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Board for Correction Case No. 187-96

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Board for Correction Case No. 187-96

124.00 Commissioned Officer Effectiveness Report (COER)-Includes Performance Evaluation - Remove evaluation report

Board Recommendation and Decision on Appeal of: xxxxxxxxxxxxxxxxx Case Number 187-96

Officer's Appeal for Relief:

Xxxxxx xxxxxxx asked the Board to:

Remove his Commissioned Officer's Effectiveness Report (COER), covering the period Xxxx x, 1994 to Xxxxxx xx, 1994, from his Official Personnel File (OPF).

Summary of Officer's Arguments and Documentation:

  1. Xxxx did not have the opportunity to review or sign his COER after it was prepared.
  2. Xxxx eventually received a faxed copy of his COER.
  3. Xxxx did not have the opportunity to discuss his COER with the person who prepared it or to prepare a rebuttal. The promotion board commented negatively on his failure to rebut the COER.
  4. The person who signed his COER was not his rating officer. It seemed to have been prepared as an afterthought.
  5. The COER covered a five month period. However, the person who prepared it did not confer with the supervisor for whom xxxx worked for seven months before completing the COER. Although it covered only part of the year, the promotion board weighed it as if it covered a full year. The board did not have the opportunity to review his performance over the full year.
  6. The COER was not reviewed by the reviewing official because the staff person felt that it was improper to present an unsigned COER to that official.
  7. Upon review of his COER, he disagreed with several ratings and felt they were not based on the facts.
  8. Xxxx attempted to grieve the COER but never received a response from the Division of Commissioned Personnel (DCP).

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

  1. Xxxxxx xxxxxxx failed to provide sufficient evidence of a probable material error or injustice in his record. His allegations are contrary to the facts in the record. Xxxx has failed to provide evidence to overcome the presumption that the COER was appropriate and that procedures were correctly followed. Xxxx has provided insufficient evidence for the Board to conclude that there was a "substantial deficiency" in the COER as required by Chapter 16-00 of the General Administration Manual.
  2. The record indicates that Xxxxxx xxxxxxx received a faxed copy of his COER on xxxxxxx xx, 1995 and signed it on xxx x, 1995.
  3. The record indicates that Xxxxxx xxxxxxx discussed his COER with his rating official, xxx xxxxx xxxx, xxxx xxxx xxx and xxxxxx xxx, xxxx xxxxx xxxxx, and that xxxx had an opportunity to submit to his OPF a rebuttal to his 1994 Transfer COER. There is no evidence in the record indicating that xxxx submitted a rebuttal. Xxxx thus did not take advantage of an opportunity to mitigate any alleged effects of his COER.

    Xxxxxx xxxxxxx submitted a document dated xxxxx xx, 1995 stating: "There are numerous items in the COER which do not reflect correctly the character of my service during the rating period in question."
    1. Ability to get along with others-"I have discussed this item with xxx xxxxx. . . ."
    2. Response to xxxxx-"I have discussed this item with xxx xxxxx...."
    3. Supervisory Skill-"I discussed the rating of x with xx xxxx...."
    4. Growth in Skills, Recommendations for Promotion and Recommendation for Assimilation into the Regular Corps-during this rating period, "I discussed the fact that I received x ratings...."
  4. The record verifies that Xxxxxxx was serving in Xxxxxxxxxxxxxx, xxx, xxxxx xxxxxx xxxxxx, place wxxxxn Xxxxxx xxxxxxx Xxxxxx 1994 COER was prepared. Xxxxxxxxxxx was away attending xxxx xxxx school from xxxxx x, 1994 to Xxxxxx x, 1994.
  5. The Xxxxxx 1994 COER clearly indicates that it was not an annual COER but a transfer COER. Xxxxxx xxxxxxx OPF contains annual COERS for 1994 and 1995. The 1995 COER clearly states that it was for the six month period December 1994 through May 1995.
  6. The record shows that Xxxxxx xxxxxxx signed his original COER on xxxx x, 1995. The record also verifies that the reviewing official xxxx xxx xx xxxxx, xxx of Xxxxxxx, signed his COER on xxxx xx, 1995.
  7. Xxxxxx xxxxxxx indicates that xxxx disagreed with his COER and included a note saying-"see attachment." The attachment to his COER is an elaboration of Part I of the COER. The statement by xxx xxxxxx xxxxxx, xxxx xxxx for the xxx xxx xxxx xxxx, suggesting that there was a rebuttal is inconsistent with Xxxxxx xxxxxxx statements that xxxx filed his grievance directly with DCP and that xxxx was not given an opportunity to file a rebuttal.

