
as “within normal limits,” “average,” or “above average.”  The results of tests of 
her attention and concentration, however, were shown as follows: 
 

 
Simple auditory attention (5th percentile) 
Simple visual attention (14th percentile) 
 
Simple visuomotor tracking (7th percentile)  
Complex visuomotor tracking (9th percentile) 
Rapid visuomotor encoding (1st percentile)   

Moderately deficient 
Mildly deficient 
Moderately deficient 
Moderately deficient 
Severely deficient 

 
She was also determined to be mildly or moderately deficient at simple construc-
tional  praxis  (copying),  delayed  design  reproduction,  incidental  recall,  and  
abstract reasoning and concept formation. 
 
 
The  applicant’s  doctor  reported  that  some  of  her  dysfunctions  might  be 
due to head injuries she had received in 1982 and 1993.  He diagnosed “Axis I: 
Neurocognitive dysfunction” and deferred an Axis II diagnosis. 
 

VIEWS OF THE COAST GUARD 

 
On  November  9,  1998,  the  Chief  Counsel  of  the  Coast  Guard  recom-
 
mended that the Board deny the applicant the requested relief because of a lack 
of proof or, in the alternative, failure to identify or allege a specific error com-
mitted by the Coast Guard. 
 

The Chief Counsel alleged that, on January 21, 199x, the applicant’s com-
manding officer “strongly recommended that Applicant receive an unsuitability 
discharge with appropriate separation pay and benefits based on the results of an 
Initial Medical Board held 06 December 199x. . . . The PEB found the applicant 
unfit  to  perform  the  duties  of  her  rating  by  reason  of  Dysthymic  Disorder 
(300.4)[1] with a 10% disability rating.” 

 
The  Chief  Counsel  urged  the  Board  to  deny  relief  because  “[c]ompetent 
medical  authority  assessed  the  Applicant’s  medical  condition  and  she  received 
the full benefit of the due process provided by the Coast Guard’s physical evalu-
ation  board  procedures  including  representation  by  legal  counsel.”    The  Chief 
Counsel alleged that, while represented by counsel, the applicant signed a form 
that acknowledged that she accepted the findings and recommended disposition 
of the PEB and waived her right to a formal hearing before the PEB.  Her decision 
to waive her right to a hearing, the Chief Counsel alleged, “was an affirmative 
election not to exhaust her intra-service administrative remedies that should now 
bar relief before the BCMR.”  The Chief Counsel alleged that case law on this is-
                                                 
1  Dysthymic disorder, or dysthymia, is mental depression. 

sue clearly denies the applicant relief:  “[W]here a plaintiff failed in a timely fa-
shion to pursue administrative remedies that were available and open, the plain-
tiff cannot later claim futility based on her inability to pursue those remedies any 
longer.”  Barnett v. International Business Machines Corp., 885 F. Supp. 581, 588 
(S.D.N.Y. 1995).  Therefore, the Chief Counsel argued, the applicant’s “applica-
tion before the BCMR should be barred based on her affirmative waiver of an ef-
fective administrative remedy.” 

 
In  addition,  the  Chief  Counsel  alleged  that  “the  condition  Applicant  
alleges the Coast Guard failed to diagnose is not a disability within the meaning 
of the law and, therefore, would have amounted to harmless error even if Appli-
cant could prove, by a preponderance of the evidence, that the Coast Guard mis-
diagnosed her condition.”  “Neurocognitive Disorder is not a ratable disability 
within the meaning of the law.”  The definition of “physical disability,” the Chief 
Counsel stated, “specifically excludes behavior and personality disorders which 
would  include  the  alleged  Neurocognitive  Dysfunction  of  the  Applicant.”  
Moreover, the Chief Counsel alleged that Attention Deficit Disorder does not fall 
within the definition of physical disability.  Rather than appearing before a PEB, 
a  member  diagnosed  with  ADD  is  administratively  separated  pursuant  to  the 
Personnel Manual. Because “[t]he PEB’s decision provided the Applicant with a 
higher  disability  rating  than  she  would  have  received  had  they  diagnosed  her 
with her alleged Neurocognitive Dysfunction . . . the Applicant received a fair 
and equitable decision by the PEB.” 

 
Finally,  the  Chief  Counsel  argued,  “[t]he  Applicant  has  failed  to  prove 
that the PEB did not, in fact, consider the outward manifestations of her alleged 
Neurocognitive Dysfunction.  The record before the PEB included observations 
of the Applicant as a ‘slow learner’ . . . .  The PEB had this information before 
them [sic] and made their findings and recommendations accordingly.” 

 

 

SUMMARY OF THE RECORD 

 
6/14/8x  The applicant enlisted in the regular Coast Guard for a term of four 

years under the delayed entry program. 

