DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-051 
 
XXXXXX, XXXXXX X. 
XXX XX XXXX, XXX 
   

 

 
 

DECISION OF THE DEPUTY GENERAL COUNSEL 

ACTING UNDER DELEGATED AUTHORITY 

       
 
 

 

______  I approve the recommended Order of the Board. 

______  I disapprove the recommended Order of the Board.  

     X       I concur in the relief recommended by the Board. 

 

 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
Date:   February 20, 2003
 
 
 
 

 
 
 
 

 
 
 
 

 

 
 
 
 

 

 

 
 
 
 

 
 
 
 
 
 

 
 
 
 
 
 

     

 Rosalind A. Knapp 
  Deputy General Counsel 
  as designated to act for the 
  Secretary of Transportation 

 

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2002-051 
 
XXXXXX, XXXXXX X. 
XXX XX XXXX, XXX 
   

 

 
 

FINAL DECISION 

 
GARMON, Attorney-Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on February 22, 2002 upon 
receipt of the applicant’s request for correction. 
 
 
members who were designated to serve as the Board in this case. 

This final decision, dated February 6, 2003 is signed by the three duly appointed 

 

APPLICANT’S REQUEST 

 
The applicant asked the Board to correct her military record to show that she was 
not  fit  for  full  duty  (NFFD)  on  October  23,  19XX  and  reinstated  on  the  temporary 
disability retirement list (TDRL).  Such a correction would set aside the Coast Guard’s 
finding that she was fit for full duty (FFD) and her removal from the TDRL. 

 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that on March 5, 19XX, a Physical Evaluation Board (PEB) 
diagnosed her with “atypical basilar migraine, that did not exist prior to enlistment ….” 
She  alleged  that  in  the  following  month,  she  was  placed  on  the  TDRL  with  a  thirty 
percent  disability  rating.    She  alleged  that  in  February  19XX,  the  Department  of 
Veterans  Affairs  (DVA)  found  her  to  be  eighty  percent  disabled  as  a  result  of  her 
condition.   
 

 
The  applicant  alleged  that  when  she  received  her  first  periodic  reevaluation  in 
March  19XX,  the  examining  neurologist  concluded  that  she  was  NFFD  and  should 
remain  on  the  TDRL  for  further  observation.    She  alleged  that  a  Central  Physical 
Evaluation Board (CPEB), which convened on April 23, 19XX, found her physically and 
mentally  unfit,  but  erroneously  assigned  her  a  zero  percent  disability  rating  and 
recommended her separation with severance pay.  She rejected the recommendation of 
the CPEB and requested a formal hearing before the Formal Physical Evaluation Board 
(FPEB).   
 
The applicant alleged that the FPEB improperly recommended that she be found 
FFD.  She alleged that on November 5, 19XX, she filed a rebuttal, which argued that the 
FPEB’s decision was contrary to the evidence in the record and “entirely unexplained.”  
She  alleged  that  on  December  27,  19XX,  the  Commander  of  Coast  Guard  Personnel 
Command (CGPC) upheld the recommended findings of the FPEB and that as a result, 
she was found FFD and unjustly removed from the TDRL.   
 
 
The  applicant  alleged  that  on  February  2,  2002,  she  received  notice  of  CGPC’s 
final decision, which failed to offer any explanation or reasons for its approval of the 
FPEB’s  recommendation  but  extended  an  offer  for  her  to  reenlist.    She  alleged  that 
because she was NFFD, she rejected the Coast Guard’s offer to resume active duty. 
 

SUMMARY OF  THE APPLICANT’S RECORD 

 

On September 26, 19XX, the applicant enlisted in the Coast Guard.  She joined a 
rate and was advanced to petty officer third class (paygrade E-4) in 1997.  According to 
the  applicant’s  military  medical  records,  she  began  receiving  treatment  for  headaches 
and/or migraine headaches in July 19XX.   

 
On  July  31,  19XX,  the  applicant  received  a  CT  scan  at  a  non-military  medical 
facility  due  to  “headache  (sudden)  loss  of  peripheral  vision,  [and]  weakness  in  both 
hands.” The impression was “[n]ormal non-enhanced CT of the brain.”  On September 
17, 19XX, she was evaluated at a clinic in follow-up to her July 31st treatment and was 
found to be currently asymptomatic and FFD. 

 
On September 18, 19XX, the applicant visited a naval clinic, complaining that she 
had a migraine headache for nine and one-half hours.   She was treated with medication 
and released.  On September 19, 19XX, she was seen for a follow-up visit.  At that time, 
she was found to be asymptomatic and FFD.   
 
 
On  October  5,  19XX,  the  applicant  was  hospitalized  for  two  days  for  acute 
confusional state.  She underwent a CT scan of the brain for “headache, [and] mental 
status  changes.”    The  CT  report  indicated  no  evidence  of  acute  abnormality.    On 
October 7, 19XX, she was given a discharge diagnosis of “complicated migraine” and 
placed on convalescent leave until October 14, 19XX.  However, on October 13, 19XX, 

the applicant was hospitalized for two days due to “conversion disorder, mixed panic 
attacks”  and  complex  migraines.    A  radiological  chest  examination  was  performed  in 
response to her complaint of respiratory distress.  The report indicated no evidence of 
acute cardiopulmonary disease.  
 
