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Board for Correction Case No. 137-91

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Board for Correction Case No. 137-91

199.00 Promotion Program - Promotion to higher grade

Recommendation of the Board for Correction on Request of: xxxxxx Case No.137-91

I. Request:

Change the date of his promotion to the Temporary Grade 0-5 from Xxx 1992, to either xxxx 1990, or Xxx 1991, with back pay.

II. Summary of Officer's Argument and Documentation:

Xxxxxxx has complained about a number of what he perceived of as administrative errors and miscommunications which had denied him the opportunity to return to the Corps at the same grade he held when separated. He argues that when he applied to reactivate he had inquired about returning at the Temporary Grade 0-5 and as a result, his program manager wrote to the Xxxxxxxxxxxxxx, on his behalf. He argues further that following this on xxxxxxxx 1990, the Director had written a memorandum on his behalf requesting a Special Circumstance Promotion (SCP), but that the official to whom the request had been made did not act on it or explain why he did not do so.

He argues that he had been promotable at the time the SCP request was made and should have been recommended for the Temporary Grade 0-5 based on his record, the short period of time he had been separated, and his continued support of the IHS by serving several short tours of duty to cover staff shortages while separated. He also argues that the decision to table the SCP request had been arbitrary and denied him the opportunity to be considered for the higher grade.

Since he had not been considered for a SCP promotion, he sought promotion by the xxxxxx 1991 Promotion Board. He argues that on xxxxxxx 1991, and on xxxxxxxx 1991, the Xxxxxxxxxxxxxxxx, IHS, had written a memorandum on his behalf requesting assistance because of a change in the rules requiring, as of xxxxx 1991, one year of continuous active duty after reactivation, in order to be considered for promotion. He argues not only that this change in procedure was made after his case was submitted, but also that DCP mistakenly considered this request to be a promotion recommendation and for this reason filed it in his Official Personnel File (OPF) without action. He thought that he had a good chance of being promoted had the Surgeon General been able to consider his case.

He argues that he did not have access to Corps policy regarding the new promotion rule when he applied for reactivation. He also argues that he had not been informed by IHS or PHS of the change and did not learn about it until xxxxx 1991. He had reactivated in xxx 1990 (but could have reactivated earlier) and was about three months short of meeting the one year requirement, causing him to have to wait another year before being considered for promotion to a grade he had previously held and one in which he had served while separated.

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

The Xxxxxxxxxxxxxx, had submitted a memorandum to an IHS official requesting that Xxxxxxx be reactivated at the grade he held when separated. He argues that this memorandum had been a request for a SCP. However, a request for a SCP could only have been made by an Agency or Program Head and had to be accompanied by a justification. Despite the program manager's clear request, DCP had the view that neither the IHS official nor IHS had submitted a request for a SCP on his behalf. For this reason, a SCP had not been processed for him. DCP recalled him at his Permanent Grade 0-4 on xxxx 1990, in accordance with its policy and informed him of this in a telegram dated xxxxx 1990. He accepted that grade and appointment by telegram dated xxxxx 1990.

DCP also feels that the program manager did not owe him an explanation for not going forward with a SCP request. It was a decision by IHS Headquarters staff whether they would request a SCP and under what circumstances. There was no special form for requesting a SCP. It was usually requested by memorandum to the Director, DCP. It was clear that IHS understood this SCP policy.

DCP considered the memorandum by the Xxxxxxxxxxxxxxxx, IHS, regarding the xxx 1991 Promotion Board to have been a promotion recommendation received in the course of the promotion cycle and for this reason placed it in his OPF. Even though the memorandum had been misdirected to his OPF, this had no real effect since Corps policy had not allowed him to be considered for promotion until one year after reactivating. He would not have completed one year until xxxx 1991 (to be considered by the Xxxxxx 1991 Promotion Board, he had to complete this year by xxxxx 1991). DCP had correctly followed its promotion policy with no adverse effects to him. DCP had not committed an administrative error or injustice by not considering the memorandum regarding a promotion since he had not met the service requirement.

