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Board for Correction Case No. 185-96

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192.00 Pay and Allowances (Includes Allotments of Pay / Allowances / Basic Pay) - Change rank at which appointed

TO: Deputy Assistant Secretary for Program Support

Through:

Nancy E. Ward Date

Executive Director

Board for Correction of PHS Commissioned Corps

Records

FROM: Chairperson

Board for Correction of PHS Commissioned Corps Records

SUBJECT: Board Members' Recommendation and Decision on Appeal of:

XXXX XXXXXXXXX XX XXXXXXX XXXXXX XXXXXXXX Officer, Case Number 185-96

 

I. Relief Requested by Officer

Background:

XXXX XXXXXX was commissioned in the U.S. Army xxxxxxx xxxxxxx xxxxx in 1984. She served xx years in the U.S. Army Reserves (inactive) and was a XXXXX XXXXXXX XXXXXXX XXXXXX XXX XXXXXXXX XXXXXXX XXXX XX the last two years before resigning on XXXXX XX, 1993 to transition to the PHS Commissioned Corps. She was commissioned on xxxxxxx xx, 1993 in the xxxxxx xxxxxxx xxxxxxxx at the Temporary Grade 0-2 (Lieutenant) and the Permanent Grade 0-1.

xxxxx xxxxxx asked the Board for Correction to:

1. Evaluate her work qualifications as presented, and if accepted, change her initial PHS Commissioned Corps appointment to Temporary Grade O-3 effective xxxxxxx xx, 1993, and her Permanent Grade to O-3 at the earliest allowable date according to INSTRUCTION 4, CCPM CC23.3 (1991) or such other regulation as may apply.

She also asked the Board to treat her Bachelor of Science (BS) degree in xxxxxxxxxxx as her qualifying degree for xxxxxx xxxxxxxx xxxxxxx. She anticipated that changing her qualifying degree would result in a change in her training and experience (T&E) credits. Her grade adjustment would be to O-4 and her credits to O-5, making her commensurate with those of her PHS and xxxx xx xxxxxxx peers with over xx years of service.

Certify acceptance by Division of Commissioned Personnel (DCP) of her academic qualifications. This would allow her professional category to be changed from the xxxxxx xxxxxxxx xxxxxxxx to the xxxxxxxxxx xxxxxxxx. (Withdrawn).

Allow her T&E credit for her academic time of nearly a year of graduate work at the University xx xxxxxxxxxx. (Remains).

2. Authorize retroactive pay and allowances commensurate with a change in her pay grade as of the time of her entry into the PHS Commissioned Corps.

3. Apply xxx months spent as a xxxxxxx xxxxxxxxxx xxxxxxxx civilian employee to her PHS Commissioned Corps retirement, if applicable, and apply military time as permitted by 42 U.S.C. 212 and INSTRUCTIONS 1 and 5, CCPM CC 23.8 (10/29/81) and (8/7/86).

4. Certify by INSTRUCTION 4, CCPM CC 23.3, Exhibit VI, Training, that her Masters in Public Health (MPH) degree qualified her for Regular Corps assimilation in the xxxxxxxxxxx category. (Withdrawn as moot; following her nomination for assimilation in the xxxxxx xxxxxxxx xxxxxxxx).

5. Allow her to be transferred to the PHS Inactive-Ready Reserves or Early Commissioning Program as an 0-3 effective xxxxx xx. 1993 to cover a six month break in service from her resignation from the U.S. Army Reserves to her appointment in the PHS Commissioned Corps.

II. Summary Arguments by Officer

Appointment/Pay Grade at Call to Active Duty

xxxx xxxxxx argued through her attorney (s) that she should have received T&E credit for her work experience prior to receiving her MPH degree in 1993. Allowing her additional credit would have enhanced her chance of being appointed at a higher grade.

1. DCP determined that her work experience prior to receipt of her MPH (her qualifying degree for appointment in the xxxxxx xxxxxxxx xxxxxxxx) did not count towards calculation of her T&E credit for appointment in the xxxxxxx xxxxxxxx xxxxxxxx.

2. xxxxx xxxxxxx argued that the duties she performed, as an Army Reserve xxxxx xxxxxx xxxxxxx, xxxxxx and xxxxxxxxx, were similar to those performed by officers in the xxxxxxx xxxxxxxx xxxxxxxx and should have been counted in calculating her T&E credit.

3. She had served as a xxx xxxxxxxxx at xxx prior to her appointment in the PHS Commissioned Corps. She argued that her position as a xxx xxxxxxxx was equivalent in grade to an 0-3 officer in the PHS Commissioned Corps and should have counted.

4. Finally, she argued that her BS degree in xxxxxxxx and xxxxxxxxxx were acceptable for commissioning in the PHS Commissioned Corps and should have been counted.

