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Board for Correction Case No. 058-85

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Board for Correction Case No. 058-85

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

Recommendation of the Board for Correction on Case No. 058-85 Xxxxx xxxx, xxx

Xxxxxxxxxxxxxxx filed an application with the Board for Correction dated Xxxxxxxxxx 1985, requesting that he receive payment for annual leave divested from him at the time he separated from the Corps. The merits of his request were reviewed on the basis of the documentation provided. The relevant facts and the Board's Findings, Conclusions and Recommendation are included as Attachment 1.

After consideration of all information provided, the Board for Correction recommends that Xxxxxxxx request be upheld. This reco­mmendation permits Xxxxxxx to receive a lump-sum annual leave payment in the amount of $3,849.63 for his unused annual leave of 41 days. The members of the Board believe this recommendation is justified, given the fact that CPOD deviated from its policies and procedures when approving Xxxxxxxx terminal leave and when separating him from the Corps. Further, the Board members believe the circumstances surrounding Xxxxxxxx separation support following the procedures used when separating an officer invol­untarily to serve the interests of the Corps. This recommendation requires that Xxxxxxxx record be corrected to show he filed his separa­tion request on Xxxxxxx 1984, and it was received by CPOD on Xxxxxxx 1984. Xxxxxxxx record also would be corrected to show his terminal leave was approved Xxxxxx 1984.

It is certified that the foregoing recommendation is a true and complete statement of the action taken by the Board for Correction, as contained in Attachment 1 to this memorandum, and that the report of this action 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 recommendation. Finally, it is certified that a quorum was present at the Board's meeting on Xxxxxx, 1985 when Xxxxxxxx request was considered.

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

Ellen Wormser

Attachments:

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

Reviewed and Approved

I hereby approve the recommendation of the Board members on the request of Xxxxxxx 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

Date

FINDINGS AND CONCLUSIONS

The central question before the members of the Board was how Xxxxxxxx separation from the Corps should be viewed: voluntary or involuntary, and the extent to which he should be held accountable for the events which caused him to be divested of payment for his unused annual leave. The Board members found that:

  1. Xxxxxxx was originally appointed for a three year period ending Xxxxxx xx, 1983. His appointment was changed to an unlimited appointment following a request to extend his services one additional year. This meant that Xxxxxxxx separation date was no longer pre-determined or should not have been expected one year after his tour of duty was extended. He was free to leave the Corps when he wished.
  2. Xxxxxx was contacted by the Regional Office in xxxx, 1984, inquiring whether he had submitted his separation papers. (The Regional Office official who contacted Xxxxxxx was evidently under the impression that his tour of duty would end Xxxxxx 1984, even though he was no longer under a limited appointment.)
  3. Xxxxxx request for terminal leave was approved xxxx xx, 1984, effective Xxxxxx x, 1984. CPOD policy required Xxxxxxx request for terminal leave to be approved prior to the date he submitted his separation request. Xxxxx request for terminal leave was approved on the same day, he filed his separation request.
  4. Xxxxxx separation request was received xxxx xx, 1984. CPOD policy required Xxxxx to take his terminal leave not earlier than 30 days after his separation request was received.
  5. No documentation in the record to indicate that PHS officials or CPOD made any effort to give Xxxxx another assignment or that he requested one.
  6. No documentation in the record to support Xxxxx claim he worked at the Clinic after xxxxxx x, 1984, the date he went on terminal leave.
  7. The contents of the xxxxxx xx, 1984 memo from the Director, XXXX, XXXXX to the Director, CPOD indicated strongly that an effort was made to separate Xxxxxx from the Corps under circumstances which seemed to be contrary to his wishes. The Board members found that the allegations mentioned in the memo, concerning Xxxxxx fitness to serve as an officer in the Corps, could have supported an effort to involuntarily terminate his commission.

Therefore:

The members of the Board concluded that Xxxxxx separation from the Corps was in effect an involuntary separation. The Board members came to this conclusion for the following reasons:

  1. Xxxxxxx had an unlimited appointment in the Commissioned Corps and should not have been contacted in xxxx, 1984 requesting his separation papers. Although he was replaced as a Medical Officer at the Center, he was still an officer on active duty in the Corps, and was free to leave the Corps when he wished.
  2. There was no documentation in the record to indicate that Xxxxxxx intended to separate from the Corps at any time.
  3. PHS officials made no effort to give Xxxxxxx another assignment, although he was entitled to one as an officer still on active duty with an unlimited appointment.
  4. The Regional Office officials wanted to involuntarily separate Xxxxxxx from the Corps (referenced in the Xxxxxxxxx1984 memo to the Director, CPOD.)

