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Board for Correction Case No. 180-96

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Board for Correction Case No. 180-96

109.00 Appointment as Commissioned Officer - Recall to active duty

Recommendation of the Board for Correction on Appeal of: xxxxxxxx, Case No.180-96

xxxxx Appeal for Relief:

xxxxxxx asked the Board to grant him one of the following two options:

Option #1:

  1. Clear any records which reflect substance abuse.
  2. Reverse termination and clear any records which reflect termination.
  3. Promote him to xxxx (0-4) a goal which he had been working towards.
  4. Assign him to the Inactive Reserve.
  5. Grant him a Military ID with an indefinite expiration date.
  6. Grant him the maximum reimbursement possible to help clear his educational loan debt for which interest is accruing and some of which are in default. His education loan, debt was $180,000-$200,000.
  7. Grant him back pay to reflect the bonus he did not receive and the bonuses he would have received, also associated time in grade increases.
  8. Grant him the equivalent of five years pay in the 0-4 category with bonuses and time in grade increases.
  9. Educate administrators in regard to the official substance abuse policy for the Corps.
  10. Extract an apology from the Corps.

or

Option #2

Same as Option 1 above, however, reactivation in place of assignment in the Inactive Reserve.

  1. Place him on administrative leave with pay for a period of less than a year. During this period he will secure a position at an institution of higher learning and pay the creditors to whom he owes money.
  2. Authorize support through 2-3 years of post-graduate study, similar to what he would have received during an xxxxxxxxxxxxx xxxx. Additionally, he is considering obtaining a masters degree in xxxxx xxxxxxxxxxxxxxx. The period of administrative leave will be used to decide between an xxxxx versus a xxxxxxx xxxxx.
  3. Grant him a choice between assignment to the National Institute of Alcohol and Drug Abuse or the Health Care Finance Administration upon completion of post­graduate training.
  4. Grant him no retribution.
  5. A yearly review by the Board for Correction for at least a five year period after his return to active service.
  6. Assimilate him into the Regular Corps.

Summary of xxx Arguments and Documentation:

  1. Xxxxxxx stated that he received a notice from DCP dated xxxxxxx 1994, terminating his commission in the Corps as of xxxxxxx 1994, for failing to disclose a previous history of use of illegal drugs and alcohol prior to his appointment.
  2. He alleged that an administrator obtained his records concerning his use of illegal drugs and alcohol and used that information to terminate his commission. He contended that the official policy of the Corps regarding substance abuse had been violated in terminating his commission.
  3. Xxxxxxx argued that Corps policy limited the use of medical records to medical purposes only and that this policy had been intended to encourage an officer with a substance abuse problem to step forward with the assurance that his substance abuse would not be used against him. The policy did not make exceptions for officers in probationary status like himself.
  4. Xxxxxxx believed that he suffered an injustice from the way in which his medical records had been handled causing him to be terminated from the Corps.

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

  1. The authority to administer the Corps had been delegated to the Director, DCP. This included the authority to make decisions on officer qualifications for commissions and terminating commissions during the probationary period.
  2. DCP had advised officers applying for commissions that: "If you withhold or falsify information about your medical condition, your appointment will be terminated..."
  3. The record documented that Xxxxxxx had used/abused alcohol and illegal substances within a xx year period prior to his call to active duty.
  4. Xxxxxxx failed to disclose his prior use/abuse of alcohol and illegal substances as required when he applied for a commission.
  5. The Corps substance abuse policy did not absolve Xxxxxxx from disciplinary action due to misconduct.
  6. Xxxxxxx voluntarily agreed on xxxxx 1994, to the release of his medical records for the following purposes and others: (a) to determine whether nondisclosure or misconduct issues were relevant to his case and (2) to support the processing of current or planned personnel actions.

Board Action on xxxx Appeal:

Date of Board Meeting: xxxxxxxxx, 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, Conclusion and Recommendations:

Findings

  1. The Board found that Xxxxxxx had used/abused alcohol and illegal substances prior to his call to active duty and that he had not disclosed this information when he applied for a commission.
  2. Failure to disclose the use/abuse of alcohol and illegal substances led to Xxxxxxx termination from the Corps.
  3. The Corps substance abuse policy contained the following provision:

    "When an officer voluntarily seeks assistance from these sources [workplace treatment sources] he/she is assured of total confidentiality; i.e., his/her supervisor will not be informed of these providers without the officer's consent that the officer has sought care."
  4. Xxxxxxx consented to the release of his medical records on Xxxxxxx, 1994, indicating that he had sought care. This release authorized the treatment facility and the Division of Beneficiary Medical Programs to release to the Medical Branch, DCP, copies of all medical records pertaining to his treatment for alcohol and/or substance abuse at the facility from initial evaluation for treatment until formal release from aftercare followup.
  5. The consent to release medical records also authorized the Medical Branch to rerelease to the Director, DCP, information necessary for the accomplishment of administrative responsibilities with which she had been charged. This included making decisions on officer qualifications for commissions and terminating commissions during the probationary period.

Conclusion

The Board concluded that DCP had acted within its authority when they terminated Xxxxxxx commission for not disclosing information about his prior use/abuse of alcohol and illegal substances. This information had been critical to the decision of whether to offer him a commission. It was not learned until after his call to active duty that he had used/abused alcohol and illegal substances. Xxxxxxx provided this information voluntarily when he agreed to the release of his medical records.

Therefore:

Recommendation

After considering all of the documentation received, the Board members recommend that Xxxxxxx request for relief be denied. This requires no correction to his record.

We certify that the above recommendation reflects the views and actions taken by the Board members on Xxxxxxx appeal and that they have concurred in it.

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

Finally, we certify that a quorum of Board members was present on xxxxxx 1996, when Xxxxxxx 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 OncologyBranch, NIH

Reviewed and Approved:

I hereby approve the Board members' recommendation on Xxxxxxx appeal 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.

Lynnda M. Regan
Director
Program Support Center

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.