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Board for Correction Case No. 124-91

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Board for Correction Case No. 124-91

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

Board Recommendation on Request of: xxxxxxx, Case No.124-91

Xxxxx application to the Board for Correction of PHS commissioned Corps Records was received xxxxxx 1991.

Relief requested:

She had asked the Board to authorize a Multiyear Retention Bonus (MRB) contract for her effective xxxxxxx 1990, instead of Xxxxx 1991, and a two-year Incentive Special pay-Hardship (ISP-H) contract also effective Xxxxx 1990.

Corrective Action by the Commissioned Corps:

The Division of Commissioned Personnel (DCP) advised the Board on xxxx 1991, that it took corrective action to approve a two-year ISP-H contract for Xxxxx at $16,000 per year effective xxxxx 1990, as she requested. We also understand that she has received the first year payment of $16,000 on this contract. DCP also had approved a MRB contract (which in 1990 superseded MORB) for her effective Xxxxx 1991. The remainder of her request is whether her MRB contract should be changed from Xxxxx 1991, to Xxxxx 1990, as she had originally requested.

Digest

  1. Background: Xxxxx request resulted from having accepted an appointment to the Commissioned corps after the deadline date for applying for a Medical Officer's Retention Bonus (MORB). Xxxxx is a xxxxxxxxxx. Her Medical Officer Retention Bonus (MORB) contract would have been $1,500 to $8,000 per year depending upon the duration of a contract she would have signed. Congress replaced MORB with MRB effective Xxxxx 1991. Under MRB, contracts were available to xxxxxx xxxxxxxxxxxx at $3,000 to $10,000 per year depending upon the duration of a contract.
  2. Xxxxx view: Xxxxx alleged that a recruiter had told her in Xxxxx of both 1989 and 1990 and again in xxxx 1990 that she could receive a multi-year MORB contract on her appointment to the Corps (she entered on active duty xxxxx 1990, and reported to xxxxxx xxxxx 1990). She also alleged that she had started the application process in xxxxx 1989 but did not receive payroll documents until Xxxxx 1990. Because the deadline date for applying for MORB expired Xxxxx 1990, she was ineligible.

    Xxxxx asked the Board to make her MRB contract effective as of Xxxxx 1990, when called to active duty rather than Xxxxx 1991. She contended that making MRB effective Xxxxx 1991, would have given her two anniversary dates (RSP and ISP) and required a change in her service obligation from three years to either two or two and one-half years. She believed that her special pay contract should have covered the same time period as her active service since the pay was for service rendered. 

  3. Commissioned Corps View: Xxxxx and all other officers were advised that the income they would receive would not be guaranteed and would be subject to change. She was informed Xxxxx 1991, that MORB had expired as of her appointment date (Xxxxx 1990) and had been replaced by MRB effective Xxxxx 1991. However, DCP was not sure that the Indian Health Service ever promised her MORB. The documentation indicated that this benefit had been lined through as if not included.

    Xxxxx was sent a contract form to apply for MRB. MRB was discretionary pay to be paid only after a contract had been submitted through the Agency and consummated by issuance of a Personnel Order. Additionally, the provision for back-dating a contract only applied on the initial eligibility date and had to be notarized within 30 days of that date and received by DCP within 60 days. To date, DCP has not received a MRB request from her and for this reason she does not have a current contract. DCP cannot award her a MRB contract prior to Xxxxx 1991, (by statute, MRB was not available to any medical officer prior to that date). It is DCP's position that the Board cannot change her record in any way that would entitle her to retroactive MRB for the period Xxxxx 1990, to Xxxxx 1990. DCP does not recommend any further change in her record. 

    Issue: Should the Board authorize DCP to change the effective date of Xxxxx MRB contract from Xxxxx 1991, to Xxxxx 1990? 

    Xxxxx application and documentation are contained in the Attachment. Her request was considered at a Board meeting on Xxxxx 1991.


Board Action on Xxxxx Request
:

Members of the Board:

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

Board Staff:

Ellen Wormser
Executive Director

Thomas E. White, Ph.D.
Executive Secretary

Findings:

The Board found that:

  1. her medical specialty, xxxxxx xxxxxxxx, qualified her for MORB and for MRB; 
  2. she was called to active duty the date DCP lost its authority to approve multi-year MORB contracts; 
  3. it was unable to determine from the record whether she ever submitted a MORB or MRB application; 
  4. her pay under a two-year MRB contract is greater than it would have been under MORB since MRB paid $3,000 each year and MORB $1,500;
  5. her ISP-H, RSP and MRB contracts had different ending dates causing complications concerning the duration of her appointment and possible lapses in special pay coverages; and 
  6. DCP did not have the authority to back-date her contract as she requested.

Conclusion:

The Board concluded that Xxxxx had been promised a multi­year MORB contract before the Xxxxx 1990, application filing deadline and before DCP lost its authority to approve multi-year contracts. A MORB contract was still legally available to her on her CAD since it was one day before Congress eliminated this benefit. The critical element affecting her ability to obtain MORB was the fact that her CAD, which was an arbitrary date, came after DCP's filing deadline and the date DCP lost its contracting authority. Her CAD date could have been changed had its financial impact been recognized.

