Verbeck v. United States, 97 Fed. Cl. 443

Verbeck, a nurse practitioner in the Public Health Service Commissioned Corps, was terminated during probation in 2002; the Board for Correction of PHS Records had denied her prior request to rescind discharge.
The court previously vacated and remanded the Board’s decision to address COER omissions and potential disability separation, and whether the termination was improper.
On remand, the Board again affirmed termination, and Verbeck renewed challenges, seeking judgment on the administrative record or remand for additional evidence.
Verbeck argued that no adverse performance comments were incorporated into COERs, no COER existed for the last year, and she was not counseled about deficiencies; she also sought disability separation via a Medical Review Board (MRB) due to cancer-related medical issues.
The government contended the Board properly considered the full record and that its decision rested on substantial evidence and applicable regulations.
The court conducted Rule 52.1(c) review, concluding the Board failed to address conflicting COERs versus later negative commentary and failed to assess potential disability-related fitness-for-duty concerns; it remanded to the Board for a fresh, complete analysis.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Verbeck's termination proper under COER and probation rules?	Verbeck asserts COERs were not adverse and last-year review was missing, undermining termination.	Board properly considered the full record and actions were supported by regulations and evidence.	Remand required; Board failed to resolve COER discrepancies.
Whether Verbeck was entitled to disability separation via MRB review?	Counsel's letter requested consideration for medical discharge/fitness-for-duty evaluation and MRB referral.	No valid MRB referral was triggered; psychiatric fitness was found and physical issues not adequately raised.	Remand; Board did not address MRB referral and potential physical conditions.
Did the Board adequately address the potential physical disability and fitness for duty in light of medical records?	Physical health issues (cancer, surgeries) could render disability separation appropriate and were not properly evaluated.	Regulations focused on fitness-for-duty determinations; psychiatric status was the primary concern considered.	Remand; Board must evaluate both medical and physical evidence and whether MRB referral was warranted.

Sawyer v. United States, 930 F.2d 1577 (Fed. Cir. 1991) (correction boards must address relevant data and explain decisions)
Heisig v. United States, 719 F.2d 1153 (Fed. Cir. 1983) (military decisions reviewed for rational basis and proper procedure)
Dickinson v. Zurko, 527 U.S. 150 (Supreme Court 1999) (deferential substantial evidence standard for administrative agency findings)
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious review requires rational consideration of relevant factors)
Frizelle v. Slater, 111 F.3d 172 (D.C. Cir. 1997) (administrative rulings must respond to nonfrivolous arguments)
Metz v. United States, 466 F.3d 991 (Fed. Cir. 2006) (waiver principles in administrative review contexts)
Murakami v. United States, 398 F.3d 1342 (Fed. Cir. 2005) (nonraised issues in initial administrative proceedings generally cannot be brought on appeal)
Gilda Indus., Inc. v. United States, 622 F.3d 1358 (Fed. Cir. 2010) (courts must give effect to unambiguously expressed congressional intent)
Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (RCFC 52.1 review framework and administrative-record judgments)