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Board for Correction Case No. 040-83

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Board for Correction Case No. 040-83

165.00 Inactive Reserve Corps - Appoint to the Corps

BOARD FOR CORRECTION OF PUBLIC HEALTH SERVICE COMMISSIONED CORPS RECORDS FINDINGS, CONCLUSIONS AND RECOMMENDATION

DOCKET NO.: 040-83

DATE OF APPLICATION: xxxxxxxx 1983

APPLICANT'S NAME AND ADDRESS :

Xxxxxxxxx
Xxxxxxxx
xxxxxxxxxxxx

SERVICE NO.: xxxxxxx

SOCIAL SECURITY NO.: xxxxxxxx

REQUESTED CORRECTIVE ACTION :

Xxxxxxxxx requests that he be appointed retroactively to the Inactive Reserve Corps covering the years 1969-1976; that his current base pay be increased to reflect this retroactive appointment; that he receive a lump sum payment covering the increased pay to which he would be entitled; and that he receive two additional years of service credit toward his retirement eligibility based upon his seven years of civil service while at NIH.

DATE OF BOARD MEETING: xxxx 1984

BOARD MEMBERS PRESENT:

Ellen Wormser,
Chairperson,
Board for Correction of PHS Commissioned Corps Records, and Director,
Office of Organization and Management Systems; Office of Management, Office of the Assistant Secretary for Health

I. CLAIM

Xxxxxxxxx contends that his separation from the Commissioned Corps was "forced" due to the PHS Medical Review Board's unfavorable prognosis of his medical condition which was not justified, and that he was not given an opportunity to join the Inactive Reserve Corps as he desired.

II. BACKGROUND

Xxxxxxxxx was given a physical examination in 1965 incident to his participation in the Commissioned officer Residency Deferment (CORD) program. Under this program an officer was granted deferment from compulsory military service while completing his medical training. The results of Xxxxxxxxx physical examination at that time showed no evidence of xxxxxx.

On xxxxxxx 1966, Xxxxxxxxx was examined by xxxxxxxxxx, xxxxxxxx, xxxxxxx xxxxxxxxxxxxxxxxxxxx for an episode of xxxxxxxxxxxxxxx. At the time of the physical examination by Xxxxxxxxx, Xxxxxxxxx was scheduled to begin active duty in xxxxx, 1967 at the National Insti­tutes of Health under the CORD program.

On xxxxxxxx 1966, Xxxxxxxxx was given his pre-induction physical examination at the USPHS Outpatient Clinic in xxxxxxxxxxx. In his medical history Xxxxxxxxx stated: "I have at present a resolving and very minimal case of xxxxxxxxx (2 week duration), not requiring treatment. I have had one previous episode- also very mild- at age xx. I do not have xxxxxxxxxxxx." The Report of Medical Examina­tion prepared as a result of the physical examination given to xxxxxxxx on this same date stated that he had "healing xxxxxxxxxx over entire body- small xxxxxx." This examination was conducted by xxxxxxxxxx at the clinic.

On xxxxxxx 1967, Xxxxxxxxx stated in a letter to xxxxxxxxxx, Xxxxxxxxxxxxxxxxx, OPM/PHS that his examination of Xxxxxxxxx on xxxxxxx, 1966 revealed that the xxxxxxx was healing without treatment and would not limit his ability to perform as a physician. Xxxxxxxxx also reported that Xxxxxxxxx had informed him that he hadxxxxxxxxx when he was xx years old and that it had healed without treatment.

xxxxxxxxx, Xxxxxxxxxxxxxxxxx forwarded Xxxxxxxxx medical file to the PHS Medical Review Board for review incident to his call to active duty under the CORD program. The board, which was comprised of three members, approved Xxxxxxxxx call to active duty on xxxxxxx 1967 subject to the limitation: "two yrs only- no option for renewal." At the time,xxxxxxxxx was a basis for complete rejection from active duty. CPOD informed the Board for Correction that the decision to approve xxxxx appointment was influenced in part by the fact that he had an active duty obligation following his deferment to complete his medical training.

Xxxxxxxxx was informed in a memo dated xxxxxxx 1967 from xxxxxxx xxx, Employment Operations Branch, Division of operations and Services, xxxxxxx, that for medical reasons his tour of duty would be limited to two years the time necessary for him to fulfill his active duty obligation. Xxxxxxx was called to active duty on xxxx, 1967.