The policies and procedures by the Surgeon General to grant a former temporary grade upon recall to extended active duty had not been followed by Xxxxxxx or IHS. The policy had been clear: officers who separate and are recalled to extended active duty are recalled at the permanent grade held upon separation. The only exception had been that provided by a SCP. This had been the policy DCP followed in the case of this officer. The IHS had not requested a SCP for him and existing policy made no provision for granting the request regarding a promotion for him.

To grant his request would create a special exception to the current promotion policy that the Surgeon General had not intended and did not want to exist. In essence, this would amount to the Board establishing Corps policy.

Both DCP and the Surgeon General recommend that the Board refrain from taking action that would undermine Corps policy.

IV. Board Action on Officer's Request:

A. Date of Board Meeting: xxxxx 1993

B. 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:

  1. Facts

    The Board found that:

    1. Xxxxxxx had held the Temporary Grade 0-5 for more than three years before separating from the Corps on Xxx 1989.
    2. He had been separated from the Corps for 11 months before being reactivated on xxxx 1990, at the Permanent Grade 0-4.
    3. While separated he had been reactivated to provide weekend coverage at the Temporary Grade 0-5 during that time.
    4. It had been the desire of the xxxxxxx xxxxxxx, and the Xxxxxxxxxxxxxxxx, IHS, that he receive the Temporary Grade 0-5.
    5. The record had not indicated whether the IHS official to whom the alleged request for a SCP was sent ever received the request and that he has since retired.
    6. He had served at the Permanent Grade 0-4 for nine months by xxxxxx 1991, the date when one year of service had to be completed to be considered for promotion in 1991.
    7. He had been promoted to the Temporary Grade 0-5 Xxx 1992, after reactivating; a grade he had previously held.

The record had been ambiguous as to whether the request by the xxxxxxxxxxxxxxx, had technically been a request for a xxxx which had been denied or mishandled. Likewise, the record had been ambiguous as to whether the request by the Xxxxxxxxxxxxxxxx, IHS, had technically been a request for waiver of the promotion eligibility rules or a promotion endorsement (if the former, it would have required a decision by DCP on whether to add his name to the list of promotion eligibles in 1991).

However, the Board concluded that it had clearly been the intention of Xxxxxxx program managers that he receive the Temporary Grade 0-5, whether or not the proper procedures had been followed and forms completed. He had been promotable at the time the memoranda were written and could have received consideration for the higher grade based on his record, the short period of time he had been separated, and his service in that grade after separation, except for the administrative and communications problems he experienced incident to reactivation. He had held the higher grade for more than three years before separating and had served nine of the 12 months required to be considered for promotion in 1991.

Therefore, the Board concluded that it had been unfair to require him to wait another year before being considered for promotion to a grade he had previously held, one in which he had served while separated, and for which he had been qualified, and one which his supervisors wanted him to have. These factors could justify waiving the additional service requirement.

D. Recommendation:

Accordingly, the Board recommends that Xxxxxxx promotion to the Temporary Grade 0-5, be made retroactive one year earlier. Approval of this recommendation requires that his record be corrected changing his promotion to the Temporary Grade 0-5 from Xxx 1992, to Xxx 1991, and that he receive all pay and allowances to which entitled.

We certify that this recommendation reflects the view and action taken by the Board on his 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 his request and that, in addition to applicable statutes, regulations and policies, it had been considered by the Board in arriving at this recommendation.

Finally, we certify that a quorum of Board members was present on xxx 1993, when his request was 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 recommendation of the Board members on the request of Xxxxxxx 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 Surgeon General/PHS to correct his record as stipulated and issue Personnel Orders changing his promotion to the Temporary Grade 0-5 from Xxx 1992, to Xxx 1991, and authorizing 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.