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Board for Correction Case No. 117-90

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Board for Correction Case No. 117-90

192.00 Pay and Allowances (Includes Allotments of Pay / Allowances / Basic Pay) - Service credit for pay computation

Recommendation of the Board for Correction on Request of: xxxxx xxxx, Case No.117-90

I. Request:

Xxxxxx asked the Board to:

  1. Award him active duty credit for the four years he spent as a student at the xxxxxxxxxxxxxxxxx.
  2. Authorize him basic pay and allowances and credit towards retired pay based on the four years spent at XXXXXX.
  3. Grant such other and further action as may be deemed necessary and appropriate to accord full and complete relief.

II. Summary of xxxx Argument and Documentation:

  1. He was not given credit for pay computation or retired pay purposes for the four years he spent at XXXXXX as a student.
  2. The xxxxxxxxx, xxxxxx and xxxxx xxxxxxxxxxxx gave the Class of XXXX (which preceded him) credit for pay computation and retired pay purposes in 1985. 
  3. He should be granted the same relief as the Class of XXXX for the following reasons:

    1. The briefings by XXXXXX to him either: (1) gave erroneous information on entitlement to longevity and retired pay credit or (2) had been silent on the issue.
    2. The 1983-1984 XXXXXX Bulletin of the School of Medicine had stated that he would receive both longevity and retired pay credit. He had not been advised that the Bulletin had been incorrect.
    3. The XXXXXX acceptance letters did not contain any information regarding the effects of changes in the legislation on longevity and retired pay entitlements.
  4. DCP argued that his application should be denied on the grounds that it had not been filed in a timely manner. He asks that his application be accepted for the following reasons:

    1. It had been filed within three years after graduation (his class graduated on xxxx XXXX). The "error or injustice" did not occur (and could not have been "discovered"} until after graduation when his paycheck first reflected omission of credit for pay purposes (on or about xxxx XXXX} . 
    2. "a board...may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice." The court has interpreted this as requiring a Board for Correction to waive the three year time limit if in "the interest of justice to do so."
  5. DCP argued that "insufficient relevant evidence" had been submitted and for this reason the statute of limitations should not be waived. He asks that his application be accepted for the following reasons:

    1. The denial of retired pay credit had been unlawful.
    2. DCP had made no effort to respond to any of the arguments in his brief contending that he should be granted the same relief as the Class of XXXX.

III. Summary of Division of Commissioned Personnel's Argument and Documentation:

  1. No error had been made in calculating Xxxxxx base pay entry date. DCP had calculated his date using the statute and regulations in effect when he transferred from the Xxxxxx to enroll at XXXXXX.
  2. He had acknowledged acceptance of the PHS regulations by signing a training agreement placing a restriction on his base pay entry date for the time he spent at XXXXXX. The agreement had been signed and notarized prior to executing his interservice transfer. He had voluntarily and knowingly accepted the conditions of the transfer.
  3. That portion of his request related to computation of retired pay had been moot because the statute did not affect retirement credit for PHS officers.
  4. The Board should "...deny his application on the grounds that it was not filed in a timely manner." Denial of his application should be based on the following considerations:

    1. Five students had been initially commissioned and matriculated at XXXXXX as officers in the xxxx. One student had been commissioned as an officer in the xxxx. Any misinformation Xxxxxx received had been provided by his previous uniformed service, not by PHS.
    2. According to affidavits he submitted, the alleged injustice occurred in 1982 during interviews for admission to XXXXXX. This was prior to being commissioned in the Corps. He had learned at that time of the prohibition on using the four years at XXXXXX. The statute of limitations had started to run at that point. 
    3. He did not state an exact date he discovered the injustice except to say that it was after matriculation. There had been reason to believe that he may have known of the longevity and retired pay issues before graduating from XXXXXX. 

  5. The statute of limitations should not be waived on the grounds that "insufficient relevant evidence" had been submitted. He argued that he had been provided misinformation by XXXXXX officials in 1982 and that he relied on this information in deciding where to pursue his medical education. DCP provided him with correct information. He did not rely to his detriment on misinformation by DCP.

