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Board for Correction Case No. 183-96

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Board for Correction Case No. 183-96

109.00 Appointment as Commissioned Officer - Change rank at which appointed

Recommendation of the Board for Correction on Appeal of: Xxxx x xxxxxx, xxx., Case No.183-96

Xx xxxxxxxxx' Appeal for Relief:

Xx xxxxxxxxx appealed to the Board asking that: His promotion to the Temporary Grade 0-4 be made retroactive to Xxxxxxx xx, 1994, the date of his appointment to the Commissioned Corps. He also asked that all references to his dispute with the Division of Commissioned Corps (DCP) and his subsequent appeal to the Board be removed from his Corps personnel records.

Summary of-Xx xxxxxxxxx' Arguments and Documentation:

In early 1994 he was in private practice as a xxxxxxxxxxxxxxxxxxx. He had a contract with a xx xxxx based HMO to provide services to USAF beneficiaries at xxxx xx xx xx xxxx. He was a member of the USAF inactive reserves.

He applied for an appointment in the Corps. He was interested in a position as a xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx at the 0-4 grade. He contended that he was informed by Xxxx xxxxx of DCP that he would be eligible upon call to active duty as a Permanent Grade 0-3 with a concurrent Temporary Grade 0-4.

On xxxxx xx, 1994 he was informed that he had been selected for an 0-4 position at the xxxxxxxxx. He was offered the position by xxxxxxx xxxxxx of the xxxx xxxx xxxx (xxx) . He informed Xx xxxxxxxxx that unless he received verification that his actual pay-grade would be an 0-4 he could not accept the position. Xx xxxxxxxxx informed him that she would contact DCP to confirm the 0-4 paygrade and rank.

Xx xxxxxxxxx contacted him again on Xxxxx, 1994 reporting on her DCP contact. He contended that she confirmed the pay-grade as an 0-4. He requested written notice of his selection to the position and pay-grade. He accepted the position contingent upon receipt of the notice.

On Xxxxxxx xx-1994 he received.a telephone call from Xx xxxxxxxxx of DCP asking whether he planned to accept or decline the commission for which he was being considered. He accepted the commission. The telephone conversation did not change the understanding he had regarding the position he had been offered or his pay-grade upon call to active duty.

On Xxxxxxx xx, 1994 one workday before beginning his new position he received his personnel orders via FAX from DCP. The orders indicated that his appointment would be at the "PERM GRADE" 0-3. There was no mention of an 0-4 grade. The notification procedure required that he be sent a telegram. DCP had violated its own procedures in processing his commission.

He asked DCP to amend his orders showing Permanent Grade 0-3 with concurrent promotion to Temporary Grade 0-4. DCP did not respond favorably to this request. Following his entry on active duty, he was promoted to the Temporary Grade 0-4 through the Corps competitive process.

He relied on information from XXX to his detriment. He thought he had been offered an 0-4 pay-grade and that he had accepted that grade only to discover that the offer was at the 0-3 pay-grade. Due to the prospect of closing his private practice, he was placed in the position of having to accept a paygrade he would not have otherwise accepted.

As a result of not receiving the 0-4 pay-grade, he lost pay, benefits, career development opportunities, etc. Upholding his appeal would entitle him to additional time in grade and retroactive pay and allowances. The time would allow him to compete more effectively with others in his pay grade having similar Training and Experience (T&E) Dates.

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

Xx xxxxxxxxx' application to the Commissioned Corps and subsequent correspondence regarding his appointment contained no statement/s to the effect that he would not accept an appointment except at the 0-4 grade.

Candidates for appointment to the 0-4 grade were required to have completed 17 years of postgraduate professional training and experience. He had only 13 years of training and experience. He lacked the number of years required for appointment at the 0-4 grade. To have been considered for promotion after appointment, he was required to have completed 12 years of training and experience plus six months of active duty with the PHS in the current tour.

DCP advised him in a letter dated Xxxxx, 1993 that all concerns about processing his application should be addressed to the Transactions and Applications Branch, DCP. This should have alerted him to seek concurrence from DCP on matters he would discuss with XXX.

xxx xxxx of DCP refuted in her affidavit dated xxxx x,1996 and in her memorandum dated Xxxxxxx xx, 1994, the contention that she told him he was eligible for appointment at the 0-4 grade.