Xxxxxxxxx filed an application on xxxx 1969 to separate from the Corps and accept a "Senior Staff Fellowship" (Civil Service) at NIH­ the same position he held while a member of the Corps. The applica­tion indicated that he desired and was recommended for appointment to the Inactive Reserve. Under the administrative procedures. in effect in 1969, all officers on tours of duty limited for medical reasons were automatically terminated upon expiration of their initial tours of active duty with no option to join the Inactive Reserve. Xxxxxxxxx appointment in the Corps was terminated on xxxx 1969.

Xxxxxxxxx said he attempted informally on several occasions after 1969 to appeal his medical classification and to reenter the Corps, but was unable to do so even though hisxxxxxxxxx had resolved completely. Xxxxxxxxx formal application for reentry into the Corps was followed by a physical examination by xxxxxxxxx xxxxx. Xxxxx stated in a letter dated xxxxxxx 1976 to Xxxxx that Xxxxxxxxx favorable experience with xxxxxxxxx at ages xx and xx both episodes clearing without treatment, supported a good prognosis for his condition.

Xxxxxxxxx was reappointed to the Corps on xxxxx 1976 without limitation due to medical condition. He was employed by NIH where he had remained after he left the Corps in 1969. CPOD stated that it decided to reappoint Xxxxxxxxx because he had no recurrence of xxxxxxxxx and because current knowledge of the natural history of the disease indicated that his prognosis was good.

Xxxxxxxxx argued in his application to the Board that his experience withxxxxxxxxx before he entered the Corps and after he was separated did not justify the original CPOD decision to limit his initial appointment for medical reasons or to deny him the option of joining the Inactive Reserve Corps. Xxxxxxxxx argued that the evaluations made by Xxxxxxxxx and later by Xxxxx supported this opinion.

It was Xxxxxxxxx view that

"...the fact that I was able to reenter the Corps on active duty in 1976 and that I have never been a medical liability to the Corps before or since adds weight. I think, to my appeal."

III. BOARD PROCEDURES

The Board for Correction is located in the Office of Organization and Management Systems in the Office of the Assistant Secretary for Health. The Chairperson of the Board is also Director of the Office of Organization and Management Systems.

IV. Issues Developed in Preparing Xxxxxxxxx Request

  1. Was the medical evidence available to the PHS Medical Review Board in 1967 sufficient to justify the conclusion at that time that Xxxxxxxxx prognosis was not good and that his period of enlist­ment should be limited?
  2. CPOD accepted Xxxxxxxxx into the Corps to permit him to fulfill his military obligation, having previously accepted him into the Commissioned Officer Residency Deferment (CORD) program, thereby permitting him deferment for residency training at a time conven­ient for him (during the peak of the XXXX XXX conflict). Should this benefit be considered in evaluating the merit of Xxxxxxxxx request and his career objective in the Corps?
  3. Did the natural history of Xxxxxxxxx xxxxxxxxx after he was separated from the Corps indicate that the PHS prognosis in 1967 was incorrect (unduly pessimistic)? Was Xxxxxxxxx benefiting from the advantage of hindsight when he stated that thexxxxxxxxx he had in 1966 was not serious and that the PHS prognosis was not justified? Could he have given the PHS Medical Review Board this same assurance when he enrolled in the Corps initially?
  4. CPOD stated that knowledge gained after 1967 on the natural history ofxxxxxxxxx was a factor in their decision to reappoint Xxxxxxxxx. At the time he was reappointed, his xxxx condition was observed to be normal. Would correcting the record to permit Xxxxxxxxx to enter the Inactive Reserve Corps cause an injustice to other officers in the same situation?
  5. Is it reasonable for xxxx to now challenge medical decisions or personnel policies sixteen years after the fact? Is it not the duty of the medical officers employed by CPOD and PHS Medical Review Boards to render medical decisions on a case-by-case basis through interpretation of applicable medical standards and the current state-of-the-art at a given point in time?

FINDINGS AND CONCLUSIONS

The central question considered by the Board members in reviewing Xxxxxxxxx request was whether CPOD's 1967 prognosis of his xxxxxxxxx was unduly pessimistic and should not have been the basis for placing a limit on his appointment in the Corps. The Board members found that:

the results of the pre-induction physical examination given to Xxxxxxxxx at the USPHS Outpatient clinic in xxxxxxxxx on xxxxxxx 1967 found that he had "healing xxxxx of xxxxxxxxx over entire body- small xxxxx." The three-person PHS Medical Review Board (MRB) concluded in its report dated xxxxxxx 1967 that Xxxxxxxxx medical condition was sufficiently serious to warrant limiting his tour of duty to two years with no option for renewal. The MRB's conclusion reflected the medical standard of the Corps at that time rejecting applicants for entry with a historyofxxxxxxxxx in part because of the close association of the disease with xxxxxxxxx.

