Board for Correction Case No. 205-98

175.00 Leave (Includes Annual / Home / Sick / Station Leave)
Remove AWOL from the record

Board Members' Recommendations and Decision on Appeal of: Xxxxxxxxxxxxx, Health Services Officer, Case Number 205-98

Officer's Request for Relief:

Xxxxxxxxxx asked the Board to:

1. Rescind Personnel Order xxxxx.xx placing him on Absent Without Leave (AWOL).
   
2. Remove Letter of Reprimand dated xxxxxx 1997 from his record.
   
3. Remove transfer COER from his record. 
   
4. Prevent him from receiving further harassing, punitive or retaliatory actions by management officials.

Arguments by Officer:

Xxxxxxxxxx argued the following:

1. That during the period he was on AWOL he was on official Government travel orders to accomplish a Government mission. Corps policy required his supervisor to contact the Division of Commissioned Corps (DCP) by telegram or fax, if he did not know where he was. This was not done. 
   
2. That part of the period he was on AWOL was sick leave xxxxxxxxxx. He said he notified the Director's secretary and the timekeeper of his condition and of his absence from duty.
   
3. That when he returned to work he had to go home because of pain xxxx xxx xxx condition. Before leaving he wrote a letter to his superiors to that effect and informed the Director's secretary he was leaving.
   
4. That corps policy was violated by asking him to go to the National Naval Medical Center (NNMC) for a fitness for duty determination which he complied with rather than go to the DCP Medical Branch. His supervisor called the examining physician at the NNMC and tried to influence him in determining what medical care he should receive.
   
5. That because of the AWOL issue and his grievance of the matter, he received a Letter of Reprimand and a substandard transfer COER. The letter was issued while his grievance was still in process. A letter should not have been considered until the end of that process. The letter should not have been placed in his Official Personnel File (OPF) since it was later rescinded.
   
6. That corps policy was violated by placing the transfer COER in his record without his review and signature.

Arguments by DCP:

DCP argued the following:

1. The needs of the Service required that officers be responsive to their supervisory and administrative chain of command. Deviations from this requirement even at the request of other components within the Department of Health and Human Services (HHS), comprised the integrity of the command structure with the potential for creating chaos.
   
2. The FDA management correctly placed Xxxxxxxxxx in an AWOL status because he was not authorized by his supervisor, the leave granting authority, nor any FDA management official to deploy on a Disaster Medical Assistance Team (DMAT) activity with the amount of unfinished work he needed to complete prior to his transfer. FDA management correctly continued him in an AWOL status because he failed to obtain station leave prior to departing for or while in Xxxxxxxx outside the vicinity of his permanent duty station. The letter of reprimand placed in his OPF was warranted based upon his misconduct as documented in the letter of reprimand dated xxxxxxx xx, 1997.
   
3. The transfer COER was appropriate and completed in accordance with the Commissioned Corps Personnel Manual, Subchapter CC25.1, INSTRUCTION 1, Section G. The COER documented weaknesses in Xxxxxxxxxx performance, e.g., failure to complete assigned duties prior to transferring to another Operating Division and failure to follow FDA management's directives.
   
4. Xxxxxxxxxx sought to extend his absence from FDA until time for his reassignment to Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, without completing his assigned duties and responsibilities with FDA. He placed his integrity in question by misrepresenting circumstances surrounding his AWOL and the execution of his assigned duties.
   
5. Readiness and responsiveness to service are hallmarks of a uniformed service. The Secretary, HHS, has determined that Operating Divisions retain the authority to determine when and under what circumstances an officer may be deployed. Officers are required to follow the directives of their chain of command and requests for deployment must follow established protocol which includes obtaining approval from one's supervisory and administrative channels. Xxxxxxxxxx sought relief from the appropriate disciplinary action that resulted from his deliberate violation of this policy.
   
6. The record lacked evidence to support Xxxxxxxxxx allegation that he was subject to harassing, punitive or retaliatory actions by FDA management officials. FDA management officials correctly addressed his misconduct and his failure to perform in a manner expected of any professional. To grant the relief requested would be contrary to PHS Commissioned Corps policy. It would clearly send the wrong message to commissioned officers that it is permissible to disregard supervisory?s directives concerning their assigned duties and responsibilities by accepting orders from another entity without supervisory approval.
   
7. DCP found no error or injustice in Xxxxxxxxxx service records with respect to the Letter of Reprimand issued to him on xxxx 1997, the transfer COER, nor personnel order xxxxx placing him in AWOL status. In addition, there was no evidence that he was subjected to harassing, punitive or retaliatory actions by management officials.

