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Board for Correction Case No. 146-92

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Board for Correction Case No. 146-92

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

Recommendations of the Board for Correction on Request of: xxxxxxx, Case No. 146-92

Requests:

Xxxxxxxxx asked in his application dated Xxxxxxx 1992, (updated Xxxxxxx 1992) that the Board:

  1. Remove the Xxxxxxx 1987, COER from his Official Personnel File (OPF). 

  2. Remove the Xxxxxxx 1987, Billet Description from his OPF. 

  3. Correct his Officer Information Summary (OIS); Promotion Information Report (PIR); and Assignment Preferences, Proficiency in Languages, Education, and Skills (APPLES) Survey.

  4. Remove the Xxxxxxx 1991 COER (Xxxxxxx 1991, Transfer COER) from his OPF. (This COER has been referred to as the Xxxxxxx 1991 COER because the Reviewing Official signed it on Xxxxxxx 1991). 

  5. Promote to the Temporary Grade 0-6 as of 1986.

  6. Grant any other restitution the Board deems appropriate due to prejudice, slander and criminal negligence by the Division of Commissioned Personnel (DCP).

Board Action on Officer's Requests:

Date of Board Meeting: xxxxxx 1994

Board Staff:

Ellen Wormser
Executive Director

Thomas E. White, Ph.D.
Executive Secretary

Members of the Board:

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

Overview

On Xxxxxxx 1988, in response to a prior application, the Board had directed that the following disclaimer be placed in Xxxxxxxxx OPF:

"The members of the Board for Correction find that the negative ratings and recommendations written in Xxxxxxx COERs as of Xxxxxxx, 1986 and Xxxxxxx 1987, by [Xxxxxxx], are aberrations to an otherwise excellent record. Anyone reviewing Xxxxxxx file for any purpose should consider all past evaluations of his performances as well as his most recent evaluation. No opportunities to be considered for promotion should be denied Xxxxxxx because of the negative ratings and recommendations by [Xxxxxxx] or because of his recommendations not to promote Xxxxxxx."

The 1988 Board had supported Xxxxxxxxx contention that there had been an injustice. The disclaimer was intended to correct his record so as to offset the potential impact the low COER ratings and negative recommendations given by Xxxxxxx could have on his possibility of being promoted. The current case is a follow-on of the original case, brought about by xxxxx Xxxxxxx claim that the pattern of injustice was continuing.

Findings, Conclusions and Recommendations:

Summary

Having considered Xxxxxxxxx current case, the Board was disturbed by the numerous instances throughout his record that showed that several people had seemed to be trying to destroy his career, and that DCP had failed to protect or support him. The Board felt he had been subject to what they termed "career abuse," that Xxxxxxxxx seemed to have been targeted for removal from the Corps or for being put in a situation so difficult that he would resign. "The result was an unjust effort to sabotage this person's career," they concluded.

Overall, Xxxxxxxxx appeared to have performed commendably throughout most of his career. For 15 of the 18 rating periods for which there was documentation in the record, he received excellent or outstanding ratings and was recommended for promotion. If one excludes the COER's at issue in this case, which the 1988 Board had suggested doing, via the disclaimer route, it was difficult for the 1994 Board to understand why he, alone of approximately 100 xxxxx, had not been promoted since Xxxxxxx 1981, when he was promoted to the Temporary Grade 0-5. (one possible reason in the record is that after this promotion, Xxxxxxxxx filed a Class Action Suit in Xxxxxxx 1981 in xxxxxx xxxxxxx alleging discrimination by DCP against Xxxxxxxxx in conducting its RIF program. Some officials in the Corps were very unhappy with this action.)

Among the events in his record (not disputed by DCP) that concerned the Board:

he had been allegedly subjected to hostility by DCP and his supervisor for his role in the 1981 Class Action Suit. His record contained references to instances, as discussed below, which reflected a negative attitude towards him in spite of what appeared to have been a very good performance.

he was allegedly denied an appointment as a xxxxxxxxx xxxx xxxxxx for the xxxxxxx xxxxxxx xxxxxx xxxxxx xxxxx participation in xxxxxxx following an allegation by xxxxxxxxx, the xxxxx xxxxxxxxxxx, that he was a xxxxxx xxxxx. He filed an informal complaint on Xxxxxxx 1986, and that was upheld. Xxxxxxx nevertheless remained in a position of authority.

he did not receive mandatory counseling after receiving "B" ratings Xxxxxxx 1986, and Xxxxxxx 1987, on COERS which had been at issue.

he was told in Xxxxxxx 1986 that he had allegedly been denied two jobs after selecting officials called Xxxxxxx and allegedly received negative recommendations on him causing them to change their minds about hiring him.

