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Board for Correction Case No. 191-96

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Board for Correction Case No. 191-96

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

Recommendations of the Board for Correction on Appeal of: Xxxxxxxx, xxxx xxxxx, Case No.191-96

Xxxxxxxxxxx Appeal for Relief:

Xxxxxxxxxxx asked the Board to:

  • Remove evaluation by xxxxx xxxxxxxx from his records in xxxxxx and the XXXXX.
  • Remove a letter of reproval and letter of relief of command from all personnel and XXXXX records.
  • Arrange for a legal effort to retrieve his records stolen by xxxx Xxxxxx, xxxxxxxx xxxxxxxx, xxxx from his file at XXXXX.
  • Award him $300,000 for a career cut short by xxxxxx X's lack of investigation and collusion with Xxxxxxxxx.
  • Provide him with a letter of reference written for him from xxxxxx X and the National Health Service Corps (NHSC).
  • Remove his 1996 Commissioned Officer Effectiveness Report (COER) from his file.
  • Protect him as a whistleblower.

Summary of Xxxxxxxxxxx Argument and Documentation:

  1. All disciplinary actions taken against him were based on hearsay as there was no documented evidence in his record to support them.
  2. The disciplinary actions taken against him were punishment for attempting to expose a corrupt and financially mismanaged organization.
  3. That as a whistleblower he should be protected from punitive actions.
  4. The Regional Office staff did not counsel him about any problems with his behavior prior to being punished.

Summary of Division of Commissioned Personnel's (DCP) Arqument and Documentation:

  1. Xxxxxxxxx exhausted, his administrative remedies. filed a grievance which "was fully addressed by the Health Resources and Services Administration (HRSA). 
  2. Pursuant to Commissioned Corps Personnel Manual, Subchapter CC29.9, INSTRUCTION 5, "General Administration Manual Policies and Procedures for Board for Correction of PHS Commissioned Corps Records" the Board shall presume that the COER' ratings given to Xxxxxxxxx were appropriate and that the COER procedures- were properly followed. Xxxxxxxxx failed to bear the burden of providing evidence to the contrary. Therefore, his 1996 COER shall remain in his Official Personnel File (OPF).
  3. Documentation provided by Xxxxxxxxx supports the Reviewer's comments regarding several COER items. A few examples of xxx xxxxx'x exhibits are as follows:

    Xxxx xx, 1996-Letter to Xxxxxxxxx from Xxxxxxxxxxxxxxxxxx. (Ratings inconsistent with many conversations regarding officer's conduct and or behavior. . . . )

    xxx xx, 1996-E-mail message (redacted prior to receipt by DCP) from Xxxxxxxxxxxxxxxx. (Letter of ­reproval was unnecessary since Xxxxxxxxx was retiring and had two previous warnings about his behavior. . . .)

    Xxxxxxxxxxxx, 1995-Memorandum and attachment from Xxxxxxxxx to Xxxxxxxxxxxxxxxx. (Independent counselor's report not for the personnel records.)

    Xxxxxxxx xx, 1994-Note to Xxxxxxxxxxxxxxxx (redacted prior to receipt by DCP). After Xxxxxxxxx read the memo, he launched into a (redacted) .... The witnessed behavior of Xxxxxxxxx is typical of encounters (redacted) experienced in the past year. . . .
  4. Corrective actions were taken by DCP to remove the letter of reproval and supporting documentation. 
  5. The Freedom of Information Office, HRSA, has jurisdiction over the release of documents not found in the Commissioned Corps System of Records. HRSA addressed xxx xxxxx's request. 
  6. DCP has no records of disciplinary actions against this officer. Therefore, the elements of his application cited above "are immaterial in determining if there is an error or injustice in his 1996 COER.