 
On  October  15,  19XX,  a  narrative  summary  was  prepared  on  the  applicant’s 
October  13th  admission.    It  noted  an  admission  diagnosis  of  atrial  fibrillation  with 
dissociative  episode  and  a  discharge  diagnosis  of  “  Axis  I:  Conversion  disorder  with 
mixed  presentation,  rule  out  panic  attacks,  Axis  II:  Deferred,  Axis  III:    History  of 
migraine headache and atrial fibrillation.”  Her records indicate that she was to return 
to full duty without physical or geographical limitations.   
 
 
On  October  23,  19XX,  the  applicant  was  reassessed  and  instructed  to  work  for 
three days per week for no longer than eight hours each day during the following two 
weeks.    On  November  3,  19XX,  the  applicant  was  seen  for  a  follow-up  visit.    The 
medical  records  indicate  that  the  planned  course  of  treatment  included  a  “neurology 
appointment and psych testing.”  She was found to be FFD and scheduled for a follow-
up appointment in two to three weeks. 
 
 
On November 9, 19XX, the applicant was evaluated by a neurologist for “spells 
of confusion/sleepiness.”  She underwent an EEG, which showed “bilateral generalized 
slowing  …  bilateral  encephalopathy,  of  undetermined  etiology.”    The  November  9th 
health record entry indicates that the applicant reported that “[she] had [an] episode of 
confusion on 25 Oct[ober 19XX.]  She awoke [at 3 a.m.,] she did not think [her] ‘brain 
was right,’ tried deep breathing [exercises;] next thing she remembers is 12 [hours] later. 
… Husband says she … went to sleep and did not awaken.  She was not responsive for 
36  [hours], then suddenly came out of it. …”  A repeat EEG and MRI were ordered and 
the applicant was advised to follow-up when the results were available. 
 
 
On  November  11,  19XX,  the  applicant  underwent  an  MRI  of  the  brain.    On 
November  16,  19XX,  she  was  seen  for  a  follow-up  visit  to  review  the  findings  of  her 
November 9th MRI.  The MRI results indicated that her brain was structurally normal 
and  showed  no  abnormalities.    The  health  record  entry  indicates  that  she  received  a 
repeat  EEG,  which  again  showed  a  recording  that  was  abnormally  slow.    The 
impression  of  the  applicant’s  condition  included  “3  episodes  of  delirium,  no  clear 
etiology  …  [which]  may  still  be  migraine  related.”    The  neurologist’s  recommended 
plan was to “consider [a] repeat EEG or prolonged EEG study.”   He ordered that she 
follow up in one or two months.   
 
 
On  December  3,  19XX,  the  applicant  was  reevaluated  by  neurology  for  “spells 
and abnormal EEG[s].”  During this visit, she indicated that she had no repeat episodes 
of confusion, headaches, or somnolence, and stated that she had been doing well.  The 
neurologist  recommended  further  evaluation  and  EEG  monitoring.    On  December  8, 

19XX, the applicant was evaluated in follow up.  She reported that she had had no new 
episodes and was asymptomatic.  She was scheduled for a prolonged EEG and found 
FFD. 
 
 
On  January  13,  19XX,  the  applicant  was  admitted  to  the  hospital  for  complex 
migraine and anxiety.  She underwent an EEG due to the onset of acute delirium.  The 
impression  showed  a  recording  that  was  “markedly  abnormal.”    She  was  discharged 
with a diagnosis of “complex migraine” on the following day, and ordered to follow-up 
with her treating neurologist in one or two weeks.   
 
 
On January 25, 19XX, the applicant was seen for an evaluation and assessed with 
“basilar  artery  like  migraine  syndrome.”    She  was  advised  to  return,  as  needed  or 
sooner, if her symptoms worsened.  She was found to be not fit for sea duty.   
 

On  January  28,  19XX,  the  applicant  had  a  follow-up  visit  with  her  treating 
neurologist.    She  reported  that  two  days  before,  “she  had  some  anxiety  at  work  and 
thought  she  might  have  a  spell,  but  did  not.”    The  impression  of  her  condition  was 
“basilar  migraine  with  prolong[ed]  delirium.”    The  neurologist  ordered  a  “SPECT 
imaging of the brain,” which was to be compared to a prior SPECT exam, performed on 
January 3, 19XX.  The applicant was to follow-up when the results were available. 

 
On  February  4,  19XX,  the  applicant  was  seen  on  a  walk-in  appointment  for  a 
“real[l]y  bad  real[l]y  fast  frontal  [headache].” 
  She  reported  having  increased 
photophobia but no double or blurred vision, nausea, chest pain, or palpitations.  She 
also  reported  that  the  headache  resolved  after  thirty  minutes.    The  applicant  was 
assessed with a headache.  

 
On February 9, 19XX, the applicant met with her treating neurologist regarding 
the  results  of  her  follow-up  SPECT  scan.    A  comparison  to  her  prior  SPECT  exam 
yielded  an  impression  that  the  “follow  up  brain  SPECT  [was]  demonstrating  marked 
improvement in cerebral perfusion,” therefore, the neurologist found that no PET scan 
was necessary.  According to the February 9th health record entry, she reported that on 
the  evening  of  February  8,  19XX,  she  experienced  “increased  heart  rate, 
hyperventilating, and fear about what was happening …,” but her symptoms resolved 
after one minute.  The planned course of treatment included referring her to a PEB and 
further neurological follow-up in one month. 
 
