DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1999-071 
 
 
   

 

 
 

APPLICANT’S ALLEGATIONS 

 
The applicant alleged that, while on active duty, he suffered from several 
 
debilitating medical conditions because of which he frequently consulted doctors 
and lost time from duty.  Therefore, he argued, he should have been found unfit 
for duty and retired by reason of physical disability. 
 
 
The  applicant  alleged  that  he  applied  for  medical  benefits  from  the 
Department of Veterans Affairs (DVA) on the first day of his retirement from the 
Coast Guard, February 1, 199x.  He alleged that the DVA completed action on his 
application on February 12, 199x, and awarded him a 30 percent combined dis-
ability rating: 10 percent for hydronephrosis, 10 percent for a prostate gland con-

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
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.  It was dock-
eted  on  April  12,  1999,  upon  the  BCMR’s  receipt  of  the  applicant’s  completed 
application. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  January  31,  2000,  is  signed  by  the  three  duly 

REQUEST FOR RELIEF 

 
 
The applicant, a xxxxxxxxxx who retired from the Coast Guard on January 
31,  1998,  asked  the  Board  to  correct  his  record  to  show  that  he  was  retired  by 
reason of physical disability.   

 

 

dition,  and  10  percent  for  hypertension.    He  alleged  that  the  DVA  also  found 
service  connection  for  the  following  medical  conditions,  although  he  was  not 
found to be disabled by them:  sinusitis, nasal swelling, benign growth in genito-
urinary area, diverticulitis, varicose veins, foot condition, and hearing loss. 
 

SUMMARY OF THE RECORD 

 
 
The applicant received his commission as an ensign in the Coast Guard in 
196x.    He  graduated  from  xxxxx  while  serving  on  active  duty  and  rose  to  the 
rank  of  xxx  on  August  1,  199x.    In  his  most  recent  annual  officer  evaluation 
reports (OERs), the applicant has received marks of 6 (on a scale of 1 to 7, with 7 
being  the  highest  possible  mark)  in  the  category  “Health  and  Well-Being”  and 
the highest mark, “Recommended for Flag selection at next Board,” on the com-
parison scale.  The last annual OER in his record covers the period June 1, 199x to 
May 31, 199x.  In that OER, he received an average mark of 6.9 for all evaluation 
categories.  In addition, his reporting officer’s comments indicate that the appli-
cant had won a personal fitness award.   
 
 
There  is  evidence  in  the  applicant’s  military  medical  record  that  he  suf-
fered at various times during his career from all of the conditions for which the 
DVA  granted  service  connection.    During  the  year  prior  to  his  retirement,  the 
applicant’s  medical  records  reflect  the  following  conditions,  evaluations,  and 
treatments: 
 
 
On January 30, 199x, one year prior to his retirement, the applicant con-
sulted  Dr.  x  at the  Integrated  Support  Command  (ISC)  Medical  Clinic  in  xxxx.  
The  applicant  told  Dr.  x  that  he  was  doing  well  and  had  no  complaints  but 
needed  his  prescriptions  for  hypertension  and  high  cholesterol  medications 
refilled.  His diastolic blood pressure was 86 mm Hg.1 
 
 
On April 24, 199x, the applicant sought treatment for his allergies and was 
prescribed an inhaler and drops by Dr. x.  The results of a prostate exam were 
normal, and a blood test showed his long-standing high cholesterol level.  
 
 
 
 
On August 6, 199x, the applicant consulted Dr. x, who noted that he had 
no  complaints  but  needed  his  prescription  for  his  high  cholesterol  medication 
                                                 
1  Blood pressure is normally shown as two numbers, such as 110/80.  The first number is the 
person’s systolic pressure; the second is the diastolic pressure, which is measured in millimeters 
(mm) of mercury (Hg).  Diastolic pressure consistently above 90 mm Hg is “normally disqualify-
ing”  for  retention  on  active  duty  or  administrative  retirement.    Medical  Manual,  Chapter 
3.F.8.c.(2)(a). 

On June 24, 199x, the applicant underwent a dental examination. 

 

On August 6, 199x, the applicant underwent a periodontal exam.  He was 

refilled.  His diastolic blood pressure was 84 mm Hg. 
 
 
advised to floss. 
 
 
On October 8, 199x, the applicant underwent an annual physical exami-
nation at the ISC clinic.  On the Report of Medical History, which he filled out 
beforehand, he indicated that he suffered from chronic high cholesterol, chronic 
high blood pressure, chronic enlarged prostate, chronic food and seasonal plant 
allergies, a bunion on his right foot, flat feet, kidney stones, and high-frequency 
hearing  loss.    His  examining  physician,  Dr.  x,  noted  that  he  had  passed  three 
kidney stones, the last one five years earlier and that his high blood pressure was 
controlled by medication.  He also noted the applicant’s high-frequency hearing 
loss, which was  confirmed by an audiogram, allergies, and foot problems.  He 
marked  all  of  the  conditions  “NCNS,”  which  means  that  no  symptoms  were 
noticeable at that time.  The results of the applicant’s urinalysis, rectal examina-
tion, and stress test were normal, and blood tests revealed his continuing high 
HDL cholesterol level.  His diastolic blood pressure was 74 mm Hg. 
 

