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Board for Correction Case No. 029-83

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Board for Correction Case No. 029-83

167.00 Indebtedness-Collection Upon Separation - Cancel debt to the U.S. Government or establish payback schedule

Recommendations of the Board for Correction on Case No.029-83 xxxxxxxx

Xxxxxxxxx filed an application with the Board for Correction dated xxxxxxx 1982, requesting cancellation of his obligation to repay monies received under a Retention Special Pay (RSP) contract. 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 for Correction recommended that Xxxxxxxxx request be denied, and that the agreement between him and the Commissioned Personnel Operations Division remain in effect until his financial obligation under his RSP contract is completed.

It is certified that the foregoing recommendations are true and complete statements of actions taken by the Board for Correction, as contained in Attachment 1 to this memorandum, and that the report of these actions has been reviewed by the Board members. Further, it is certified that the documentation contained in Attachment 2 includes all information presented to the members of the Board and that, in addition to applicable statutes, regulations and policies, it 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 xxxxx 1983 when Xxxxxxxxx request was considered.

The foregoing actions of the Board for Correction are submitted for your review and approval.

Ellen Wormser

Attachments:

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

Reviewed and Approved:

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

The Board members believe that the basic question to be resolved on behalf of Xxxxxxxxx request concerns his knowledge of the eligibility require­ments for RSP coverage and how that knowledge could have been influenced by the advice or opinions he received from others.

Officer Awareness of CPOD Policy

PM, Subchapter CC22.2, Instruction 3, "Retention Special Pay", dated November 23,1981, stated the conditions and circumstances under which a medical officer could receive Retention Special Pay (RSP). It also set forth the procedures for processing RSP contracts. Copies of this issuance were distributed to all medical officers in the Corps.

Section C of the Subchapter defined basic terms and concepts appli­cable to implementing the RSP program. One term which Xxxxxxxxx alleges was not clearly defined for him was the meaning of initial residency training". Two key statements from that definition are applicable to Xxxxxxxxx request.

Initial residency training was defined to include:

"...that period of time spent by an officer in medical or osteo­pathic residency training prior to the officer's first becoming eligible to take a specialty board examination administered by an American medical or osteopathic examining board."

"Subspecialty training taken prior to completion of initial residency training will be considered a part of initial residency training."

Section D of the Subchapter stated the eligibility requirements for RSP pay. A medical officer not eligible for RSP pay included one who was:

"...participating in a medical internship or in initial residency training...."

Section H of the Subchapter called attention to the certifications required by the program officials before an officer could receive RSP pay. Program officials were required to certify that the officer:

"...will not be participating in a medical internship or in initial residency training...during the first year of the proposed " contract.

Section L of the Subchapter stated with respect to termination of an RSP contract:

"If a medical officer serving under an RSP contract enters into a medical internship or into initial residency training...the contract will be terminated as of the effective date of assignment to training. An officer whose RSP contract is terminated under this provision will be required to repay a pro rata portion of the last annual payment..."

The Board members find that CPOD policy clearly specified the condi­tions and circumstances under which a medical officer could receive RSP pay, and the applicability of those provisions to an officer in training status. Further, the Board members find that copies of this policy were generally available to an officer with interest.

The members of the Board reviewed provisions of the RSP contract signed by Xxxxxxxxx to understand the agreement arrived at between him and the Public Health Service. Section 8 of the RSP contract asked Xxxxxxxxx to certify that he:

"...will not be participating in a medical internship or in initial residency training during the period of this contract."

The Board members find that Xxxxxxxxx voluntarily agreed to the referenced certification as evidenced by his signature on the RSP contract.

Application by CPOD of RSP Policy to Xxxxxxxxx Situation

The Board members find that the disagreement between Xxxxxxxxx and CPOD over his eligibility for RSP coverage rested with an understand­ing of the meaning of the term "initial residency training" and its applicability to the situation faced by Xxxxxxxxx.

Xxxxxxxxx made the following comment in a xxxxxxx 1982 letter to the Commissioned Personnel Operations Division:

"At that time the eligibility was not written as clearly as you state in your letter. The eligibility requirements indicated that you were eligible for the RSP if the speciality you were training in was different from the speciality in which you served. There was no mention of Board eligibility being the only indicator. I had served as a xxx, a position which the PHS felt was different from a xxxxxx."

The Board asked Xxxxxxxxx to submit documentation for the record supporting his understanding that eligibility for RSP was permitted if:

"...the speciality you were training in was different from the speciality in which you served."

Following is Xxxxxxxxx reply to that request:

"you desired what I based my opinion that I was elgible (sic) for RSP pay. I can not produce the documentation, but as I remember you could receive (sic) RSP pay if this was your second training program. I understood my training for the position of xxxxxxxxxxxxx, was entirely different that (sic) the training that I was going to be involved with in xxxxxxxxx xxxxxx xxxx xxxxx xxx. I realize that if this was a first training program you were inelgible (sic) but I felt this was a second training program entirely different from the first. This was my basic premise for my questions about my elgibility (sic) for RSP at that time. The responses I received (sic) from my project administrator, the Regional office in xxxxxxxx, and the office that generated the RSP form and elgibility (sic) requirements all said they didn't know. My final call to the RSP source said yes as stated in my previous letter."

The members of the Board took under consideration the definition of RSP eligibility as believed by Xxxxxxxxx in comparison with that definition in the official CPOD policy governing implementation of the RSP program. The Board members did not find any reference, direct or indirect, to Xxxxxxxxx basic assertion that eligibility depended upon whether:

"...the speciality you were training in was different from the speciality in which you served."

RECOMMENDATIONS

After consideration of all information presented, it is the recommendation of the Board for Correction that Xxxxxxxxx request be denied, and that the agreement between him and CPOD remain in effect until his financial obligation under his RSP contract is completed.

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.