Inter-service Transfer/PHS Recruiter

xxxx xxxxxx believed she would have been able to retain her grade and seniority upon her transition to the PHS Commissioned Corps had she known about and been able to obtain an inter-service transfer. She stated that:

1. xxxxxx xxxxxxxxx x xxxxx, whom she described as a PHS recruiter, advised her to resign her commission in the U.S. Army Reserves before seeking a commission in the PHS Commissioned Corps. In reliance on that advice she resigned her commission on xxxxx xx, 1993.

2. xxxx xxxx did not tell her about her need for a conditional release. xxxx xxxxxx said she learned that if she had obtained a conditional release and then applied for an inter-service transfer she would likely have retained her grade and seniority upon being commissioned.

3. She argued that as a reserve officer (inactive) she was not precluded by the regulations from obtaining a conditional release and seeking an inter-service transfer.

4. She asked the Board for Correction to find her entitled to an inter-service transfer.

Degree in xxxxxxxxxxxx as Qualifying Degree

xxxxx xxxxxx asked the Board for Correction to change her speciality in the xxxxxxxxx xxxxxxx xxxxxxx from xxxxxx xxxx xxxxxxxxxxxxx to xxxxxxxxxxxx based on her BS degree in xxxxxxxxxxxx. This would allow her additional credit because a BS degree in xxxxxxxxxxxxx qualified an officer for appointment in the xxxxxxx xxxxxxxx xxxxxxxx. She argued that:

1. INSTRUCTION 4, Exhibit XI (7/25/91), which governed appointments in the Health Services Category, allowed officers with BS degrees in xxxxxxxxxxxx to receive PHS commissions.

2. The same INSTRUCTION also allowed the work experiences obtained by officers after receiving their BS degrees in xxxxxxxxxxxx to be creditable towards appointments in the xxxxx xxxxxxxxx Category.

Appointment as xxxxxxxxxxxx

xxxx xxxxxx withdrew her request for an appointment in the xxxxxxxxxxx Category.

She requested credit for graduate study completed during the period from 1984-1985 at the University xxxxxxxxxxx. She argued that INSTRUCTION 4, CCPM CC23.3 allowed her to receive credit for this period incident to being appointed in the xxxxxx xxxxxxx Category as a xxxxxxxxxxxx.

Adjustment in Pay and Allowances

xxxxxxx xxxxxxx requested an adjustment in her pay and allowances following a Board for Correction determination changing her grade upon call to active duty in the PHS Commissioned Corps from 0-2 to 0-3.

Retirement Credit Date

xxxxx xxxxxxx argued that she should have received retirement credit in the PHS Commissioned Corps for civil service employment at xxx and for her service in the U.S. Army Reserves:

1. INSTRUCTION 1, CCPM CC23.8 (10/29/81) entitled her to retirement credit for the time she was employed as a xxx xxxxxxx xxxxxxx xxxxxxxxx xx xxx because it was comparable to service performed by a PHS Commissioned Corps officer. Creditable service for retirement credit included any PHS employment after receipt of a baccalaureate degree in a professional position (GS-5 grade level and above).

2. 42 U.S.C. 212 and 10 U.S.C. 12732-33 entitled her to full retirement credit for her xxxActive Duty time and her xxx Active Reserve Drills.

Regular Corps Assimilation

xxxx xxxxxx withdrew her request for assimilation in the xxxxxxxxxx Category as moot following her nomination for appointment in the xxxxxx xxxxxxxx xxxxxxxx..

Early Commissioning Program

xxxxx xxxxxx asked the Board for Correction to transfer her from the U.S. Army Reserves to the PHS Inactive-Ready Reserve or Early Commissioning Program as an 0-3 effective xxxxx xx, 1993 to cover the six month break in service from her resignation from the U.S. Army Reserves to her commission in the PHS Commissioned Corps.

III. Summary Arguments by Division of Commissioned Personnel (DCP)

DCP stated that:

Appointment/Pay Grade at Call to Active Duty

1. xxxx xxxxxx was correctly appointed in the xxxxxx xxxxxxxx xxxxxxxx as an 0-2 after receiving a MPH degree from the Uniformed Services University of the Health Sciences. The HSO Appointment Board considered her accumulated education, training and experience at that time.

2. The HSO Appointment Board relied on INSTRUCTION 4, CCPM CC23.3 and Exhibit XI (7/25/91) in granting her four years of T&E credit for her BS degree in xxxxxxxxxxx and one year credit for her Masters in Public Health. She was not given credit for her graduate work at the University xxxxxxxxxx because the MPH was her qualifying degree and because that graduate work preceded completion of her Masters degree.