On the Report of Medical Examination (form SF-88), Dr. x indicated that 
the applicant had a mass in his left testicle, high blood pressure, high cholesterol, 
and high-frequency hearing loss, but that all of these conditions were “NCNS.” 
Dr.  x referred the  applicant  to  a  urologist  and  ordered  a  sigmoidoscopy  and a 
sonogram of the testicle but found him qualified for retention on active duty.  He 
did not list any “disqualifying defects” on the report.  Dr. x also refilled his pre-
scription for a hypertension medication.  The dental report was on the Report of 
Medical Examination was based on his June 24, 199x, dental examination. 

 
On October 10, 199x, the applicant underwent a sonogram of his testicles.  
Dr. y reported that the applicant told him he had had a mass in his left testicle for 
approximately  20  years  which  had  enlarged  during  the  past  year  and  became 
“painful approximately every two months.”  The sonogram revealed “multiple 
cystic structures” in his left testicle and a “fluid collection measuring 2.5 × 4.1 × 
3.1 cm” compressing the left testicle.  

 
On October 20, 199x, the ISC Clinic Administrator reviewed the Report of 
Medical Examination and concurred in Dr. x’s finding that the applicant met the 
standards for retention on active duty.   

 
On October 21, 199x, the applicant was examined by an optometrist. 
 
 
On  October  28,  199x,  Dr.  x  reviewed  the  results  of  the  sonogram  of  the 
applicant’s  testicles.    The  applicant  underwent  surgery  to  have  the  mass 

 

removed in December 199x. 
 
 
 
On November 3, 199x, the applicant called the ISC clinic asking to have 
his intravenous pyelography (to check for kidney stones) and sigmoidoscopy (to 
check his colon) scheduled for the same day.  He was told this was impossible, 
but  he  was  “very  persuasive”  and  “not  willing  to  change.”   Therefore,  he  was 
offered  the  option  of  having  a  barium  enema,  in  lieu  of  the  sigmoidoscopy, 
although it involves greater risk.  He chose to have the barium enema so that the 
tests could be done the same day. 
 
 
On November 7, 199x, Dr. z reported the results of the applicant’s pyelo-
gram and barium enema.  Dr. z reported that the pyelogram showed “[n]o evi-
dence  of  opaque  urinary  tract  calculi,”  and  that  the  enema  revealed  “[d]iver-
ticulitis of the distal colon.” 
 
 
On November 13, 199x, the Commander of the Personnel Command sent 
a letter to the applicant approving his request to retire.  The letter indicates that 
the  applicant  had  submitted  a  letter  on  November  12,  199x,  requesting 
permission  to  retire.    No  copy  of  the  applicant’s  letter  appears  in  his  personal 
data files. 
 
 
On December 3, 1997, Dr. x reviewed the applicant’s x-rays for the barium 
enema and pyelogram.  He noted that the tests showed small calculi in his left 
kidney  and  diverticulitis  but  that  these  conditions  were  asymptomatic.    The 
applicant  complained  of  pain  while  walking  caused  by  his  bunion,  so  Dr.  x 
referred him to a podiatrist.  
 
 
On  December  31,  199x,  the  applicant  was  treated  by  a  podiatrist  for  a 
painful bunion on his right foot.  He was diagnosed with hallux valgus2 of the 
right foot and prescribed a night splint, toe spacer, and custom orthotics and told 
to return for a follow up in two months. 
 
 
was advised to floss. 
 
 
On January 28, 199x, the ISC personnel office emailed the clinic a “friendly 
reminder” that the applicant was retiring on January 31, 199x, and that his medi-
cal record had to be forwarded to Coast Guard headquarters.  The same day, a 
chief health services technician at the clinic placed a form CG-4057 in the appli-
cant’s file which is supposed to be signed by a member prior to retirement.  The 

On  January  20,  199x,  the  applicant  underwent  a  periodontol  exam  and 

                                                 
2  This is a condition in  which the big toe angles toward the other toes and  may cross over  or 
under them. 

 

On January 29, 199x, the applicant had cavities on his ## 18 and 20 teeth 

form  permits  the  member  to  indicate  whether  he  agrees  with  the  physician’s 
findings  on  the  Report  of  Medical  Examination  and  to  submit  a  statement  in 
rebuttal.  It also informs the member that he is not entitled to disability benefits 
because he has been found fit for duty.  The form is not signed by the applicant.  
Instead, it indicates at the bottom that “SNM has been released from active duty 
without an approved physical exam.  SNM also failed to check out with medical 
prior to being released.” 
 
 
filled with amalgam. 
 
 
On January 31, 199x, the applicant was honorably retired from the Coast 
Guard with a narrative reason of separation of “sufficient service for retirement.”  
He had completed 28 years, 7 months, and 27 days of active duty. 
 
 
On February 26, 199x, the applicant went for a follow-up visit for his testi-
cle surgery to the ISC clinic.  The doctor reported that he was doing well and had 
no complaints concerning the surgery, but he needed a refill for his blood pres-
sure medicine.  The applicant’s diastolic pressure was 80 mm Hg. 
 

On  August  26,  199x,  the  DVA  awarded  the  applicant  a  20-percent  com-
bined  disability  rating  due  to  his  prostate  gland  condition  (10  percent)  and 
hypertension  (10  percent).    Other  conditions,  including  kidney  stones,  were 
determined to be service-connected but not disabling.  On February 12, 199x, the 
DVA  amended  its  findings  by  granting  service  connection  for  hydronephrosis 
and increasing his combined disability rating to 30 percent because of it. 
 

VIEWS OF THE COAST GUARD 

 

 

On  November  24,  1999,  the  Chief  Counsel  of  the  Coast  Guard  recom-

mended that the Board deny the applicant the requested relief.  