Board Action on Xxxxxxxxxxx Appeal:

Date of Board Meeting: Xxxxxxxxxx, 1997

Board Staff:

Norman E. Prince, Jr. Staff Director
Program Support Center
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:

Richard Asofsky, M.D. Chairperson of the Board and Assistant Director for Special Emphasis Programs Division of Intramural Research, NIAID/NIH
Xxxxxxxxxx,xxxx/SAMSHA

Findings, Conclusions and Recommendations:

 

  1. Remove evaluation by Xxxxxxxxx from his records in XXXXXX and XXXXX.

    Facts:

    Xxxxxxxxx arranged for a "conflict resolution assistance" meeting with Xxxxxxxxxxx, Xxxxxxxxxxxxxxxx, himself and Xxxxxxxxx, a professional counselor with a Xxxxxxxxxxxxxxxxxxxxxxx. Xxxxxxxxxxx may have been contacted as early as Xxxxxxxx, 1995 regarding this meeting which was held on Xxxxxxxxx 1995 about two months into his 1996 COER rating period. The timing of the meeting allowed issues other than those related to his 1996 COER to be discussed. The meeting resulted in a report by Xxxxxxxxx to Xxxxxxxxx evaluating Xxxxxxxxxxx and containing many derogatory comments about him. It offered a diagnosis of his personality as Obsessive-Compulsive Disorder and a prognosis as "poor even with treatment."

    There was an indication that Xxxxxxxxx improperly provided copies of the report to Xxxxxxxxxxxxxxxx (her own note), Xxxxxxxxxxxxx (Xxxxxxxxx Xxxxxxxxxxxx, 1995 note to Xxxxxxxxxxxxxxxx, Xxxxxxxxxxxx (her letter) and perhaps to one or more board members. Part of the report was at least summarized for Xxxxxxxxxxxxxxxxxx, Xxxxxxxxxxxxxxxxxxx in xxxxxxx, xxxxxxxxxx and Xxxxxxxxxxx Reviewing Official.

    DCP stated that the Central Medical Records at DCP did not contain a copy of the report. DCP also stated that they were unable to find a copy of the report in the station file or in any other personnel record. In DCP's opinion the report was covered by the Freedom of Information Act and its removal was outside the Board's jurisdiction.

    Conclusions:

    The "counseling session" with Xxxxxxxxx was neither a proper counseling nor mediation session. The comments by Xxxxxxxxx were highly prejudicial and were not balanced. She was not competent to make the psychiatric diagnosis she did nor to speculate on a prognosis for Xxxxxxxxxxx. Xxxxxxxxxx noted in Xxxxxxxxxxx Exit Interview that communications in a counseling session were privileged and should not be disclosed without the consent of those in attendance.

    If the counseling session was an attempt at mediation (conflict resolution), it was not necessary to have a record of the discussions. The injury done to Xxxxxxxxxxx was seriously compounded by the wide distribution of Xxxxxxxxx report. There also was an indication of possible underhandedness and perhaps malice in handling the report: "I would prefer that this not be placed in Xxxxxx Xxxxxx personnel file, - rather it is for your personal knowledge. I did share it with Xxxxxxxxxx. . . ." (Xxxxxxxxxxxx, 1995 letter from Xxxxxxxxx to Xxxxxxxxxxxxxxxx.)

    Recommendation and Correction to the Record:

    The record did not convince the Board members that Xxxxxxxxx report had been removed from the files at the xxxxxxxx Regional Office and at XXXXX. Because of the seriousness of the report (see also #S below), the Board members recommend that the Board obtain assurances from responsible management officials about the disposition of the report.

    Accordingly, they recommend that the Board obtain confirmation from the heads of the two organizations that the report was removed and that any copy still in the files or in any other record will be removed and sent to Xxxxxxxxxxx. They also recommend that his record be corrected by placing a copy of the correspondence with these two officials in his official files.

  2. Remove a letter of reproval and letter of relief of command from all personnel and XXXXX records.

    Facts:

    The Xxxxx 1996 letter of reproval mentioned instances of "unacceptable" conduct on the part of Xxxxxxxxxxx. The letter was written one day after Xxxxxxxxxxx completed his 1996 COER review on Xxxx xx, 1996 and seemed to have been the basis for the letter.

    From previous memoranda cited in The Xxxxxx, 1995 memorandum from Xxxxxxxxx to Xxxxxxxxxxx cited instances of "verbal abuse" towards members of the staff including Xxxxxxxxxx, xxx Xxxxxxxxx, xxxx xxxx and xxxx xxxxxx. There was no record by these individuals documenting this abuse or the reactions of those against whom it had been directed.

