Board for Correction Case No. 149-93

212.00 Retirement (Includes Involuntary Retirement) - Change retirement date

Recommendation of the Board for Correction on Request of: xxxxxxxx, Case No.149-93

I. Request:

Xxxxxxxxx submitted an application to the Board for Correction of PHS Commissioned Corps Records (Board) dated xxxx 1993, asking the Board to either extend his retirement date from xxxxx 1993, to xxxxx 1993, or cancel the payback obligation on his xxxxxxxxxxxxxxxxx contract. (DCP has reported his mandatory retirement date as xxxx 1993).

II. Summary of Officer's Argument and Documentation:

Xxxxxxxxx current ASP contract had been effective xxxxxxxx 1992, to Xxxxx 1993, beyond his retirement date of Xxxxx 1993. (DCP has reported his mandatory retirement date as Xxx 1993).

Xxxxxxxxx has stated that his request for an extension had been based upon his desire to demonstrate his willingness to complete his contract and to accommodate his program manager who had concerns about losing another senior officer and two junior officers just prior to his retirement. Extending the date would help to alleviate a transitional problem.

Allegedly, his request for an extension had received favorable support from the xxxxxxxxxxxxxxx, xxxxxxxxxxx several staff members, the xxxxx xxxxxx xxxxxx (IHS) and a staff member as well as the xxxx xxxxxx but had been denied by the xxxxx xxx xxxxxxx xxx (DCP).

III. Summary of Division of Commissioned Personnel's Argument and Documentation:

It is DCP's position that Xxxxxxxxx has exhausted his administrative remedies in this case.

Xxxxxxxxx is a Regular Corps xxxxxxx who entered the Corps on Xxx 1963. His retirement credit date is also Xxx 1963. He will have served on active duty for xx years on xxxxxx 1993. He is currently serving as xxxxxx xxxxx xxxx xxx with the xxx in xxxxxx.

He had requested an ASP contract on xxxxx 1992. DCP had processed his request and issued Personnel Order xxxxxxx, dated Xxxxx 1992, effective Xxxxx 1992, authorizing him to receive this pay.

DCP would like to call the Board's attention to the wording in Xxxxxxxxx ASP contract. Section D. (1) states that: "If this contract is terminated prior to its expiration date, the officer will be required to refund a pro rata portion of any payment received pursuant to this contract: "It is clear to DCP that he understood and agreed to the terms of this contract and that he had voluntarily submitted it to DCP after signing it on xxxxx 1992.

Personnel Order xxxxxx includes the statement that: "This order confirms the officer's agreement to serve on active duty with the Commissioned Corps of the Public Health Service through xxxxxx. If the officer should voluntarily be released from active duty prior to the expiration of the ASP contract, the officer has agreed to (1) repay that portion of this payment which represents 1/360th of that payment for each day of the period not served...." Each dental officer separating with an unfulfilled ASP contract has been required to repay any indebtedness to the Government.

Xxxxxxxxx had been notified by DCP in xxxxx 1992 that he would not be extended beyond xx years of active service in the Corps. On xxxxx 1993, a request had been made by the xxxxxx xxx, IHS, requesting that his mandatory retirement date be extended from Xxx 1993, to Xxxxx 1993. After a careful and thoughtful review, the xxxxx denied it on xxxxx 1993. The denial had been based on the fact that both he and the IHS had been notified in xxxx 1992 of his xx year anniversary. The IHS, at that time, did not request to retain him on active duty beyond xx years. Accordingly, the xx-Year Retirement Board recommended, and the Surgeon General approved, his retirement effective on his xx year anniversary, i.e., xxx 1993. The IHS has not submitted any compelling reasons for overturning the xx-Year Retirement Board's recommendation or the Surgeon General's decision.

Xxxxxxxxx has argued that his request for extension has been based upon his desire to demonstrate his willingness to accommodate his program manager who had concerns about losing another senior officer just prior to his retirement. The IHS had ample notice (since xxxx 1992) to plan for his retirement and implement succession planning for his replacement. Please note that there are xx xxxxxx officers, at the Temporary Grade 06 (CAPT) assigned to the IHS. All are available to the IHS for reassignment to the xxxxxxxxx PHS Indian Health Center. In addition, there are xx xxxxxx officers at the Temporary Grade 05 CDR who are currently serving in Temporary Grade 06 or equivalent billet descriptions within the IHS. These xxxxxx officers (xx), assigned to IHS duty stations throughout the United States, are available for assignment to the billet occupied by Xxxxxxxxx. Any of these officers, assigned to very remote locations, would presumably welcome reassignment to the xxxxxx area.