DCP had not changed his billet after this had been recommended bya grievance examiner (in Xxxxxxx 1987); counseled him to improve his skills, or assigned him to another billet after this had been recommended by the Promotion-Assimilation Board (Xxxxxxx 1987). Nor was there any explanation by DCP in his record or Advisory Opinion as to why he had been placed in a Temporary Grade 0-4 billet in 1991.

the activities of the xxxxx 1987 Promotion Board. Because the members included his former supervisor who had given him two marginal COERs, and had not recommended him for promotion, there had been a conflict of interest when considering his promotion.

the disclaimer authorized by the 1988 Board for Correction had not effectively corrected his record because it had not been placed in front of his affected COERs. Promotion Boards had viewed his low 1987 COER ratings and negative recoImnendations by his supervisor without the offset intended by that Board.

DCP did not send his records to the 1991 Promotion Board because of the downgrade in billet classification although there was a DCP policy allowing an officer to be considered without regard to billet rating. He considered DCP to have violated its own policy by removing him from the 1991 Promotion Cycle.

he had received no assistance from DCP on how to improve his records so as to receive more favorable consideration by Promotion Boards even though at least one Promotion Board had recommended that DCP do so.

1. Remove the Xxxxxxx 1987, COER from his Official Personnel File (OPF).

DCP argued that they had complied with the intent of the 1988 Board by placing the disclaimer in chronological order in Xxxxxxxxx OPF. That Board had only asked that the disclaimer be placed in his OPF, not that it be placed in front of his Xxxxxxx 1987, COER. Further, DCP argued that placement of the disclaimer had not been the reason why Xxxxxxxxx had not been promoted.

The Board agreed with Xxxxxxxxx argument that because DCP did not place the disclaimer in front of his Xxxxxxx 1987, COER, it had probably not been seen by Promotion Board members. The record indicated that Xxxxxxxxx supervisor, who searched the OPF in Xxxxxxx 1991, had been unable to locate the disclaimer.

The Board concluded that it had been likely that the Promotion Boards had the same problem. Furthermore, they all agreed that had they been members of the 1988 Board recommending the disclaimer, they would not even have thought to specify where it should have been placed in the record, as it so obviously should have been adjacent to the COER in question.

Recommendation

That Xxxxxxxxx Xxxxxxx 1986, and Xxxxxxx 1987, COERs and Xxxxxxx 1988, disclaimer be removed from his OPF (the Board exercised its authority to make an officer whole, after discovering an injustice, in recommending that his Xxxxxxx 1986, and Xxxxxxx 1988, disclaimer also be removed from his record.) Implementation of this recommendation requires that his record be sanitized to expunge these documents and all related documents from his OPF, OIS, PIR, APPLES and from any other records in which they may be located.

2. Remove the Xxxxx 1987, Billet Description from his OPP.

DCP argued that the Xxxxxxx 1987, billet description had not been placed in Xxxxxxxxx OPF and, therefore, was not available to Promotion Boards.

The Board agreed with Xxxxxxxxx. He had been assigned to a xxxxxxx xxxxxx xxxx (0-5 billet) Xxxxxxx 1980, and then was reassigned to an xxxxxxx xxxx (non-supervisory 0-5 billet) from Xxxxxxx 1987, to xxxx 1987. He had been placed in the non-supervisory billet at the request of xx, but there was no explanation in the record as to why xxx made this request (since neither his place of employment, supervisor or duties had been changed. He had no discussion with his supervisor about his billet but continued to sign leave slips as a supervisor.) The Board assumed that the reassignment was in reaction to the COER at issue at that time.

The Xxxxxxx 1987, billet description had been placed in Xxxxxxxxx OIS, and was available to Promotion Boards, since the OIS was part of the documentation sent to them. Further, the billet evidenced a decline in career progression that was detrimental to his promotional opportunities. The billet was a negative factor since it existed without any explanation as to why Xxxxxxxxx duties had been changed.

The Board concluded that allowing the billet description to remain in Xxxxxxxxx OIS would prejudice future Promotion Boards, and that removal was called for as part of the correction of his record.

Recommendation

That Xxxxxxxxx Xxxxxxx 1987, billet description be removed from his OIS. Implementation of this recommendation requires that his record be sanitized to expunge this document and all related documents from his OIS, PIR, APPLES and from any other records in which it may be located.

3. Correct his Officer Information Summary (OIS) ; Promotion Information Report ( PIR ) ; and Assignment Preferences, Proficiency in Languages, Education, and Skills ( APPLES) Survey.

DCP argued that Xxxxxxxxx, in order to keep his OIS, PIR, and APPLES current, had been free to request and obtain corrections, additions and deletions to his records as could be supported by himself or his OPF. If he had noted errors, he could have requested changes in writing supported by documentation. An article had been published in the Commissioned Corps Bulletin explaining this process.

