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Board for Correction Case No. 176-96

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Board for Correction Case No. 176-96

109.00 Appointment as Commissioned Officer - Retroactive interservice transfer

Recommendations of the Board for Correction on Appeal of: xxxxxx, Case No.176-96

Xxxxxx Appeal for Relief:

Xxxxxx appealed to the Board asking it to:

  1. Grant her a retroactive interservice transfer from the Commissioned Corps to the Xxxxxx effective xxx 1993.
  2. Recalculate her special pay.
  3. Grant her payment for her accumulated annual leave.
  4. Remove an Absence Without Leave (AWOL) from her record. Grant her pay and allowances for this period.
  5. Grant her pay and allowances for days worked from Xxx 1, 1993 to Xxx 17, 1993.

Summary of Xxxxxx Arguments and Documentation:

  1. Grant Xxxxxx a retroactive interservice transfer from the Commissioned Corps to the Xxxxxx effective Xxx 1993.

    On Xxx 1992, Xxxxxx submitted Form PHS-1373, "Separation of Commissioned Officer" to the Division of Commissioned Personnel (DCP) requesting an interservice transfer to the Xxxxxx. This Form could be used to request separation or an interservice transfer. She did not indicate when she wanted to transfer. On Xxx 1992, DCP granted her a conditional release of 120 days to complete the transfer. The Xxx confirmed an appointment for her on Xxx 1993. The release expired on Xxx 1992, before her confirmation and before a transfer could be completed.

    Xxxxxx cited an Xxxxxx memorandum advising DCP of the need to extend the release should xxxx confirmation not be completed within 120 days (no copy found in the record). She argued that she did not ask for an extension but planned to do so after confirmation. The Xxxxxx continued to process her confirmation even though the release had expired.

    She argued that on Xxx 1993 (one day after confirmation), she contacted DCP asking what steps to take next. She was allegedly told to submit another Form PHS-1373, a second request for an interservice transfer. She submitted it on Xxx 1993 asking that the transfer be effective Xxx 1993.

    DCP did not extend Xxxxxx initial release or issue a new release upon receipt of the request for an interservice transfer. DCP advised her that a transfer could not be approved because she would have an unpaid payback obligation upon breaking her special pay contract. (The record referred to two contracts, a 1991 contract which was terminated on Xxxxxxx, 1992 when she negotiated her 1993 contract; the latter was a four year contract covering the period from Xxxxxx 1993 through xxxxxxx1996.) When she submitted the request for a transfer, she was under the 1993 contract and would have served about three and one-half months under that contract if she had transferred to the Xxxxxx on Xxx 1993.

    During a conversation with DCP on Xxx 1993, Xxxxxx also was allegedly told that an interservice transfer could not be approved until she met with a "board" and that the board might not meet for another six months. She argued that based on these circumstances, an uncertain date for meeting with a board, and having to report to the Xxxxxx within xx days, she decided to separate from the Corps rather than wait to complete the transfer. She allegedly communicated this decision to DCP during that conversation.

    Xxxxxx argued that when she discussed her payback obligation with DCP, she did not know how much she would owe. She was paid $25,600, excluding taxes and other deductions, on Xxxxx 1993 under her current contract. She knew that she would have to repay part of that amount. The payback obligation had to be satisfied before an interservice transfer could be approved. She argued that as of Xxx 1993 she had not received written notification of the amount of her obligation so, in order to be relieved of that obligation, she returned the full amount ($25,600) and separated from the Corps on Xxx 1993.

  2. Recalculate Xxxxxx special pay.

    This issue involves the special pay paid to Xxxxxx for time served under her current contract. The question is whether her pay should have been calculated on the basis of the contract she was under at the time, or on the basis of the contract she ended when she negotiated her current contract. The way in which her special pay should have been calculated became an issue when she broke her current contract. She argued that her motivation in negotiating that contract had been influenced by the fact that the Xxx had not yet confirmed an appointment for her and that she had no idea of when she would leave the Corps. She did not want to be without a contract. She argued that she continued to seek an interservice transfer as late as Xxx 1993 when her second request was submitted.

    Xxxxxx argued that when she signed her current contract, she had no problem in signing it prior to transferring to the Xxxxxx because she expected to pay back a pro-rata share and fulfill her service obligation while in the Xxxxxx. She interpreted xxxxx as allowing her to complete an interservice transfer while under a special pay contract and count active duty completed in the Xxxxxx towards her service obligation. She saw this as possible since the special pay for which she had been eligible as a Corps officer also had been available to members of the other uniformed services. No one advised her that this was an improper thing to do.