3. The HSO Appointment Board did not give her credit for her experience as a xxxxxx xxxxxxxx xxxxxxxxx xxxxxxx xxxxxxx U.S. Army Reserves, because that experience predated receipt of her MPH and, therefore, was not creditable for appointment in the xxxxxx xxxxxxxx xxxxxxxx.. Also, PHS did not appoint xxxxxxxx xxxxxxxxxx. Their duties did not equate with an officer holding a Masters degree.

Inter-service Transfer/PHS Recruiter

1. xxxx xxxx denied advising her to resign her commission in the U.S. Army Reserves.

2. The 1993 Application Instructions and the Application Form SF-50 required xxxx xxxxxx to submit a conditional release incident to applying for a commission and as the first step towards applying for an inter-service transfer.

3. Her grade when commissioned would not have changed had she received a conditional release and an inter-service transfer because she did not qualify for an appointment in the xxxxxx xxxxxxx xxxxxxx until she completed her Masters degree.

4. xxxx xxxxxx would not have qualified for an inter-service transfer because she was not on extended active duty when she applied for a commission. She also would not have been able to qualify because she changed categories upon transferring to the PHS Commissioned Corps. Her category in the U.S. Army Reserves was xxxxx xxxxxxx xxxxxxx; her category in the PHS was the xxxxxx xxxxxxx xxxxxxxx.

Degree in xxxxxxxxxxx as Qualifying Degree

1. PHS did not have a requirement for a xxxxxxxxxxxx holding a Bachelors degree.

2. Her degree in xxxxxxxxxxxx would have been creditable towards an appointment in the xxxxxx xxxxxxxx xxxxxxxx only if there had been a documented need for an officer in this specialty. There was no documented need for such an officer.

3. Her documents from the University xxxxxxxxx did not indicate she had been in the upper third of her class as required by the Appointment Standards.

4. Her request to change her qualifying degree from MPH to BS degree in xxxxxxxxx was sent to the HSO Appointment Board and denied.

Appointment as xxxxxxxxxxx

No error or injustice existed in xxxxx xxxxxxx service record with regard to denial of an appointment in the xxxxxxxxx category. She was disqualified because she did not meet the two year experience requirement. This issue became moot on xxxxxx xx, 1999 when her request was rescinded.

Her graduate work at the University xxxxxxxxxx was not creditable for T&E or for appointment in the xxxxxxx xxxxxxx xxxxxxxx because a Master's degree in xxxxxxxxxxxxx was not a qualifying degree under normal circumstances without a documented need for an officer with this qualification. It also predated her Masters Degree in Public Health.

Adjustment in Pay and Allowances

Because there was no error or injustice in calculating xxxx xxxxxxx entry grade, no adjustment in pay and allowances was warranted.

Retirement Credit Date

1. xxxx xxxxxx was not given retirement credit for civil service time at xxx because that service was determined not to be comparable to service performed by a commissioned officer.

2. She was given 7 months, 28 days retirement credit for her xxxxxx xxxxxxx in the U.S. Army.

Regular Corps Assimilation

xxxxxxxx withdrew her request to change her professional category from the xxxxxxxx xxxxxxx xxxxxx to the xxxxxxxx Category. Her request for the Board for Correction to certify that her MPH degree qualified her for Regular Corps assimilation in the xxxxxxxxx category became moot (she was later nominated for assimilation in the xxxxxxxx xxxxxxxx xxxxxxxx.

Early Commissioning Program

1. xxxx xxxxxx did not apply for the Early Commissioning Program.

2. She could not have been commissioned in the program because she already held a commission.

IV. Board Action on xxxxxx xxxxxxxx Request

Date of Board Meeting: xxxxxxx x, 2002

Board Staff: Members of the Board:

Nancy E. Ward David L. Shorts

Director Chairperson of the Board and

Human Resources Service Director

and Executive Director Office of Equal Employment Opportunity and

Board for Correction of Civil Rights Staff

PHS Commissioned Corps Administration for Children and

Records Families, OS

Thomas E. White, Ph.D. xxxxxxxx xxxxxxxx

Executive Secretary xxxxxx xxxxxxxx xxxxxxx

Board for Correction of xxxxxxx xx xxx xxxxx xxxxxxxxx

PHS Commissioned Corps

Records

xxxxxx xxxxxxxx

xxxxxxx

 

Findings:

Appointment/Pay Grade at Call to Active Duty

Upon being commissioned in the PHS Commissioned Corps, xxxx xxxxxx was appointed in the xxxxxx xxxxxxx xxxxxxx in accordance with INSTRUCTION 4, CCPM C23.3 (1991) (Exhibit XI). The HSO Appointment Board considered her prior training and experience as a xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxx, while in the U.S. Army Reserves, in making its determination. She qualified for appointment at the 0-2 grade based on her MPH degree. The HSO Appointment Board determined that her training and experience prior to receiving her MPH degree was not qualifying for appointment in the xxxxxxx xxxxxxxx Category.

