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Board for Correction Case No. 132-91

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Board for Correction Case No. 132-91

109.00 Appointment as Commissioned Officer - Change assimilation date

Recommendation of the Board for Correction on Request of: xxxxxxx, Case No. 132-91

Request:

Xxxxxxxx asked the Board to change his Base Pay Entry Date (BPED) as if he had been assimilated into the Regular Corps on Xxxxx 1992 (after he had been promoted to the Permanent Grade 0-5). Approval of this request would change his BPED from the current date of xxxxx, 1978, to xxxxxxx, 1975. His pay and allowances would be adjusted accordingly.

Summary of Officer's Argument and Documentation:

Xxxxxxxx argues that he did not receive information on how his credit for pay purposes would have been affected by his permanent grade at the time of assimilation (e.g., that assimilation at the Permanent Grade 0-4 would have entitled him to 10 years credit; at the Permanent Grade 0­5 to 17 years credit.) He argues that he did not know that there could have been an advantage in declining assimilation until promoted in the future. He also argues that had he full knowledge of the system, he would have declined assimilation in 1988 and accepted it on xxxxx, 1992, after promotion to the Permanent Grade 0-5 (he was promoted xxxx, 1990).

He argues that information on pay credit for assimilation had not been included in the Commissioned Officer's Handbook in 1983. He acknowledges by inference that this . . . CC22.1, INSTRUCTION 1, "Rates of and Creditable Service for Basic Pay)" but argues that neither he nor the DCP staffing officers had been aware of it. He also argues that they gave him no information about pay credit and that his request for an appointment with DCP management, after he became aware of the issues, had not been granted. He argues that the Deputy Director had called him stating that:

"The benefit had been interpreted as being for political appointees who might be encouraged by a substantial pay raise to stay in the Corps.

"Since only a few officers were likely to be eligible for the benefit, it was considered too complicated and too risky a matter to discuss with all officers.

"DCP's policy was to allow the benefit for officers whose positions qualified (and withhold the information from others)."

Xx xxxxxx has stated with respect to his request:

"I have no expectation that the Board or DCP will act in ways not permitted by statutory authority. I presented my case to determine if authority for relief existed. Should the Board find there exists a grievable offense, then, I believe, the Board should find a way to rectify the injustice in some way which is in keeping with its authority."

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

DCP had argued that the Board did not have the authority to correct Xxxxxxx record as requested because the authority to appoint an officer to the Regular Corps at the time and grade requested by the officer had been reserved by statute to the President and the United States Senate. DCP had considered his request to the Board as asking it to void his Regular Corps appointment as confirmed by the United States Senate. Following that, he had asked the Board to cloak itself with the power of the United States Senate and confirm a new appointment for him effective at a later date and at a higher grade. (Neither DCP nor the Comptroller General (CG) had the authority to grant credit not authorized by law.)

DCP argues further that his request to the Board benefits from hindsight and knowing the number of officers who were actually assimilated in 1988, the Board should assume that he would have been one of those assimilated at a later date and at a higher grade. Based on statutory authority, the assimilation process limited appointments above grade 0-3 to 10 percent of original appointments in a fiscal year. Officers recommended for assimilation had been ranked in order of standing by the Assimilation Board. Their names had been sent forward to the President for nomination from this list as vacancies occurred in the authorized strength of the Corps. Officers had been appointed to the permanent grade at which nominated. His request precludes requiring him to compete with his peers and having the President and the United States Senate make a judgment on his assimilation.

DCP argues that had he declined assimilation in 1988, he would have had to reapply at a later date when and if promoted to the Permanent Grade 0-5. It would have been pure speculation as to whether his assimilation request would have been accepted by the Assimilation Board at that time, whether he would have been nominated by the President, and whether he would have been confirmed by the United States Senate.

DCP had indicated that an officer could not defer indefinitely the decision to take the oath of office or the physical examination to become assimilated (since there had been no way of knowing when the officer would have been promoted or whether recommended at the higher grade). Given the limited number of vacancies, an officer would not have been permitted to remain on the assimilation list indefinitely. This would have other officers from being assimilated who wanted commitment to the career component of the Corps. The statute did not allow for manipulation.

DCP had stated that the policy governing assimilation had been included in the CCPM (subchapter CC23.3, INSTRUCTION 7, "Regular Corps Assimilation Program" and in CC22.1, INSTRUCTION 1. All officers assimilated had been governed by these policies. The information about the impact of Regular Corps assimilation had been readily available had the Manual been consulted. Instead he argues that DCP officials had a duty to inform each of the hundreds of officers requesting assimilation exactly what their individual options may have been based upon their unique situations. DCP did not accept that premise. DCP argues further that qualified personnel had been available throughout this time period to assist officers with questions about assimilation.

DCP had indicated that he had been informed that the original purpose of BPED credit was not certain and that officers most affected had been appointed late in their careers. These included those who had received higher entry level permanent grades and political appointees.

DCP had denied that this credit had been considered too complicated and too risky a matter to discuss with all officers. DCP had also denied that its policy allowed credit to officers whose positions qualified and withheld information on this from others.

DCP had advised the Board that because of the potential profound legal ramifications involved in his request, it would not take any action on a Board decision to change his Regular Corps appointment date or grade unless a formal, written opinion had been obtained from either the Office of the General Counsel (OGC) or the CG stating that such action would be legal. The Board obtained a legal opinion from the OGC agreeing that it did not have the authority to change his appointment date or grade.

