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Board for Correction Case No. 003-82

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Board for Correction Case No. 003-82

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

Modification of Board Recommendation on Request of: xxxxxxxxxxx, Case No. 003-82/121-89

REQUEST:

Xxxxxxx filed an application with the Board for Correction of PHS Commissioned Corps Records dated Xxxxxxx 1989, requesting reconsideration: of a prior decision regarding his separation from the Commissioned Corps for being AWOL from duty. Specifically, he requested that the Board:

  1. Remove an AWOL from his record;
  2. Pay him back pay and allowances;
  3. Grant him a disability retirement; and
  4. Authorize compensation to him and his family if past actions by PHS administrators had affected his xxxx condition or xxx xxxxx or termination from the Corps.

His reconsideration request was based on the grounds that he had been unable to defend himself due to his xxxxxxxxxxxxx. He modified his 1982 request to eliminate a request to be returned to active duty. The Board considered his request at a meeting held on Xxxxxxx 1992.

XXXXGROUND

  1. Xxxxxxx was appointed to the Commissioned Corps Xxxxxxx 1966, as a xxxxxx xxxxx at the Xxxxxxxxxxxxxxxxxxxxxxx.
  2. promotion. In Xxx of 1976, the xxxxxxxxxxxxx commented on his outstanding qualifications in xxxxx xxxxx. A paper he had written was selected for reading at an annual meeting of a professional association in Xxxxxxxx 1976. During the subsequent period, conflicting reports were written by his superiors about his performance, some criticizing his research and others praising it. By Xxxxxxx 1978, concern about his performance had reached the point where a fitness for duty evaluation was recommended.
  3. In the current case material, Xxxxxxx said that during the 1977-1981 timeframe he began seeing xxxx at the PHS Hospital for treatment of xxxxxxxx symptoms. The doctor who saw him stated that he suffered from: "xxxxxxxxx xxxxxxxxxxxxxxxxxxxxx", although she did not recall the dates when she saw him.
  4. On Xxxxxxx 1978, a formal request was made that he undergo a xxxxxxxx and xxxxxxxx evaluation. He was found to be fit for duty and ordered to return to work. After returning to work, he reported an xxx xxxx xxx on xxxx 1979. He also reported a xxx xxxx on Xxx 1979. Xxxxxxxx, who later was appointed his legal representative, concluded that the comments by his supervisor in 1976 and her xxxxxxxxx declining performance reflected his xxxxxxxxxxxxx, and this condition should have been recognized by the PHS doctors while he was on active duty. 
  5. While still on active duty, on Xxx 1979, Xxxxxxx was summoned to serve as a xxxx. He was excused from completing his xxxx duties due to xxxx. He was examined at the PHS Hospital on Xxxx 1979, and found fit for duty, but said he did not return to work because of the xxxx. He was AWOL for xx days from Xxxx 1979, to Xxxxxxx 1979. He was assigned to work in the xxxxxxx when he returned on Xxxxxxx 1979. Xxxxxxx was formally notified on Xxxxxxx 1979, that termination procedures were underway due to his being absent in excess of 30 days.
  6. During Xxxxxxx and xxxxx 1979, prior to his termination, he consulted several private doctors about his xxxxxxxxxxx; at this time he was still on active duty and had been notified of the termination procedures. 
  7. Within six months after termination, he filed a request for disability compensation with the xxxxxxxxx xx xxxxxxxx xxxxxx (XXXX). XXXX awarded him a xx percent disability for his xxxxxxxxxxx. He subsequently received a xxx percent disability for his xxxx xxxxx while in a XXXX hospital for his xxxx xxxxxxxxxxx. After discharge, he received a combined rating of xx percent for his xxxx and xxxxxxxxxxx, later increased to xx percent, now in effect.
  8. According to xxx and Xxxxxxxx, Xxxxxxx life and that of his family underwent transformation after his termination from the Corps while he continued to seek medical care for his xxxx and xxxxxxxxxxxs. He filed for Unemployment Insurance Benefits, but they were denied due to the circumstances of his termination. He sent out at least 75-100 applications seeking employment, but received no offers. 

    He held a job as a xxxxxx xxxx for less than two weeks. He worked as a part-time xxxxx xxxxx in 1981 and 1982 and was dropped by xxxxxxx xxxx xxxx on xxxxxx 1983. He became a xxxxx xxx in the fall of 1983. (According to his W2's, he earned an average of $24,917 per year since his termination, with a high of $41,918 and a low of $3,301. He reported no income for 1979 for the period after his termination and none for 1980).