 
8/28/8x  The  applicant  sought  help  for  stress,  mood  swings,  and  anger.    She 
began weekly counseling sessions with a social worker at the xxxxxx 
Medical Center Mental Health Unit in xxxxxxxxx. 

 
11/4/9x  Dr. X. diagnosed the applicant as having an adjustment disorder with 

anxiety.  He noted that she was still receiving counseling. 

9/10/9x  A summary of the applicant’s performance ratings indicated that since 
198x, she had consistently received very average marks of 4 and 5 on a 
scale of 1 to 7, with 7 being the best score.  Occasionally she received a 
mark of 3 or 6. 

 
6/14/9x  Dr. Y. at the xxxxxxxxxxx Medical Clinic in xxxxxx, reported that the 
applicant  was  receiving  counseling  for  depression.    The  counselor 
recommended that she take Prozac, Paxil, or Zoloft.  Dr. Y. prescribed 
Prozac and found the applicant fit for duty. 

 
10/16/9x  The applicant reported to a physician’s assistant at the Support Center 
in  xxxxxxxxx  that  she  had  stopped  taking  her  medication  because  it 
gave her a sore throat.  She was starting to feel very anxious and de-
pressed.  The physician’s assistant referred her to a psychiatric clinic 
at  the  xxxxxx  Medical  Center  in  xxxxxxxxxx,  for  evaluation  and  an 
opinion  on  whether  an  Initial  Medical  Board  (IMB)  should  be  con-
vened. 

 
11/19/9x  The applicant was examined by Dr. Z., a psychiatrist at the xxxxxxxx 
Medical Center.  Dr. Z. reported that the applicant’s “history is consis-
tent  with  dysthymia,  but  I  believe  there  is  strong  characterlogical 
component as well.  Her personality is in the cluster a range, and is 
not well suited to a supervisory position.”  He diagnosed “Dysthymic 
Disorder, early onset, [existing prior to entry into active service], ser-
vice aggravated DSM-IV 300.4; precipitating stress – routine military 
service – mild; predisposition – strong cluster a personality traits – se-
vere; impairment – military service – severe; civilian – mild.”  Dr. Z. 
recommended  that  an  IMB  evaluate  the  applicant  and  referred  the 
case to the Public Health Service for disposition. 

 
12/6/9x  Dr. Y. and Dr. Q. conducted an IMB on the applicant.  They diagnosed 
dysthymic  disorder  300.4  and  referred  her  to  a  PEB.    They  also  re-
stricted  her  duty  to  not  include  sea  duty,  use  of  firearms,  or  night 
work.  In a narrative clinical summary, the doctors reported that she 
had  

 

a  long history  of  depression  dating  back  to  her early  school 
years  and  has  felt  depressed  more  times  than  not  over  the 
years.    During  school  she  was  a  slow  learner  and  often  felt 
stupid.  In the last several years she feels that things were get-
ting worse after she allegedly started to have supervisors give 
her a hard time.  More recently she has been distressed after 
finding  herself  in  a  supervisory  position  and  having  a  hard 
time supervising and getting the respect of her subordinates. . 

and  work 

.  .    Physical  examination  revealed  subjective  depression  but 
no neurovegetative signs. . . .  At the present time the evaluee 
complains  of  depression 
stress  
especially from night work. . . .  The prognosis for this patient 
is guarded.  Her personality is not well suited to a supervi-
sory  position.    She  is  finding  that  this  is  difficult  for  her,  
aggravating her “depression” and causing anxiety symptoms.  
With  increasing  supervisory  responsibilities,  she  will have  a 
harder and harder time.  The patient is expected to never by 
fit for full duty. . . . 

related 

 
1/13/9x  The applicant signed a Patient’s Statement Regarding the Findings of 
the  Medical  Board.    The  statement  lists  her  diagnosis  as  dysthymic 
disorder  300.4.    It  also  states,  “I  feel  that  all  my  impairments  have 
been evaluated adequately by the Medical Board, and that these diag-
noses (listed above) will be considered by the . . . PEB, for its indepen-
dent evaluation.”  The applicant indicated on the statement that she 
would not submit a rebuttal. 

 
1/13/9x  The applicant signed a statement to “amplify” the findings of the IMB.  
The  applicant  alleged  that  her  depression  began  when  a  supervisor 
began swearing at her, harassing her, and threatening her.  The super-
visor,  she  said,  threatened  to  tell  the  command  that  she  was  crazy. 
When she became a xxxxxxxxxxxxxxxx and supervisor, she found the 
responsibilities “overwhelming.”  She discovered that other xxxxxxx 
were gossiping about her and became very angry and depressed.  Af-
ter  an  injury  to  her  xxxxxxxx kept  her  off the  job  for  several  weeks, 
“the xxxxxxxxxxx refused to permit [her] to continue [her] training as 
a xxxxxxx.  [She] was informed by the xxxxx that rather than continue 
[her] training, he was training someone else for [her] job.  This deci-
sion  depressed  [her]  and  made  [her]  feel  as  though  [she]  was  being 
punished because of [her] injury.” 