DCP had concluded that it did not believe that an error or injustice had occurred regarding Xxxxxxxx assimilation into the Regular Corps and opposed any correction of the record in his behalf. DCP also concluded that upholding his request could cause other officers to request corrections resulting in considerable expense (estimated to be $60 million) to the U.S. Government.

Board Action on Officer's Request:

Date of Board Meeting: xxx, 1993

Board Staff:

Ellen Wormser
Executive Director

Thomas E. White, Ph.D.
Executive Secretary

Members of the Board:

Sharon Smith Holston
Chairperson of the Board and Associate Commissioner for Management, FDA

C. Findings and Conclusions:

The Board found that:

1. Facts

  1. DCP did not publish a Handbook for 1983. The Orientation Guide for 1981 would have been applicable to his request for assimilation. The Guide had included information on promotion credit applicable to permanent promotions but not to the assimilation process.
  2. Xxxxxxxx had been found qualified for assimilation at the Permanent Grade 0-4 in xxx 1983; he had been promoted to that grade on xxxx 1980.
  3. The United States Senate had confirmed his nomination for assimilation on xxx 1987; he was appointed to the Regular Corps on xxxxxx 1988.
  4. Based upon his appointment date, his BPED had been set at xxxxxx 1978, (allowing 10 years credit for pay purposes).
  5. He had been promoted to a Permanent Grade 0-5 on xxx 1990.

2. DCP Policy

  1. Neither CCPM (subchapter CC23.3, INSTRUCTION 7) nor the Officer's Orientation Guide for 1981 (referred to by Xxxxxxxx as the Commissioned Officer's Handbook) had made any specific reference to number of years of creditable service incident to assimilation.
  2. CCPM (subchapter CC22.1, INSTRUCTION 1) had included information on length of service for permanent grades that would have been applicable to assimilation. The number of years authorized by 42 U.S.C. 209(d) (1) had been indicated. He would have received 17 years credit if appointed to the Regular Corps at the Senior Grade.

    The Board found Xxxxxxxx argument that had he known about the difference in service credit, he would have considered the option of delaying his request for assimilation to be highly speculative considering that it would have involved the risk of not being accepted for assimilation, of not being promoted to the higher grade and if promoted, not being promoted when he anticipated. It also would have involved the risk of not being nominated by the President and of not being confirmed by the United States Senate. The Board did not find any documentation in the record to convince it that he would have accepted all of these risks.

    However, the Board also found that the need had existed for some way to make sure that pertinent information on which to make a critical decision had been available to him. It found that information on creditable service had been important to making a decision about the assimilation date and grade. CCPM (subchapter CC22.1, INSTRUCTION 1) had included the information needed but no reference to it had been included in either CCPM (subchapter CC23.3, INSTRUCTION 7) or the Officer's Orientation Guide for 1981. These two documents had been major sources of programmatic information about the Assimilation Program and had been considered readily available to him.

    The Board also found that although CCPM (subchapter CC22.1, INSTRUCTION 1) had included the information, its title "Rates of and Creditable Service for Basic Pay" could have been misleading. Also section C1 had included instructions for computing creditable service that would have required the knowledge of a personnel specialist. Finally, the reference in section C4.c to appointment to the Senior Grade and 17 years credit could have been misleading unless it was known to include the Permanent Grade 0-5.

    Therefore, the Board concluded that it had been unfair to Xx xxxxxx for him to not have had readily available and clearly unambiguous information pertinent to making a critical decision about his career. On the other hand, such information could have been obtained had his persistence prevailed. Based upon these considerations, the Board could justify granting partial rather than full relief entitling him to partial compensation.

Recommendation:

Accordingly, the Board recommends that Xxxxxxxx promotion to the Permanent Grade 0-5 be made retroactive to the first day after he had been appointed to the Regular Corps. Approval of this recommendation requires that his record be corrected changing his promotion to the Permanent Grade 0-5 from xxx 1990, to xxxxx 1988, and that he receive all pay and allowances to which entitled.

Additionally, the Board recommends that DCP give pertinent information to officers about assimilation at a time when they have to make critical decisions which affect their futures. The Board recommends that the section in the Commissioned Officer's Handbook entitled "Regular Corps" be expanded to included information about length of service for permanent grades and that it also include cross ­references to CCs in the CCPM with which officers have to be familiar in order to make informed decisions. The Board also recommends that DCP prepare an Assimilation Handbook for distribution to officers who inquire about appointments to the Regular Corps. The Handbook would include current information on statutory, regulatory and policy and procedural considerations affecting appointments to the Regular Corps.

We certify that these recommendations reflect the views and actions taken by the Board on Xxxxxxxx request and that they have 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 Xxxxxxx request and that, in addition to applicable statutes, regulations and policies, it had been considered by the Board in arriving at these recommendations.

Finally, we certify that a quorum of Board members was present on xxxx 1993, when Xxxxxxxx request had been considered.

If you approve, please sign below.

Sharon Smith Holston
Chairperson of the Board and Associate Commissioner for Management, FDA

Reviewed and Approved:

I hereby approve the recommendations of the Board members 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), and authorize the Director, Division of Commissioned Personnel (DCP), Office of the Surgeon General/PHS to correct his record as stipulated and issue a Personnel Order changing his promotion to the Permanent Grade 0-5 from xxxxx 1990, to xxxxxxx 1988, and authorizing him to receive all pay and allowances to which entitled.

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.