Board for Correction Case No. 134-91

127.00 Conduct
Recind disciplinary action

Recommendations of the Board for Correction on Request of: xxxx xxxxx, xxxxxxxxxxxxxx, Case No.134-91

I.  Requests:

Xxxxxxxxxx had asked the Board to remove from his Xxxxxxxxxxx, 1991, COER certain adverse comments written by xxxx xxxxxx xx xxxx, his Reviewing Official, and promote him to the Permanent Grade 0-5, effective Xxxxx, 1992.

II.  Summary of xxxxxx Argument and Documentation:

Xxxxxxxxxx had written adverse comments on Xxxxxxxxxx COER reflecting a disciplinary action regarding an alleged misuse of a Government-owned vehicle. The comments should be removed because the charge was later dropped by DCP. He was not promoted to the Permanent Grade 0-5 because the comments were still in his record.

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

DCP had been willing to strike from Xxxxxxxxxx record comments written by Xxxxxxxxxx which reflected a disciplinary action later dropped.  However, the remaining comments were not about this disciplinary action and should remain a part of the record.

Although recommended for promotion, xxxxxx xxxxxx record had not been sufficiently competitive to have enabled him to be promoted. His record had remained substantially unchanged since first presented to the promotion board in 1987. He had not been promoted prior to the date when Xxxxxxxxxx wrote the comments he wants removed from his COER.

IV.  Board Action on Officer's Request:

Date of Board Meeting:  xxxxxxx xx, 1994

Board Staff:

Members of the Board:

Ellen Wormser
Executive Director

Michael Hamilton, M.D.
Chairperson of the Board and Chief, Clinical Investigations Section
NCI, Navy Medical Oncology Branch, NIH

Thomas E. White, Ph.D. Executive Secretary

V.  Findings, Conclusions and Recommendations:

1.  Remove from his Xxxxxxxxxxx, 1991, COER certain adverse comments written by xxxx xxxxxxx xx xxx, his Reviewing Official.

Findinqs and Conclusions

Xxxxxxxxxx in reviewing Xxxxxxxxxx COER had commented on his responsiveness to supervision, job performance and ratings as follows:

"Item 14-Responsiveness to Supervision: Officer has created a barrier between supervisor and upper management. He has been very reluctant to implement recommendations by upper management and behavior at times has brought an unfavorable image on the organization as a whole. Therefore, the appropriate rating level should be indicated as a "C" -­usually considers supervisory guidance carefully and is usually able to apply it, for this element.

Item 15-0verall Job Performance: For the most part the supervisor has rated Officer appropriately with reference to specific job related items from the technical aspect. However, Officer has not brought credit to the overall organization as a whole. This past rating period Officer was disciplined and was reflected in orders being issued. As such the overall rating should be at the "C"-competent, this officer is fully effective in performing his/her job, level." (This comment would change his overall rating from "E"­-Excellent to "C"-Competent).

DCP had stated on Xxxxx xx, 1992,:

"...if it is subsequently determined that the charges of misconduct against Xxxxxxxxxx are unsubstantiated, the comments of Xxxxxxxxxx on the 1991 COER should be revised to exclude this as a basis for his comments."

On xxxxxxx x, 1992, DCP informed the Board that no further action would be taken against Xxxxxxxxxx and that the memorandum and personnel order referencing his alleged mis-use of a government-owned vehicle had been removed from his OPF.

The Board had assumed that the documents removed included the comments in Section III of Xxxxxxxxxx COER as written by Xxxxxxxxxx. Instead, DCP had proposed striking the following sentences:

"However, officer has not brought credit to the overall organization as a whole. This past rating period officer was disciplined and was reflected in orders being issued. As such the overall rating should be rated at the 'C' level."

DCP had considered the remaining comments to have been directed to Xxxxxxxxxx responsiveness to supervision and his need for a rotational assignment. For these reasons, DCP felt they should remain in his record.

However, the Board concluded that none of the comments by Xxxxxxxxxx should have been placed in Section III of Xxxxxxxxxx record since they reflected a matter under consideration by the Board when his COER was being prepared and involved a matter later dropped by DCP.

Recommendation

Therefore:

The Board recommends that all of the remaining adverse comments written by Xxxxxxxxxx be removed from Xxxxxxxxxx Xxxxxxxxxxx, 1991, COER and from all other related files. Implementation of this recommendation requires that his record be corrected removing the remaining comments added by Xxxxxxxxxx to Section III of Xxxxxxxxxx COER and sanitizing all other files in which located.