 
The Chief Counsel stated that the record shows that the applicant received 
a  proper  pre-retirement  medical  examination  on  October  20,  199x,  and  was 
found fit for retention and therefore fit for voluntary retirement by reason of his 
28 years on active duty. 

 
Citing  Article  1.A.  of  the  Physical  Disability  Evaluation  (PDES)  Manual, 
the  Chief  Counsel  stated  that  “[t]he  law  that  provides  for  physical  disability 
retirement  or  separation  and  associated  benefits  (Chapter  61,  Title  10,  United 
States Code) is designed to compensate members whose military service is ter-
minated due to a service connected disability, and to prevent the arbitrary sepa-
ration  of  individuals  who  incur  disabling  injuries.”    Furthermore,  the  Chief 

Counsel argued, under 10 U.S.C. § 1201 and Article 2.C.2.a. of the PDES Manual, 
“[t]he  sole  basis  for  a  physical  disability  determination  in  the  Coast  Guard  is 
unfitness  to  perform  duty.”    Article  2.C.2.b.  of  the  PDES  Manual,  he  stated, 
expressly “prohibit[s] use of this authority to bestow compensation benefits on 
those  who  are  retiring  or  separating  and  have  continued  on  unlimited  active 
duty while tolerating impairments that have not actually precluded Coast Guard 
service.”   

 
Under  Articles  2.C.2.b.1.  and  2.C.2.c.,  the  Chief  Counsel  argued, 
“[c]ontinued performance of duty until a service member is scheduled for sepa-
ration or retirement for reasons other than physical disability creates a presump-
tion of fitness for duty. …  If the evidence establishes that service members ade-
quately performed the duties of their office, grade, rate or rating until the time 
they were referred for physical evaluation, they might be considered fit for duty 
even though medical evidence indicates they have impairments.” 

 
The Chief Counsel stated that the applicant “has not proved by a prepon-
derance of the evidence that he was unable to fulfill his duties while on active 
duty  prior  to  and  coincident  with  his  voluntary  retirement.”    The  applicant’s 
records indicate he performed his duties “in a highly satisfactory manner” until 
his retirement.  The applicant, the Chief Counsel argued, did not provide suffi-
cient evidence to rebut the presumption that he was fit for duty at the time of his 
retirement. 

 
The  Chief  Counsel  alleged  that  because  the  applicant  was  found  fit  for 
retirement during his pre-retirement physical, there was no basis to evaluate him 
for a physical disability retirement.  Furthermore, he alleged, the applicant has 
not provided substantial evidence to rebut the presumption that the Coast Guard 
doctors who found him fit for retention (retirement) carried out their duties cor-
rectly, lawfully, and in good faith.   

 
The Chief Counsel stated that, under Lord v. United States, 2 Ct. Cl. 749, 754 
(1983),  disability  ratings  awarded  by  the  DVA  “are  not  determinative  of  the 
issues involved in military disability retirement cases. …  The DVA determines 
to what extent a veteran’s earning capacity has been reduced as a result of spe-
cific injuries or combinations of injuries.  The Armed Forces, on the other hand, 
determine  to  what  extent  a  member  has  been  rendered  unfit  to  perform  the 
duties of his rate and specialty because of a physical disability.”  Furthermore, 
the  Chief  Counsel  argued,  the  DVA’s  determination  in  February  199x  that  the 
applicant was 10 percent disabled due to hydronephrosis does not prove that he 
was disabled by that condition on the date of his retirement, January 31, 199x.   
 
 

In conclusion, the Chief Counsel argued, the applicant has not proved that 

 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
On November 30, 1999, the Chairman sent copies of the Chief Counsel’s 
advisory  opinion  to  the  applicant  and  invited  him  to  respond  within  15  days.  
The applicant responded on December 9, 1999. 

 
The applicant alleged that he never had a retirement physical.  He stated 
that the physical examination he underwent on October 8, 199x, was a “regularly 
scheduled, routine physical examination that was never even finally approved.”  
The applicant alleged  that a regular physical is very different “in  fact if  not in 
law”  from  a  retirement  physical.    The  former,  he  alleged,  tends  to  minimize 
problems and present an optimistic view of the member’s health.  The latter, he 
alleged,  “tends  to  document  every  existing  and  potential  diagnosis  in  great 
detail, so as to protect the member in seeking service connection determinations 
from the VA.”  Furthermore, he alleged, the Chief Counsel’s statement that he 
never  “checked  out  with  medical”  before  his  retirement  was  news  to  him 
because  he  was  “at  medical  on  at  least  a  weekly  basis  in  December  199x  and 
January 199x.”  He further stated that, if the report on his examination was not 
available for review, it was not due to anything he had done or failed to do. 

 
The applicant alleged that his final officer evaluation report (OER), for the 
period June 199x through January 199x, would have documented his diminished 
performance due to health problems, but his reporting officer never submitted 
the OER to Coast Guard headquarters. 

 
Regarding his unfitness for duty, the applicant alleged that he has “passed 
a continuous series of kidney stones” since 198x.  He stated that x-rays taken in 
the fall of 199x showed kidney stones in his right kidney and ureter.  He alleged 
that he had previously been hospitalized because of kidney stones and that his 
records show he was “not available for worldwide, unrestricted service because 
of the probability of an attack with no advance warning.”   