    After termination Xxxxxxx was encouraged to seek medical care, but refused to do so. He made appointments to visit doctors, but broke them. He was admitted to the hospital in xxxxxx 1981 where he remained for 29 days and has sought care for his xxxxxx and xxxxxxxxxxx since then.
  9. Xxxxxxx filed his original application with the Board for Correction xxxxx xx 1982. He asked that his AWOL be removed from his record, that he receive back pay and allowances, and that he be returned to active duty or given a disability retirement. His request was denied on the grounds that he had been fit for duty.

RECONSIDERATION OF XXXXXXX REOUEST:

Members of the Board for Correction Review in a xxxxxx Request for Reconsideration:

Board Staff

Ellen Wormser
Executive Director

Thomas E. White, Ph.D.
Executive Secretary

Board Members

Rex W. Cowdry, M.D.
Chairman of the Board and
Deputy Director for
Research at St.Elizabeths, Division of Intramural Research Programs, NIMH
(Psychiatrist)

DCP Response to Request for Reconsideration:

The Division of Commissioned Personnel (DCP) had argued at first against reconsideration of Xxxxxxx case on the grounds that he had been fit for duty and that no new documentation had been submitted to warrant reconsideration. The Board for Correction reviewed what Xxxxxxx had submitted and agreed to reconsider his application. It found that the original Board for Correction had not considered some important material.

Subsequent to that decision, DCP commissioned two Medical Review Boards (xxx and xxxxxxxx) to review the documentation and submit recommendations on his xxxxxxxxxxxxx xxx xxx xxxx. Based upon that review, DCP recommended that:

  1. Xxxxxxx record be changed to remove the AWOL for the period Xxxx 1979, to Xxxxxxx 1979, (xx days) and to indicate that this was a period of sick leave (thereby restoring pay and benefits for this period).
  2. His separation be changed to permanent disability retirement effective xxxxx 1979, with a disability rating of xx percent. No rating was recommended for his xxx in xxx.

Subsequently, based upon DCP's request for a second review, the xxxxxxxx board revised its position and recommended that he be awarded a xx percent disability for his xxxxxxxxxxx during a five year temporary disability retirement list (TDRL) period and xx percent thereafter. The Board considering his xxxxxxxxxxx recommended that he not receive disability compensation for his xxxx. DCP supported these recommendations.

The issue before the Board was whether to accept DCP's recommendations or whether alternatives were warranted.

FINDINGS AND CONCLUSIONS:

Approach

Rather than considering this case from a 1992 perspective using all data currently available, the Board considered the case first as it was presented in 1979, when he was separated from the corps and then as it would have been presented in 1984, when a final determination of permanent disability would have been made, had he been placed on TDRL in 1979. In each case, the Board considered all the data now available which related to the periods prior to each of these decisions. In both instances, the Board used the XXX/XX disability standards (also used by PHS) to arrive at its disability rating recommendations.

Xxxxxxxxxxxxx

1979

The Board concurred with the Xxxxxxxx MRB and DCP that Xxxxxxx inability to perform his duties as a Commissioned Officer in the Corps and his period of AWOL preceding his discharge were a direct result of his xxxxxxxx disorder, and that the severity of his disorder, manifested by xxxxxxxxxxx, xxxxx xxxxx xxxxx, would have warranted placing him on TDRL with a rating of xx percent.

1984 - End of TDRL

Since the degree of disability cannot be changed during the period on TDRL, the Board did not feel compelled to consider each 18-month review period of TDRL, but rather used all the data available for the period from Xxxx 1979 through Xxxx 1984. Xxxxxxx apparently denied the existence of a xxxxxxxx disorder during the early part of this period and did not receive effective treatment. The Board did not give significant weight to his functioning prior to his 1981 hospitalization as a predictor of permanent disability.

The period after his hospitalization was characterized by highly variable functioning. He required frequent outpatient treatment and medication. In spite of this treatment, he experienced significant job instability. His performance was apparently satisfactory, without a notable amount of sick leave. His xxxx reported that he was recuperating from a xxxxxxxxxxx, and was suffering from xxxxxx. The overall level of impairment during the last three years of TDRL was thus best characterized as highly variable, and the Board felt that there would have been reason to assume in the fall of 1984 that some degree of this variability would continue to characterize his course of illness.