 
On February 11, 19XX, the applicant was evaluated for a second opinion, at her 
request,  on  the  tentative  diagnosis  of  basilar  artery  migraines.      She  was  assessed  as 
most  likely  suffering  from  “a  migraine  related  event  but  …  does  not  seem  to  have 
typical  symptoms  of  a  basilar  artery  distribution  such  as  diplopia,  dysarthria,  or 
vertigo.  Therefore, dysphrenic migraine may be more appropriate.” On the same date, 

the applicant was evaluated in follow-up.  She was assessed with “basilar [headache],” 
advised to monitor her blood pressure daily, and found fit for light duty. 

 
On  March  5,  19XX,  the  applicant  was  evaluated  by  an  Initial  Medical  Board 
(IMB).  The IMB diagnosed the applicant with “atypical basilar migraine, that did not 
exist prior to enlistment, 346.20.”  The IMB found that the her condition “interferes with 
the reasonable performance of assigned duties” and referred her to a PEB.  On March 
17, 19XX, one of the applicant’s treating physicians concurred with the findings of the 
IMB, stating in an addendum that “[t]he member is unable to perform all of the duties 
of her rate and rank in the USCG.  [It is] therefore recommend[ed] that the member be 
separated from the USCG due to her medical disability.”  

 
On  April  5,  19XX,  the  applicant’s  Commanding  Officer  (CO)  notified  the 
Commander of CGPC by memorandum that he concurred with the results of the IMB. 
In  that  memorandum,  the  CO  stated  that  “[the  applicant’s]  ability  to  function  in  the 
workplace is seriously compromised by her condition. While she is a very willing and 
capable worker, her reliability is questionable. … [She] will never be fit for full duty.  … 
I  believe  that  she  will  never  be  fit  for  unrestricted,  world  wide  assignment.  …”    On 
April 22, 19XX, the CPEB assigned the applicant a thirty percent disability rating and 
recommended that she be placed on the TDRL.   

 
On  July  4,  19XX, the applicant  was  placed  on  the  TDRL  and  retired  honorably 
from the Coast Guard for a “temporary disability.” She was assigned an RE-2 reenlist 
code  (ineligible  for  reenlistment)  and  an  SFK  separation  code,  which  denotes  a 
“mandatory retirement required by law due to temporary physical disability.”   

 
Based  on  its  examination  of  the  applicant  on  July  21,  19XX  and  her  military 
medical  records,  in  March  19XX,  the  DVA  found  the  applicant  to  be  eighty  percent 
disabled by her migraine headache condition.  The DVA report, in part, indicated the 
following:   
 

Since  the  disability  at  issue  does  not  have  its  own  evaluation  criteria  assigned  in  VA 
regulations, a closely related disease or injury was used for this purpose.  An evaluation 
of 80 percent is granted if the record shows an average of at least one major seizure in 
three  months  over  the  last  year,  or  more  than  ten  minor  seizures  weekly.  ***  Since  the 
veteran’s  headache  and  period  of  delirium  range  from  8  to  36  hours  they  are  better 
represented in the schedule of disability ratings as grand mal seizures. 
 
On March 26, 19XX, the applicant was evaluated for her first periodic physical 
reevaluation on the TDRL.  The evaluation summary states that the applicant reported 
that since July 19XX, “she has done well with only occasional mild headache,” and that 
because  she  desired  to  become  pregnant,  she  was  tapered  off  her  medication  …. 
“without having any recurrence of her symptoms ….”  The summary also indicates that 
she was “currently 11 weeks pregnant,” and on no course of treatment due to the same.  

She reported having no spells of confusion or loss of consciousness.  The IMB ordered 
no  laboratory  studies  or  radiologic  tests  and  assessed  her  then  present  status  as 
“[having]  no  recurrence  of  her  acute  confusional  states  associated  with  the  basilar 
migraine  that  she  experienced  in  the  past.    She  has  been  asymptomatic.”    The  IMB 
stated that her condition continues to interfere with performing her duties and would 
prevent  her  from  reentering  the  Coast  Guard  at  the  time  of  the  examination.    The 
applicant was diagnosed with “atypical  basilar migraine headache, resulting in acute 
confusional state, 346.20, [that] did not exist prior to enlistment.” 

 
On  April  23,  19XX,  the  CPEB  determined  that  the  applicant  suffered  from 
“migraine[s]: with less frequent attacks.”  The CPEB found that she was mentally and 
physically  unfit  under  Veterans  Administration  Schedule  for  Rating  Disabilities 
(VASRD)  code  number  8100,  and  that  “substantial  evidence  demonstrates  that  [the] 
evaluee cannot perform regularly or customarily assigned duties.” The CPEB rated her 
disability  at  zero  percent  and  recommended  that  she  be  separated  from  the  Coast 
Guard with severance pay.  

 
The  applicant  timely  rejected  the  recommended  findings  of  the  CPEB  and 
requested an appearance before the FPEB.1  In a two-session FPEB hearing, held on July 
10,  19XX  and  October  23,  19XX,  testimony  and  exhibits  were  entered  in  the  record.  
During the second session, the applicant testified about her October 2, 19XX emergency 
room  visit  due  to  a  migraine  headache  from  which  she  stated  she  suffered  for  thirty 
hours.  The applicant testified that she was treated with medication and released on the 
same evening.  Moreover, testimony from the March 19XX TDRL examining physician 
was admitted in the record, via letter, which, in part, stated the following:   
 

… [the examining TDRL physician does] not feel that [the applicant] is fit for full duty. 
Although she has not had any basilar migraines since she was taken off her medications, 
it is unclear at this point what the risk of relapse is [sic].  … she should be continued on 
the TDRL for another eighteen-month period.  … the longer she goes without a basilar 
migraine the less likely her recurrence will be. 

