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Board for Correction Case No. 123-91

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Board for Correction Case No. 123-91

192.00 Pay and Allowances (Includes Allotments of Pay / Allowances / Basic Pay) - Retroactive special pay

Reconsideration of Board Recommendation on Request of: xxxxxxx, Case No.123-91

BACKGROUND:

Xxxx application to the Board for Correction of PHS commissioned Corps Records was dated Xxxxxx 1991. It had been considered at a Board meeting on Xxxxxx 1991. He had asked the Board to authorize a two-year Medical Officers Retention Bonus (MORB) contract for him effective Xxxxxx 1989, the date of his call to active duty.

BOARD ACTION ON XXXX REQUEST:

The Board had recommended and you approved on Xxxxxx 1992; correcting Xxxx record to show he had notarized and approved an application for a two-year MORB contract effective Xxxxxx 1989, entitling him to $4,000 per year.

REQUEST FOR RECONSIDERATION:

In a memorandum dated Xxx 1992, DCP questioned the action by the Board:

  1. In not providing it with a revised Case Summary for review and comment to ensure that all DCP comments had been considered.
  2. In abrogating DCP policies where they had been properly established and promulgated in policy INSTRUCTIONS prepared by DCP (and available to all officers). 
  3. In recommending payment of an inappropriate amount for the two-year MORB contract authorized. The amount should have been $11,000 per year instead of $4,000.

DCP did not take any action on the Board's decision pending the results of its request for reconsideration of this case.

RECONSIDERATION OF BOARD RECOMMENDATION ON XXXXXX REQUEST:

Members of the Board

The Board reconsidered its recommendation on Xxxx request at a meeting on Xxxxxx 1992. Those attending included:

Board staff

Thomas E. White, Ph.D.
Executive Secretary

Norman Prince
Acting Executive Director

Board Members

Raymond E. Bahor, Ph.D.
Chairperson of the Board and Associate Chief for Review
Division of Research Grants Referral and Review Branch, NIH

Board Response to DCP Request for Reconsideration

Findings and Conclusions

  1. The Board members considered whether the intent of Board policy had been complied with in developing and disseminating the Case Summary. It found that on Xxxxxx 1991, DCP was sent a copy of a Case Digest for review and comment. (Case Digests were prepared in lieu of Case Summaries on cases that did not involve complex issues). DCP had returned comments on Xxxxxx 1991. After review of the comments, the Executive Director, satisfied that a full Case Record had been developed, convened a Board meeting on Xxxxxx 1991.

    Both the Case Digest and the comments returned on Xxxxxx 1991, were considered by the Board at that meeting.

    The Board members concluded that the intent of Board policy applicable to developing and disseminating Case summaries, contained in xxxxxxxx, Case Record Development, section G, had been complied with in processing Xxxx request since they had access to all of the documentation received. The policy stated that:

    " A copy of the draft Case Summary and Advisory opinion are sent to the applicant who xxx rebut if he/she desires, any information, statements or views contained therein. Such rebuttal should be accompanied by clear and convincing evidence. In turn, a copy of the Case summary also is sent to DCP for similar review and comment. Each party receives copies of the comments provided for further rebuttal until the Executive Director is satisfied that a full Case Record has been developed or after being advised by the applicant and by DCP that no additional documentary materials will be submitted. All comments received are incorporated into the final Case summary for submission to the Board."

    The Board members also clarified the purposes of the Case Summary in its deliberative process. These included assisting: (a) officers and DCP in presenting facts and issues to Board members, (b) Board members in understanding facts and issues, (c) the Board staff in organizing recommendations for sign-off by Board members after Board meetings, (d) the Executive Director in presenting recommendations to the Approving Official for decision and (e) the Board staff in preparing case abstracts for future reference.

    The Board members also stated that the Case Summary had not been the sole basis for developing Board findings, conclusions or recommendations. They and the Approving Official considered the full Case Record, including the Case Summary, to avoid the concern mentioned by DCP in its request for reconsideration. 
  2. The Board members were mindful of the importance of DCP policies in the management of the Corps. The decision to deviate from these policies was made only "when necessary to correct an error or remove an injustice."
  3. The Board members had been under the impression that Xxxx xxxxxxx specialty qualified him for $4,000 per year.

Board Recommendation

The Board recommends that you approve a change correcting the error in the MORB pay authorized for Xxxxxx from $4,000 per year to $11,000. Approval of this modified recommendation would not change the prior decision that his record be corrected to show he had notarized and approved an application for a two-year MORB contract effective Xxxxxx 1989.

We certify that this recommendation reflects the views and actions taken by the Board on Xxxx request for reconsideration and that it has been concurred in by the Board members.

We certify that the Case Record contains all of the documentation received on his request and that, in addition to applicable statutes, regulations and policies, it has been considered by the Board in arriving at this recommendation.

We certify that a quorum of Board members has considered this request for reconsideration.

If you approve, please sign below.

