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Board for Correction Case No. 053-84

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Board for Correction Case No. 053-84

192.00 Pay and Allowances (Includes Allotments of Pay / Allowances / Basic Pay) - Payment of living expense

Revised Recommendation of the Board for Correction on Case No. 053-84 Xxxxxxxxxxxxxxxxxxxx

On Xxxxxxxxxx 1985 you approved the recommendation of the Board for Correction on the request of Xxxxxxxxxxxxxxxxxxx, who asked for reim­bursement of personal funds spent for travel and living expenses in performance of his active duty assignment with the Xxxxxxxxxxxxxxxxxxx during the period Xxxxxxxxxx 1983-Xxxxxxxxxx 1984. This is to advise you that the recommendation submitted to you contained a technical error which had to be corrected.

While the intent of the Board was that Xxxxxxxx should be reimbursed for all or part of the expenses he incurred, its recommendation, rather than waiving a provision in the Joint Travel Regulations (JTRs), should have changed his records to eliminate the conflict with the JTRs. The Board members eliminated this conflict by correcting Xxxxxxxx'x records to show that he was on temporary assignment while stationed in Xxxxxxxxx. The merits of Xxxxxxxx'x request and the change made in the recommenda­tion were considered on the basis of the documentation provided. The relevant facts and the Board's Revised Findings, Conclusions and Recommen­dation are included as Attachment 1.

The impact of the change in the recommendation will be to allow Xxxxxxxx to become eligible for reimbursement of his personal expenses on the basis that he was on temporary assignment while in Xxxxxxxxx as a member of the Commissioned Corps. The change in the Board's recommendation would make him eligible to receive per diem allowances on the basis of his actual expenses.

The recommendation previously submitted to you read as follows:

"After consideration of all information provided, the Board for Correction recommends that, in view of the validity assigned to the merits of Xxxxxxxx'x claim by the Xxxxxxx, the strict provisions of the JTRs should be waived on the basis of equity and Xxxxxxxx should receive partial reimbursement of the expenses he incurred while in Xxxxxxxxx.

The members of the Board recommend that Xxxxxxxx'x original request for reimbursement of $5,986.00, to cover all of the expenses he incurred, be reduced by the amount he received during that period of time from CPOD as housing and subsistence allowances. Since this amount was $1,876.03, the Board members recommend that Xxxxxxxx receive reimbursement of the remaining amount of $4,109.97 for his expenses."

The recommendation should have read:

"After consideration of all information provided, the Board members recommended that Xxxxxxxx'x records be corrected to show that he was in TAD (temporary duty) status while on assignment in Xxxxxxxxx during the period from Xxxxxxxxxx 1983-Xxxxxxxxxx 1984, and is entitled to reimburse­ment of authorized expenses. The Finance Officer, Xxxxxxxxxxxxxxxxxxx, is authorized to reconcile the expenses incurred by Xxxxxxxx to those to which he would have been entitled while in TAD status, and to pay Xxxxxxxx the amount due him."

It is certified that the foregoing revised recommendation represents the true and complete intent of the action taken by the Board for Correc­tion following its deliberations on Xxxxxxxx request, contained in Attachment 1 to this memorandum. 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 reviewing Xxxxxxxx request and in revising the recommendation. Finally, it is certified that a quorum was present at the Board's meeting on Xxxxxxxxxx 1984 when Xxxxxxxx request was considered.

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

Ellen Wormser

Attachments:

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

Reviewed and Approved

I hereby approve the revised recommendation of the Board members on the request of Xxxxxxxx, which was received and considered in accordance with the authority of 10 U.S.C. 1552 and 42 U.S.C. 213a (12).

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

FINDINGS AND CONCLUSIONS

The PHS Board for Correction agreed to consider Xxxxxxxx request after the Xxxxxxxxxxxxxx Board for Correction concluded that it did not have jurisdiction since Xxxxxxxx was a PHS Commissioned Corps Officer on detail there. The PHS Board, in deciding to accept juris­diction, was influenced by the desire to make certain that Xxxxxxxx would not be left in the "no-man's land" between the jurisdictions of the Xxxxxxx Board for Correction and that of the Public Health Service. The Board members also felt it was necessary to ensure that Xxxxxxxx would be able to exhaust all of the administrative remedies available to him. Finally, the PHS Board was advised by its counsel to the Board, the Office of General Counsel/HHS, that it should accept jurisdiction of those appeals originating with officers on detail to other agencies which have their own Boards for Correction.

The Board members' conclusions on Xxxxxxxx request were greatly influenced by the Xxxxxxx's admission that it believed him to be entitled, on the basis of equity considerations, to reimbursement of the personal expenses he incurred while in Xxxxxxxxx, but that it was unable to act because such payment would be in conflict with the Joint Travel Regulations. The Board members found that Xxxxxxxx was temporarily located in Xxxxxxxxx while awaiting an available mobile unit with which to begin his assignment and was without accommodations since it was not planned that he would be there. The Standard Travel Order for Military Personnel issued by the Xxxxxxx was based upon the assumption that he would be temporarily assigned throughout the Eighth District rendering dental services, and on that basis he would qualify for per diem allowances. The Board learned that these provisions were misapplied to Xxxxxxxx by the Xxxxxxx management when assurance was given that reimbursement of personal expenses would be permitted while on duty in Xxxxxxxxx.

The question before the Board was whether Xxxxxxxx'x use of personal funds while in Xxxxxxxxx in anticipation of reimbursement was reasonable, given the fact that such use was not in accordance with the Joint Travel Regulations. The Board members were aware of the conclusion drawn by the Xxxxxxx management that Xxxxxxxx'x claim was valid, and that he acted in good faith on the basis of erroneous information given to him by Xxxxxxx personnel. Would adherence to the JTRs result in an injustice to Xxxxxxxx under the circumstances which prevailed while he was stationed in Xxxxxxxxx?

REVISED RECOMMENDATION

After consideration of all information presented, the Board members recommended that Xxxxxxxx records be corrected to show that he was in TAD (temporary duty) status while on assignment in Xxxxxxxxx during the period from Xxxxxxxxxx 1983-Xxxxxxxxxx 1984, and is entitled to reimbursement of authorized expenses. The Finance Officer, Xxxxxxxxxxxxxx, is authorized to reconcile the expenses incurred by Xxxxxxxx to those to which he would have been entitled while in TAD status, and to pay Xxxxxxxx the amount due him.

CERTIFICATION

I certify that the foregoing revised recommendation represents the true and complete intent of the action taken by the Board for Correc­tion following its deliberations on Xxxxxxxx request. The merits of Xxxxxxxx request and the revision in the recommendation were considered 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 Xxxxxxxxxx 1984 when Xxxxxxxx request was considered.

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.