2.  Promote him to the Permanent Grade 0-5, effective xxxx x, 1992.

Findinqs and Conclusions

The record did not sustain Xxxxxxxxxx allegation that Xxxxxxxxxx desire to punish him had been the basis for the comments written on his Xxxxxxxxxxx, 1991, COER and that this, in conjunction with support from DCP, had kept him from being promoted in 1992 and 1993.

The record also did not sustain Xxxxxxxxxx allegation that submission of his COER to DCP with Xxxxxxxxxx comments, without discussion with him and without the opportunity for rebuttal, prevented him from grieving his COER, and from receiving equal consideration by the 1992 and 1993 promotion boards. He believed that he would have been promoted xxxx x, 1992, or 1993 had the comments not been presented to the 1992 and 1993 boards.

Xxxxxxxxxx record lacked evidence that he had been unjustly passed over. His record had been presented to promotion boards since 1987. Although recommended, he had not been reached for promotion. Five boards had considered his record before the question of misconduct came up and before xxxx xxxxxx wrote his comments. Still, he was not promoted.

Xxxxxxxxxx had not received many PHS awards. This contributed to not being promoted. His lack of continuing education or advanced training had also affected his promoteability. There was no evidence that he had followed up on communications from DCP on how to make himself more competitive or how to improve his record before presentation to promotion boards.

The Board concluded that removal of the comments by Xxxxxxxxxx would not have resulted in a promotion for Xxxxxxxxxx. His record had not been competitive before or after Xxxxxxxxxx comments.

Recommendation

Therefore:

The Board recommends that Xxxxxxxxxx request for a promotion to the Permanent Grade 0-5, effective xxxx x, 1992, be denied. Implementation of this recommendation requires no correction to his record.

We certify that these recommendations reflect the views and actions taken by the Board on Xxxxxxxxxx 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 Xxxxxxxxxx request and that, in addition to applicable statutes, regulations and policies, it has been considered by the Board in arriving at these recommendations.

Finally, we certify that a quorum of Board members was present on xxxxxxx xx, 1994, when Xxxxxxxxxx request was considered.

If you approve, please sign below.

J. Michael Hamilton, M.D.
Chairperson of the Board and
Chief, Clinical Investigations Section NCI, Navy Medical Oncology Branch, NIH

Reviewed and Approved:

I hereby approve the recommendations of the Board members on xxxxx xxxxxxx requests and corrections to his record 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).

Anthony L. Itteilag Acting Director
Office of Management 

Attachment: Case Record

Date

127.00 Conduct
Recind disciplinary action

Recommendation of the Board for Correction on Request of: xxxxxx xx xxxxxxxxx, xxxxx xxxxxx, Case No.139-92

Request:

Xxxxxxxxxxxxxx asked the Board:

"to reverse the xxxxxxxx decision of the Surgeon General accepting the xxxxxxxx recommendations of the Board of Inquiry, expunge all records which relate to or infer in any way to those recommendations and that decision, and reassign me back to the Xxxxxxxxxxxxxxxx."

Summary of Officer's Argument:

Xxxxxxxxxxxxxxxx, Xxxxxxxxxxxxxxxx at the Xxxxxxxxxxxxxxxx, PHS xxxxxx xxxxxxx, had come to work on the morning of xxxxx xx, 1990, and discovered that the phone in his office had been disconnected and the cord was missing. Xxxxxxxxxx had said that Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, informed him that Xxxxxxxxxxxxxx had the cord. (Xxxxxxxxxxx later denied under oath that he had ever made this statement). Xxxxxxxxxx had followed Xxxxxxxxxxxxxx to where he was working on the reservation to argue over the missing cord. An argument resulted in Xxxxxxxxxxxxxx hitting Xxxxxxxxxx.

Following the incident, a Board of Inquiry was convened by the Surgeon General, U.S. Public Health Service, to hear charges against Xxxxxxxxxxxxxx and he was found guilty. The Surgeon General accepted the recommendations of the Board of Inquiry concerning the imposition of disciplinary action against Xxxxxxxxxxxxxx. Xxxxxxxxxxxxxx appealed to the Board for Correction, alleging that the Board of Inquiry had been legally required to consider the mitigating circumstances in his case and that its failure to do so caused him to receive a harsh, unjust penalty.