Further:

The members of the Board also concluded that CPOD did not always follow its policies and procedures when approving Xxxxxxxx terminal leave and separating him from the Corps. Specifically, the Board members found that:

  1. Xxxxxx request for terminal leave was not approved prior to the date he submitted his separation request as required by CPOD policy.
  2. Xxxxx went on terminal leave seven days after his separation Request was received, instead of 30 days after as required by CPOD policy.

The members of the Board concluded that the Regional Office officials could Have advised Xxxxx that the filing dates he followed would put at risk loss Of his separation benefits, but they did not do so, nor did they exercise Their option to request waivers of certain requirements when these conflicted With the separation processing schedule. Given the fact that Xxxx was still An office on active duty, with an unlimited appointment, every effort should Have been made to protect his separation benefits, especially since he agreed To remain at the Center for one additional year following a request from the Center management. The Board members concluded that it was reasonable to Expect the above-mentioned considerations to have been afforded to Xxxxxx.

RECOMMENDATION

After consideration of all information presented, the recommendation of the members of the Board for Correction is that Xxxxxxxx request be upheld. The Board members believe this recommendation is justi­fied, given the fact that CPOD deviated from its policies and procedures when approving Xxxxxxxx terminal leave and separating him from the Corps. Further, the members of the Board believe the circumstances surrounding Xxxxxxxx separation support following the procedures used when separating an officer involuntarily to serve the interests of the Corps. Approval of this recommendation requires that Xxxxxxxx record be corrected to show he filed his separation request on Xxxxxxx1984, and it was received by CPOD on Xxxxxxx 1984. Xxxxxxxx record also would be corrected to show his terminal leave was approved Xxxxxxx 1984.

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 Board member has read this report and its content is a true and complete statement of the deliberations of the Board. The merits of Xxxxxxxx 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 Xxxxxxx1985 when Xxxxxxxx request was considered.

Ellen Wormser
Chairperson
Board for Correction of PHS Commissioned Corps Records

Date


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.

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

Recommendation of the Board for Correction on Case No.038-83 Xxxxxxxxxxxxxxxxxxx

Xxxxxxxxxxxxxxxxx filed an application with the Board for Correction dated Xxxxxx 1983, requesting payment for unused annual leave. The merits of the request were reviewed on the basis of the documentation provided. The relevant facts and the Board's Findings, Conclusions and Recommendation are included as Attachment 1.

After consideration of all information provided, the Board for Correction recommended that Xxxxxxxxx request for payment for her unused annual leave be denied and that no correction be made to her record.

It is certified that the foregoing recommendation is a true and complete statement of the action taken by the Board for Correction, as contained in Attachment 1 to this memorandum, and that the report of this action 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 recommendation. Finally, it is certified that a quorum was present at the Board's meeting on Xxxxxxxxxx 1983 when Xxxxxxxxx request was considered.

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

Ellen Wormser

Attachments:

(1) Board's Findings, Conclusions and Recommendation
(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

FINDINGS AND CONCLUSIONS

Management Pressure to Resign

The members of the Board found that the Clinic lost a position for a medical staff member. At the time, Xxxxxxxxx was working out an active duty obligation there resulting from the training she had received. Xxxxxxxxxxxxxxxxxxxxxxxxxx, reported in a letter dated Xxxxxx xxxx that Xxxxxxxxx worked with him voluntarily to utilize her early departure as an option for reducing the impact of the manpower reduction. The members of the Board did not find any documentation to indicate that Xxxxxxxxx was compelled to resign early because of pressure from the Clinic management.

Alternative to Clinic for Meeting Manpower Reduction

The Board members found that there were two other physicians at the Clinic. Xxxxxxxxx was not the junior staff physician and would not have been involuntarily separated. If Xxxxxxxxx had been separated, she would have been eligible for reassignment. Xxxxxxxxx informed the Executive Secretary that she knew she would have been eligible for reassignment, but would not have accepted another position because she did not want to leave the area. Xxxxxxxxx informed the Execu­tive Secretary that the xxxxxx xxxxxxxxxxxxx Xxxxxxxxx decision to leave early was later released from the staff xxxxxxxxxxxx. As a result, the advantage the Clinic antici­pated when Xxxxxxxxx left early was not realized.

The members of the Board concluded that no basis could be found for deviating from established CPOD policy divesting Xxxxxxxxx of payment for her unused annual leave. They believed that the staff reduction experienced by the Clinic did not place Xxxxxxxxx job in jeopardy and that her decision to leave early was voluntary. The Board members also recognized the value of Xxxxxxxxx contributions to achieving the goals of the Clinic and were appreciative of the many sacrifices she made.

RECOMMENDATION

After consideration of all information presented, the recommendation of the members of the Board for Correction was that Xxxxxxxxx request for payment for her unused annual leave be denied and that no correction be made to her record.

I 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.

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.