The applicant also stated that in December 199x he had a benign testicular 
mass removed that had restricted his movement for months.  He alleged that the 
incision was still swollen and unhealed on the day of his retirement and that the 
condition has reappeared and will require further surgery. 

 
Furthermore, the applicant alleged, he suffered from foot pain for years.  
The  podiatrist  he  was  referred  to  by  the  Coast  Guard  recommended  that  he 
undergo surgery to correct the underlying problem. 

his voluntary retirement was in error or unjust, and the Board should deny relief 
consistent with its decision in BCMR Docket No. 1998-070. 
 

 

 

Regarding  his  DVA  disability  rating,  the  applicant  alleged  that  because 
the  DVA  and  the  Coast  Guard  use  the  same  rating  schedule,  the  Coast  Guard 
cannot reasonably say there is nothing wrong with him when the DVA has found 
“a dozen service-connected, ratable and compensable conditions.” 

 
The applicant alleged that he was not fit for duty at the time he retired but 
he continued to work because being chief of staff of the xxxx District “is not the 
type of job where you take a day off because you don’t feel well, your foot hurts 
or you are having trouble walking because of a swollen scrotum.”  Taking time 
off,  he  alleged,  would  have  “wreak[ed]  havoc”  with  his  staff.    Therefore,  he 
alleged, his continuing performance of duty says more about his “strong sense of 
duty”  than  about  his  fitness.    Finally,  the  applicant  alleged,  a  xxxxx  who  was 
serving  as  xxxxxx  of  the  Coast  Guard  received  a  disability  retirement  “despite 
never having missed a day of duty for medical reasons.”  Therefore, he argued, 
continued  performance  of  duty  cannot  disqualify  a  member  for  a  disability 
retirement. 
 

COAST GUARD’S RESPONSE TO THE APPLICANT’S STATEMENTS 

 
 
On  December  10,  1999,  the  BCMR  sent  the  Chief  Counsel  a  copy  of  the 
applicant’s response to his advisory opinion.  On December 22, 1999, the Chief 
Counsel responded to the applicant’s further allegations. 
 
The  Chief  Counsel  stated  that  the  applicant’s  allegation  that  a  regular 
 
physical is different “in fact if not in law” from a retirement physical is “contrary 
to  the  facts  and  the  applicable  law.”    Citing  Article  12.A.10.c.  of the  Personnel 
Manual,  he  argued  that  a  regular,  quadrennial  physical  is  “sufficient  for  pur-
poses of evaluating the Applicant’s fitness for retirement under any law or serv-
ice  regulation.”    Furthermore,  the  Chief  Counsel  stated,  Article  3.A.7.c.(1)  pro-
vides  that  retirement  physicals  “shall  follow  the  guidelines  set  forth  for  quad-
rennial physicals.”  Therefore, he argued, “the Board should not give any legal 
moment to the allegation regarding Applicant’s October 199x physical exam.” 
 
Furthermore,  the  Chief  Counsel  argued,  the  three  conditions  (kidney 
 
stones,  testicular  mass,  and  right  foot  deformity)  that  the  applicant  alleges 
should  have  disqualified  him  for  retention/retirement  were  evaluated  and 
documented during the October 199x physical examination.  Therefore, the Chief 
Counsel alleged, the applicant has no basis for claiming that a “retirement physi-
cal” would have found disqualifying conditions unaddressed by his quadrennial 
examination. 
 

APPLICANT’S SUPPLEMENTAL RESPONSE 

 

 

 
On January 14, 2000, the applicant responded to the Chief Counsel’s addi-
tional arguments.  He stated that when he underwent his regular, quadrennial 
physical examination on October 8, 199x, he was expecting to continue on active 
duty until his 30-year mandatory retirement date, June 30, 199x.  He did not seek 
retirement until late November 199x.  Therefore, he alleged, he did not know that 
the physical examination would serve as his retirement physical. 
 

Moreover,  the  applicant  alleged,  the  factual  difference  between  a  quad-
rennial  examination  and  one  conducted  for  the  express  purpose  of  retirement 
“arises on the part of the examiner, not the examinee.”  He alleged that physi-
cians  complete  hundreds  of  quadrennial  examinations  and  may  not  refer  an 
examinee for further evaluation because it would cause delay and because they 
do not believe any harm is done if something is overlooked because the member 
can always return later.  However, he alleged, during a real retirement physical, 
“the  highest  level  of  scrutiny  is  afforded”  because  “it  is  truly  a  last  chance  to 
fully document a member’s physical condition.” 

 
Finally,  the  applicant  alleged  that  his  quadrennial  exam  was  never 

“approved,” and therefore could not legally qualify as his retirement physical. 
 

APPLICABLE STATUTES AND REGULATIONS 

 
Disability Retirement Statute 
 
Under 10 U.S.C. § 1201(a), “[u]pon a determination by the Secretary con-
 
cerned that a member [entitled to basic pay] is unfit to perform the duties of the 
member’s  office,  grade,  rank,  or  rating  because  of  physical  disability  incurred 
while entitled to basic pay … the Secretary may retire the member, with retired 
pay  computed  under  section  1401  of  this  title,  if  the  Secretary  also  makes  the 
determinations with respect to the member and that disability specified in sub-
section (b).”   
 
 
as follows: 
 

Under 10 U.S.C. § 1201(b), the “Required Determinations of Disability” are 

the disability is not the result of the member’s intentional miscon-

based upon accepted medical principles, the disability is of a per-

(1) 
manent nature and stable; 
(2) 
duct …; and 
either 
(3) 
 
(A) 
under section 1208 of this title; or 
 
the  disability  is  at  least  30  percent  under  the  standard 
schedule  of  rating  disabilities  in  use  by  the  Department  of  Veterans 

the  member  has  at  least  20  years  of  service  computed 

(B) 

 

the member has at least eight years of [active duty] 

the disability is the proximate result of performing 

(i) 

(ii) 

Affairs at the time of the determination; and either 
 
service …; 
 
active duty; 
 
time of war or national emergency; or 
(iv) 
 
September 14, 1978. 