 
1/21/9x  The  applicant’s  commanding  officer  recommended  she  “receive  an 
unsuitability  discharge  with  separation  pay  and  transition  benefits.” 
He based his recommendation on the findings of the IMB.  He stated 
that the applicant “has been distressed since assuming a supervisory 
position  .  .  .  .    Supervising  subordinate  personnel  is  a  responsibility 
associated with the majority of xxxx billets in the Coast Guard.”  He 
further stated that the applicant 

 

is an average xxxx qualified in the xxxxxxx position and ade-
quately  performs  assigned  duties.    Her  potential  to  fulfill 
xxxxxxxxxxxxxxxxxxx responsibilities in the future is suspect 

based  on  her  medical  condition.    She  has  the  knowledge, 
however doubts her own abilities and second-guesses herself, 
placing  unwarranted  pressure  on  herself  to  ensure  all  deci-
sions are “correct”. 

 
1/29/9x  The Personnel Command of the Coast Guard responded to the letter 
from  the  applicant’s  commanding  officer  by  stating  that  “no  action 
will  be  taken  on  recommendation  for  unsuitability  discharge  of  [the 
applicant], since the diagnosis listed in medical board is ratable. . . .  
The initial board has been referred to the Central Physical Board for 
consideration [capital letters lower cased].”  

 
4/10/9x  The Coast Guard PEB issued its Findings and Recommended Dispo-
sition in the applicant’s case.  The PEB found that she suffered from a 
dysthymic disorder whose symptoms were controlled by continuous 
medication.    The  disorder  rendered  her  10%  permanently  disabled.  
All 10% of the disability was reported to be attributable to aggravation 
of a preexisting condition.  

 
5/25/9x  The PEB report was signed by an attorney who acknowledged that he 
had  consulted  with  the  applicant  and  counseled  her  regarding  
acceptance or rejection of the PEB’s findings and recommendation. 

 
5/16/9x  The applicant signed a statement acknowledging that (1) she had been 
advised  by  counsel;  (2)  she  accepted  the  findings  and  recommenda-
tion of the PEB; and (3) she waived her right to a formal hearing be-
fore a PEB. 

 
7/16/9x  The applicant was honorably discharged from the Coast Guard after 
14 years, 2 months, and 11 days of active duty service.  The narrative 
reason cited on her DD214 is “disability, severance pay,” and the se-
paration code is JFL (involuntary discharge due to physical disability). 

 
10/25/9x  The  applicant  underwent  neurocognitive  tests  that  revealed  signifi-

 
According  to  Section  3-C-17  of  the  Medical  Manual  (COMDTINST 
M6000.1B), prior to discharge, a member must undergo a physical examination 
that includes a neurological examination.  The examiner is instructed to pay at-

cant deficiencies in her ability to concentrate and pay attention. 

APPLICABLE REGULATIONS AND CASE LAW 

 

 
Provisions of the Medical Manual 

tention to  the  member’s  gait,  pupils,  deep reflexes,  deep  sense,  sensory  distur-
bances, motor disturbances, muscular development, tremors, tics, cranial nerves, 
psychomotor tension, and peripheral circulation.  No tests of cognitive function 
are required. 

 
According to Section 5-B-17 of the Medical Manual, members with disrup-
tive  attention  deficit  disorders  and  members  with  learning  disorders  shall  be 
administratively separated in accordance with Chapter 12 of the Personnel Ma-
nual. 

 

 

 

Provisions of the Physical Disability Evaluation System (PDES) Manual  
 
 
According  to  Section  2-A-21  of  the  PDES  Manual  (COMDTINST 
M1850.2B), the terms “physical impairment” and “physical defect” include men-
tal diseases but not primary mental deficiency. 
 

Section  2-A-36  of  the  PDES  Manual  states  the  term  “physical  disability” 
includes mental diseases that render a member unfit for continued duty but not 
primary mental deficiency. 

 
Chapter 9 of the PDES Manual provides that, when assessing the extent of 
a member’s disability, the PEB shall use the schedule for rating disabilities of the 
Department of Veterans Affairs (DVA). 

Code of Federal Regulations 
 
 
The DVA’s schedule for rating disabilities does not include the applicant’s 
alleged neurocognitive disorder in its lists of neurological conditions and mental 
disorders.  38 C.F.R. §§ 4.120-4.132.  In addition, 33 C.F.R. § 4.127 provides that 
“[m]ental deficiency and personality disorders will not be considered as disabili-
ties under the terms of the schedule.” 