    Xxxxxx appealed the special pay paid to her because it had been calculated on the basis of the 1991 contract she ended (which paid a lower rate) rather than on the basis of the 1993 contract she was under at the time. DCP paid her $6,396.60, excluding taxes and other deductions and 11 days AWOL, for time served from Xxxxxx 1993 to Xxx 1993. She asked the Board to reimburse her for the difference payable under the two contracts, because she transferred to the Xxxxxx without a break in service, and because she continued to serve under a special pay contract.

  3. Grant Xxxxxx payment for her accumulated annual leave.

    Xxxxxx was not paid for xx days of unused annual leave. She argued that this leave had been rightfully earned and should not have been denied.

  4. Remove an AWOL from Xxxxxx record. Grant her pay and allowances for this period.

    Xxxxxx argued that during her Xxx 1993 conversation with DCP, she was informed that she could riot take terminal leave. She contended that she interpreted this to mean that she could not take leave during the period between separating from the Corps and reporting for duty with the Xxxxx (assuming no break in service). The Regional Health Administrator approved annual leave for her on Xxx 1993 covering the period from Xxx 1993 to Xxx 1993 while still on active duty. After going on leave she was told to return to work. She did so. She was placed on AWOL from Xxx 1993 to Xxx 1993.

    She argued that when she applied for leave, and when her leave was approved, she had no reason to believe that her interservice transfer would not be approved or that she would have to separate from the Corps causing a break in her contract. She did not know that DCP would not grant her a conditional release following submission of her second request for transfer.

    Xxxxxx argued further that she took leave in accordance with XXXXX, D.9 which she interpreted as saying that leave taken following submission of Form PHS-1373, requesting an interservice transfer, was not terminal but annual leave. She submitted Form PHS-1373 on Xxx 1993 and took leave beginning Xxx 1993. According to the Commissioned Officer's Handbook, terminal leave had to be approved before submitting Form PHS-1373. Her leave was approved on Xxx 1993 after she submitted Form PHS-1373. 

  5. Grant Xxxxxx pay and allowances for days worked from Xxx 1993 to Xxx 1993.

    Xxxxxx argued that she was not paid for days worked from Xxx 1993 to Xxx 1993 and that this could be verified from her Statement of Earnings and Deductions. Of the days she allegedly worked and was not paid, three of them were from Xxx 1993 to Xxx 1993, when she had been declared to be AWOL. Based upon days worked, she believed that she should have been paid from Xxx 1993 to Xxx 1993 (13 days), as she returned to work during that period.

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

  1. Grant Xxxxxx a retroactive interservice transfer from the Commissioned Corps to the Xxxxxx effective Xxx 1993.

    DCP acknowledged that following submission of Form PHS-1373 on Xxx 1992 a conditional release was approved on Xxx 1992 allowing Xxxxxx 120 days to complete an interservice transfer. She did not complete the transfer by that time. DCP concluded that she did not do so because she had not received Xxx confirmation of an appointment.

    Xxxxxx second request for an interservice transfer was received on Xxx 1993. This request did not comply with DCP policy requiring that it be received not later than 60 days before the transfer date. When she submitted the second request, she was under a 1993 contract. DCP argued that they informed her on Xxx 1993 that she would be divested of her unused annual leave if she transferred before completing her contract, and that a transfer could not be approved while she was indebted for the unfulfilled portion (or while he had a payback obligation). DCP expressed the opinion that she did not negotiate her 1993 contract in good faith since she had no intention of completing it.

    DCP stated that Xxxxxx was not granted an interservice transfer because: (a) she did not have a conditional release, (b) she did not complete her Retention Special Pay (RSP) contract, (c) she did not settle the payback obligation from breaking her 1993 contract, (d) she did not obtain an agreed to release date and (e) PHS had no verification that the Xxxxxx still intended to appoint her and call her to active duty. 

  2. Recalculate Xxxxxx special pay.

    DCP argued that Xxxxxx entitlement to higher special pay had been contingent upon completing her current contract. DCP policy required that, if she should separate before completing her contract, that contract would be voided and the contract she ended (her 1991 contract) when she entered her 1993 contract would be used as the basis for calculating the special pay she would receive. Her 1991 contract would be considered an extension of her 1993 contract in making this calculation.

    DCP considered Xxxxxx current contract to have been broken on Xxx 1993 when she submitted her second request for an interservice transfer, indicating that she would transfer before completing that contract. Accordingly, the two-year rate in effect on Xxxxxx 1991 under her 1991 contract was used in calculating the amount of special pay she received under her current contract. This resulted in a lower payment.

