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Board for Correction Case No. 035-83

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Board for Correction Case No. 035-83

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

Recommendations of the Board for Correction on Case No.035-83 Xxxxxxxxxxxxxxxxxxx

Xxxxxxxxxxxxxxxxx filed an application with the Board for Correction dated Xxxxxx, 1983, requesting payment of $3,382.13 for unused annual leave, reinstatement of travel and transportation benefits, active duty pay of $350.76 for four days of travel between his place of separation and his home of record, payment for shipment of household goods, and reimbursement of $900.00 collected for extramural training tuition and fees. 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 upheld, that his record be corrected, and that he be reimbursed as requested above.

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 Xxxxxxxxx, 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 Manaqement

FINDINGS AND CONCLUSIONS

  1. The members of the Board found that PHS had not developed and promulgated an official policy on how officers in extramural training at the USPHS hospitals and clinics would be treated when they closed. In their review, the Board members found:

    1. that Xxxxxxxxxxxxxxxxxxxxxxxx, xxxxxx in Xxxxxxxxxx where Xxxxxxxx was stationed, issued a memorandum dated Xxxxx, 1981 to "All Medical and Dental Interns and Residents," reassuring them that they would be placed in other training slots should the hospital close.

    2. that Xxxxxxxxxxxxxxxxxxx, xxxxxxxxxx informed Xxxxxxxx on xxx xx, 1981 that PHS would not be required legally to provide him with graduate education if the hospitals closed, and that he should explore other options for completing his training. Specifically, Xxxxxxxx was advised:

    "Under the circumstances, we believe you may wish to reconsider your plans for graduate education commencing x/81 and to explore other alternative arrangements."

    3. that Xxxxxxxxxx informed Xxxxxxxx on Xxxxxx, 1981:

    "If you have made other arrangements for training or do not wish to receive these orders please notify...immediately. Such notification will effect release from your postgraduate training agreement with the USPHS."

    The Board members found that the advice given to Xxxxxxxx could be interpreted to mean that the training agreement (and service commitment resulting there from) was annullable and that he was free to make other arrangements for completing his training.
  2. The members of the Board found that the policy in existence was not applied in a uniform manner. There were 12 officers in outside training at the time the hospitals and clinics closed. Seven of these (all non-medical and non-dental officers) are now on active duty serving out their training obligations. Of the five remaining officers, four were released from their active duty obligations for one reason or another. Two officers were permitted to retire voluntarily without financial penalty. One officer was terminated voluntarily without penalty and one officer was involuntarily terminated, also without penalty. Another officer was involuntarily terminated with a financial penalty (the action taken on this officer is now under review by the Board).
  3. The fact that other officers in Xxxxxxxxx circumstances were released from their obligations mitigates against seeking to recover his PHS­incurred training expenses of $900.00 or penalizing him because he left the Corps before completing his service obligation.

RECOMMENDATIONS

The Board members determined that Xxxxxxxx had been released from his training agreement (and service commitment) by Xxxxxxxxxx memo of Xxxxxx, 1981, and that CPOD had erred in not considering this fact when his request for separation was processed.

The Board recognized that, in retrospect, the memo had been intended for those in training in the PHS hospitals, and not for those such as Xxxxxxxx, who, in addition, had had external training. However, the memo did not address this situation, and the Board found that Xxxxxxxx had no reason to question its applicability to his own situation.

Further, the Board determined that Xxxxxxxx was not treated the same as other officers who were permitted to leave the Corps without penalties and without completing their obligations incurred because of external training. The causes of the injustice from which Xxxxxxxx sought relief were: (1.) CPOD's error in failing to give due consideration to Xxxxxxxxx release from his training agreement, and (2.) the inequitable treatment imposed on him compared with other officers who had training obligations.

Therefore, the members of the Board recommended that Xxxxxxxxx request be upheld and that a correction be made to his record reimbursing him for the $900.00 collected in tuition and fees; that he be paid $3,382.13 for his unused annual leave; that his travel and shipping benefits be reinstated, and that he receive $350.76 for the days of active duty pay owed him.

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 Records


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.