DCP personnel asserted that they did not tell XXX that he was eligible for appointment at the 0-4 grade. The grade of an officer upon appointment was subject to statute, regulations and policy considerations. They set the terms and conditions of an appointment. DCP appointed him at the 0-3 grade. XXX offered him a position with an 0-4 billet rating.

The record was inconclusive as to whether an XXX employee told him he would be appointed at the 0-4 grade. The Xxxxx, 1994 letter from xx xxxxxxxx of XXX discussed his selection for an 0-4 position but not his rank or grade upon appointment. When contacted regarding this matter, she did not recall the facts in this case. She indicated, however, that she would have contacted DCP before telling an officer the grade at which he would have been appointed. DCP was not a party to this letter nor was XXX an agent of DCP. XXX employees were not authorized to make offers of appointment to the Commissioned Corps although certain XXX employees were authorized to offer assignments.

xx xxxxxxxxx was on duty on xxxxxx x, 1994 when a claim was made that she was unavailable to advise XXX on his appointment grade. She has no record of receiving a call from XXX asking for verification of his rank upon call to active duty. Based upon the content of his record, anyone responding to a request from XXX would have advised that he was eligible for the 0-3 grade. She did advise him that if his T&E credit was not -changed he could not be appointed at the 0-4 grade. She recalled that this conversation took place before Xxxxx XX, 1994. Therefore, he should have known before receiving his orders on Xxxxxxx X, 1994 that he qualified for appointment only at the 0-3 grade.

DCP believed that he made his decision to close his private practice after receiving the xxxxxx , 1994 letter from Xx xxxxxxxxx. Therefore, xxx xxx mistaken assumption that issues regarding his pay grade had been resolved before her call on Xxxxxxx 2, 1994 had little effect on his decision to close his practice.

His argument that he relied on misinformation and that his acceptance of a commission at the 0-4 grade constituted a legally binding contract had no legal merit. The courts have released the government from being bound by misinformation and misrepresentations by its employees. They also have not recognized contract law in matters regarding military compensation.

Date of Board Meeting: xxxxxx xx, 1996

Board Staff:

Findings. Conclusion and. Recommendations:

Findings

The-record was-inconclusive as to whether Xx xxxxxxxxx received sufficient information on which to make an informed decision regarding acceptance of an appointment. This was because many of the issues involved were discussed on the telephone and information was obtained from individuals who could no longer remember what they said to him or did not have documentation in writing to support the advice they gave him.

Xx xxxxxxxxx, who worked for XXX, was a key participant in the transactions regarding his appointment, but DCP was the final authority on commissioning an officer. The origin of the misunderstanding from the XXX offer was inconclusive. However, there was an indication that, in this particular instance, DCP's control over the commissioning process was not as effective as might have been intended.

The standard for appointment of officers coming into the Corps at the 0-4 grade required 17 years of training and experience. He was given 13 years credit. This made him eligible for appointment at the 0-3 grade.

He accepted an appointment at the 0-3 grade following receipt of personnel orders on Xxxxxxx x, 1994 and reported to active duty on Xxxxxxx xx, 1994.

Conclusion

While the record indicated that the processing of Xx xxxxxxxxx' appointment had not gone as smoothly as had been intended, the question at issue was whether his appointment should have been at the 0-4 grade or at the 0-3 grade. The Board concluded that he did not meet the requirements for appointment at the 0-4 grade. Absent any problems in processing his appointment, the only grade at which he could have been appointed was an 0-3.

Therefore:

Recommendation

After considering all of the information received, the Board members recommend that Xx xxxxxxxxx' appeal 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 Xx xxxxxxxxx' 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 Xx xxxxxxxxx appeal and 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 xx xx, 1996, when Xx xxxxxxxxx' appeal was considered.

Reviewed and Approved:

I hereby approve the Board members' recommendation on Xx xxxxxxxxx' appeal 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.


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.