In the Board's view, his level of impairment during the 1979-84 time period met the XXX standard for "considerable", i.e. "... require frequent outpatient treatment and medication to maintain employment and avoid rehospitalization, and who, despite treatment, exhibit extensive job instability and experience periodic relapses requiring hospitalization" with the exception of the clause "relapses requiring hospitalization. " (As noted above, the Board did not consider his course of illness since 1984 in determining the percentage disability. It did note, however, that there were both periods of better functioning than during the last three years of TDRL and, more recently, periods of illness of greater severity requiring hospitalization.)

His level of impairment, in the Board's opinion, clearly substantially exceeded the standard established by the category "definite", i.e. "...requires occasional outpatient treatment and medication to maintain employment and avoid rehospitalization, and xxx do well on this treatment, though he or she xxx experience some job instability and often the illness xxx interfere with his or her announcement."

The Board found that the level of permanent disability, based on data available covering the period to 1984, should be xx percent.

xxx xxxx

1979

Xxxxxxx record mentioned an inxxxx to his xxxx in Xxxx 1979, and again in Xxx 1979. Also, in Xxx 1979, he had been called as a juror, but had been unable to complete his duties due to xxxx that caused him to go to the hospital for treatment during that month. He was diagnosed as having a xxxxxxx xxx for which xxxxxxx xxxx xxx xx xx were prescribed. He again visited the hospital on Xxxx 1979, the first day of his AWOL. He visited a physician twice in Xxxxxxx 1979 for his xxxx and once in xxxxx 1979, 13 days before being terminated.

The Board noted, however, that the record contained discrepancies in the descriptions of the diagnoses of his condition, ranging from xx xxxx xxxx, xxxxx xxx, etc. For him to have been diagnosed as having a xxxxxx, there should have been evidence in the record of xxxxxx xxxxxx or xxxxx xxxxxx. Several physicians who examined him either had not commented on this type of evidence or stated that it was not present. The statement that he had a xxx xxxx xxxx that converted to a xxxxxxxx was not documented by the record. What was documented was that he had a number of episodes of xxxx which kept him from normal activities over the years, although he had been able to return to work.

The Board concluded that some degree of disability resulting from his xxxxxxxxxxx existed at the time he would have been placed on TDRL. The Board gave some weight to the fact that shortly after his termination, the XXXX found a xxxxxxxxxxx warranting a xx percent disability rating. While recognizing the differences between the XXXX and Corps retirement systems, the Board had difficulty reconciling this OVA finding with the recommendation of the MRB that no condition warranting a disability rating existed. The determination of the percent disability is addressed below.

1984- End of TDRL

The documentation indicated that Xxxxxxx continued to seek treatment for his xxxxxxxxxxx from 1979 to 1984. XXXX had awarded him a xx percent disability rating for his xxxx xxxxxx in xxxx 1980, effective Xxxx 1979. This rating continued through the 1984 timeframe.

For both the period prior to 1979 and the 1979-1984 period, the Board concluded that some disability rating was warranted for his xxxxxxxxxxx. The Board experienced some difficulty determining the correct disability rating standards to apply. The standards for xxxxxxx xxxx xxx [xxxxx xxx of the XXXX rating criteria (page xxx)] provide measures appropriate for intermittent conditions, but the Board could not establish with certainty a diagnosis of xxxxxx xxx. The standards for xxxx xxxx xxxxx, on the other hand, do not properly address intermittence.

It decided that the descriptors and ratings listed under xxxx (specifically "moderate; recurring attacks, " and "mild") should also appropriately be applicable to xxxxxxxxxx. The Board concluded that he suffered recurring attacks, but classified them as mild in that he recovered and was able to return to a relatively normal life. Accordingly, it assigned a TDRL and permanent disability rating of xx percent to the xxxxxxxxxxx.

DCP had argued that no disability percentage should be applied to the xxxx xxxxxx since it did not result in an incapacity to perform the duties of a Corps officer. The Board concurs that the disability was mild and by itself would not warrant a medical disability discharge. However, the Board understands the requirement to be that the xxxxxxxx disability be of such severity that a medical disability discharge would be warranted on that condition alone. Other conditions, not in themselves substantially disabling, could then be assigned lower ratings. The two could be combined multiplicatively to yield the final combined rating on which disability pay would be based.

