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Board for Correction Case No. 163-94


Board for Correction Case No. 163-94

199.00 Promotion Program - Promotion to higher grade

Recommendation of the Board for Correction on Request of: Xxxxxxxx, Case No. 163-94

I. Request:

Xxxxxxxx asked the Board to expunge his 1986 COER from his Official Personnel File (OPF} and to promote him to the Temporary Grade 0-6 retroactive to 1988.

II. Summary of Xxxxxxxx Argument and Documentation:

xxxxxx argued that he did not file his application to the Board within the three year time limit because he did not learn about the Board until xxxxxx 1994. Only supervisors in his office had regular access to the Commissioned Officers' Handbook with information about the Board (he had a copy dated 1965). Also, he did not learn until Xxxxxxx 1994 that the allegation he had made about being punished for having given testimony to an xxx officer had been unfounded (see below).

He had rebutted his 1986 COER stating his belief that his 1986 rating and recommendation that he not be promoted had been punishment for the testimony he gave to the xxx officer in xxx 1986 in support of a subordinate employee who had been charged with misconduct. He thought that his 1986 COER had eliminated him from being considered for promotion. Following his failure to be promoted, he wrote to DCP on Xxxx 1992, requesting recommendations on how to improve his record but allegedly received no response.

Xxxxxxx, xxxxxxxxx xxxxxxxxx xxxxxxxxx xxxxxx xxxxxxxxx, wrote to DCP on xxxxx 1993, in support of a promotion for him and assimilation into the Regular Corps. xxxxxx documented many contributions he had made to the goals and objectives of the Public Health Service. The Centers for Disease Control nominated him for the Outstanding Service Medal approved for him on xxxxx 1995.

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

Xxxxxxxx application should be denied because he failed to file within the three year time limit allowed by Board policy after discovery of an error or injustice.

Xxxxxxxx had provided a different explanation for his low 1986 COER in his rebuttal than he had in his application to the Board. In his rebuttal, he mentioned not being allowed to function as a supervisor although he had been evaluated in that role. In his application to the Board, he mentioned the testimony he gave to an xxx officer as the reason for his low COER.

If Xxxxxxxx had thought that his 1986 COER had been retribution for the testimony he gave to an xxx officer, he should have filed an EEO complaint. Such a complaint would have to have shown a connection between the low rating on his 1986 COER, his competitiveness during the 1988 Promotion Cycle, and the alleged Government's offer to reinstate the subordinate employee on whom he had given testimony.

Xxxxxxxx had been considered for promotion to the Temporary Grade 0-6 since 1981 and for the Permanent Grade 0-6 since 1984. The various Promotion Boards had consistently recommended him for promotion but he had scored too low to be selected. A promotion to the Permanent Grade 0-6, effective xxxxx 1988, had been reported for him in error. The error had been the result of confusing his score on the reserve officer list with that on the regular officer list. The promotion was retracted after discovery of the error.

Xxxxxxxx provided no evidence to support the allegation that DCP procedures governing the conduct of Promotion Boards had not been followed or that they had been defective. During the period from Xxxx 1992, to Xxxx 1993, suggestions and or recommendations had been given to him on how he could improve his chances for promotion.

IV. Board Action on Xxxxxxx Request:

Date of Board Meeting: xxxxxxxxxxx

Board Staff:

Ellen Wormser
Executive Director

Thomas E. White. Ph.D.
Executive Secretary

Members of the Board:

John Gallivan
Chairperson of the Board and PHS Regulations Officer Office of Health Planning and Evaluation, OASH

V. Findings, Conclusions and Recommendation:


Xxxxxxxx was recommended for promotion in 1984. Two years later, in 1986, he received a "marginal" rating and was not recommended for promotion. The following year, 1987, he received an "exceptional" rating by the same supervisor as in 1986, and was recommended for promotion. He had been considered for a temporary promotion since 1981 and for a permanent promotion since 1984. He was recommended but did not rank high enough to have been selected.


The Board concluded that the interest of justice required considering Xxxxxxx request. It also concluded that his 1986 COER had been an anomaly but that there had been no error or injustice in considering him for promotion.



After consideration of all of the information submitted, the Board recommends that xxxxxx request be upheld in part. His 1986 COER should be removed from his official records.

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 xxxxxx 1995, when Xxxxxxx request was considered.

If you approve, please sign below.

John Gallivan
Chairperson of the Board and PHS Regulations Officer
Office of Health Planning and Evaluation

Reviewed and Approved:

I hereby approve the Board's recommendation on Xxxxxxx request and the 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. Itteirag
Deputy Assistant Secretary for Health
(Management and Budget}

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.