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Board for Correction Case No. 047-84

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Board for Correction Case No. 047-84

175.00 Leave (Includes Annual / Home / Sick / Station Leave) - Pay for unused annual leave

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

DOCKET NO.: 047-84

DATE OF APPLICATION: xxxxxxxx, 1984

APPLICANT'S NAME AND ADDRESS:

xxxxxxxxx
xxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

SERVICE NO.: xxxxx

SOCIAL SECURITY NO.: xxxxxxxxxx

CORRECTIVE ACTION REQUESTED: payment for accumulated annual leave and moving expenses.

DATE OF BOARD MEETING: xxxxxx, 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

Applicant contends that he was unjustly denied his separation entitle­ments since he was not informed at the time he separated that such benefits could be withheld because he did not complete his continua­tion pay contract; that his separation entitlements should not have been withheld since he paid back the unearned portion of his continua­tion pay contract.

II. BACKGROUND

Xxxxxxxxxx was employed at the xxxxxxxxxxx xxxxxxxxx 1980 to xxxx 1980 on a contrac­tual basis. He became a Federal employee at this xxxxxxxxxx xxx after transferring his commission from the xxxxx to the Commissioned Corps effective xxxxxx 1980. Xxxxxxxxxx signed his continuation pay contract on xxx 1983 for the period xxxx 1983 through xxx 1984.

On xxxx 1983, Xxxxxxxxxx was asked by xxxxxxxx, whether he would be interested in a xxxxxxxxxxx or be considered for a career Corps officer position elsewhere. To accept a xxxxxxxxxxx, he would have had to give up his commission in the Corps. Xxxxxxxxxx said he wanted to remain with the Corps knowing that this decision could require him to transfer from his current duty station. Xxxxxxxxxx was considered a "volunteer"; he was in indefinite status and did not have a Federal obligation to serve in an underserved area.

On xxxxxx 1983, Xxxxxxxxxx was informed by xxxx that he would be transferred to xxxxxxx. Xxxxxxxxxx was second (on the basis of lower seniority) on a list of 26 career officers in xxxxx who were candidates for transfer to some other duty station. Xxxxxxxxxx told Xxxxxxx on xxxxx 1983 that he would not be able to accept the xxxx position. Xxxxxxxxxx submitted a formal request for voluntary separation from the Commissioned Corps on xxxxxx 1983. He requested separation as of xxxxxxx 1983.

The personnel staff at the center where Xxxxxxxxxx worked stated that he was needed there and for that reason sought supplemental funds from the Regional Office to permit him to remain after he decided not to accept the xxxx position. The request for supplemental funds was denied. Center management officials carried Xxxxxxxxxx on their payroll out of general revenues available to them. Xxxxxxxxxx is now in xxxxxxxxxxx as of the current fiscal year.

Xxxxxxxxxx said he called CPOD on xxxxx 1983 to inform them of his decision to voluntarily separate from the Corps and said he told them that he should not receive continuation pay (he had not yet received any continuation pay as of that date). Xxxxxxxxxx later paid xxx for the unearned portion of his continuation pay contract prorated for the period xxxxxx 1983-xxxxxxxxx 1983.

Impact on Xxxxxxxxxx

A favorable decision by the Board would result in a lump sum payment of $5,416.94 for Xxxxxxxxxx unused annual leave and payment for travel, dependent upon the option he selected for reimbursement.

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.

Issues Developed in Reviewing Xxxxxxxxxx Request;

  1. Is the documentation in the record conclusive that in voluntarily separating while under contract, Xxxxxxxxxx clearly failed to comply with a long-standing CPOD policy, of which he was aware, and that he should bear the consequences of his decision?
  2. Xxxxxxxxxx continuation pay contract was effective xxxxx 1983. (He was informed on xxxxxx 1983 that he would be transferred to xxxxxxxx.) His separation papers were submitted on xxxxxx 1983.

    1. Should he be held to the penalty provision of his continuation pay contract since his resignation followed so soon after its effective date?
    2. Should he be held to the terms of the continuation pay contract since he paid back the unearned portion of that contract?
    3. Should he be held to the terms of the continuation pay contract since he said he informed CPOD of his decision to resign, had not received a payment at that time, was told by CPOD that the computer had been programmed and that it was too late to stop the process?
  3. Is the language governing the penalty for breaking a continuation pay contract ("may be" imposed) conditional, and therefore subject to interpretation depending upon extenuating circumstances? Could the job offer made to Xxxxxxxxxx be considered a hardship assignment and the basis for waiving the penalty for breaking the continuation pay contract?

IV. FINDINGS AND CONCLUSIONS

The Board members found that the actions taken by CPOD with respect to xxxxxxx were in accordance with established policies and procedures and that no error or injustice resulted. The Board members concurred with the CPOD view that when Xxxxxxxxxx entered upon active duty with the Corps, he committed himself: ?... to serve in any area or position or wherever the exigencies of the Service may require." The Board members also found that Xxxxxxxxxx expressed his personal choice not to accept the Xxxx assignment, even though the needs of the Corps required that he do so, and that this choice caused him to break his continuation pay contract. It was the conclusion of the Board members that Xxxxxxxxxx decision to separate from the Corps, rather than to accept the assignment, should be interpreted as a voluntary separation, and that the appropriate penalties should be imposed, including divestiture of payment for accumulated annual leave and reimbursement of moving expenses.

V. RECOMMENDATION

After consideration of all information presented, the recommendation of the members of the Board for Correction is that Xxxxxxxxxx request be denied. The review of Xxxxxxxxxx record did not identify any extenuating circumstances which could have been the basis for a decision upholding Xxxxxxxxxx request.

VI. CERTIFICATION

I certify that the foregoing recommendation is a true and complete statement of the action 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 Xxxxxxxxxx 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 this recommendation. Finally, I certify that a quorum was present at the Board's meeting on Xxxx 1984 when Xxxxxxxxxx request was considered.

Ellen Wormser
Chairperson
Board for Correction of PHS Commissioned Corps Records

Attachment:

Case Summary and all available documenting evidence

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

Reviewed and Approved:

Wilford J. Forbush
Deputy Assistant Secretary for Health 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.