RECOMMENDATIONS:

After consideration of all documentation in the record, the Board concurs fully with the DCP recommendation that Xxxxxxx record should be corrected to remove the AWOL for the period Xxxx 1979, to Xxxxxxx 1979, (xx days) and to show that he had been on sick leave, thus entitling him to pay and allowances for that period. It concurs also with the DCP recommendation that his termination from the Corps for being AWOL, effective Xxxx 1979, be changed to a temporary medical disability retirement effective that same date, and then to a permanent medical disability retirement effective Xxxx 1984, with whatever benefits, moving expenses, etc. would normally accompany such action.

The Board disagrees, however, with the disability percentages recommended by DCP, and finds that Xxxxxxx should be awarded a disability rating of xx percent for his xxxxxxxxxxxxx and xx percent for his xxxx xxxxxx during the TDRL period, for a combined rating of xx percent. It further recommends that the permanent disability rating be xx percent for the xxxxxxxxxxxxx and xx percent for his xxxx inxxxx, for a combined permanent disability rating of xx percent.

In addition, the Board noted that Xxxxxxx and members of his family would have been eligible for medical and hospital coverage under CHAMPUS or for medical care from a military hospital on a space-available basis had he received a medical disability retirement. It therefore recommends that he be reimbursed for the documentable out-of-pocket medical expenses they incurred, in accordance with CHAMPUS policy and procedures.

xxxxxx request that the Board authorize compensation for him and his family was not considered. The Office of the General Counsel had advised the Board that it did not have the legislative or legal authority to award compensatory damages.

We certify that the Case Record contains all of the information received on Xxxxxxx request and that, in addition to applicable statutes, regulations and policies, it was considered by the Board in arriving at this recommendation.

We also certify that a quorum of Board members considered Xxxxxxx request.

If you approve, please sign below.

Rex W. Cowdry, M.D.
Chairman of the Board and
Deputy Director for Research at St. Elizabeths,
Division of Intramural Research Programs, NIMH (Psychiatrist)

Reviewed and Approved:

I hereby approve the modified recommendation on the request of Xxxxxxx 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 and issue Personnel Orders changing his separation from termination to a medical disability retirement.

Wilford J. Forbush
Director
Office of Management

Date

Attachment: Case Record

Board Recommendation on the Request of: xxxxxxxxxx, Case No. 003-82/121-89

  1. Background:

    The Board had previously considered a request by Xxxxxxx to have his separation from the Corps in 1979 changed from termination to a disability retirement. His initial request had been denied on Xxxxxxx 1982. It was subsequently upheld on reconsideration on Xxxxxxx 1992. The Board had recommended that he be reimbursed for moving expenses, etc., normally associated with changing his disability from temporary to permanent. At the time it made this recommendation, it was not aware of what had actually occurred following his termination or how the regulations applied.

  2. Relief Requested:

    xxxxxxxxx (on behalf of her xxxxx Xxxxxxx) had submitted an application to the Board dated Xxxx 1993, asking it to reimburse him for moving and storage expenses incurred from xxxxxx 1981, through xxxxx 1984, after his termination from the Corps in 1979. The total amount requested was $3,499.06.

  3. Applicant's Argument and Documentation:

    On Xxxx 1993, Xxxxxxxx had sent a request for reimbursement to the xxxxxxxx xxxxxxxxx.

    Following that request, reimbursement of $1,276.60 was authorized (DCP sent Xxxxxxx a check for this amount). xxx argues that this amount did not cover the expenses actually incurred and that he should have been reimbursed the full amount requested. xxx argues further that the expenses incurred followed DCP's initial decision terminating him from the Corps in 1979, causing the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Approval of this request requires that $2,222.46 be authorized in addition.

  4. Division of Commissioned Personnel's Argument and Documentation:

    DCP's response to Xxxxxxxx request on xxxxxx 1993, had provided for reimbursement of non-temporary storage for one year at the point of origin. To be eligible for this allowance, Xxxxxxx had to have incurred expenses within one year from Xxxx 1979, through xxxxxxx 1980, while on temporary disability retirement. DCP based its response on a recommendation from the Per Diem, Travel and Transportation Allowance Committee of the Xxxxxxxxx indicating what amount would have been applicable in 1979 had he separated in the manner normally followed by officers and had he used his allowance within the one year period allowed. This Committee had jurisdiction over regulations governing reimbursement of moving and storage expenses incurred by members of the uniformed services. (DCP's decision had been consistent with those of the Comptroller General regarding similar cases and the statute governing reimbursement.)