(iii) 

 

 

 

 

the  disability  was  incurred  in  the  line  of  duty  in 

the disability was incurred in the line of duty after 

 
Provisions of the Personnel Manual (COMDTINST M1000.6A) 
 

Article  12.A.10.a.  of  the  Personnel  Manual  provides  that  a  “physical 
examination is not required for officers prior to separation (e.g., retirement, res-
ignation,  or  discharge)  or  release  to  inactive  duty  if  they  have  had  a  physical 
examination within 1 year of their separation/release date.”  

 
Article 12.A.10.e. of the Personnel Manual provides the following regard-

ing the “various outcomes of a physical examination for separation/release”: 

 
 
 

 

 
(1) 
If an officer is found qualified for separation/release and agrees 
with the finding, the officer shall be processed for separation/release as 
scheduled. 
 
(2) 
If  an  officer  is  found  qualified  for  separation/release  and  dis-
agrees  with  the  finding,  Commandant  (G-PO-1)  and  (G-KDE)  shall  be 
notified immediately.  The officer shall then be processed in accordance 
with Chapter 3 of the Medical Manual . . . . 

Article 12.C.3.a. of the Personnel Manual states the following: 

If a disability render[ing] a member unfit to perform the duties of his/her 
grade or rate is found at the examination or develops prior to retirement 
from  the  Service,  the  member  may  be  eligible  for  a  physical  disability 
retirement.  However, all physical impairments do not necessarily render 
a member unfit for service.  Many members do in fact serve effectively 
notwithstanding impairments that may be present. 

 
Provisions of the Medical Manual (COMDTINST M6000.1B) 

 
The  Medical  Manual  governs  the  disposition  of  members  with  physical 
disabilities.  According to Chapter 3.A.7.c.(1) of the Medical Manual, the physical 
examination that a member must undergo within 12 months of separation from 
active  duty  “shall  follow  the  guidelines  set  forth  for  quadrennial  physicals.”  
However,  under  Chapter  3.A.7.h.,  upon  attaining  the  age  of  50  years  (as  the 

applicant did in September 1997), such physical examinations are required annu-
ally, rather than just quadrennially. 

 
According to Chapter 3.A.9.a., a physical conducted for one purpose, such 

as retention, can be used for another purpose, such as retirement, if 

 
(1)  the examinee was physically qualified for the purpose of the previous 
examination  and  all  the  required  tests  and  recommendations  have 
been completed; 

 
(2)  the  SF-88  used  for  substitution  bears  an  endorsement  from  the 
Reviewing  Authority  of  Commandant  (G-KOM),  as  appropriate, 
indicating that the examinee was qualified for the purpose of the pre-
vious examination; 

 
(3)  there has been no significant change in the examinee’s medical status 

since the previous examination; 

 
(4)  a review of the report of the previous examination indicates that the 

examinee meets the physical standards of the present requirement; 

 
(5)  the date of the previous examination is within the validity period of 

the present requirement; and 

 
(6)  all  additional  tests  and  procedures  to  meet  the  requirements  of  the 

current physical examination have been completed. 

According to Chapter 3.B.3.a.(1), during the medical examination a mem-
ber must undergo prior to separation, “the examiner shall consult the appropri-
ate standards of this chapter to determine if any of the defects noted are disquali-
fying  for  the  purpose  of  the  physical  examination.”  Chapter  3.F.  lists  medical 
conditions that “are normally disqualifying” for administrative retirement from 
the Service.  Persons with “listed conditions or defects (and any other not listed) 
considered  disqualifying  shall  be  referred  to  an  Initial  Medical  Board  …  .”  
Chapter 3.F.6.b. specifies that if a member suffers hearing loss, “[r]etention will 
be  determined  on  the  basis  of  ability  to  perform  duties  of  grade  or  rating.”  
Chapter 3.F.8.c. specifies that to be considered “normally disqualifying,” hyper-
tension  must  result  in  “[d]iastolic  pressure  consistently  more  than  90  mm  Hg 
following  an  adequate  period  of  therapy”  or    in  “unequivocal  impairment  of 
renal function.”  Chapter 3.F.11.a.(6)(a) stated that having a kidney calculi may 
be  disqualifying  if  they  are  bilateral  (appearing  in  both  kidneys)  or  if  they  are 
currently  causing  symptoms  and  are  unresponsive  to  treatment.    Chapter 
3.F.11.a.(6) states that hydronephrosis may be disqualifying if it is “[m]ore than 
mild,  or  bilateral,  or  causing  continuous  or  frequent  symptoms.”    Chapter 
3.F.12.b.(2)(a) states that hallux valgus may be disqualifying “[w]hen moderately 

 

 

severe,  with  exostosis  [causing  a  benign  bony  growth]  or  rigidity  and  pro-
nounced  symptoms;  or  severe  arthritic  changes.”    The  applicant’s  “prostate 
gland  condition”  and  diverticulitis  are  not  listed  as  potentially  disqualifying 
conditions in Chapter 3.F. of the Medical Manual. 