  3. Grant Xxxxxx payment for her accumulated annual leave.

    DCP argued that since Xxxxxx did not complete her current contract, she was divested of her unused annual leave. She was told this on Xxx 1993 after submitting her second request for an interservice transfer. The XXXXX allowed her to transfer her unused leave to the Xxxxxx provided she completed an interservice transfer. She did not complete a transfer so this provision did not apply. Also, since she had been divested of her leave, she had no leave to transfer or leave for which she could have been compensated. The XXXXX did not allow lump sum leave payments upon transferring to another service.

  4. Remove an AWOL from Xxxxxx record. Grant her pay and allowances for this period.

    DCP argued that XXXXX allowed Xxxxxx to take annual leave if she had been approved for an interservice transfer. She had not been approved for transfer when she applied for leave. She was not approved because of her active duty obligation. She incurred that obligation when she submitted her second request for a transfer indicating that she would transfer before completing her contract.

    Although not approved for transfer, she took leave from Xxx 1993 through Xxx 1993. She was placed on AWOL from Xxx 1993 through Xxx 1993, the dates DCP verified she was not at work.

    DCP argued that she had asked her leave-granting authority to approve leave even though she knew from the Xxx 1992 letter granting her a conditional release, that she could not take terminal leave if she had a payback obligation. DCP had also divested her of her annual leave for breaking her contract meaning that she had no leave to use. However, the leave-granting authority did not know this when he approved her leave request.

  5. Grant Xxxxxx pay and allowances for days worked from Xxx 1993 to Xxx 1993.

    DCP argued that Xxxxxx had been AWOL from Xxx 1993 to Xxx 1993. The maximum period for which she could have been paid was from Xxx 1993 to Xxx 1993 (13 days). DCP records indicated that she had been paid and was not entitled to any additional payments.

Board Action on Xxxxxx Appeal:

Date of Board Meeting: xxxxxxx 1996

Board Staff:

Norman E. Prince, Jr.
Staff Director
Program Support Center Acting Executive Director
Board for Correction of PHS Commissioned Corps Records

Thomas E. White, Ph.D.
Human Resources Service Executive Secretary
Board for Correction of PHS Commissioned Corps Records

Members of the Board:

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

Findings. Conclusions and Recommendations:

The Board found with respect to the following:

  1. Grant Xxxxxx a retroactive interservice transfer from the Commissioned Corps to the Xxxxxx effective Xxx 1993.

    The XXXXX contained two policies on how Xxxxxx could have met her service obligation. One policy required that she fulfill her current RSP contract or the current year of her four year contract before transferring. This policy also allowed her to make a pro-rata repayment covering the unfulfilled portion of her contract. The payment had to be made before an interservice transfer could be approved. A second policy allowed active duty performed after completing an interservice transfer to count towards fulfilling an unmet obligation.
  2. Recalculate Xxxxxx special pay.

    When Xxxxxx special pay was calculated, her current contract had been voided in a manner consistent with 37 U.S.C. 302 (f) and CC22.2, allowing the amount paid to her to be calculated on the basis of the appropriate contract.
  3. Grant Xxxxxx payment for her accumulated annual leave.

    DCP policy required that Xxxxxx be divested of her separation entitlements, e.g., unused annual leave, should she separate before completing her contract. The XXXXX, E.f allowed her to be paid for her unused annual leave should she have resigned (provided otherwise eligible) from the Corps.
  4. Remove an AWOL from Xxxxxx record. Grant her pay and allowances for this period.

    The Board found XXXXX, D.9 dealing with leave to have been unclear. It was clear that the policy allowed an officer approved for interservice transfer to take annual leave. It was unclear, however, whether an officer after requesting a transfer could also take annual leave. The policy said that such leave was not terminal leave. It also was unclear whether all officers needed approved transfers before taking any leave. 
  5. Grant Xxxxxx pay and allowances for days worked from Xxx 1993 to Xxx 1993.

    Xxxxxx Earnings and Deductions statement for Xxx 1993 showed her net pay to be $0.00. The statement did not show any pay for days worked or any funds from which she could have been paid. The statement showed a deduction of $3,440.55 for Medical Retention Bonus (MRB).