 

On  October  23,  19XX,  the  FPEB  determined  that  the  applicant  was  physically 
FFD.  On November 5, 19XX, she submitted a rebuttal, indicating her disagreement with 
the findings and recommendation of the FPEB.  On January 11, 2002, the Commander of 
CGPC  approved  the  FPEB’s  findings  and  recommendations.    He  ordered  that  the 
applicant be offered a chance to reenlist or be discharged and removed from the TDRL.  
The  applicant  declined  to  reenlist  and  was  honorably  discharged  by  reason  of 
“convenience of the government” on March 1, 2002.  At the time of her separation, the 

                                                 
1 Because the record contains evidence that a hearing before the FPEB was held in the applicant’s case, the 
Board  assumes  that  the  applicant  timely  rejected  the  CPEB’s  findings.    The  Board  notes  that  the  entire 
PDES file could not be located by the Coast Guard in the applicant’s case.   

applicant was serving in the grade of E-4 and was credited with 4 years, 9 months, and 
9 days of active duty service. 
 
Supplemental Submissions to the Record Received on January 7, 2003 
 
 
On December 2, 2002, the applicant was hospitalized for “altered mental status.”  
She was principally diagnosed with “basilar migraine,” and secondarily diagnosed with 
“dysarthria,  aphasia,  numbness  of  arms,  fingers  and  face,  atrial  fibrillation,  and 
anxiety/panic  disorder.”    She  was  treated  with  medication  while  in  the  emergency 
room and after admission.   
 

Once admitted, the applicant received a neurological consultation, which listed 
an impression of “[a]bnormal EEG because of the presence of moderate to marked focal 
slowing  over  the  left central  temporal  head  region,  frequently  sharp  in  configuration.  
This indicates the presence of localized cerebral involvement.  Moderate diffuse slowing 
was also evident, indicating generalized cerebral involvement.”  She was discharged on 
December 3, 2002 with prescribed medications and “no activity restriction.” 
 

VIEWS OF THE COAST GUARD 

 
 
On July 22, 2002, the Chief Counsel of the Coast Guard recommended that the 
Board deny the applicant the requested relief because she “provided no evidence that 
she  was  entitled  to  a  physical  disability  retirement  or  an  extension  of  time  on  the 
TDRL.” 
 
 
The Chief Counsel stated that the Coast Guard committed no error in conducting 
its  periodic  examination  of  the  applicant  on  April  23,  19XX.    He  stated  that  under  10 
U.S.C.  §  1210  (a)  and  the  Physical  Disability  Evaluation  System  (PDES),  at  least  once 
every 18 months, a member on the TDRL must undergo periodic physical examinations 
as  part  of  the  routine  CPEB  review  process.    He  argued  that  insofar  as  the  record 
indicates that the applicant was examined 18 months after her placement on the TDRL, 
she was timely examined in accordance with the PDES time requirements. 
 
The Chief Counsel alleged that the applicant failed to demonstrate any injustice 
 
in  the  findings  of  either  the  CPEB  in  April  19XX  or  the  FPEB  in  October  19XX.    He 
argued that she provided no evidence that she suffered from any migraine headaches 
for the duration of time that she  was on the TDRL.  He contended that the applicant 
also  failed  to  present  any  evidence  that  suffering  from  migraine  headaches  would 
entitle her to a permanent retirement.  The Chief Counsel argued that in order to have 
remained  on  the  TDRL  until  her  next  scheduled  examination  or  the  expiration  of  the 
statutory five year TDRL period, the applicant would need to show that her condition 
had deteriorated during the course of time that she spent on the TDRL.  He reasoned 
that  because  her  condition  did  not  deteriorate  while  she  was  on  the  TDRL,  she  was 

removed  therefrom.    Moreover,  the  Chief  Counsel  argued,  the  evidence  used  to 
establish  her  condition  came  from  medical  records  dated  nearly  two  years  before  she 
was placed on the TDRL. 
 
 
The Chief Counsel alleged that the applicant failed to disprove the finding of her 
fitness for duty.  He stated that “[t]he sole basis for a physical disability determination 
in  the  Coast  Guard  is  unfitness  to  perform  duty.”    Article  1.A  of  COMDTINST 
M1850.2B;  Article  2.A.38.  of  COMDTINST  M1850.2C;  10  U.S.C.  §  1201  (disability 
retirement must be based on unfitness to perform duties because of physical disability).  
He argued that the applicant failed to provide any evidence that her condition caused 
her to be unable to fulfill her duties while on active duty.  The Chief Counsel contended 
that the Coast Guard’s failure to rate the applicant’s migraine condition was not error 
because she provided no evidence that the condition continued to exist.  
 
 
The Chief Counsel stated that the applicant alleged that the Coast Guard failed to 
provide her with an adequate explanation for the FPEB finding of FFD.  With respect to 
the required findings of the FPEB, he pointed out that “[w]hen the basis for its findings 
and recommended disposition is not readily apparent from the documents of record, … 
the board will prepare an amplifying statement, setting forth the basis for its findings 
and recommend  disposition.”  Chapter 2.B.3.d. of the PDES Manual.  He argued that 
the FPEB’s findings made it “readily apparent” that it found the applicant FFD, which 
required no further “amplifying statements.” 
  