 
According  to  Chapter  3.B.3.a.(3),  after  the  physical  examination,  “the 
medical examiner will advise the examinee concerning the findings of the physi-
cal examination.” 

 
According to Chapter 3.B.5., which is entitled “Objection to Assumption 

of Fitness for Duty at Separation,” 

 
[a]ny  member  undergoing  separation  from  the  service  who  disagrees 
with the assumption of fitness for duty and claims to have a physical dis-
ability  as  defined  in  section  2-A-38  of  COMDTINST  M1850.2  (series), 
Physical  Disability  Evaluation  System,  shall  submit  written  objections, 
within 10 days of signing the Chronological Record of Service (CG-4057), 
to Commander [Military Personnel Command]. . . .  Commander [Mili-
tary Personnel Command] will evaluate each case and, based upon infor-
mation submitted, take one of the following actions: 
 
(1)  find  separation  appropriate,  in  which  case  the  individual  will  be  so 
notified and the normal separation process completed; 
 
(2)  find separation inappropriate, in which case the entire record will be 
returned and appropriate action recommended; or 
 
(3)  request additional documentation before making a determination. 
 
According to Chapter 3.B.6., which is entitled “Separation Not Appropri-

ate by Reason of Physical Disability,” 
 

[w]hen a member has an impairment (in accordance with section 3-F of 
this manual) an Initial Medical Board shall be convened only if the condi-
tions  listed  in  paragraph  2-C-2.(b)  [of  the  PDES  Manual]  are  also  met.  
Otherwise the member is suitable for separation. 
 
Chapter 3.F.1.c. of the Medical Manual states the following: 
 
Fitness for Duty.  Members are ordinarily considered fit for duty unless 
they have a physical impairment (or impairments) which interferes with 
the performance of the duties of their grade or rating.  A determination of 
fitness  or  unfitness  depends  upon  the  individual’s  ability  to  reasonably 
perform those duties.  Members considered temporarily or permanently 
unfit for duty shall be referred to an Initial Medical Board for appropriate 

 

disposition. 
 
Chapter 4.B.6.c. provides instructions for completing the SF-88 Report of 
Medical  Examination.    Article  4.B.6.c.(44)  instructs  the  examining  physician  in 
block 74 of the SF-88 to “[l]ist ALL defects in order to protect the Government in 
the event of future disability compensation claims.  All defects listed which are 
not considered disqualifying shall be so indicated by the abbreviation NCD (Not 
Considered Disqualifying).  When an individual has a disease or other physical 
condition that, although not disqualifying, requires medical or dental treatment 
clearly state the nature of the condition and the need for treatment.”  In block 75, 
the  physician  is  supposed  to  indicate  any  recommendations  and  “[s]pecify  the 
particular type of further medical or dental specialist examination indicated.”  If 
the member is not fit for the purpose of the examination, the physician is sup-
posed to list the disqualifying defects by number in block 78. 

 
Chapter  4.B.27.c.  provides  that  “[m]embers  not  already  in  the  physical 
disability  evaluation  system,  who  disagree  with  the  assumption  of  fitness  for 
duty at separation shall indicate on the reverse of form CG-4057.  They shall then 
proceed as indicated in paragraph 3-B-5. of this manual.” 
 
Provisions of the PDES Manual (COMDTINST M1850.2B)  
 
 
disability.   Article 2.C.2. of the PDES Manual states the following: 

The  PDES  Manual    governs  the  separation  of  members  due  to  physical 

 
b. 
The  law  that  provides  for  disability  retirement  or  separation 
(Chapter  61,  Title  10,  U.S.  Code)  is  designed  to  compensate  members 
whose military service is terminated due to a physical disability that has 
rendered  the  member  unfit  for  continued  duty.    That  law  and  this  dis-
ability evaluation system are not to be misused to bestow compensation 
benefits on those who are voluntarily or mandatorily retiring or separat-
ing  and  have  theretofore  drawn  pay  and  allowances,  received  promo-
tions,  and  continued  on  unlimited  active  duty  status  while  tolerating 
physical  impairments  that  have  not  actually  precluded  Coast  Guard 
service.  The following policies apply. 
 
   (1)  Continued performance of duty until a service member is sched-
uled for separation or retirement for reasons other than physical disabil-
ity creates a presumption of fitness for duty.  This presumption may be 
overcome if it is established by a preponderance of the evidence that: 
 
 
the  service  member,  because  of  disability, was physically 
unable to perform adequately the duties of office, grade, rank or rating; or 
 
 

acute, grave illness or injury, or other deterioration of the 

(b) 

(a) 

 

member’s physical condition occurred immediately prior to or coincident 
with processing for separation or retirement for reasons other than physi-
cal disability which rendered the service member unfit for further duty. 
 
    (2)  Service  members  who  are  being  processed  for  separation  or 
retirement for reasons other than physical disability shall not be referred 
for  disability  evaluation  unless  their  physical  condition  reasonably 
prompts doubt that they are fit to continue to perform the duties of their 
office, grade, rank or rating. 
 
c. 
If the evidence establishes that service members adequately per-
formed the duties of their office, grade, rank or rating until the time they 
were  referred  for  physical  evaluation,  they  might  be  considered  fit  for 
duty even though medical evidence indicates they have impairments. 

i. 
The  existence  of  a  physical  defect  or  condition  that  is  ratable 
under the standard schedule of rating disabilities in use by the [Depart-
ment  of  Veterans  Affairs]  does  not  of  itself  provide  justification  for,  or 
entitlement to, separation or retirement from military service because of 
physical disability.  Although a member may have physical impairments 
ratable in accordance with the VASRD, such impairments do not neces-
sarily render the member unfit for military duty. . . . 