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

The Board of Inquiry had considered charges against Xxxxxxxxxxxxxx following his incident with Xxxxxxxxxx. The Board of Inquiry charged that he had:

1. "... engaged in action and behavior of a dishonorable nature which reflected discredit upon Xxxxxxxxxxx and the PHS.
   
2. used gestures disrespectful of, and displayed a contemptuous attitude, towards another officer in violation of the Commissioned Corps Personnel Manual, Subchapter 46.4, INSTRUCTION 1, Section D, 4 and 6. II

The Board of Inquiry had found Xxxxxxxxxxxxxx guilty as charged. The Surgeon General approved its recommendations on Xxxxxxxxx, 1990. The decision:

1. reduced Xxxxxxxxxxxxxx to the Temporary Grade 0-4 (the recommendation allowed him to be automatically returned to Temporary Grade 0-5 should he receive an overall rating of 'C' or higher on his COER covering his performance for one year. He met that standard and was returned to the Temporary Grade 0-5 on Xxxxxxxxx, 1991).
   
2. did not allow him to be considered for any other permanent or temporary promotion until after xxxxxxx x, 1994.
   
3. changed his duty station from Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (DCP, not the Board of Inquiry had made this recommendation. Xxxxxxxxxxxx argued that this penalty alone had been more than a sufficient response to the incident).

Board Action on Officer's Request:

Date of Board Meeting:  Xxxxxxx xx, 1994

Board Staff:

Ellen Wormser
Executive Director

Thomas E. White, Ph.D.
Executive Secretary

Members of the Board: 

Robert McSwain
Chairperson of the Board and Acting Associate DirectorOffice of Human Resources, IHS
xxxxxxxx
SAMSHA

Findings and Conclusions:

1. The Board for Correction did not need to consider Xxxxxxxxxxxxxx request to have the limit on his eligibility for promotion reversed since that limit had expired xxxxx, 1994.
   
2. The Board for Correction agreed with the Board of Inquiry that there was a preponderance of evidence that Xxxxxxxxxxxxxx struck Xxxxxxxxxxxx with sufficient force to incur injury requiring medical attention and that that behavior was "unbecoming of a Commissioned Officer."
   
3. Nor did the Board for Correction fail to note that the Board of Inquiry had addressed the issue of provocation, but had nevertheless found that Xxxxxxxxxxxxxx had acted dishonorably.
   
4. The issue of most concern to the Board for Correction, however, was whether xxxxxxxxx had been justly and fairly treated when one considers the way Xxxxxxxxxx had been treated. In this regard, the Board thought it unfair that no steps had been taken to discipline Xxxxxxxxxx.
   
   It concluded that there was sufficient evidence brought to light in the case to have warranted DCP also pursuing Xxxxxxxxxx for having acted in a manner unbecoming of an officer.
   
   He had grabbed Xxxxxxxxxxxxxx while he was sitting in his car (in itself an act of physical aggression), followed him to a remote location, yelled at him, pounded on his car and put himself in front of the car so that Xxxxxxxxxxxxxx could not drive away.
   
   It would appear that IHS and DCP knew that Xxxxxxxxxx had a history of confrontations with hospital staff. Xxxxxxxxxxx had said he had counseled Xxxxxxxxxx regarding his confrontations. Testimony by Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Indian Health Service, indicated that there had been confrontations between Xxxxxxxxxx and other doctors, the nursing staff and patients.
   
   The record also indicates that Xxxxxxxxxx had also badgered hospital employees and caused disruption throughout the hospital during the last days of his assignment at xxxxxx.
   
   According to a memorandum written to the Investigative Officer on xxxx xx, 1990, on the morning of the incident, xxxxx xxxx, xxxxxx xxxxxx xxxxxx, had given Xxxxxxxxxx a memorandum stating that he should not interfere with hospital staff and should visit the hospital only to remove his personal property. Xxx xxxx stated that Xxxxxxxxxx chose to ignore orders, thus leading to an incident with Xxxxxxxxxxxxxx which could have been avoided had he followed these orders.
   
   Also according to the record, xxxxxxx xxxxxxxxx, xxxxx xxxx xx xxxxxxxxxxx xxxxxxxx, xxxxxx Area Office, who had been assigned to investigate the incident, stated that Xxxxxxxxxx told her he had: ...provoked [Xxxxxxxxxxx] and made him mad. The record also alleged that a statement by xxxxxxx xxxx, xxxx to Xxxxxxxxxx, had been omitted from her report. xx xxxx had allegedly testified that she witnessed the confrontation between the two officers and agreed with him [Xxxxxxxxxxxxxx] on what had happened.
   