The  Chief  Counsel  stated  that  the  DVA  found  the  applicant’s  migraines  to  be 
 
service-connected  and  rated  her  condition  at  eighty  percent.    He  argued  that  the 
applicant failed to prove that the FPEB’s findings were in error or unjust simply because 
the  DVA  determined  that  the  applicant’s  condition  warranted  a  eighty  percent 
disability rating. He contended that the DVA rating is not the authority for determining 
the  fitness  to  perform  the  duties  of  the  applicant’s  rate  and  specialty,  as  the  DVA 
operates under its own policies and regulations. 
 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On July 30, 2002, the Chair sent a copy of the views of the Coast Guard to the 
 
applicant  and  invited  her  to  respond  within  15  days.    She  was  granted  a  two-week 
extension and responded on August 24, 2002. 
 

The  applicant  stated  that  the  Coast  Guard  never  responded  to  her  February  5, 
2002  request  for  copies  of  “any  existing  document  that  states  the  rationale  for  the 
decision  in  [the  applicant’s]  physical  evaluation  board  case,  analyzes  the  evidence,  or 
addresses  the  points  made  in  [her]  November  5,  19XX  rebuttal  to  the  board’s 
recommended findings.” 

 

The applicant argued that the Coast Guard’s advisory opinion was a document 
crafted to rationalize the conclusory and deficient decision of the FPEB in this case.  She 
argued that it is the FPEB’s responsibility to render an explanation for its decisions, and 
as  such,  she  urged  the  Board  to  require  the  FPEB  to  properly  perform  its  duty.    She 
alleged that the CGPC memorandum submitted in attachment to the advisory opinion 
fails  to  analyze  the  record  made  during  the  FPEB  hearing  or  examine  the  applicant’s 
November 5, 19XX rebuttal to the that hearing.   

 
The applicant further alleged that in paragraph 60 of the CGPC memorandum, 
an unnamed medical officer is purportedly quoted as stating, upon his/her assessment 
of the applicant’s case, that the applicant meets accession and retention standards.  The 
applicant  contended  that  because  no  documents  were  submitted  in  support  of 
paragraph 60 and she was never furnished a copy of this assessment, the Board should 
disregard paragraph 60 and its related conclusion in paragraph 5. 

 
The  applicant  argued  that  the  Coast  Guard’s  conduct  of  treating  her  as  FFD  is 
irresponsible  and  only  serves  to  deny  her  severance  pay  and  penalize  her  for  not 
accepting  the  insufficient  rating  applied  to  her  case  by  the  CPEB.    She  questioned 
CGPC’s rationale for objecting to her Navy physician’s recommendation that she stay 
on the TDRL, as this physician holds clinical familiarity with her case.  She contended 
that the record in this case shows an apparent level of arbitrariness on the part of the 
Coast Guard in that it found her FFD while the DVA rated her eighty percent disabled 
and her treating physician recommended her retention on the TDRL. 
 

APPLICABLE LAW 

 
Medical Manual (COMDTINST M6000.1B) 
 
 
 

Article 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 appropriated disposition. 

 
Provisions of the PDES Manual (COMDTINST M1850.2C) 
 
 
The PDES Manual governs the separation of members due to physical disability.  
Article 1.A. states that the PDES was “enacted primarily for the purpose of maintaining 
a  vital  and  fit  military  organization  with  full  consciousness  of  the  necessity  for  the 
maximum use of available work force.  These laws provide benefits for eligible service 
members whose military service is terminated due to a service-connected disability, and 

they prevent the arbitrary separation from the service of those individuals who incur a 
disabling injury or disease, yet remain fit for duty.” 
 

Article 2.A.50. of the PDES Manual defines being “unfit for continued duty” as 
the  “status  of  an  individual  member  who  is  physically  and/or  mentally  unable  to 
perform  the  duties  of  office,  grade,  rank,  or  rating  because  of  physical  disability 
incurred while entitled to basic pay. …”     
 

Article 2.C.2. of the PDES Manual, entitled “Fit for Duty/Unfit for Continued Duty” 

states the following: 
 

a.  The  sole  standard  in  making  determinations  of  physical  disability  as  a  basis  for  retirement  or 
separation  shall  be  unfitness  to  perform  the  duties  of  office,  grade,  rank  or  rating  because  of 
disease or injury incurred or aggravated through military service.  Each case is to be considered 
by  relating  the  nature  and  degree  of  physical  disability  of  the  evaluee  concerned  to  the 
requirements  and  duties  that  a  member  may  reasonably  be  expected  to  perform  in  his  or  her 
office,  grade,  rank  or  rating.    In  addition,  before  separation  or  permanent  retirement  may  be 
ordered:   

 

 

 

 

(1)   There must be findings that the disability: 
 
 
 
during a period of unauthorized absence. 

(a) is of a permanent nature and stable, and  
(b) was not the result of intentional misconduct or willful neglect and was not incurred 

… 

e.  An  evaluee  whose  manifest  or  latent  impairment  may  be  expected  to  interfere  with  the 
performance of duty in the near future may be found “unfit for continued duty” even though the 
member is currently physically capable of performing all assigned duties. …” 

… 

i.  The  existence  of  a  physical  defect  or  condition  that  is  ratable  under  the  standard  schedule  for 
rating  disabilities  in  use  by  the  [Department  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 necessarily render the member unfit for military duty. 
… 

Article 2.C.3. of the PDES Manual, entitled “Required Findings by the CPEB, FPEB, 

and PRC” states the following: 
 

a. 