•   •   • 

 

 

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 sec-

2. 

tion 1552 of title 10 of the United States Code.  The application was timely. 
 
 
The applicant alleged that he should have been retired by reason of 
physical disability, rather than by reason of sufficient years of service, due to his 
several medical conditions, which the DVA determined justified a combined dis-
ability rating of 30 percent.  Furthermore, he alleged, he never received a proper 
physical examination for the purpose of retirement, which he alleged is usually 
conducted  more  thoroughly  than  an  annual  physical  in  order  to  document  all 
service-connected  medical  conditions  for  which  the  member  may  later  receive 
DVA benefits.  The applicant also alleged that unfitness for duty is not really a 
criterion for a disability retirement because he knows of a xxxxxx who received a 
disability retirement even though he continued to perform his duty up to the day 
of his retirement. 

 
3. 

 
4. 

The applicant’s argument that he should not be required to prove 
that  he  was  unfit  for  duty  because  he  believes  that  a  xxxxxx  who  received  a 
disability  retirement  was  fit  for  and  performing  full  duty  at  the  time  of  his 
retirement  is  unpersuasive.    A  mere  allegation  that  in  one  instance  the  regula-
tions governing disability retirement were not followed, even if proven, is insuf-
ficient reason for the Board to ignore the regulations. 

The applicant’s October 199x physical examination met the require-
ments for a proper retirement physical under Chapters 3.A.7. and 3.A.9. of the 
Medical Manual.  The applicant’s medical records show that his medical condi-
tions  were  noted  and  properly  evaluated  during  the  evaluation  and  follow-up 
tests.  The applicant has failed to prove that at the time of the examination he 
was suffering from any medical condition that was not properly and thoroughly 
evaluated and factored into the doctor’s determination that he was fit for reten-
tion.  The applicant’s argument that this physical examination was not as thor-
ough as one conducted for the purpose of retirement is disproved by the doctor’s 
notes and the battery of tests he received.  Furthermore, the doctor’s determina-
tion of fitness on the applicant’s SF-88 was properly approved by the reviewing 
authorities. 
 

5. 

Determinations of physical disability of Coast Guard members are 

 

made by medical boards convened pursuant to the PDES Manual.  According to 
Chapter 3.F.2. of the Medical Manual, if a member is found to have a “disquali-
fying”  physical  impairment  during  a  medical  examination,  a  medical  board 
“shall” be held to determine the member’s disposition.  However, Chapter 3.B.6. 
states that the Coast Guard shall convene an IMB for members with disqualify-
ing impairments who are being separated for reasons other than a disability only 
if the requirements of Article 2-C-2.b. of the PDES Manual are met.  That article 
requires members to prove by a preponderance of the evidence that they are not 
fit for duty because of a disability.  It also states that members such as the appli-
cant, who are being processed for separation for reasons other than physical dis-
ability, shall not be referred to a medical board “unless their physical condition 
reasonably prompts doubt that they are fit to continue to perform the duties of 
their office, grade, rank or rating.”  Therefore, the Board finds that, to prove that 
the  Coast  Guard  erred  by  not  convening  a  medical  board  to  evaluate  him  or 
retiring him by reason of physical disability, the applicant must prove that, at the 
time of his release from active duty, (a) he had a disqualifying physical impair-
ment which rendered him unfit for duty or (b) his physical condition reasonably 
prompted doubt as to his fitness for duty. 

Disqualifying  Physical  Impairment.    Chapter  3.F.  of  the  Medical 
Manual lists those conditions that are normally considered “disqualifying physi-
cal  impairments.”    None  of  the  applicant’s  service-related  medical  conditions 
could be considered disqualifying for retention on active duty (or administrative 
retirement) under the terms of Chapter 3.F.  His potentially serious medical con-
ditions were duly noted and evaluated during his October 199x physical exami-
nation  and  were  determined  not  to  be  symptomatic  at  that  time.    In  fact,  the 
record  indicates  that  none  of  his  potentially  serious  medical  problems  were 
symptomatic during the year immediately prior to his retirement.  All of his con-
ditions  were  rated  0  percent  disabling  by  the  DVA,  except  for  three,  which 
received  10-percent  ratings.    Regarding  these  three,  the  applicant’s  medical 
records indicate the following:  (1) During the year prior to his retirement, the 
applicant’s diastolic blood pressure consistently measured under 90 mm Hg, and 
his kidney function was not unequivocally impaired; (2) His hydronephrosis was 
asymptomatic (tests revealed calculi only in his left kidney, and the last time he 
had  painfully  passed  a  kidney  stone  was  several  years  earlier);  and  (3)  The 
benign  mass  in  his  testicle  had  been  removed,  and  he  made  no  complaints 
regarding it during his follow-up visit.  Furthermore, his hearing loss was high-
frequency only and did not hinder his performance of duty.  Likewise, the hallux 
valgus and bunion on his right foot were noted and treated but did not require 
limitations on his performance of duty.  Therefore, the Board finds that the appli-
cant’s  conditions  at  the  time  of  his  discharge  did  not  constitute  “disqualifying 
physical impairments” within the meaning of Chapters 3.F.17 and 3.F.19.c.  

