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Board for Correction Case No. 081-87

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Board for Correction Case No. 081-87

124.00 Commissioned Officer Effectiveness Report (COER)-Includes Performance Evaluation - Remove negative comments from evaluation report

Recommendations of the Board for Correction on Xxxxxxxxxxxxxx, Case No.081-87

Xxxxxxx filed an application with the Board for Correction dated Xxxxxx, 1987 requesting the Board to: (1) remove negative evaluation comments from his COERs, (2) promote him from 0-5 to 0-6, and (3) from the pay and allowances authorized, provide that $2,250.00 be invested each year in an Individual Retirement Account for him covering the years 1982, 1983 and 1984. (The request of Xxxxxxx that funds be placed in an Individual Retirement Account was a non-issue since it was not a benefit available to commissioned officers). The merits of his requests were reviewed on the basis of the documentation received. The relevant facts in the Board's Proceedings are included as Attachment 1.

After consideration of all information received, the recommendation of the members of the Board for Correction is that Xxxxxxx requests be denied. The Board members recommend, however, that Xxxxxxx be permitted to rebut the comments entered in all of his COERs by reviewing officials (his formal written rebuttal on the comments to be placed in his permanent record and made available to all meetings of the Promotion Board). Adoption of these recommendations require no change in Xxxxxxx records.

I certify that these recommendations reflect the action taken by the members of the Board for Correction, as contained in the Attachments to this memorandum, and that they have been reviewed by the Board members. Further, I certify that the documentation contained in the case file includes all information received and submitted to the members of the Board and that, in addition to applicable statutes, regulations and policies, it has been considered in arriving at these recommendations. Finally, I certify that a quorum of Board members was present on Xxxxxxxx, 1987, when Xxxxxxx requests were considered.

If you approve, please sign below:

Ellen Wormser

Attachments:

(1) Board Proceedings
(2) Case File including all documentation received

Reviewed and Approved:

I hereby approve the recommendations of the members of the Board for Correction on the requests of Xxxxxxx which were 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

ISSUES FOR REVIEW BY THE MEMBERS OF THE BOARD:

  1. Is xxxx entitled to have the contested comments Removed from his record?
  2. Did xxxx make the case that his signature was Forged on one of his COERs? If yes, what difference should it make in considering his request to have contested comments removed from his record?
  3. Is there a basis upon which the Board could consider Xxxx request that he be promoted from an 0-5 to an 0-6?

BOARD ACTION ON THE REQUEST OF: XXXXXXXXXX

FINDINGS AND CONCLUSIONS:

  1. Xxxxxxx request concerned comments entered by reviewing officials on his COERs for 1973, 1976, 1981 and 1982. He considered them to be without foundation and their inclusion in his COERs to be a violation of the Master Agreement Between the Xxxxxxxxxxx and the American Federation of Government Employees (Xxxxxxxxxx, 1981 and Xxxxxxxx xx, 1983) under which he served. With respect to his COER for 1978, Xxxxxxx did not question the comments per se, but expressed concern that his signature had been forged and he did not actually see this document until 1984, six years later.

    Xxxxxxx COERs for 1973 and 1976 were governed by Commissioned Corps Personnel Manual, Chapter 25, Subchapter 25.1, Instruction 1 (August 31, 1971.) Section K-Discussion of Officer's Performance which stated:

    From the standpoint of good personnel management, an officer's immediate supervisor should discuss an officer's performance with him not less frequently than once a year. The purpose of such discussion is to enable the officer to know his strengths and weaknesses, to evaluate and improve his performance, and to identify the steps necessary to further his professional growth and career development. It is thus recommended that the Reporting Officer review and discuss with the officer reported on the contents of the report.

