LinkedIn Logo

Board for Correction Case No. 133-91

""

Board for Correction Case No. 133-91

124.00 Commissioned Officer Effectiveness Report (COER)-Includes Performance Evaluation - Remove negative comments from evaluation report

Recommendation of the Board for Correction on Request of: xxxxxxx xxxxxxx, Case No.133-91

I. Request:

Xxxxxxx asked the Board to remove from his Official Personnel File(OPF), and from all other files maintained by the Division of Commissioned Personnel (DCP), a memorandum written by Xxxxxxx, his supervisor, on Xxxxxxx, 1988, recommending that he be transferred to another duty station or involuntarily separated at the end of his probationary period. He also asked that all other documents written or filed as a result of that memorandum be removed from his OPF and that all documents removed be destroyed. He alleged that his efforts to have the documents removed and destroyed had led to numerous harassing telephone calls from DCP, and eventual reassignment to the xxxxxxx xxxx xxxxxx xxxxx, xxxxx, xxxxxxx. He resigned from the Corps rather than accept the assignment. Xxxxxxx stated that he would like to have the subject documents removed and destroyed although no longer on active duty. He considered the comments in the memorandum to have been untrue and damaging to his reputation and good name should anyone inquire regarding his performance while in the Corps, and that the existence of the memorandum and related documents constituted an injustice that should be corrected.

Corrective Action by DCP

DCP advised the Board on xxxxxxx xx, 1994, that corrective action had been taken to remove the following documents from Xxxxxxx' OPF and that they would be retained in a confidential administrative file in the Office of the Director:

Memorandum by Xxxxxxx to DCP: Xxxxxxx 1988.

Memorandum by Xxxxxxx to DCP: Xxxxxxx 1988.

All letters from Xxxxxxx to DCP, including the letters of xxxx, 1988, and xxxx, 1988, and all letters from DCP to Xxxxxxx.

Note to the Record by xxxxxxx xxxxxx: xxxx 1988.

Letter by Xxxxxxx to Xxxxxxx: Xxxxxxx 1988.

Letter by Xxxxxxx to Director, DCP: xxxxxxx 1988.

Letter from Xxxxxxx to Congresswoman Constance A. Morella and all exhibits and attachments relating to it and reply to Congresswoman Morella from the Director, DCP, dated xxxx 1991.

Response by Officer to Corrective Action

Xxxxxxx advised the Board on Xxxxxxx 1994, of his view of the corrective action taken by DCP. He stated that:

"The action of the DCP...does not in any way correct the injustices which have occurred, and does not in any way provide the relief which I requested in my appeal to the Board."

Xxxxxxx argued that the action by DCP had not resulted in the removal of all documents, only the removal of documents from his OPF, and that none of the documents had been destroyed. He also argued that maintaining the documents in an administrative file provided no assurance that they would not be used now or in the future in a manner damaging to him nor that they would not be reinserted into his OPF at some future date.

Summary of Officer's Argument and Documentation:

In support of removing and destroyinq all documents, Xxxxxxx had argued that DCP's acceptance of Xxxxxxx memorandum had been wrong because the memorandum had not been accompanied by any verifying documentation as required by CCPM, Subchapter CC23.7, INSTRUCTION 1, Sections E.2.b and E.5.a. He also had argued that he asked Xxxxxxx and the Xxxxxx, Office of the Surgeon General, to provide or arrange for such documentation, but received no response. Xxxxxxx interpreted the lack of response to mean no documentation existed to support the memorandum making its contents false.

Xxxxxxx argued-further that CCPM, Subchapter CC23.7, INSTRUCTION-1, Section E.2.a, required consistency between his annual COERs and the content of Xxxxxxx memorandum. He argued that his COERs had been excellent and that in accepting the memorandum DCP violated its own policy.

Xxxxxxx did not sign the memorandum. Xxxxxxx argued that this fact denied DCP of any evidence or proof that the memorandum included Xxxxxxx views or that he ever intended to validate it's content or send the memorandum to DCP. In further support of his argument, Xxxxxxx indicated that Xxxxxxx failed to sign the memorandum even after he had been requested to do so via letters to him and DCP.

Xxxxxxx argued that the documentation he had furnished to the Board proved that the content of Xxxxxxx memorandum had been untrue and that it and all other documents filed as a result of that memorandum should be removed from his files and destroyed.

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

Xxxxxxx has requested that the Board remove and destroy certain documents from his OPF and from the confidential administrative file. DCP took corrective action removing documents and placing them in the administrative file. The documents not removed included the following:

Memorandum by Xxxxxxx (regarding telephone conversation): Xxxxxxx 1988.

This memorandum documents the Director, DCP's verbal decision to extend Xxxxxxx transfer by one month. It provides the basis for future personnel action.

Memorandum by Xxxxxxx to Xxxxxxx: Xxxxxxx 1988.

This memorandum documents a directive given to Xxxxxxx by his superior. It is the kind of document appropriately placed in the fourth section of the OPF. That section contains: "Documents leading to a formal action but not constituting a record of such action..."