For the aforementioned reasons, DCP respectfully requested that the Board deny all relief sought by Xxxxxxxxxx.

Board Action on Officer's Appeal:

Date of Board Meeting: xxxx xx, 2000

Board Staff:

Norman E. Prince, Jr.
Staff Director
Program Support Center Executive Director
Board for Correction of PHS Commissioned Corps Records

Thomas E. White, Ph.D.
Executive Secretary Board for Correction of PHS Commissioned Corps Records

Members of the Board:

Harold P. Thompson
Chairperson of the Board and Executive Officer
Office of Public Health and Science, OS

Findings, Conclusions, Recommendations and Corrections to the Record:

Findings

1. Rescind Personnel Order xxxxxx placing Xxxxxxxxxx on Absent Without Leave.
   
   
   1. Personnel Order xxxxxx placed him on AWOL from xxxxxxxx x, 1996 to xxxxxxxxx xx, 1996.
      
   2. Xxxxxxxxxx deployment with DMAT covered the period from Xxxxxxxx  1996 through Xxxxxxxx  1996 (he returned from the deployment to his duty station at XXX on Xxxxxxxx  1996) . A copy of travel orders deploying him with DMAT was not part of the record. xxxxxxxxxxxxxxxxx, his supervisor, stated in a memorandum dated xxxxxxx xx, 1997 that his travel orders were received on Xxxxxxxx xx, 1996 deploying him with DMAT as of Xxxxxxxxx, 1996. His statements about whether or not he had obtained approval from his supervisor to deploy and whether or not his supervisor had been made aware of his whereabouts were in conflict with those of his supervisor. The record contained a copy of a memorandum dated Xxxxxxxx 1995 from the Principal Deputy Assistant Secretary for Health/OS to PHS Agency Heads requesting prior approval of personnel for DMAT deployments. All individuals were told to seek approvals from their supervisors before accepting assignments. They were expected to be available unless an agency requirement had a higher priority. This could have established a precedent for processing DMAT deployments.
      
   3. His statements also were in conflict with those of his supervisor as to whether or not he followed proper leave procedures and obtained the necessary approvals for being absent from his duty station after Xxxxxxxx x, 1996. Apparently on or about Xxxxxxxx  1996, he traveled to xxxxxxxx, outside the vicinity of his permanent duty station. A copy of approved station leave for this absence was not part of the record. He considered this to have been administrative leave since XXXXXXXX and XXXXXX were non-duty hours. DCP policy required that administrative leave be under circumstances which served the interests of both PHS and the officer. The record did not document that his trip to Xxxxxxxx met that requirement.
      
      While in Xxxxxxxx he sustained an injury that resulted in a disability report dated Xxxxxxxx xx, 1996 declaring him disabled from work from Xxxxxxxx x, 1996 to Xxxxxxxx xx, 1996 (he had been examined on Xxxxxxxx x, 1996). The report was prepared by a physician assistant, employed by xxxxxx xxxxxxxxx. It could not be determined from the record whether or not the report was binding on the commissioned corps. A copy of a sick leave slip covering the period of the disability in the report was not part of the record. The end date of the disability coincided with the date he had been scheduled to report to his new duty station in Xxxxxxxx.
      
      He returned to his duty station (XXX) on Xxxxxxxx  1996. He requested sick leave through the period covered by the Xxxxxxxxxxxxxxx report then left his station. His request for sick leave was not approved. He was in Xxxxxxxx on Xxxxxxxx  1996 and was directed by XXX to return, pick up a memorandum to give to the NNMC, and report on Xxxxxxxx  1996 for a duty status evaluation. Instead, he went directly to the NNMC and then reported to his duty station. The NNMC initially placed him on quarters from Xxxxxxxx xx, 1996 through Xxxxxxxx xx, 1996. However, upon review of a memorandum later faxed to the NNMC by XXX, his fitness for duty determination was changed, and he was directed to report for duty the next day (Xxxxxxxx xx, 1996). His medical check-up at the NNMC did not place any lifting or bending restrictions on his assignments. DCP stated that he did not report on either Xxxxxxxx xx or xx, 1996.
      
2. Remove Letter of Reprimand dated xxxxxxx 1997 from his record.
   
   A Letter of Reprimand dated xxxxxxx xx, 1997 was placed in his OPF by xx xxxxxxxx, his supervisor. According to DCP procedures, such a letter remains in an officer's OPF for a period of two years from the date of issue after which it is removed. Therefore, the letter should no longer be in his Official Personnel File.
   
