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Board for Correction Case No. 026-83

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Board for Correction Case No. 026-83

192.00 Pay and Allowances (Includes Allotments of Pay / Allowances / Basic Pay) - Retroactive pay and allowances

Recommendations of the Board on Case No. 026-83, Xxxxxxxxxxxxxxx, xxx

xxx Xxxxxxxxxxxxxxx filed a written application dated Xxxxxxxxx, 1982, with the Board requesting that his orders to active duty be revised to show that he was appointed before Xxxxxx,1980, thus enablinq him to qualify for shipping and travel benefits, and be paid for services rendered to the Government. A hearinq was not requested by Xxxxxxxxxxxxxxx. The merits of the request were reviewed on the basis of the documentation provided. The relevant facts and the Board's Findings, Conclusions and Recommendations are included as Attachment 1.

After consideration of all information provided, the Board recommended that Xxxxxxxxxxxxxxx should be paid for his service rendered for the period Xxxxxxxx, 1980, and for expenses incurred in shipping his household goods and the expenses of travel for himself and his family from Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

It is certified that the foregoing recommendations are true and complete statements of actions taken by the Board, as contained in Attachment 1 to this memorandum, and that the report on the actions of the Board has been reviewed by the Board's members. Further, it is certified that the documen­tation contained in Attachment 2 includes all information presented to the Board, and that it, in addition to applicable statutes, regulations and policies, has been considered by the Board in arriving at its recommenda­tions. Finally, it is certified that a quorum was present at the Board's meeting on xxxxxxxx xx, 1983 when Xxxxxxxxxxxxxxx request was considered.

The foregoing action of the Board is submitted for your review and approval.

Ellen Wormser

Attachments:

(1) Board's Findings, Conclusions and Recommendations
(2) Case Brief and all available documenting evidence

Reviewed and Approved:

Wilford J. Forbush
Deputy Assistant Secretary for Health Operations and Director, Office of Management

FINDINGS

The question for consideration by the Board was whether Xxxxxxxxxxxxxxx had been sufficiently informed of and understood the policy governing entry on to active duty, such that he should be required to bear the consequences of his decisions, even though he may have been encouraged by IHS to take steps not in accordance with approved policy. On the one hand, the Board considered the statements of Xxxxxxxxxxxxxxx that he had no knowledge of the need- for written orders before reporting for duty or that such orders were necessary to make travel and shipping arrangements. On the other hand, the Board was aware of the CPOD contention that Xxxxxxxxxxxxxxx had been suffi­ciently informed by them and understood the consequences of the actions he decided to take. Finally, the Board was mindful of the xxxx x xxxxxx case which also raised the issue of a retroactive change in appointment date, but recognized that this change was after the date when the officer had been found qualified for appointment. The request made by Xxxxxxxxxxxxxxx was different since it would require the Board to make the appointment date earlier than the date when Xxxxxxxxxxxxxxx was found qualified for appointment to the Corps.

The Board recognized some confusion in the date when Xxxxxxxxxxxxxxx was to report for duty due to the different influences of CPOD and IHS. According to the information available to the Board, the CPOD directives informed Xxxxxxxxxxxxxxx not to ship goods, travel or report to a duty station until formally notified, while IHS staff was encouraging him to report for duty without such orders. In addition, there was information in the record to indicate that an employee of IHS negotiated directly with the moving company to arrange for the shipment of goods on Xxxxxxxxxxxxxxx behalf even though he was without orders. The Board recognized, as was pointed out in the memorandum dated Xxxxxxxx, 1981, from XxxxxxXxxxxx to Xxxxxxxxxx, the possibility that the moving company may have assumed that IHS had given it authority to ship Xxxxxxxxxxxxxxx household goods or else they would not have shipped them, and that such a conclusion should be considered in deciding on Xxxxxxxxxxxxxxx request.

There was some question in the minds of the Board members over the degree of influence IHS may have had on the decision of Xxxxxxxxxxxxxxx to report for duty before he had orders, whether IHS did, in fact, know what the appli­cable policy was and whether they were committed to enforcing it rather than viewing it as a stumbling block to achieving their program mission. The Board was particularly concerned that appropriate management controls were not enforced, permitting the Government to become liable for the expenses incurred by Xxxxxxxxxxxxxxx, who was not yet officially a Government employee, and that Xxxxxxxxxxxxxxx did, in fact, perform services although not officially on the Government payroll.

The members of the Board were of the opinion that a new employee like Xxxxxxxxxxxxxxx would be particularly vulnerable when dealing with his prospective employer-the Indian Health Service, and could be influenced by their advice and counsel. The Board also believed its deliberations in behalf of Xxxxxxxxxxxxxxx should take into consideration the fact that he was found qualified at a later date for appointment to the Corps, and has served as a dedicated physician, facts that would have required the Government to pay his shipping and traveling expenses in any event.

RECOMMENDATIONS

After consideration of all information presented, the recommendation of the Board is that Xxxxxxxxxxxxxxx should be paid for his service rendered for the period Xxxxxxxx, 1980, and for expenses incurred in shipping his house­hold goods from, and for the expenses of travel for himself and his family from Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

I certify that each of the Board members has read this report and that its content is a true and complete statement of the deliberations of the Board.

Ellen Wormser
Chairperson
Board for Correction of PHS Commissioned Corps Personnel Records

Wilford J. Forbush
Deputy Assistant Secretary for Health Operations and Director, Office of Management


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.