Memorandum by Xxxxxxx to Xxxxxxx: Xxxxxxx 1988.

This memorandum documents Xxxxxxx response to an official directive. See memorandum dated Xxxxxxx 1988.

Memorandum by Xxxxxxx to Xxxxxxx: Xxxxxxx 1988.

This memorandum reflects management and/or supervisory actions taken in response to a perceived problem regarding time and attendance. See memorandum dated Xxxxxxx 1988.

Letter by Xxxxxxx to Xxxxxxx: xxxxxxxxx 1988.

All documents of the 1988 Promotion Board.

All documents regarding a transfer to Xxxxxxx, xxxxxxx.

All official records related to Xxxxxxx transfer must be kept to reflect the officer's status as of the transfer. The Form PHS-1662 was initiated by the requesting Agency and documents PHS' need for his services at that site. Further, it also documents the availability of a position and funds to pay the officer.

All copies of his leave slips.

These document support the content of the memorandum from Xxxxxxx on Xxxxxxx 1988.

Personnel Order xxxx.xx.

Personnel Order Number xxxxxxx is the official action taken by DCP in response to an Agency's request. It is a lawful order of a superior. Refusal to comply with a lawful order is a basis for disciplinary action. Further, refusal to accept reassignment is grounds for termination during the probationary period. This personnel order documents Xxxxxxx reassignment.

Form PHS 1662-Request for Transfer to Xxxxxxx, Xxxxxxx.

See Personnel Order xxxxxxx.

The above documents include records and reports of personnel actions and supporting data concerning Xxxxxxx appointment and assignment with PHS. Personnel Orders and leave records which affect pay cannot be removed from his OPF. Because these documents support the issuance of orders by giving legal force and effect to such orders, they should remain in his OPF.

Xxxxxxx has failed to provide "clear and convincing evidence" that documents not removed from his OPF are "not accurate, timely, complete, or relevant and necessary to accomplish a departmental function." He has not persuasively rebutted the strong presumption that Xxxxxxx, in his duties as a rating officer, "discharged his duty correctly, lawfully, and in good faith." Since Xxxxxxx has not provided substantial evidence of an existing error or injustice, there is no reason to amend his OPF. The documents in his OPF and those in the administrative file should remain in place.

Further CCPM, Subchapter CC23.7, INSTRUCTION 1, Sections E.2.b and E.5., did not apply to Xxxxxxx because his separation from the Corps had not been involuntary.

Xxxxxxx did not present sufficient evidence to justify correction of his record as he had requested.

Board Action on Officer's Request:

Date of Board Meeting: Xxxxxxx 1995

Board Staff:

Members of the Board:

Ellen Wormser, Executive Director

J. Michael Hamilton, M.D., Chairperson of the Board and Chief, Clinical Investigations

Thomas E. White, Ph.D. Executive Secretary

Findings, Conclusions and Recommendation:

Findings and Conclusions

The Board met on Xxxxxxx 1994, to consider Xxxxxxx request to have certain documents removed from his record and destroyed. It found that he had pursued this matter during the three year time limit allowed for filing an application. The xxx 1991, filing date had been within three years of xxxx 1988, the date of discovery of the injustice. However, a number of documents he asked the Board to consider were missing from the record so the Board was unable to render a recommendation on his request. Xxxxxxx furnished the missing documents enabling the Board to consider his request on Xxxxxxx 1995.

The Board in reviewing Xxxxxxx request was concerned with the validity of the statements contained in the memorandum written by Xxxxxxx. The record indicated that Xxxxxxx had been rated "D"-Well Above Average in 1985, 1986 and 1987 incident to his COER evaluations. The recommendation Xxxxxxx had sent to DCP on Xxxxxxx 1988, recommending that Xxxxxxx be placed in the lowest one third of officers eligible for retention, and Xxxxxxx recommendation on Xxxxxxx 1988, that Xxxxxxx not be considered for retention at the end of his probationary period, had been inconsistent with the performance evaluations he had received during the last three years.

Xxxxxxx had stated that: "his [Xxxxxxx] evaluations over the last three years have been more favorable than deserved, mainly because of repeated attempts to council [sic] and provide positive incentives in hopes that the officer would be more responsive to the goals of the program." The Board considered this use of the performance evaluation system for other than the purpose of evaluating Xxxxxxx performance to have been inappropriate. It also agreed with Xxxxxxx on the assessment of the xxxxxxxxxxxxxx controversy referenced by Xxxxxxx in his memorandum.

The Board considered the merits of allowing Xxxxxxx documents to remain in a file that could not be accessed, except under special circumstances, versus the merits of destroying the documents as he had requested. Most of the documents Xxxxxxx considered detrimental had been placed in a confidential administrative file in the Office of the Director, DCP. However, the Board did not have any knowledge of the circumstances under which such documents could be accessed, or those having a need to know, or how long the file would remain in existence. It recognized that keeping the documents in an administrative file did not provide the same assurance as destroying the documents would, but that destroying the documents might be illegal or detrimental to the interests of the government.

