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Board for Correction Case No. 107-89

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Board for Correction Case No. 107-89

109.00 Appointment as Commissioned Officer - Recall to active duty

Recommendation of the Board for Correction on Request of: Xxxx xx xxxxx, xxxxx xxxxxx, Docket No.109-89

Request:

Xxx xxxxxx asked the Board to reinstate her in the commissioned Corps as of xxxxxxxxx xx, 1989, the date of her termination, to pay her back pay and benefits and place her on disability retirement with medical benefits. She also asked that her records be corrected to eliminate all references to the incident that led to her termination.

Summarv of Officer's Argument:

DCP had decided without consideration of the findings and recommendations of the Medical Review Board (MRB) or those of her personal therapist, that she should leave her home and move 2,000 miles away to an assignment in xxxx, xxx xxxx (because they felt she had enough time to recover from her illness although there was no medical proof that she was fit and suitable). She had worked in xxxx for six months and asked for a new assignment because of conditions there; a transfer was granted. DCP stated that a reason for making the reassignment to xxxx was because they could not find a suitable assignment for her in the Metropolitan D.C. Area.

Summary

Xxx xxxxxx was terminated after being AWOL for more than 30 consecutive days. This action was consistent with CCPM, subchapter CC29.1, INSTRUCTION 5, "Absence without Authorized Leave and CCPM, Subchapter CC46.4, INSTRUCTION 1, "Disciplinary Action." DCP asserted that Xxx xxxxxx had been correctly placed in" an AWOL status when she refused to accept reassignment to Xxxxx. DCP made this reassignment based on the needs of the Service and with sensitivity to her situation. DCP did not err when she was terminated. Under the facts of this case, there had been no injustice in terminating her since she refused to report to duty as ordered.

Board Action on Officer's Request:

Date of Board Meeting: xxxx, 1994

Board Staff:

Ellen Wormser
Executive Director

Thomas E. White, Ph. D.
Executive Secretary

Members of the Board:

Findings and Conclusions:

  1. The Board was very impressed with the efforts that DCP had made to place Xxx xxxxxx and the extent to which they had attempted to accommodate her situation. Clearly, this had been a very difficult situation.
  2. The Board considered at some length whether Xxx xxxxxx was ill, and whether possibly she had a compensable illness that would have entitled her to a disability retirement. Although she clearly experienced a grief reaction, the Board found no evidence establishing a compensable illness. In addition, the Board concluded that Xxx xxxxxx actions which led to her termination were not attributable to an episode of what would be a compensable illness. Rather, the record was clear that personality problems pre-dated both the specific incident that led to her termination and the losses which triggered her grief reaction, and that these personality problems were primary factors contributing to the finding that she was unsuitable for continued service.
  3. DCP had made reasonable efforts to find an assignment for her and to accommodate her situation. A number of individuals appear to have been supportive. At the time of the reassignment to Xxxxx (with an optional assignment to xxxxxxxxxx, xxxx, DCP followed the recommendations of the Full and Fair Hearings Board that the geographic restriction be removed, if an assignment could not be found for her in the Metropolitan D.C. area.

    The most likely local reassignment sites had been at XXX and XXXXXXXXX XXXXXXXX, the only places where a number of Corps xxxxxx are placed. The choice of a position at these institutions was limited by: (a) the restriction on serving in a psychiatric facility and (b) her own exclusion of AIDS and Oncology as places she would be willing to work. Even with these limitations, DCP had made extensive efforts to provide an opportunity for her to secure an appropriate assignment in the local area.

    DCP had sent out memoranda seeking to identify potential assignments and had arranged interviews at XXX with the possibility of making an exception and considering her for service in the XXX xxxxxxxxxxxxxxx. These efforts, for the most part, had been spurned by Xxx xxxxxx. Nor did the record indicate that she had made any attempt to find an assignment on her own, the usual practice for Commissioned Officers.
  4. She had provided no documentation to support the claim that the reassignment to Xxxxx would have been mentally injurious to her due to the loss of her family and support system at a time when she was suffering from depression and undergoing therapy." There was, however, evidence that she had enormous xxxxxxxx and xxxxxxx problems. The Board considered evidence in the record which suggests that her therapist would have recommended that "transfer is not advisable at " this time" and had indicated to her that she would have been willing to provide this assessment in a written report. (See xxxxxxx x, 1989, discussion by xx x xxxxxx, xxxxxxx xxx, xxxx xxx, xx.) It concluded, however, that even were that evidence clearly in the record, this would not, change the Board's recommendation. There is ample evidence in the record of Xxx xxxxxx failure to continue in therapy for her difficulties, to pay her therapists bills, and to pursue employment options in a positive manner - a pattern which the Board felt reflected long-standing patterns of behavior.
  5. In joining the Corps, she had made a commitment to serve where assigned. On xxxx x, 1989, she had indicated a willingness to relocate to the xxxxxxxxx in an assignment that was not in the psychiatric system and did not involve extensive stress. When she refused to accept this reassignment, she had been advised that she would be AWOL and terminated if AWOL more than 30 days. She also had the option of resigning from the Corps. She was fully aware of the consequences of her actions.

Therefore:

DCP was correct in placing Xxx xxxxxx in AWOL status after she failed to report to duty as assigned and was justified in terminating her commission after more than 30 days AWOL. She did not supply sufficient information to conclude that the application of standard DCP policies and procedures had resulted in an injustice in her case.

Recommendation:

The Board unanimously recommends that Xxx xxxxxx request be denied. Approval of this recommendation requires no change in her records.

We certify that this recommendation reflects the views and actions taken by the Board on Xxx xxxxxx' request and that it has been concurred in by the Board members.

We certify, further, that the Case Record, shown as an Attachment, contains all of the documentation received on Xxx xxxxxx's request and that, in addition to applicable statutes, regulations and policies, it has been considered by the Board in arriving at this recommendation.

Finally, we certify that a quorum of Board members was present on xxx xx, 1994, when Xxx xxxxxx request was considered.

Rex W. Chowdry, M.D.
Chairperson of the Board and Acting Director, NIMH/NIH ­

Reviewed and Approved:

I hereby approve the recommendation of the Board members on the request of Xxx xxxxxx' received and considered in accordance with the authority of Section 221a(a) (12) of the Public Health Service Act (P.L. 96-76, as amended) and 42 U.S.C. 213a(a) (12), denying her request. Approval of this recommendation requires no change in her 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.