    1. Waiver of the three year filing requirement had been intended to "operate as a safety valve in cases where a serviceman was unable to file his application within 3 years from discovery." Xxxxxx had the burden of providing adequate and valid reasons why the statute of limitations should be waived.
    2. He did not claim nor did his records contain anything from which to infer that he had been unable to file a claim in a timely manner or that he had been unaware of the existence of the PHS Board.
  6. All of the military Boards for Correction had denied relief to the Class of XXXX in their respective services. The PHS Board should arrive at a consistent result for the following reasons:

    1. He had been a member of the xxxxxxxx when he allegedly had been provided misinformation about longevity pay. Further, he had been a member of another service when he became aware that his time at XXXXXX would not count for longevity pay. He did not transfer to PHS until after the xxxxx had denied the Class of XXXX. It would be an injustice for him to escape the intent of the law by having transferred to the Corps.
    2. He did not claim that PHS personnel gave him incorrect information.
    3. The military Boards for Correction had interpreted the same statute as it applied to similarly situated students. He failed to specify relevant, factual differences between his case and those of officers in the xxxx services which would justify reaching a different conclusion than that of the military boards.
    4. The Class of XXXX argued that their situation had been indistinguishable from the Class of XXXX. The PHS Board had no occasion to rule on the Class of XXXX. Xxxxxx asked the PHS Board to selectively apply the decisions of the other services on the Class of XXXX, but to disregard their decisions on the Class of XXXX to which he belonged.

IV. Board Action on xxxxx Request:

Date of Board Meeting: xxxxxx 1995

Board Staff:

Ellen Wormser
Executive Director

Thomas E. White. Ph.D.
Executive Secretary

Members of the Board:

John Gallivan
Chairperson of the Board and PHS Regulations Officer
Office of Health Planning and Evaluation, OASH

V. Findings, Conclusions and Recommendatin:

Findinqs

Xxxxxx enrolled at XXXXXX while in the Xxxxxx. He transferred from the Xxxxxx to the Commissioned Corps on xxxx 1986, after enrolling at XXXXXX in xxxx 1983. The Board did not have the authority to consider his Xxxxxx record, but did have the jurisdiction to consider his Corps record after transfer.

The Corps applied the statute and regulations in effect when he transferred from the Xxxxxx. These had been incorporated into a training agreement he signed governing his service credit for basic pay computation, and promotion purposes, and number of years creditable retired pay while a student at XXXXXX. The statute limited this credit only to students who had been enrolled on xxxxxx 1981.

He had voluntarily and knowingly accepted the conditions of his transfer. The Corps did not provide him with any misinformation affecting his decision to enroll at XXXXXX. He was in the Xxxxxx when he made the decision to enroll. The Xxxxxx Board for Correction of xxxxx

Records has the jurisdiction to consider this matter.

Conclusions

The Board concluded that the interest of justice required considering Xxxxxx request. It also concluded that there had been no error or injustice in the manner of informing him of the benefits of attending XXXXXX.

Therefore:

Recommendation

After consideration of all of the information submitted, the Board recommends that Xxxxxx request be denied. Accordingly, no change is required in his record.

We certify that this recommendation reflects the views and actions taken by the Board on 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 Xxxxxx 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 xxxx 1995, when Xxxxxx request was considered.

If you approve, please sign below.

John Gallivan
Chairperson of the Board and PHS Regulations Officer
Office of Health Planning and Evaluation

Reviewed and Approved:

I hereby approve the Board's recommendation on Xxxxxx request considered in accordance with P.L 96-76, Public Health Service Act, Section 312, Section 221a(a} (12) (42 U.S.C. 213a(a} (12) extending the provisions of 10 U.S.C. 1552.

Anthony L. Itteilag
Deputy Assistant Secretary for Health(Management and Budget}

Attachment: Case Record


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.