 

Evaluee on Active Duty for More than 30 Days (Other than a Ready Reservist  on active duty 
under an involuntary recall due to delinquency  in drill).  In these cases the board shall make 
one of the following findings: 

(1)  Fit for Duty.  If the board finds the active duty evaluee “Fit for Duty,” it shall make no 

other findings. 

… 

 

(3)  Unfit for Continued Duty by Reason of Condition or Defect Not a Physical Disability.  If 
the board finds the evaluee unfit for continued duty by reason of physical disability, the 
board shall make the finding “Unfit for Continued Duty.”  The board shall then make 
the following findings: 

 

 

(a)  propose  ratings  for  those  disabilities  which  are  themselves  physically 
unfitting or which relate to or contribute to the conditions(s) that cause 
the  evaluee  to  be  unfit  for  continued  duty.    …  In  making  this 
professional  judgment,  board  members  will  only  rate  those  disabilities 
which make an evaluee unfit for military service or which contribute to 
his or her inability to perform military duty. … In accordance with the 
current  VASRD,  the  percentage  of  disability  existing  at  the  time  of 
evaluation,  the  code  number  and  diagnostic  nomenclature  for  each 
disability, and the combined percentage of disability will be provided. 

… 

Evaluee on the TDRL.  When the case of an evaluee on the TDRL appears before the board, the 
board shall make independent findings and recommended disposition, based on the evaluee’s 
current status and level of disability.  The following policies apply to members on the TDRL: 

(1)  An  evaluee  will  be  continued  on  the  TDRL  when  an  intermediate  (not  final)  periodic 
examination  indicates  that  his  or  her  condition  has  not  stabilized  and  that  he  or  she 
remains unfit for continued duty. 

 
(2) 

In all other TDRL cases, the provisions of paragraph 2.C.3.a. [above] shall apply, …. 

c. 

 

d.  Amplifying  Statements.    When  the  basis  for  its  findings  and  recommended  disposition  is  not 
readily  apparent  from  the  documents  of  record,  …  ,  the  board  will  prepare  an  amplifying 
statement, setting forth the basis for its findings and recommended disposition.  … 

 
 

 
 

Article 5.C.1.e. of the PDES Manual, entitled “Procedure During Formal Hearing; 
Evidence,” states that “[f]indings and recommended disposition of the board can only 
be based upon evidence of record.” 
 

Article  5.C.11.b.  of  the  PDES  Manual  entitled  “Required  Findings  and 
Recommended  Disposition  of  the  FPEB,”  states  that  “[w]hen  a  member  on  the  TDRL 
appears before the FPEB, the FPEB’s required findings and recommended disposition 
are to be in accordance with paragraph 2.C.3.c.” 
 
 
Minimum Ratings,” provides the following: 
 

Article  9.A.8.a.  of  the  PDES  Manual,  entitled  “Zero  Percent  Ratings  and 

Occasionally  a  medical  condition  which  causes  or  contributes  to  unfitness  for  military 
service is of such mild degree that it does not meet the criteria even for the lowest rating 
provided in the VASRD under the applicable diagnostic code.  A zero percent rating may 
be  applied  in  such  cases  ….    It  should  be  noted  that  a  zero  percent  rating  is  a  valid 
disability rating and receives the same compensation as prescribed by law for ratings of 
less than 30 percent.  It does not mean that a disability does not exist. … 

 

FINDINGS AND CONCLUSIONS 

1. 

3. 

2. 

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

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law: 
 
 
§ 1552.  The application was timely. 
 
 
The applicant requested an oral hearing before the Board.  The Chair, act-
ing pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition of 
the case without a hearing.  The Board concurs in that recommendation. 
 
 
The applicant alleged that the FPEB improperly recommended that she be 
found  FFD  without  any  explanation  for  such  finding.    When  the  FPEB  evaluates  the 
fitness for duty of a member on the TDRL, the regulations mandate that the FPEB make 
independent findings and a recommended disposition based on the member’s current 
status  and  level  of  disability.    PDES  Manual,  Article  2.C.3.c.    The  regulations  also 
provide that, where the FPEB recommends a finding of FFD, no other findings shall be 
made.  PDES Manual, Article 2.C.3.a.(1).  However, “[w]hen the basis for [the FPEB’s] 
findings and recommendation disposition is not readily apparent from the documents 
of  record,”  the  FPEB  must  furnish  a  statement  of  reasons  for  the  findings  and 
recommendation.    PDES  Manual,  Article  2.C.3.d.    The  threshold  question  before  the 
Board  is  therefore,  whether  facts  and  evidence  in  the  applicant’s  record  made  the 
finding of FFD apparent from the record so as to relieve the FPEB of the duty to provide 
a statement of reasons for its recommendation. 
 
included,  among  other 
 
information, (a) medical records from the applicant’s initial physical upon reporting to 
recruit processing in 19XX; (b) evaluations and opinions by physicians who interviewed 
and examined the applicant, while treating her condition; (c) medical records and charts 
from her hospitalizations; (d) the report of the IMB and her subsequent placement on 
the TDRL; (e) the approval of the applicant’s CO in separating her from active duty in 
19XX; (f) the report dated March 19XX from the DVA; (g) the recommendation of the 
March 26, 19XX Medical Board from the applicant’s periodic examination; (h) the final 
opinion  upon  CPEB  review;  and  (i)  testimony  from  the  applicant  and  her  treating 
neurologist, and numerous exhibits admitted during the FPEB panel hearing.   