    The xxx xxxx provided documentation to support Xxxxxx xxxxxxx's ratings for Xxx x, 1994 to Xxxxxx x, 1994. The results indicate that while Xxxxxx xxxxxxx was not involved with the tampering of controlled substances, it confirmed that xxxx was in charge of the clinic pharmacy to which xxxx had been assigned. The investigation documents deficiencies in record keeping, controlled substance access and dispensing. xxx xxxxx confirmed that Xxxxxx xxxxxxx's COER truthfully conveyed the difficulties xxxx experienced during the period in question.
  8. Neither DCP nor the xxxx xxx has a record of receiving a grievance from Xxxxxx xxxxxxx. The National Institutes of Health (NIH) has no record of a grievance in his Station File.

Board Action on Officer's Appeal:

Date of Board Meeting: xxxx xx, 1998

Board Staff:

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

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

Members of the Board:

Max R. Lum, Ed.D. Chairperson of the Board and Associate Director for Health Communications, NIOSH


Findings. Conclusions. Recommendation
:

Findings:

  1. Xxxxxx xxxxxxx argued that xxxx did not have the opportunity to review or sign his 1994 COER. The COER was a Permanent Change of Station (PCS) COER from Xxx x, 1994 to Xxxxxx xx, 1994. Xxxx submitted it to his supervisor, Xxxxxxx, on Xxxxxx x, 1994. Xxxxxxxxxxx was Xxxxxx xxxxxxx's regular supervisor and rating officer. Xxxxxxx completed the COER in Xxxxxxxxxxx absence. Xxxx rated Xxxxxx xxxxxxx's overall performance as "well above average." Xxxxxx xxxxxxx signed on xxx xx, 1995.

  2. DCP stated that the COER Xxxxxx xxxxxxx received on xxxxxxx x, 1995 was a faxed copy (after returning from his detail to the xxxx xxxx on Xxxxxx x, 1994). According to Manual Circular #349, page 3(b) (1), only the original copy of a COER could be sent to DCP. Xxxxxx xxxxxxx cited xxxx xxxxxx as saying: wxxxxn Xxxxxx xxxxxxx's COER came to him, it did not bear his signature, so xxxx did not forward it to the reviewing official.

  3. Xxxxxx xxxxxxx argued that xxxx did not have the opportunity to discuss his COER with the person who prepared it or to prepare a rebuttal, and that the promotion board commented negatively on his failure to rebut his COER. Wxxxxn Xxxxxx xxxxxxx received his COER on xxxxxx xx, 1995, xxxx was working for xxxxxx xxxx, xxxxxxxxxx xxxxx, xxx xxxxxx xxxx. The record indicated that xxxx discussed his disagreements with Xxxxxxx although xxxx was no longer on detail to the xxxx xxxx. As a rebuttal xxxx attached a statement to his COER for submission to DCP, further explaining his duties and accomplishments. Xxxxxxxxxxx remembered on xxxx xx, 1998 that Xxxxxx xxxxxxx submitted a rebuttal.

  4. Xxxxxx xxxxxxx argued that the person who signed his COER was not his rating officer. xxx xxxx xxxxx, xxx Xxxxalth xxxxxxxx xxxx, completed a COER on Xxxxxx xxxxxxx from Xxx x, 1993 to Xxx x, 1994. Xxxx retired on xxxxxxxxx xx, 1994. Xxxxxxxxxxx replaced xxx xxxx on xxxx xx, 1994. Xxxx was Xxxxxx xxxxxxx supervisor and rating officer until xxxx left to attend school. Xxxxxxx became acting supervisor and rating officer from Xxx x, 1994 to xxxxxx x, 1994.

  5. Xxxxxx xxxxxxx argued that his COER covered only a five month period and that the person who prepared it did not confer with the supervisor for whom xxxx had worked for seven months. The COER completed by Xxxxxxx was from Xxx x, 1994 to Xxxxxx x, 1994. Xxxxxxxxxxx was at school from xxxxx x, 1994 to Xxxxxx x, 1994. According to Manual Circular #349, page 5(3), Xxxxxxx should have sought input from Xxxxxxxxxxx since xxxx was available during part of the year. Xxxxxx xxxxxxx OPF contained annual 1994 and 1995 COERS which augmented evaluations of his performance.

  6. Xxxxxx xxxxxxx argued that his COER was not reviewed by the reviewing official. Although Xxxxxxxxxxx said xxxx did not forward his COER to the reviewing official because xxxx had not signed it, the record indicated that xxx xxxx, the reviewing official, eventually received a copy of a COER and signed it on xxx x, 1995.

  7. Xxxxxx xxxxxxx argued that several COER ratings were not based on the facts. DCP provided documentation from the xxxx xxxx to substantiate his ratings.

  8. Xxxxxx xxxxxxx argued that xxxx attempted to grieve his COER but did not receive a response from DCP. The record mentioned two grievances. One was his rebuttal dated xxxxx xx, 1995 (xxxx referred to as a grievance). xxxx rebuttal was prepared as an attachment to his COER for submission to DCP. Xxxxxxxxxxx remembered on Xxxxxxxxx xx, 1997 receiving a grievance from Xxxxxx xxxxxxx to send to DCP.