The Board for Correction accepted the HSO Appointment Board's determination.

Inter-service Transfer/PHS Recruiter

xxxx xxxxxx argued that she could have retained her 0-3 grade when appointed to the PHS Commissioned Corps had known about the conditional release and inter-service transfer. The Board found that she did not qualify for an inter-service transfer because she was not on extended active duty when she applied for appointment and she changed her professional category. An inter-service transfer also would not have saved her grade and seniority because she did not have a Masters degree in a health-related speciality.

Degree in xxxxxxxxxxx as Qualifying Degree

xxxx xxxxxx argued that she should have been appointed as a xxxxxxxxx. DCP convened a second Appointment Board to review her qualifications for appointment as a xxxxxxxxxx. In order to grant her xxxxxx request, the HSO Appointment Board had to change her qualifying degree from MPH to BS degree in xxxxxxxxxx. The HSO Appointment Board denied her request after considering: (a) she already held a Master's degree in a professional health-related speciality, (b) she had qualified for an appointment in a speciality in the xxxxx xxxxxx Category and (c) there was no long-term documented need for an officer with a BS degree in xxxxxxxxxx. The record also did not document that she had been in the upper third of her class as required by the Appointment Standards.

The Board for Correction accepted the HSO Appointment Board's determination.

Appointment as xxxxxxxxx

xxxx xxxxx withdrew her request to change her professional category from the xxxxxx xxxxxx Category to the xxxxxxxx Category. The Board for Correction did not consider this request.

She asked the Board to grant her T&E credit for graduate work at the University xxxxxxxxxx during the period from 1984 to1985. The HSO Appointment Board determined that this course work predated her MPH (the qualifying degree for her appointment to the xxxxxx xxxxxx Category) and was not creditable.

The Board for Correction accepted the HSO Appointment Board's determination.

Adjustment in Pay and Allowances

The Board for Correction found that xxxx xxxxxx appointment and pay grade when called to active duty did not warrant an adjustment in her pay and allowances.

Retirement Credit Date

xxxx xxxxxx asked the Board for Correction to allow her retirement credit for her time as a civilian at xxx and her military time (in the U.S. Army Reserves). She argued that her xxx position at xxxx as a xxxxxx met the requirement that the position be a xxx or above. However, the record did not document that while at xxx: (a) she qualified for appointment as a commissioned officer and (b) the position she occupied was equivalent to that held by a commissioned officer as required by the regulations.

The statute required that retirement credit based on service with another Uniformed Service be based "only on active service." Her service in the inactive reserves did not meet this requirement. DCP credited her with 7 months and 28 days for retirement based on her active duty in the U.S. Army.

The Board for Correction found no legal basis for questioning the calculations by DCP of xxxx xxxxxx entitlement to retirement credit for her time at xxx and her time in the U.S. Army.

Regular Corps Assimilation

xxxx xxxxx withdrew her request to change her professional category from the xxxxxx xxxxxx Category to the xxxxxxxx Category. Her request that the Board for Correction certify that her MPH degree qualified her for Regular Corps assimilation in the xxxxxxxx category became moot (she was later nominated for assimilation in the xxxxxxx xxxxxxx Category). The Board did not consider this request.

Early Commissioning Program

xxxxx xxxxxx asked the Board for Correction to transfer her from the U.S. Army Reserves to the PHS Inactive-Ready Reserve or Early Commissioning Program as an 0-3 effective xxxxxx xx, 1993. She could not have been appointed in either the Inactive-Ready Reserve or the Early Commissioning Program as an 0-3 since she was not qualified for that grade (she qualified as an 0-2). The Board dismissed this request.

The Board for Correction recommends that xxxx xxxxx appeal be denied in its entirety.

I certify that the Board members' recommendation reflects their views and actions after considering xxxx xxxxxx appeal and that they have concurred in this matter.

I certify, further, that the Case Record, shown as an Attachment, contains all of the documentation received on xxxx xxxxxx appeal and in addition to applicable statutes, regulations and policies, it was considered by the Board members.

Finally, I certify that a quorum was present on xxxxxxx x, 2002 when xxxx xxxxxxx appeal was considered.

If you approve, please sign below.

David L. Shorts Date

Chairperson of the Board and

Director

Office of Equal Employment Opportunity and

Civil Rights Staff

Administration for Children and

Families, OS

Reviewed and Approved:

I hereby ( ) approve ( ) disapprove the Board members' recommendation on xxxx xxxxx appeal 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), extending to the PHS Commissioned Corps the provisions of 10 U.S.C. 1552.

Mike Blank Date

Deputy Assistant Secretary for Program Support

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.