4. 

The  record  of  evidence  before  the  FPEB 

5. 

6. 

 
 
The  Board  finds  that  the  evidence  presented  to  the  FPEB  fails  to  clearly 
indicate  that  the  applicant  was  reasonably  fit  to  perform  the  duties  required  for  her 
rating, grade and rank.  COMDTINST M6000.1B, Article 3.F.1.c.  As a result, the Board 
finds  that  the  basis  for  the  FPEB’s  recommended  finding  of  FFD  is  not  “readily 
apparent” from the record.  The record shows that prior to her placement on the TDRL 
in  19XX,  the  applicant’s  physical  evaluations  most  often  showed  her  to  be  FFD.  
However,  the  FFD  findings  were  made  nearly  two  years  prior  to  19XX,  and  are  not 
materially relevant in the FPEB’s assessment of the applicant’s then “current status and 
level of disability” in 19XX.  PDES Manual, Articles 2.C.3.c. and 5.C.1.e.  Furthermore, 
during  her  March  26,  19XX  periodic  examination,  the  applicant  stated  that  “since  her 
discharge  …,  she  has  done  well  with  only  occasional  mild  headache.”    The  periodic 
examination  report  indicates  that  no  laboratory  studies  or  radiological  tests  were 
completed because she was pregnant.  Although the applicant stated that she had been 
asymptomatic,  no  laboratory  or  radiological  studies  were  performed  to  confirm  her 
statements in March 19XX or in July 19XX, when she appeared before the FPEB but was 
no longer pregnant.  Consequently, the applicant has proven by a preponderance of the 
evidence that the FPEB was required to provide an amplifying statement for its finding 
of FFD.  PDES Manual, Article 2.C.3.d. 
  
 
Based on the medical evidence in the record and the lack of explanation 
by  the  FPEB,  the  Board  finds  that  the  FPEB’s  recommended  finding  of  FFD  is  not 
supported  by  a  preponderance  of  the  evidence.2    The  record  establishes  that  the 
applicant  suffered  from  atypical  basilar  migraines.    The  medical  evaluations  and 
assessments  consistently  cited  the  applicant’s  condition  as  being  migraine-related.  
When  the  applicant  underwent  her  March  19XX  TDRL  periodic  examination,  the 
Medical Board concluded that “her condition continues to interfere with performing her 
duties,”  and  that  ”the  risk  of  having  a  basilar  migraine  would  prevent  her  from 
reentering  the  Coast  Guard  at  [the  current  time].”    Furthermore,  the  CPEB  findings, 
which  provided  favorable  support  to  the  Medical  Board  recommendation,  concluded 
that  the  applicant  was  both  mentally  and  physically  unfit  and  recommended  her 
separation  from  the  Coast  Guard.    In  addition,  prior  to  the  FPEB  hearing,  the  DVA 
determined  that  the  applicant’s  condition  was  service-connected  and  warranted  a 
disability rating under VASRD Code 8100.3 
                                                 
2 On July 26, 2002, the Board requested an independent medical advisory opinion from the Coast Guard, 
which would evaluate the medical evidence in the record and would offer an opinion whether the FPEB’s 
finding  of  FFD  is  supported  by  substantial  medical  evidence.    The  Coast  Guard  responded  that  it  was 
unable  to  provide  a  medical  advisory  opinion  in  this  case  because  the  PDES  process  does  not  include 
obtaining a third-party physician consultation. 
 
3 The DVA examined  the applicant and found  her to  be 80 percent disabled by  her migraine  headache 
condition.  However, having a ratable disability under the DVA system does not entitle a member of the 
Coast Guard to a physical disability retirement or to a medical board.  Title 10 U.S.C. § 1201(a) provides 
the minimum statutory requirements a member of the Coast Guard must meet before the Secretary may 

7. 

 
 
On  the  other  hand,  the  TDRL  periodic  examination  showed  that  the 
applicant had “no recurrence of her acute confusional states associated with the basilar 
migraine  she  experienced  in  the  past,”  and  was  “asymptomatic”  for  the  duration  of 
time she spent on the TDRL.  Based on these findings, the Chief Counsel argued that the 
applicant failed to demonstrate that her condition continued to exist.  Instead of finding 
that  the  applicant’s  condition  failed  to  exist,  the  March  19XX  TDRL  medical  board 
diagnosed her with basilar migraines and recommended (via testimony by letter before 
the  FPEB)  that  the  applicant  remain  on  the TDRL  for  further  observation.   Moreover, 
the  CPEB  clearly  found  that  the  applicant’s  disability  existed  and  rendered  her  unfit 
when it rated the applicant’s condition at zero percent.  PDES Manual, Article 9.A.8.a.  
Therefore, the fact that she was asymptomatic over the course of several months fails to 
demonstrate that the applicant was FFD in the Coast Guard, particularly in light of the 
medical evidence to the contrary.  The Board finds by a preponderance of the evidence 
that the Coast Guard committed an error and/or injustice in finding the applicant FFD.  
Insofar  as  the  Board  has  the  duty  to  grant  “thorough  and  fitting  relief,”  Sanders  v. 
United States, 207 Ct. Cl. 962, 963 (1975), the applicant should be found NFFD.   
 

8. 