 
6. 

 

 

7. 

Fitness for Duty.  Article 2-C-2.b.(1) of the PDES Manual states that 
“[c]ontinued performance of duty until a service member is scheduled for sepa-
ration or retirement for reasons other than physical disability creates a presump-
tion of fitness for duty.”  The applicant continued to perform active duty service 
until the date of his discharge.  The applicant may overcome the presumption of 
fitness, however, if he establishes by a preponderance of the evidence that he was 
unable to perform his duties adequately.  The applicant alleged that at the time 
of his discharge, he had been missing work because of his conditions.  He alleged 
that an OER covering his final seven months on active duty would have reflected 
this.  However, the record indicates that the applicant adequately performed his 
duties during his final seven months on active duty.  The last OER in his record 
shows superb performance and the applicant’s receipt of a fitness award.  Other 
than his successful testicle surgery and visit to the podiatrist, his records reflect 
no  absences  due  to  symptomatic  medical  conditions  during  his  final  year  on 
active duty.  All medical consultations in 199x other than his visit to the podia-
trist  were  for  the  purpose  of  refilling  prescriptions  and  completing  his  annual 
physical.    The  applicant  argued  that  he  qualified  for  a  disability  retirement 
because his medical conditions prevented him from being assigned worldwide.  
However, availability for worldwide assignment is not a requirement of fitness 
for duty.  In light of these facts, the Board finds that the applicant has not proven 
by  the  preponderance  of  the  evidence  that  he  was  unable  to  perform  his  duty 
adequately or that he was unfit for duty at the time of his retirement. 

Reasonable  Doubt  of  Fitness  for  Duty.    The  applicant  voluntarily 
sought to resign his commission for nonmedical reasons.  Article 2-C-2.b.(2) of 
the PDES Manual states that members who are being administratively separated 
shall  be  referred  to  a  medical  board  if  “their  physical  condition  reasonably 
prompts doubt that they are fit to perform the duties of their office, grade, rank 
or  rating.”    At  the  time  of  his  medical  examination  in  October  199x,  all  of  the 
applicant’s  potentially  serious  medical  conditions  were  asymptomatic.    More-
over, the record shows that he did not complain to his physician about suffering 
from any symptoms of these conditions during his last year on active duty.  The 
mass in his testicle and the condition of his right foot were evaluated and treated 
prior  to  his  retirement.    Therefore,  the  Board  finds  that  the  applicant  has  not 
proved  by  a  preponderance  of  the  evidence  that  his  physical  condition  should 
have prompted doubt regarding his fitness for duty.  Thus, he was not entitled to 
a medical board under the terms of Article 2-C-2.b.(2) of the PDES Manual. 

Under Article 2-C-2.i. of the PDES Manual, the fact that the appli-
cant’s conditions are ratable disabilities under the DVA rating systems does not 
prove  that  he  should  have  been  found  unfit  for  duty.    As  the  Chief  Counsel 
pointed out, the Court of Federal Claims has held that “[d]isability ratings by the 
Veterans  Administration  [now  the  Department  of  Veterans  Affairs]  and  by  the 

 
8. 

 
9. 

 

Armed Forces are made for different purposes.  The [DVA] determines to what 
extent a veteran’s earning capacity has been reduced as a result of specific inju-
ries or combination of injuries. . . .  The Armed Forces, on the other hand, deter-
mine to what extent a member has been rendered unfit to perform the duties of 
his office, grade, rank, or rating because of a physical disability. . . .  Accordingly, 
[DVA]  ratings  are  not  determinative  of  issues  involved  in  military  disability 
retirement cases.”  Lord v. United States, 2 Cl. Ct. 749, 754 (1983). 
 
 
Therefore, the Board finds that the applicant has not proved by a 
preponderance  of  the  evidence  that  the  Coast  Guard  committed  any  error  or 
injustice by not convening a medical board to evaluate his conditions or by not 
retiring him by reason of physical disability. 
 
11.  Upon the completion of a physical examination, the Coast Guard is 
 
supposed to have the member sign a CG-4057 form, on which he indicates agree-
ment or disagreement with the physician’s findings.  Medical Manual, Chapters 
3.B.5. and 4.B.27.c.  The CG-4057 also informs the member of his right to submit a 
statement rebutting those findings and to have that statement and the report of 
the examination reviewed.  The record indicates that the applicant did not sign a 
CG-4057 form for his October 8, 199x, physical examination.  This error deprived 
him  of  his  right  to  submit  a  statement  objecting  to  the  finding  and  to  have  it 
reviewed and perhaps reversed.  However, in light of the facts set out above, the 
Board finds that the Coast Guard’s failure to notify the applicant of his right to 
rebut the finding of fitness via the CG-4057 form was harmless error.  A further 
review would not have resulted in the applicant’s appearance before a medical 
board for evaluation or retirement by reason of physical disability; the reviewer 
would only have confirmed the finding of fitness. 
 
 
denied. 
 
 
 
 

12.  Accordingly,  the  applicant’s  request  for  correction  should  be 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

10. 

 

 

 
 

USCG, is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 

 

 
 Edmund T. Sommer, Jr. 

 

 

 

 
Mark A. Tomicich 

 

 

 
 
 Betsy L. Wolf 

 

 

 

 

 

 

 

 

The  application  for  correction  of the  military  record of  retired  XXXXXX, 

ORDER