The Board considered several options for filing the documents. These included filing them in an open or sealed DCP administrative file or in an open or sealed Board file or in a sealed file in the Office of the General Counsel, Office of the Secretary. It also considered criteria that should apply to gaining access to files such as availability for legal proceedings, to prospective employers, to promotion boards, for performance evaluations, for completion of medical reports, for appeals to administrative boards, and meeting normal retention requirements.

The Board concluded that the documentation in the record regarding Xxxxxxx performance did not support the recommendations made by Xxxxxxx in his Xxxxxxx 1988, memorandum, and that the interest of justice would be served by placing that memorandum and the resulting documents, excluding his annual leave slips, in a sealed file not directly accessible by DCP personnel.

Recommendation

Therefore:

After consideration of all of the information submitted, the Board recommends that Xxxxxxx request be upheld in part. In order to implement this recommendation, all documents, except his annual leave slips, are to be removed from his record. These documents and those contained in the confidential administrative file in the Office of the Director, DCP, are to be placed in a sealed file maintained in the Office of the General Counsel, Office of the Secretary, accessible under procedures approved by the Board. It also requires that Xxxxxxx have access to his Corps record to enable him to verify that the corrections approved by the Board are implemented. The Addenda include the documents to be removed from the record as a result of the Board's recommendation.

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

If you approve, please sign below.

J. Michael Hamilton, M.D.Chairperson of the Board and Chief, Clinical Investigations Section NCI, Navy Medical Oncology Branch National Institutes of Health

Reviewed and Approved:

I hereby approve the Board recommendation on Xxxxxxx request and correction to his record 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

Date

Attachment: Case Record

Addendum #1

ADDENDA TO FINDINGS, CONCLUSIONS AND RECOMMENDATION

DCP advised the Board on xxxxxxx 1994, that corrective action had been taken to remove the following documents from Xxxxxxx OPF and that they would be retained in a confidential administrative file in the Office of the Director:

Memorandum by Xxxxxxx to DCP: Xxxxxxx 1988.

Memorandum by Xxxxxxx to DCP: Xxxxxxx 1988.

All letters from Xxxxxxx to DCP, including the letters of xxxx xx, 1988, and xxxx xx, 1988, and all letters from DCP to Xxxxxxx.

Note to the Record by Xxxxxx: xxxx xx, 1988.

Letter by Xxxxxxx to Xxxxxxx: Xxxxxxx xx, 1988.

Letter by Xxxxxxx to Director, DCP: xxxxxxx xx, 1988.

Letter from Xxxxxxx to xxxxxxxxxx xxxxxxxx xx xxxx and all exhibits and attachments relating to it and reply to xxxxxxxxxxx xxxxxx from the Director, DCP, dated xxxx xx, 1991.

The above listed documents are to be removed from the administrative file and placed in a sealed file in the Office of the General Counsel, Office of the Secretary.

Addendum #2

DCP did not remove the following documents from Xxxxxxx OPF:

Memorandum by Xxxxxxx (regarding telephone conversation) : Xxxxxxx 1988.

This memorandum documents the Director, DCP's verbal decision to extend Xxxxxxx transfer by one month. It provides the basis for future personnel action.

Memorandum by Xxxxxxx to Xxxxxxx: Xxxxxxx 1988.

This memorandum documents a directive given to Xxxxxxx by his superior. It is the kind of document appropriately placed in the fourth section of the OPF. That section contains: "Documents leading to a formal action but not constituting a record of such action..."

Memorandum by Xxxxxxx to Xxxxxxx: Xxxxxxx 1988.

This memorandum documents Xxxxxxx response to an official directive. See memorandum dated Xxxxxxx 1988.

Memorandum by Xxxxxxx to Xxxxxxx: Xxxxxxx xx, 1988.

This memorandum reflects management and/or supervisory actions taken in response to a perceived problem regarding time and attendance. See memorandum dated Xxxxxxx xx, 1988.

Letter by Xxxxxxx to Xxxxxxx: xxxxxxxxx x, 1988.

All documents of the 1988 Promotion Board.

All documents regarding a transfer to Xxxxxxx, Xxxxxxx.

All official records related to Xxxxxxx transfer must be kept to reflect the officer's status as of the transfer. The Form PHS-1662 was initiated by the requesting Agency and documents PHS' need for his services at that site. Further, it also documents the availability of a position and funds to pay the officer.

All copies of his leave slips.

These document support the content of the memorandum from Xxxxxxx on Xxxxxxx 1988.

Personnel Order xxxxxxx.

Personnel Order Number xxxxxxx is the official action taken by DCP in response to an Agency's request. It is a lawful order of a superior. Refusal to comply with a lawful order is a basis for disciplinary action. Further, refusal to accept reassignment is grounds for termination during the probationary period. This personnel order documents Xxxxxxx reassignment.

Form PHS 1662-Request for Transfer to Xxxxxxx, Xxxxxxx.

See Personnel Order xxxxxxx.

The above listed documents, except annual leave slips, are to be removed from Xxxxxxx record and placed in a sealed file in the Office of the General Counsel, Office of the Secretary.


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.