The Board concluded that this would become a moot issue after removal of the Xxxxxxx 1986, and Xxxxxxx 1987, COERs and Xxxxxxx 1988, disclaimer, and Xxxxxxx 1987, billet description from his records.

Recommendation

That all records pertaining to Xxxxxxxxx career progression and promotability be made current pursuant to the decisions of this Board. Xxxxxxxxx should be involved in the process of making his records current. Implementation of this recommendation requires that his record be sanitized to expunge all documents already recommended for removal and all related documents from his OIS, PIR, APPLES and from any other records in which they may be located. Implementation also requires that he have access to his records to verify that these changes are made.

4. Remove the Xxxxxxx 1991 COBR (Xxxxxxx 1991, Transfer COER) from his OPP.

Xxxxxxxxx questioned why his superiors had completed a COER on him prior to transferring from Xxxxxxx to the xxxxxxxx. He contended that this COER had not been required since Transfer COERs only existed: .. . at the request of the departing officer and [are] solely for his benefit." He argued that he submitted the COER to his supervisor the last week of Xxxxxxx 1991, but was unable to discuss it with him, prior to transferring, due to processing delays at the hospital.

The Board agreed with DCP who argued that CCPM, Subchapter 25.1, Section G, 2, Xxxxxxx 1987, required completion of the Transfer COER prior to leaving. Xxxxxxxxx accepted the position with the xxxxxx xxxxxxx on xxxx 1991. Personnel Orders were issued on Xxxxxxx 1991, transferring him as of Xxxxxxx 1991. However, he did not submit his Transfer COER to his supervisor until Xxxxxxx 1991, allowing little time for his supervisor to review and discuss it with him. Furthermore, he did not rebut or grieve the COER although he disagreed with his evaluation.

The Board concluded that Xxxxxxxxx did not submit sufficient documentation to demonstrate that inclusion of the Xxxxxxx 1991 COER (Xxxxxxx , Transfer COER) in his OPF had been an error or injustice.

Recommendation

The Board recommends that Xxxxxxxxx Xxxxxxx 1991 COER (Xxxxxxx 1991, Transfer COER) not be removed from his OPF.

5. Promote to the Temporary Grade 0-6 as of 1989.

DCP argued that Xxxxxxxxx had been considered for promotion to the Temporary Grade 0-6 since Xxxxxxx 1986, and by all Promotion Boards, except the 1991 Promotion Board. DCP argued further that Xxxxxxxxx had provided no evidence that xxxxxxxxxx ever influenced the Promotion Board in any way or that his non-promotion had been due to a material error or injustice.

The Board reviewed Xxxxxxxxx total record in considering his request for a promotion. It considered the effect of placement of the disclaimer in his OPF on his promotional opportunities which had been the basis for requesting removal of his Xxxxxxx 1987, COER. The Board found that he had progressed through a variety of assignments and had received many Corps and non-PHS awards and recommendations. Since Xxxxxxx 1981, over 80 percent of his COER evaluations had been rated: ?D? Well Above Average or better (removal of his Xxxxxxx 1986, and Xxxxxxx 1987, COERs, based upon the recommendation of this Board would increase his evaluations of: ?D? -Well Above Average or better to over 90 percent).

The Board concluded that Xxxxxxxxx record reflected a commitment to Corps objectives. It also reflected a pattern of events the Board members interpreted as "career abuse." He deserved a promotion to correct the injustices done to him.

Recommendation

That Xxxxxxxxx be promoted to the Temporary Grade 0-6.

Implementation of this recommendation requires issuance of a Personnel Order changing his Temporary Grade from 0-5 to 0-6. Further, the Board recommended that he be authorized to receive retroactive pay and allowances and credit in grade and any other benefits to which entitled. His promotion to the Temporary Grade 0-6 would become effective as of the date when the other recommendations of the 1989 Promotion-Assimilation Board, which recommended that he be promoted, became effective. Implementation of this recommendation also requires that, if a management limitation existed on the number of officers promotable to the Temporary Grade 0-6 in 1989, it be increased by one to provide for the promotion of this officer.

We certify that these recommendations, made in the interest of justice reflect the views and actions taken by the Board on Xxxxxxxxx requests, 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 Xxxxxxxxx requests and that, in addition to applicable statutes, regulations and policies, it has been considered by the Board in arriving at these recommendations.

Finally, we certify that a quorum of Board members was present on Xxxxxxx 1994, when Xxxxxxxxx requests were 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, NIH

Reviewed and Approved:

I hereby approve the recommendations of the Board members on Xxxxxxxxx requests and corrections to his record 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).

Anthony L. Itteilag
Acting Director
Office of Management

Attachment: Case Record