Conclusions

  1. Grant Xxxxxx a retroactive interservice transfer from the Commissioned Corps to the Xxxxxx effectlve Xxx 1993.

    Xxxxxx had the option of delaying her transfer until her service and/or payback obligations could have been settled. The Xxxxxx was aware of the difficulties she had experienced. They also knew that she was willing to settle her obligations. Because of the commitment the Xxxxxx made in hiring her and in seeking an appointment for her, it seemed reasonable that they would have been willing to change her reporting date. However, with time running out before reporting to the Xxxxxx, separation rather than waiting for an interservice transfer became Xxxxxx preferred alternative. She left the Corps voluntarily.
  2. Recalculate Xxxxxx special pay.

    The Board members agreed with the way DCP calculated the special pay paid to Xxxxxx under her current contract. The calculation was in accordance with applicable policy.
  3. Grant Xxxxxx payment for her accumulated annual leave.

    The Board members considered Xxxxxx to have resigned from the Corps on Xxx 1993, entitling her to payment for her unused annual leave, in accordance with their interpretation of XXXXX, E.f.
  4. Remove an AWOL from Xxxxxx record. Grant her pay and allowances for this period.

    Xxxxxx had approved leave from Xxx 1993 to Xxx 1993, following the date she requested an interservice transfer. She was placed on AWOL from Xxx 1993 through Xxx 1993. The Board members considered her to have taken approved annual leave in accordance with their interpretation of XXXXX, D.9.
  5. Grant Xxxxxx pay and allowances for days worked from Xxx 1993 to Xxx 1993.

    The Board members were not able to determine whether or not Xxxxxx had been paid for the days she worked.

Recommendations

After considering all of the documentation received, the Board members recommended that Xxxxxx appeal for relief be granted in part.

  1. Grant Xxxxxx a retroactive interservice transfer from the Commissioned Corps to the Xxxxxx effective Xxx 1993.

    The Board members determined that Xxxxxx was not treated unjustly because she did not obtain a transfer since she made no effort to change her reporting date. They recommended that her request for a retroactive interservice transfer be denied. This does not require a correction to her record.
  2. Recalculate xxxxxxx special pay.

    The Board members determined that Xxxxxx was not treated unjustly because of the way in which her special pay had been calculated since she did not complete her contract. They recommended that her request for recalculation of the special pay received under her current contract be denied. This does not require a correction to her record.
  3. Grant Xxxxxx payment for her accumulated annual leave.

    The Board members determined that not considering her separation as a resignation under XXXXX, E.F, unjustly denied her pay for her unused annual leave. They recommended that her request for pay for her unused annual leave be upheld. This requires a correction to her record showing that she resigned on Xxx 1993. The Board members recommended that she be paid for her unused annual leave minus leave deducted from Xxx 1993 to Xxx 1993 (xx days) when she had been declared AWOL.
  4. Remove an AWOL from Xxxxxx record. Grant her pay and allowances for this period.

    The Board members determined that not considering her leave under XXXXX, D.9, unjustly caused her to be put on AWOL and lose pay and allowances. They recommended that her request for removal of the AWOL be upheld. This requires a correction to her record changing the period Xxx 1993 to Xxx 1993, (xx days) from AWOL to annual leave, entitling her to pay and allowances for this period, and that this leave be deducted from her unused annual leave balance.
  5. Grant Xxxxxx pay and allowances for days worked from Xxx 1993 to Xxx 1993.

    The Board members determined that the record had been inconclusive as to whether or not she had been paid for the days she worked. They recommended that Xxxxxx request for pay and allowances for days worked from Xxx 1993 to Xxx 1993 be upheld if she has not been paid. DCP is requested to provide verification to the Board if she has been paid.

The Board members also recommended that the Xxx 1993 statement be reviewed for what xxx have been an inappropriate xxx deduction of $3,440.55 and if so, that her pay be adjusted accordingly. The deduction xxx have been inappropriate since she returned the full amount of her 1993 bonus on Xxx 1993 after the Xxx 1993 effective date of the Xxx 1993 statement.

We certify that the above recommendations reflect the views and actions taken by the Board members on Xxxxxx appeal and that they have concurred in them.

We certify, further, that the Case Record, shown as an Attachment, contains all of the documentation received on Xxxxxx appeal; and in addition to applicable statutes, regulations and policies, it was considered by the Board members in arriving at these recommendations.

Finally, we certify that a quorum of Board members was present on xxxxxx 1996, when Xxxxxx appeal was considered.

If you approve, please sign below.

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

Reviewed and Approved:

I hereby approve the Board members' recommendations on Xxxxxx appeal and the corrections to the 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.

Lynnda M. Regan
Director
Program Support Center

Date

Attachment 1: 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.