Moreover,  because  the  FPEB’s  recommended  finding  of  FFD  is  not 
supported by a preponderance of the evidence, such error was prejudicial and should 
be reversed.  The applicant was offered the opportunity to reenlist in the Coast Guard 
on active duty, when the preponderance of the evidence in the record indicates that she 
was NFFD.  Had the applicant reenlisted, such action would have worked to prejudice 
the Coast Guard, the applicant, and those members with whom she would work.  The 
applicant’s  supplemental  medical  records  from  December  2  and  3,  2002,  demonstrate 
that  she  was  physically  impaired  when  she  experienced  this  migraine  headache  that 
required immediate medical care.  Furthermore, the latest hospitalization supports the 
TDRL  physician’s  opinion  that  “the  risk  of  having  a  basilar  migraine  would  prevent 
[the  applicant]  from  reentering  the  U.S.  Coast  Guard….”    In  view  of  the  applicant’s 
medical  records,  it  is  not  clear  that  the  FPEB  either  qualitatively  nor  quantitatively 
analyzed  her  prospective  performance  of  the  duties  of  her  rank,  grade,  or  rating  to 
determine  whether  her  migraine  condition  was  expected  to  interfere  with  the 
performance of her duties.  PDES Manual, Article 2.C.2.e. 
                                                                                                                                                             
award  him  or  her  a  physical  disability  retirement.    The  Coast  Guard’s  regulations  create  additional 
requirements that must be met before members are entitled to a physical disability retirement.  Pursuant 
to Article 2.C.2.i of the PDES Manual, the fact that the applicant’s conditions are ratable disabilities under 
the  DVA  rating  systems  does  not  prove  that  she  would  have  been  found  unfit  for  duty  by  a  medical 
board.  The Court of Federal Claims has held that “[d]isability ratings by the [DVA] and by the 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 injuries or combination 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 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). 

 
9. 

The  applicant  alleged  that  the  Coast  Guard  erred  in  removing  her  from 
the  TDRL  because,  in  connection  with  her  periodic  examination  in  March  19XX,  the 
Medical Board recommended that she be retained on the TDRL for further observation.  
According to Article 2.C.3.c.1. of the PDES Manual, a member will be continued on the 
TDRL,  if  the  periodic  examination  indicates  that  the  member’s  “condition  has  not 
stabilized and that he or she remains unfit for continued duty.”  The record indicates 
that  the  Medical  Board  recommended  that  “the  member  [be]  referred  to  the  Physical 
Evaluation  Board  for  final  adjudication,”  (emphasis  supplied),  which  the  Board 
interprets  to  mean  that  her  case  was  ready  for  processing  through  the  Physical 
Disability Evaluation System.  The Board finds that in referring the applicant’s case to 
the CPEB, the Medical Board found that her condition was “stabilized” to the point that 
a permanent rating on the degree of the severity of her migraines could be determined.   
Although  the  Medical  Board  recommended  that  the  applicant  remain  on  the  TDRL, 
nothing in the report indicates that her condition was of such instability to preclude a 
final determination for disability rating purposes.  Therefore, the Board finds that she 
has failed to prove by a preponderance of the evidence that the Coast Guard erred in 
not retaining her on the TDRL.   
 

10. 

VASRD Code 8100 provides for the rating of migraine headaches.  It notes 
that  ratings  range  from  zero  to  fifty  percent,  with  a  fifty  percent  rating  assigned  to 
individuals  with  “very  frequent  completely  prostrating  and  prolonged  attacks 
productive  of  severe  economic  inadaptability”  and  zero  percent  to  those  “with  less 
frequent attacks.’  The evidence shows that  the applicant’s medical condition met the 
requirements  for  referral  to  the  CPEB.    While  finding  the  applicant  mentally  and 
physically unfit for military service, the CPEB did not find evidence that the applicant 
suffered  from  migraines  of  sufficient  frequency  to  warrant  a  higher  disability  rating.  
The  headaches  were  reported  by  the  March  19XX  Medical  Board  as  being  “only 
occasional.”    Therefore,  the  Board  finds  by  a  preponderance  of  the  evidence  that  the 
applicant was appropriately evaluated and rated by the CPEB, and that there was no 
error  or  injustice  which  occurred  in  that  rating  process  which  warrants  granting  the 
applicant a higher disability rating. 

 
11.  Accordingly, the applicant’s request for relief should be, in part, granted. 

 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

ORDER 

The  application  of  XXX  XXXXXX  X.  XXXXXX,  XXX  XX  XXXX,  USCG,  for  the 

 
 
correction of her military record is granted, in part, as follows:   
 

The applicant’s record shall be corrected to show that on October 23, 19XX, she 
was found unfit to perform the duties of her office, rank, grade, and rating by reason of 
a  physical  disability  and  rated  at  zero  percent  disabled  in  accordance  with  the 
Department of Veterans Affairs (DVA) Schedule for Rating Disabilities (VASRD).   

 
Her record shall show that she was honorably discharged from the Coast Guard 

with entitlement to severance pay. 

 
Her DD form 214 shall be corrected to show that the authority for her discharge 
shall  be  Article  12-B-15  of  the  Personnel  Manual;  her  narrative  reason  for  separation 
shall  be  “Physical  Disability”;  her  separation  code  shall  be  JFL;  and  her  reenlistment 
code shall be RE-3P. 

 
The Coast Guard shall pay the applicant any sum she may be due as a result of 

 
 

 
 

this correction. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Terence W. Carlson 

 

 

 
 Charles Medalen 

 

 

 
 Dorothy J. Ulmer