The action taken to provide her with a two-year MRB contract effective Xxxxx 1991, presented difficulties since her ISP-H contract was effective xxxxx 1990, to xxxxx 1992, (as was her RSP contract) . In order to meet the requirements of her MRB contract, she would have to remain on active duty three months longer possibly without ISP-H or RSP coverage since those contracts would have expired at the end of a 24-month period.

Recommendation:

The Board recommended that Xxxxx request be upheld in part. Approval of this recommendation requires that her record be corrected to show she had notarized and approved a 21 month MRB contract with the first year effective Xxxxx 1991, to Xxxxx 1991 and the second year effective Xxxxx 1991, to Xxxxx 1992, allowing all special pay contracts to end on the same date, since the MRB payment she received was for 12 months, this recommendation requires a $750.00 pay­back (the two-year MRB contract paid $6,000; the contract recommended by the Board would pay $5,250 after pay-back). A two-year MORB contract effective Xxxxx 1990, her CAD, would have paid $3,000.

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

We certify that the Case Record contains all of the information received on her request and that, in addition to applicable statutes, regulations and policies, it was considered by the Board in arriving at the recommendation.

Finally, we certify that a quorum of Board members was present when Xxxxx request was considered.

If you approve, please sign below.

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

REVIEWED AND APPROVED

I hereby approve the recommendation of the Board members on the request of Xxxxx 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) and authorize the Director, Division of Commissioned Personnel (DCP), Office of the Surgeon General/PHS, to correct her record as stipulated and issue Personnel Orders changing the effective dates of her MRB contract as approved.

Wilford J. Forbush
Director
Office of Management

Attachment: Case Record

Reconsideration of Board Recommendation on Request of: xxxxxxx, Case No.124-91

BACKGROUND:

Xxxxx had asked the Board to authorize a Multiyear Retention Bonus (MRB) contract "retroactive to my call to active duty" (Xxxxx 1990), "not Xxxxx 1991" and to authorize a two-year Incentive Special pay-Hardship (ISP-H) contract effective Xxxxx 1990. This was one of a number of similar cases originating in the xxxxxx area office.

DCP advised the Board on xxxx 1991, that it had approved an ISP-H contract for her as requested.

On Xxxxx xx 1991, you had approved the Board's recommendation to correct Xxxxxrecord to show that she had notarized and approved a 21 month MRB contract from Xxxxx 1991, to Xxxxx 1991, for the first year and from Xxxxx 1991, to xxxxx 1992, for the second year allowing all of her special pay contracts to end on the anniversary date of her call to active duty. The 21 month contract recommended by the Board paid $2,250 the first year and $3,000 the second year).

In a memorandum dated xxxxxx 1992, DCP requested reconsideration by the Board on the grounds that:

  1. the statute authorizing MRB was not in force as of the date of her call to active duty and she could not have been issued a contract as of that date, as she had originally requested. Therefore, the Board should not have considered her case.
  2. the statute did not permit a contract of less than two years or a partial year contract as approved by the Board. 
  3. the Board's decision had been at variance with how another officer in a similar situation had been treated. DCP concluded that the Board changed the duration of Xxxxx MRB contract rather than approve a Medical Officer Retention Bonus (MORB) for her, as had been done for another officer in a similar situation, because MRB paid $3,000 per year and MORB paid $1,500 per year.

RECONSIDERATION:

The Board reconsidered its recommendation on Xxxxx request at a meeting on xxxxx 1992, and developed a modified recommendation. However, several facts have subsequently come to light leading it to modify both that recommendation and the one you had approved.

  1. The Board staff had misinterpreted the applicant's request. It thought that she already had an MRB contract dated Xxxxx 1991 and was asking that it be made retroactive to Xxxxx 1990. 
  2. This misunderstanding was reinforced by a statement in DCP's Advisory dated xxxx 1991 stating that: "Xxxxx had been afforded an opportunity to enter an MRB contract effective Xxxxx 1991." The Board staff had been advised verbally by DCP staff that: "...afforded an opportunity..." meant that a contract had been approved for her effective Xxxxx 1991.

Given that she did not already have an MRB contract, the rationale used by the Board on xxxxxxx1992, - that to approve a MORB contract for Xxxxx would have illegally penalized her - was moot.

In light of these new findings, the Board sees no reason why Xxxxx should not be treated in the same manner as other officers in the same situation were treated by the Board. Therefore, the Board recommends that Xxxxx record be corrected to show that she had notarized and approved an application for a two-year MORB contract effective Xxxxx 1990, thus entitling her to a payment of $1,500 per year.

We certify that this modified recommendation reflects the views and actions taken by the Board on Xxxxx request and that it has been concurred in by the Board.

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

We certify that a quorum of Board members 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 of the Board members on the request of Xxxxx 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), and authorize the Director, Division of Commissioned Personnel (DCP), Office of the Surgeon General/PHS to correct her record as stipulated and issue a Personnel Order entitling her to a two-year MORB contract effective Xxxxx 1990.

Wilford J. Forbush
Director
Office of Management

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.