   In summary, Xxxxxxxxxx conduct, in the opinion of the Board for Correction, had been equally unbecoming of an officer. The Board of Inquiry had considered all this, yet acted only to punish Xxxxxxxxxxxxxx. No charges were brought against Xxxxxxxxxx.
   
   Ideally the Board would like to recommend that OSG conduct a Board of Inquiry regarding Xxxxxxxxxxx behavior at xxxxxx (and perhaps other places) and conduct a second inquiry into Xxxxxxxxxxxxxx behavior so that a balanced decision could be made regarding both officers. However, the Board for Correction does not have the authority to direct OSG to conduct a Board of Inquiry into Xxxxxxxxxxx behavior, and too much time has passed. It only has the authority to act on Xxxxxxxxxxxxxx request to correct his record.
   
5. The Board for Correction noted that Xxxxxxxxxxxxxx reassignment had not been part of the recommendations by the Board of Inquiry regarding disciplinary action against him. He had been placed on temporary duty to xxx, xxxxx from xxx x, 1990, to xxxxxxx xx, 1990, (after the altercation on xxxx xx, 1990). He had been placed on temporary duty at the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx and permanently assigned there on xxxx x, 1991.

Therefore:

The Board for Correction agreed with DCP that whether Xxxxxxxxxxxxxx had been provoked made no difference with respect to whether he was guilty...  However, the purpose of the two Boards is different, and in the case before the Board for Correction, the issue before it was whether Xxxxxxxxxxx had been justly and fairly treated. The Board was convinced that Xxxxxxxxxx had also acted in a manner unbecoming an officer. The fact that no separate action was taken by DCP against Xxxxxxxxxx left     them no alternative but to find that Xxxxxxxxxxxxxx had been treated inequitably and therefore unjustly. Additionally, the forced transfer of Xxxxxxxxxxxxxx went beyond the decision of the Board of Inquiry, and the Board for Correction viewed that as excessive punishment.

Recommendation:

Accordingly, the Board members recommend that the Xxxxxxxxxxxxxx request be upheld. Approval of this recommendation requires that his record be corrected by issuing a Personnel Order canceling his reduction to the Temporary Grade 0-4, thereby entitling him to retroactive pay and allowances and credit in grade effective xxxxxxx x, 1990. It also requires removal of all documents and materials in his Official Personnel File (OPF) and that of the Board of Inquiry and Surgeon General referring to the altercation between Xxxxxxxxxx and Xxxxxxxxxxxxxx.

The Board recognizes that a return to the xxxxx may not be possible, but it also recommends that Xxxxxxxxxxxxxx be given an assignment to a duty station of his choice as soon as possible, if he still so desires. Finally, it requires that Xxxxxxxxxxxxxx have access to his official records to enable him to verify that all corrections had been made.

We certify that this recommendation reflects the views and actions taken by the Board on Xxxxxxxxxxxxxx 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 Xxxxxxxxxxxxxx request and that, in addition to applicable statutes, regulations and policies, it had been considered by the Board members in arriving at this recommendation.

Finally, we certify that a quorum of Board members was present on xxxxxx xx, 1994, when Xxxxxxxxxxxxxx request was considered.

If you approve, please sign below.

Robert McSwain
Chairperson of the Board and Acting Associate Director Office of Human Resources, IHS

Date

Reviewed and Approved:

I hereby approve the recommendation of the Board members upholding the request of Xxxxxxxxxxxxxx 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), and authorize the Director, Division of Commissioned Personnel (DCP), Office of the Surgeon General/PHS to correct his record as stipulated by issuing a Personnel Order canceling his reduction to the Temporary Grade 0-4 and entitling him to retroactive pay and allowances and credit in grade effective Xxxxxxxxx, 1990. It also requires removal of all documents and materials in his Official Personnel File (OPF) and that of the Board of Inquiry and Surgeon General referring to the altercation between Xxxxxxxxxx and Xxxxxxxxxxxxxx. This recommendation also requires that he be given an assignment to a duty station of his choice as soon as possible, if he so desires. Finally, it requires that Xxxxxxxxxxxxxx have access to this OPF to enable him to verify that all corrections had been made.

Wilford J. Forbush
Director, Office of Management

Date

Attachment: Case Record