  5. Board Action on Officer's Request:

    Date of Board Recommendation:

    Board Staff

    Ellen Wormser
    Executive Director

    Thomas E. White, Ph.D.
    Executive Secretary


    Board Members

    Rex W. Cowdry, M.D.
    Chairman of the Board and
    Deputy Director for Research at St. Elizabeths
    Division of Intramural Research Programs, NIMH (Psychiatrist)

    Findings and Conclusions

    1. Xxxxxxx had not availed himself of his entitlement to reimbursement from Xxxx 1979, through xxxxxx 1980, allowed by the Joint Travel Regulations (JTRs) and the statute, while in temporary disability retirement. Also, reimbursement of non-temporary storage had not been authorized as part of the order placing him in permanent disability retirement.
    2. The period covered by the request for reimbursement Xxxx 1981, through Xxxx 1984, had included the five year period from Xxxx 1979, through xxxxx 1984, while Xxxxxxx was on temporary disability retirement.
    3. The JTRs and the statute had extended the entitlement of an officer to reimbursement if confined to a hospital or undergoing medical treatment. DCP in approving reimbursement for Xxxxxxx considered that he had not used his entitlement and had been hospitalized from xxxxx 1981, through xxxx 1981.
    4. During the period for which Xxxxxxx had requested reimbursement, PHS rated him xx percent disabled. He had been treated for a xxxx inxxxx xxx xxxxxxxxxxxxx that included hospitalization and xxxxxxxx treatment. For example, XXXX had awarded him a temporary rating of xxx percent for his xxxxxxxxxxxxx for xxxxxxx 1981, through Xxxx 1981. From xxxx 1981 through Xxxx 1981, he had received biweekly treatments for his xxxxxxxxxxxxx and also from xxxxx 1981, through Xxxx 1983, he had received monthly treatments (after a period of hospitalization from xxxxxxx 1981, through xxxxxxx 1981, at the xxxxxxxxx and from xxxxxxxx 1981, through xxxxxx 1981, at the xxxxxxxx). On Xxx 1981, xx had awarded him a permanent disability rating of xx percent for his xxxxxxxxxxxxx for a combined rating of xx percent (that included xx percent for his xxxx inxxxx). He continued to receive treatments after Xxxx 1984, the end of the period for which he had requested reimbursement.

Neither the JTRs nor the statute had addressed the specific situation created by Xxxxxxx request (that DCP's initial decision terminating him from the Corps in 1979 xxxxxx in Xxx 1981 and xxxxxxxxxxxxx).

The Board concluded that the circumstances of Xxxxxxx termination and the events which followed had justified reimbursing him for the full amount of his moving and storage expenses. These considerations also had justified extending his entitlement to reimbursement through the period requested since he had been hospitalized and had undergone medical treatment during that period.

Recommendation:

Accordingly, the Board recommends that Xxxxxxx be reimbursed for the full expenses he had incurred. Approval of this recommendation requires that he receive an additional $2,222.46 and that his record be corrected to justify reimbursement based on the hospitalization and medical treatment he received during the period from Xxxx 1981, through Xxxx 1984.

We certify that this recommendation reflects the views and actions taken by the Board on a request by Xxxxxxx (submitted by Xxxxxxxx on his behalf) and that it has been concurred in by the Board members.

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

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

If you approve, please sign below.

Rex w. Cowdry, M.D.
Chairperson of the Board and Deputy Director for
Research at St. Elizabeths Division of Intramural Research Programs, NIMH
(Psychiatrist)

Date

Reviewed and Approved:

I hereby approve the recommendation of the Board members on the request received and considered on behalf of Xxxxxxx 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 issue a Personnel Order reimbursing him for moving and storage expenses in the amount of $2,222.46. Approval of this recommendation requires that his record be corrected to justify reimbursement based on the hospitalization and medical treatment he received during the period from Xxxx 1981, through Xxxx 1984.

Wilford J. Forbush
Director, Office of Management

Attachment


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.