Raymond E. Bahor, Ph.D.
Chairperson of the Board and Associate Chief for Review
Division of Research Grants Referral and Review Branch, NIH

REVIEWED AND APPROVED:

I hereby approve the modified recommendation on the request of 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) correcting the error in the MORB pay authorized for him from $4,000 per year to $11,000.

I also reaffirm the prior Board decision approving a two-year MORB contract for Xxxxxx effective Xxxxxx 1989, and authorize the Director, Division of Commissioned Personnel (DCP), Office of the Surgeon General/PHS, to correct his record

Reconsideration of Board Decision on Request of: XXXXXXX, Case No.123-91

This is in response to your memorandum dated xxxxxx 1992, regarding the Board's procedures and decision following reconsideration of Xxxx request and requesting further consideration. The memorandum had been addressed to the Executive Director, Board for Correction of PHS commissioned Corps Records.

REOUEST:

Xxxx application to the Board is dated xxxxxxx 1991. As you know, he had asked the Board to authorize a two year Medical Officers Retention Bonus (MORB) contract for him effective Xxxxxx 1989, the date of his call to active duty (CAD).

BOARD ACTION ON XXXX REOUEST:

Xxxx request had been considered initially and upheld at a meeting on xxxxx 1991, and upheld on reconsideration (requested by DCP) on Xxxxxx 1992 (except for a change in the amount of payment he would receive). The Board had recommended that his MORB pay be changed from $4,000 per year to $11,000 as DCP had recommended as necessary to correct the record. Neither the Board members nor the approving official accepted DCP's recommendation to change the intent of the initial decision.

REOUEST FOR RECONSIDERATION:

Your latest request for reconsideration mentions the following issues: (1) DCP had not received a final Case Summary (2) the decision abrogated DCP policy requiring xxxxxxx to apply for MQRB by Xxxxxx 1989, and (3) the Board did not have the authority to approve a MORB contract effective Xxxxxx 1989.

BOARD RESPONSE TO REQUEST FOR RECONSIDERATION

Your concerns regarding issues #1 and #2 had been addressed in the Board's initial decision on Xxxx request dated xxxxx 1992, and in memoranda sent to you on xxxxxx 1992, and Xxxxxx 1992, in response to your earlier expressions of concern. These responses are summarized below:

Issue #1
A Case Digest rather than a formal Case Summary had been prepared on this case, which you will recall was one of a number of special pay cases which both the Board and DCP handled in a summary fashion. The Case Digest dated Xxxxxx 1991, containing DCP's Xxxxxx 1991, comments and corrections had been sent to the Board members along with the rest of the Case Record. The Executive Director had been satisfied that no further review and comment were necessary as the changes were straightforward.

The Board staff did not prepare a substantially modified Case Digest or Case Summary for you to have commented on yet again. We are sure you understand the need to cut-off the back-and-­forth comment process at some point.

Attached is a copy of the Xxxxxx 1991, Case Digest sent to the Board members with the Case Record for reconsideration of Xxxx request.

Issue #2
The Board members had understood the importance you attached to upholding DCP policy in the management of the Corps. The decision to deviate from policy by correcting Xxxx record to show that he had notarized and approved a MORB contract effective Xxxxxx 1989, after the Xxxxxx 1989, filing date had been done to correct what the Board found had been an injustice. The Board had concluded when it upheld his request:

"... that Xxxxxx had been promised a multi-year MORB contract before the application filing date and that he had made efforts to obtain a contract. The critical element causing him not to obtain a contract had been his CAD. This date could have been changed had the Xxxxxxx officials recognized the financial impact it would have on him."

The Board also accepted his contention that he had been available to accept an earlier CAD.

Issue #3
The Board had not been aware that this issue was of concern to DCP since it had been advised that MORB was a temporary one year authority beginninq in FY -1989 and endinq in xxxxxxx 1989. The Board had understood this to mean that MORB had been effective from xxxxxxx 1988, to xxxxxx 1989, since Xxxx CAD was xxxxx 1989, the Board's decision allowing him a contract as of that date was thought to be within the period when MORB authority had been in effect.

We appreciate the fact that DCP disagrees strongly with the Board's decision. However, the Board was really saying that it was not fair to tell a candidate he was going to get a bonus and then not take the filing date for applying for that bonus into account in setting a date for entry on duty. The Corps cannot expect that a new recruit would know about the deadline for filing for the bonus.

However, following DCP's initial request for reconsideration, two new Board members had been appointed to ensure that your request would be objectively considered. The newly constituted Board however, agreed with the prior Board. In addition, the Board had already considered the documentation you have submitted in support of a second request for reconsideration. Therefore, the Board is unable to reconsider this case further and requests that its decision be implemented expeditiously.

REVIEWED AND APPROVED

Raymond E. Bahor, Ph.D.
Chairperson of the Board and Associate Chief for Review
Division of Research Grants Referral and Review Branch, NIH

Wilford J. Forbush
Approving Official and Director, Office of Management

If you have any comments or questions, please call Ellen Wormser on xxxx.

Attachment


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.