    The second was a formal grievance also dated xxx xx, 1995. The record did not clarify how much time Xxxxxx xxxxxxx had to file a grievance after returning from the Xxxxxxxxx or whether it should be submitted to DCP due to the lapse of time.

  9. x. xxxx remembered Xxxxxx xxxxxxx giving him a grievance to send to DCP. According to CC25.1, INSTRUCTION 1, page 8(3), "An officer detailed to a non-PHS organization is subject to the personnel policies of the PHS Commissioned Corps regarding his/her COER." xxxxx Xxxxxx xxxxxxx submitted his rebuttal, it was subject to Corps policy and processing since DCP had jurisdiction.

    According to CC26.1, INSTRUCTION 5, page 2(d), "Officers who are detailed to other agencies (including the Xxxxxxxxx) must use the grievance procedure of the agency to which detailed unless the agreement between PHS and the agency to which the officer is detailed specifies otherwise." xxxxxn Xxxxxx xxxxxxx submitted his grievance, it was subject to Xxxxxxxxx policy and processing since the Xxxxxxxxx had jurisdiction. (The record did not indicate that either DCP or the Xxxxxxxxx waived this provision.)

 

Conclusions:

The Board members concluded that:

  1. Xxxxxx xxxxxxx received a 1994 COER on xxxxxxxx x, 1995 and signed it on xxx x, 1995. However, the record did not clarify what happened to the COER Xxxxxx xxxxxxx submitted to Xxxxxxx on Xxxxxx x, 1994 (signing it on the same day). The COER xxxx submitted to his supervisor must have been the original COER since it was part of the package distributed with Manual Circular #349.
  2. Based on information furnished by DCP, the COER Xxxxxx xxxxxxx received on xxxxx xx, 1995 and signed on xx xx, 1995, was a faxed copy instead of the original as intended by Manual Circular #349, page 3b. Xxxxxx xxxxxxx had to receive and sign the original copy in complying with policy and in making sure that an official copy was on file. The Board members could not determine whether the copy on file was official or not (this could have been avoided had a "Certified Original COER" been part of the record).
  3. Xxxxxx xxxxxxx discussed with Xxxxxxx his disagreements with several 1994 ratings xxxx received. Xxxx prepared a rebuttal following his discussions. The rebuttal was dated xxx xx, 1995 as was his formal grievance.
  4. The period covered by Xxxxxx xxxxxxx's COER overlapped wxxxxn Xxxxxxxxxxx could have provided input. There was no indication that the two officers ever discussed Xxxxxx xxxxxxx's performance as Manual Circular #349, page 5(3) intended. Xxxxxx xxxxxxx's annual 1994 COER coupled with his transfer COER provided an overview of his performance.
  5. xxxx xxxxx, the reviewing official, signed Xxxxxx xxxxxxx's COER on xx xx, 1995. The Board members could not determine whether the reviewing official had access to his rebuttal or whether xxxx signed the original copy or a faxed copy.
  6. The issue considered by the Board members dealt with the processing of Xxxxxx xxxxxxx COER, not the ratings xxxx received.
  7. Xxxxxx xxxxxxx rebutted his COER. Xxxx also prepared a formal grievance and addressed it to DCP. The Board members understood that the Xxxxxxxxx had jurisdiction over his grievance (since it involved a matter arising from his detail to the Xxxxxxxxx) and that DCP had jurisdiction over his rebuttal. However, there was no indication that xxxx ever received a response to either his rebuttal or grievance from either DCP or the Xxxxxxxxx.

Recommendation and Correction to the Record:

The Board members recommend that due to irregularities in processing Xxxxxx xxxxxxx 1994 COER, covering the period from Xxx x, 1994 to Xxxxxx x, 1994, it and all documents related to that COER be removed from his Official Personnel File. Xxxx is entitled to review his record to ensure compliance with this recommendation.

We certify that the Board members' recommendation reflects their views and actions after considering Xxxxxx xxxxxxx appeal and that they have concurred in the recommendation.

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

Finally, we certify that a quorum was present on xxxx, 1998 when Xxxxxx xxxxxxx appeal was considered.

If you approve, please sign below.

Max Lum, Ed.D.
Chairperson of the Board and Associate Director for Health Communications, NIOSH

Reviewed and Approved:

I hereby ( ) approve ( ) disapprove the Board members' recommendation on Xxxxxx xxxxxxx appeal received and 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 commissioned corps the provisions of 10 U.S.C. 1552, and authorize the Director, DCP, to correct his record as stipulated. Xxxx is entitled to review his record to ensure compliance with this decision.

Lynnda M. Regan Director
Program Support Center


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.