Barnett v. International Business Machines Corporation 
 

In  Barnett  v.  International  Business  Machines  Corp.,  885  F.  Supp.  581 
(S.D.N.Y.  1995),  the  plaintiff  filed  suit  under  29  U.S.C.  §  1132  (ERISA).    She  
alleged that the defendant had wrongfully denied her long-term disability bene-
fits.    In  December  1986,  the  plaintiff  had  suffered  neurological  injuries  to  her 
shoulder  while  lifting  machinery.    She  received  worker’s  compensation  until 
April 1988, when the carrier refused to pay any more.  The plaintiff did not time-
ly apply for long-term disability benefits.  She alleged that the defendant’s man-
agement  employees  had  actively  discouraged  her  from  applying.    She  also  al-

leged that the management had told her it  had already reviewed her case and 
decided that any application by her would be denied.   

 
The defendant moved for summary judgment based in part on the plain-
tiff’s failure to exhaust administrative remedies.  The judge granted the motion 
and dismissed the suit with prejudice.  The judge held that the facts alleged by 
the plaintiff, if assumed to be true, did not prove that any application by her for 
long-term  benefits  would  have  been  futile.    (Futility  would  have  excused  her 
failure  to  exhaust  administrative  remedies.)    Citing  Tiger  v.  AT&T  Technologies 
Plan for Employees’ Pensions, Disability Benefits, 633 F. Supp. 532 (E.D.N.Y. 1986), 
the judge also stated that “if a plaintiff failed in a timely fashion to pursue ad-
ministrative  remedies  that  were  available  and  open,  the  plaintiff  cannot  later 
claim futility based on her inability to pursue those remedies any longer.”  
 

FINDINGS AND CONCLUSIONS 

 
3. 

 

 
 
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 sec-

tion 1552 of title 10 of the United States Code.  The application was timely. 
 

2. 

The applicant alleged that the Coast Guard had erred by failing to 
diagnose her neurocognitive disorder, ADD, prior to her discharge.  Because of 
this  error,  she  alleged,  she  received  a  disability  rating  of  only  10%  rather  than 
30%. 

The  Chief  Counsel  urged  the  Board  to  dismiss  the  application  
because on May 16, 199x, the applicant had waived her right to a formal hearing 
before the PEB.  Her waiver, he alleged, constituted a failure to exhaust “all effec-
tive  administrative  remedies”  as  required  by  33  C.F.R.  § 52.13(b).    The  Board 
finds that the applicant did not discover the alleged error in her record until she 
was diagnosed with ADD in October 199x.  Prior to that time, she did not know 
the record was in error because none of her doctors had diagnosed her disorder.  
Her chance to demand a hearing before the PEB had already passed when she 
discovered the error.  The Board finds that the applicant waived her right to a 
formal hearing before the PEB in May 199x with respect to her dysthymic dis-
order.  That waiver, however, does not constitute a failure to pursue an effective 
administrative remedy for an alleged error (failure to diagnose her alleged neu-
rocognitive disorder or ADD) discovered in October 199x. 

4. 

Coast Guard regulations do not require it to test members’ neuro-
cognitive  abilities.    Although  the  applicant  once  described  herself  as  a  slow 
learner, she received average performance evaluations throughout her career in 
the Coast Guard.  There is nothing in her record to suggest that her alleged ADD 
rendered her unfit for duty.  Therefore, the Board finds that the Coast Guard did 
not err when it failed to test the applicant’s neurocognitive abilities. 

The Chief Counsel also argued that the applicant’s alleged neuro-
cognitive disorder, ADD, is not a ratable disability under the PDES.  Therefore, 
even if the Coast Guard’s doctors had diagnosed this alleged disorder, the diag-
nosis would not have increased the percentage of the disability rating assigned to 
the applicant.  The Board finds that the alleged neurocognitive disorder, ADD, is 
not  listed  as  a  ratable  disability  on  the  DVA’s  schedule  for  rating  disabilities.  
33 C.F.R. §§ 4.120-4.132.  Therefore, even if one assumed that the applicant suf-
fered from ADD at the time of her discharge, the applicant could not receive a 
higher disability rating because of it. 

Therefore, the applicant has not proved by a preponderance of the 
evidence that the Coast Guard committed any error or injustice by failing to di-
agnose  her  alleged  neurocognitive  disorder  or  by  discharging  her  with  a  10% 
disability rating. 

The applicant’s request should be denied. 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
5. 

 
6. 

 
7. 

 
 
 
 

 
 
 

The application for correction of the military record of former XXXXX, is 

 
 

 

 

 
 

 
 

 
 
 

 
 

 
 

 
 

 
 
 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 
Robert C. Ashby 

 

 
 
Walter K. Myers 

 

 

 

 
Gareth W. Rosenau 

 

 

 
 

 

ORDER 

hereby denied.