Xxxxxxxxx was obligated to serve a tour of active duty in the Corps because of his previous deferment under the CORD program. CPOD informed the Board that its decision to accept Xxxxxxxxx into the Corps was influenced in part by the fact that he had an active duty obligation.

Xxxxxxxxx accepted the CPOD decision to limit his tour of duty without appeal- the CPOD records did not show that Xxxxxxxxx ever questioned the CPOD decision either at the time he was commis­sioned or while he was on active duty. This lack of action by Xxxxxxxxx could have been interpreted to mean that he accepted the validity of the CPOD prognosis since his medical training did provide him with a knowledgeable basis for challenging the CPOD decision.

there was no reason to conclude that the medical standard applied to Xxxxxxxxx xx years ago was used inappropriately at that time and not in accordance with how it was applied to other officers in the same or similar situation as he, or that the Corps adherence to such a standard failed to recognize available knowledge on the natural history ofxxxxxxxxx.

Therefore:

the members of the Board concluded that CPOD's 1967 prognosis of Xxxxxxxxx xxxxxxxxx did not constitute an error, nor did it require correction of his record. Further, the Board concluded that Xxxxxxxxx did not suffer an injustice caused by the CPOD decision to limit his appointment. The Board believed that the CPOD decision was reasonable given their experience withxxxxxxxxx and the limitations they faced in predicting the actual history of the disease. This conclusion was influenced partly by the fact that the official record did not show that Xxxxxxxxx objected to the medical decision made in 1967 at the time of his call to active duty or at the time of his separation. The Board considered CPOD's willingness to modify its decision and offer Xxxxxxxxx the opportunity to rejoin the Corps at a later date an indication of its flexibility to reevaluate a previous decision in the light of more persuasive evidence.

V. RECOMMENDATION

After consideration of all information presented, the recommendation of the members of the Board for Correction was that Xxxxxxxxx request should be denied. The Board was unable to consider Xxxxxxxxx request that he receive retirement credit for two additional years of civil service covering the seven years while he was at NIH since 42 U.S.C. 212(d) limits to five the number of years of civil service credit which can be applied to retirement eligibility fran the Corps.

Minority Report

A minority voted against the Board's recommendation on the grounds that: "an injustice had occurred in the mis-categori­zation of Xxxxxxxxx illness. Xxxxxxxxx, the xxxxxxxx who examined him, stated that Xxxxxxxxx was then suffering from "xxxxxxxxxxxxxxxx" which was known at that time to be a benign, self-limited illness which rarely recurred and was quite distinct from "chronic xxxxxxxxx." Xxxxxxxxx stated that this illness should not interfere with Xxxxxxxxx ability to function as a medical officer in the Commissioned Corps of the Public Health Service. However, when the Commissioned Personnel operations Division passed judgment on Xxxxxxxxx medical status the words "xxxx xxxxx" were omitted and he was categorized as having xxxxxxxxx. Implicit in this categorization in the regulations is the intention that it applied to the common disease, "xxxxx xxxxxxxxx" which, because of its chronicity, might result in problems for the Public Health Service. This omission of the words "xxxxxxxxx" led to the mis-categorization of Xxxxxxxxx who did not have "xxxxxxxxxxxxx." Effectively, he was labeled with the wrong diagnosis. This original error led to the inappropriate limitation of his tour of duty and inappropriate denial of his request to be placed in the inactive reserve. This sequence of decisions constituted an injustice which should be grounds for approving Xxxxxxxxx request."

VI. CERTIFICATION

I certify that the foregoing recommendations are true and complete statements of actions taken by the Board for Correction. I further certify that each of the Board members has read this report and its content is a true and complete statement of the deliberations of the Board. The merits of Xxxxxxxxx request were reviewed on the basis of the documentation provided. This documentation, contained in the attachment, includes all information presented to the Board and, in addition to applicable statutes, regulations and policies, it has been considered in arriving at these recommendations. Finally, I certify that a quorum was present at the Board's meeting on xxxxx 1984 when Xxxxxxxxx request was considered.

Ellen Wormser
Chairperson
Board for Correction of PHS Commissioned Corps Records

Attachment:
Case Summary and all available documenting evidence

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

Reviewed and Approved:

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.