    Xxxxxxx COERs for 1981 and 1982 were governed by a revised policy issuance (April 20, 1978.) Section K which stated:

    "...It is PHS policy that an officer's evaluation ~ be discussed with him/her in a formal manner at least once annually. This should be accomplished as part of the processing of the COER or an explanation appended as to why this is not appropriate. Discussions should, when feasible, be conducted after the rating officer has obtained concurrence in the evaluation from the reviewing officer..."

    Xxxxxxx alleged that his COER evaluations were also governed by the provisions of an agreement between the government union and the agency where he worked. Article 14- Employee Performance and Ratings and Article 17- Employee Personnel File, cited by Xxxxxxx as applicable to his request, are summarized as follows:

    According to Xxxxxxx, Article 14 allowed him to see any entries made on his performance evaluation form and any entries included in an informal personnel file by his supervisor before the material was used in an evaluation. Article 17 disallowed any derogatory material from being placed in his personnel file or performance record without his knowledge and upon his request he was entitled to review such material.
  2. Xxxxxxx said his signature on the COER for 1978 was a forgery. The record did not contain proof to support this allegation.
  3. Xxxxxxx contended that he would have been promoted to an 0-6 had he not been removed from his position as Xxxxxxxxxxxxxxx and had he been placed in an equally responsible billet after his removal from the xxxxxx job. Xxxxxxx believed the remarks and statements placed in his COERs by reviewing officials could have had a negative impact on whether to promote him.

    However, the Board found that the PHS commissioned personnel system continued to process Xxxxxxx promotion papers while he was detailed to the Xxxxxxxxxxxxxxxxx. All recommendations for or against promotions were made by Promotion Boards comprised of three senior officers who also placed officers recommended on rank lists with other officers recommended for promotion. The number of officers promoted each year was determined by the number of vacancies available at the promotion rank. If an officer's position on the rank list was not reached, he/she was considered for promotion again the following year in competition with those officers eligible for that year.

    Moreover, from 1982, when Xxxxxxx first became eligible for promotion, to 1986, he was considered each year. The Promotion Boards considered all of the available documentation on him, including the comments he requested to have removed from his record, but nonetheless recommended him for promotion. However, each year, the number of officers promoted to the 0-6 grade in Xxxxxxx category was less than the number of officers eligible due to the limited number of vacancies available. (The Board did find, however, that in 1982, Xxxxxxx was recommended for and promoted to the permanent Senior Grade.)

The Board concluded the following:

  1. There were no PHS Commissioned Corps policies or revisions in effect during 1973, 1976, 1981 or 1982 which entitled Xxxxxxx to discuss with reviewing officials any comments entered by them into his records. There were no policies in effect which entitled him to a copy of such comments or the right to rebut them. The Board also concluded that the union-a­gency agreement referenced by Xxxxxxx did not apply to him since as an officer on detail to the Xxxxxxxxxxxxxxxxx he was subject to the policies of the PHS Commissioned Corps.
  2. However, as has been said in reference to previous cases on the same kind of problem, the Board members pointed to the need for accountability by reviewing officials for the comments they make on officers' COERs and the need for clarity in the Corps manual regarding managerial responsibilities to communicate fully and in writing on evaluations of officers' performances, and the rights of officers to contest those evaluations.
  3. It was Xxxxxxx responsibility to provide evidence to support the allegation that his signature had been forged on his 1978 COER, but that his failure to do so would not be an issue in its final determination on his requests.
  4. The processing of Xxxxxxx promotion papers by the PHS Promotion Boards was procedurally correct and there was no basis upon which it could conclude that the comments entered in his COERs by reviewing officials prevented him from being promoted.

RECOMMENDATIONS:

After consideration of all information received, the recommendation of the members of the Board for Correction is that Xxxxxxx requests be denied. The Board members recommend, however, that Xxxxxxx be permitted to rebut the comments entered in all of his COERs by reviewing officials (his formal written rebuttal on the comments to be placed in his permanent record and made available to all meetings of the Promotion Board). Adoption of these recommendations require no change in Xxxxxxx 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.