3. Remove transfer COER from his record.
   
   
   1. A transfer COER, dated xxxxxxx 1996, was prepared on Xxxxxxxxxx incident to his transfer to a new duty station in Xxxxxxxx. It covered the period xxx ... 1996 to Xxxxxxxx xx, 1996. The copy in the record had not been concurred in by the officer nor had he signed it (he had alleged that he did not see or sign the COER) . The COER noted that he did not return the original copy sent to him.
      
   2. He received an overall rating of "marginal" for the evaluation period. The documentation in support of his ratings was prepared by xxxx xxxxxx, the Reviewing Official, who was concerned about: (1) Xxxxxxxxxx failure to complete all of his assignments before leaving for a new position in Xxxxxxxx, (2) deficiencies in his performance as xxxxxx xxxxx to two FDA drug advisory committees and (3) failure to complete annual reports and minutes of the meetings of these two committees. It was not possible to determine from the record whether or not all of the concerns expressed by his supervisor in the Letter of Reprimand dated xxxxxxxx xx, 1997 also had been considered in preparing his COER since the signature line had not been dated. However, he had received a Letter of Reproval during the evaluation period dated xxxxxx x, 1996.
      
4. Prevent him from receiving further harassing, punitive or retaliatory actions by management officials.
   
   The Board did not find any documentation in the record supporting Xxxxxxxxxx allegation that he had been the subject of harassing, punitive or retaliatory actions by management officials.

Conclusions

1. Xxxxxxxxxx supervisor received travel orders on his DMAT deployment on Xxxxxxxx xx, 1996 deploying him as of Xxxxxxxx x, 1996. He had already deployed when they were received.
   
2. The Letter of Reprimand should have been removed from his OPF on xxxxxxx x, 1999.
   
3. His concern about his transfer COER did not overcome the presumption that the rating officials discharged their duties correctly, lawfully, and in good faith.
   
4. Absent documentation in the record that he had been the subject of harassing, punitive or retaliatory actions by management officials; there was no basis for recommending corrective action.

Recommendations and Corrections to the Record

The Board members recommended that Xxxxxxxxxx receive partial relief and that his record be corrected as follows:

1. That the period of his AWOL covering the DMAT deployment from Xxxxxxxx 1996 through Xxxxxxxx 1996 be removed from his record, and that he receive pay, allowances and benefits for this period. The documentation was inconclusive as to whether or not he had obtained approval from his supervisor to deploy and whether or not his supervisor had been made aware of his whereabouts. The policy did not require him to obtain approval in writing. It would be unfair to place him on AWOL during a period when the record documented that he was on official travel orders providing the DMAT service requested of him to the U.S. Government. Further, the Board members recommended that his AWOL for Xxxxxxxx xx, 1996 be removed from his record since it documented that he reported to the NNMC for a duty status evaluation on that date, and that he receive pay, allowances and benefits for this day.
   
2. That DCP provide Xxxxxxxxxx with confirmation in writing that the Letter of Reprimand was removed from his OPF on xxxxxxx xx, 1999, and that the original copy be sent to him.
   
3. That his transfer COER remain in his record as written.

That no action be taken on his appeal regarding harassing, punitive or retaliatory actions by management officials.

We certify that the Board members' recommendations and corrections to the record reflect their views and actions after considering Xxxxxxxxxx appeal and that they have concurred in this matter.

We certify, further, that the Case Record, shown as an Attachment, contains all documentation received on Xxxxxxxxxx appeal; and in addition to applicable statutes, regulations and policies, it was considered by Board members.

Finally, we certify that a quorum was present on xxxxxx, 2000 when Xxxxxxxxxx appeal was considered.

If you approve, please sign below.

­Harold P. Thompson
Chairperson of the Board and Executive Officer
Office of Public Health and Science, OS

Date

Reviewed and Approveg:

I hereby ( ) approve ( ) disapprove the Board members' recommendations and corrections to the record on xxxxxx xxxxxxx appeal 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), extending to the PHS Commissioned Corps the provisions of 10 U.S.C. 1SS2, and empower the Director, Division of Commissioned Personnel, Human Resources Service, Program Support Center, to implement this decision and correct his record as stipulated. He is entitled to review his record to ensure compliance with this decision.

Lynnda M. Regan
Director
Program Support Center

Date

Attachment: Case Record