The favorable support of local IHS officials for Xxxxxxxxx retention is not the issue. If he wanted to remain in the Xxxxxx area serving the needs of IHS beneficiaries, then arrangements should have been made for him to have been hired by IHS as a civil servant or consultant. There are very few restrictions that would apply to his post-retirement employment after xx years of active duty in the Corps.

DCP has already indicated its views to Xxxxxxxxx in its xxxxx 1993, memorandum to the xxxx xxx IHS. DCP does not believe he has suffered any injustice in being required to repay ASP contract monies paid in advance, nor does DCP feel that he has suffered any injustice by not being allowed to serve beyond the anniversary of his xx years of active duty service in the Corps. As stated in the xxxxx 1993, memorandum to Agency Representatives to the Office of the Surgeon General, the Corps had been established as a xx year career system. No officer has the right to remain on active duty after xx years of active service, and in his case, ample notice had been given to both the IHS and himself. Further, it is DCP's opinion that there had been no administrative errors in the handling of his retirement.

In accordance with INSTRUCTION 2, Subchapter CC22.2, of the Commissioned Corps Personnel Manual, xxxxxx officers, like Xxxxxxxxx, who have been involuntarily retired, have their ASP contracts terminated on the effective date of their retirements. Accordingly, he is required to repay the Government the sum of $2,083.38, representing the pro rata portion owed under this contract.

Based on all of the above, DCP believes that Xxxxxxxxx has not demonstrated that there has been a factual error or an injustice in his request before the Board.

IV. Board Action on Officer's Request:

A. Date of Board Recommendation: xxxx 1993

B. Board Staff:

Ellen Wormser
Executive Director

Thomas E. White, Ph.D.
Executive Secretary

Members of the Board:

Sharon Smith Holston
Chairperson of the Board and Associate Commissioner for Management, FDA

C. Findings and Conclusions:

The Board found that:

  1. Facts

    1. The IHS and Xxxxxxxxx had been notified in xxxx 1992 of his approaching xx-year retirement. The IHS did not initiate plans to replace him nor did they submit a formal request for retaining him beyond his retirement date.
    2. The record had indicated that the xxxxxx xxxxx xxx xx xxxxxxxx, working with the xxxxxxx xxxxxxx, had requested extensions for him but these did not have the official approval of the Director, IHS.

      DCP Policy
  2. Under Corps policy Xxxxxxxxx had been obliged to "voluntarily" retire as of Xxx 1993, meaning that his papers should have been submitted by xxxx 1993. He did not submit them; therefore, the Corps set his "involuntary" retirement date as Xxxxx 1993. This allows him xx additional days on active duty and increases the time available to the IHS to find a suitable replacement.

    1. Subchapter CC22.2, INSTRUCTION 2, of the Commissioned Corps Personnel Manual had required xxxxxx officers such as Xxxxxxxxx, who are involuntarily retired, to have their special pay contracts terminated on the effective dates of their retirements. This provision requires him to repay the U.S. Government for that part of his contract not completed. In addition, his special pay contract signed on xxxxxx 1992, also contains a provision requiring him to repay the U.S. Government for any part of his contract not completed.
    2. The Board concluded that Xxxxxxxxx request had presented no compelling reasons for overturning the decision of the xx-Year Retirement Board and extending his time on active duty to xxxxxx 1993, as he would have liked. If more time had been required to accommodate the needs of the service, the IHS could have and still has the option of entering into a personal services contract with him or converting his employment status to civil service. The IHS also has the option of reassigning another officer to his billet.

D. Recommendation:

Accordingly, the Board recommends that Xxxxxxxxx request be denied. Approval of recommendation requires no change in his record that he reimburse the U.S. Government $2,083.38 representing the pro rata share owed under his contract.

We certify that this recommendation reflects the views and actions taken by the Board on Xxxxxxxxx request and that it has been concurred in by the Board members.

We certify, further, that the Case Record, shown as an Attachment contains all of the documentation received on Xxxxxxxxx request and that, in addition to applicable statutes, regulations and policies, it had been considered by the Board in arriving at this recommendation.

Finally, we certify that a quorum of Board members considered Xxxxxxxxx request.

If you approve, please sign below.

Sharon Smith Holston
Chairperson of the Board and Associate Commissioner for Management, FDA

Reviewed and Approved:

I hereby approve the recommendation of the Board members on the request of Xxxxxxxxx received and considered in accordance with the authority of Section 221a(a) (12) of the Public Health Service Act (P.L. 96-76, as amended) and 42 U.S.C. 213a(a) (12), denying his request to have his retirement date changed from Xxxxx 1993, to xxxxx 1993. Approval of this recommendation requires no change in his record and that he reimburse the U.S. Government $2,083.38 representing the pro rata share owed under his contract.

Wilford J. Forbush
Director, Office of Management

Attachment: Case Record


Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.