    A statement by Xxxxxxxxxxx in the xxx xx 1995 Management Team meeting expressing his view that he did not believe xx xxxx would follow through with the commitments and or expectations set for the Xxxxxxxx xxxxxx xxxx was considered by Xxxxxxxxx to have been inappropriate and for this reason, Xxxxxxxxxxx was asked not to repeat them. At that time, Xxxxxxxxxxx was the xxxxxxx xxxxxxx. Xxx xxxx later wrote Xxxxxxxxxxx on Xxxx x 1995 expressing reservations about his commitments and expectations.

    The Xxxxxxxx, 1995 and Xxxxxxxx, 1995 memoranda from Xxxxxxxxx to Xxxxxxxxxxx expressed need for a "conflict resolution" meeting to discuss conflicts in working relationships involving Xxxxxxxxxxx and others. One memorandum referred to Xxxxxxxxxxx reassignment to the Xxxxxxxxxxxxxxxxxxxxxxxx and to the conduct expected of him in that assignment. A Xxxxxxxxxxx, 1995 memorandum followed after Xxxxxxxxx Xxxxxxxx, 1995 report outlining Xxxxxxxxxxx' interactive problems. These memoranda did not mention any specific incidents or instances of abuse or misbehavior by Xxxxxxxxxxx. They enjoined him to be on his best behavior and not abuse members of the staff or others.

    From the text of the letter of reproval:

    The instances of "unacceptable" conduct on the part of Xxxxxxxxxxx included:

    "Manipulation" of Board members; e.g., making allegations of personal relationships among supervisory staff.

    "Unprofessional and demeaning" behavior towards two board members on which three letters of complaint were said to have been submitted. The Board did not find any such letters in the record; also there were no specific descriptions of unacceptable incidents or instances.

    Xxxxxxxxxxx offered personal financial assistance to a staff member who had been suspended by Xxxxxxxxx for telling a prospective physician that XXXXX was in financial difficulty and that Xxxxxxxxx was an incompetent administrator. Xxxxxxxxxxx brought this suspension to the attention of a board member.

    Xxxxxxxxxxx also learned of a personnel action by the XXXXX Personnel and Finance Committees from a member of the Board of Directors and communicated that information to the person affected.

    DCP stated that the letter of reproval remained in Xxxxxxxxxxx station file for six months and that HRSA removed it and returned it to him on Xxxxx 1997. The letter had never been part of his official file. The letter requesting reproval also was removed from his station file. No copies of these documents were retained in any of his official files.

    Conclusions:

    Many of the references to unacceptable conduct by Xxxxxxxxxxx had not 'been substantiated; were petty or as in the case of his extension of personal support to a suspended member of the staff, should not have been a matter of concern to Xxxxxxxxx or made a subject of disciplinary action or admonition.

    Xxxxxxxxx report had been a factor in removing Xxxxxxxxxxx from his Xxxxxxxxxxxxx job. The Xxxxxxxxxxx, 1996 letter from Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, supported this conclusion.

    Communications with board members should not have been limited if initiated by a member or if welcomed by a member and even may have been protected by Whistleblower Protection statutes (see #7 below). It was unclear from the record what disposition had been made of the "Letter of relief of command" and related documents referred to in Xxxxxxxxxxx appeal.

    Recommendation and Correction to the Record:

    The Board recommends that the documents related to Xxxxxxxxxxx relief of command be added to those on which assurances of removal have already been requested. Accordingly, the Board recommends that, confirmation be obtained from the heads of the two organizations (XXXXXXX Regional Office and XXXXXX that the "Letter of relief of command" and related documents have been removed, and that any documents still in the files or in any other record will be removed and sent to Xxxxxxxxxxx. The Board also recommends that his record be corrected by placing copies of the correspondence with these two officials on this subject in his official files.
  3. Arrange for a legal effort to retrieve his records stolen by Xxxxxxxxx from his file at XXXXX.

    Facts:

    There was no documentation that any of Xxxxxxxxxxx records had been stolen. However, there was evidence that some documents and their contents had been distributed improperly.

    DCP believed that the whereabouts of Xxxxxxxxxxx records was a matter that should be pursued through legal channels.

    Conclusions:

    Xxxxxxxxxxx did not provide any factual basis from which to conclude that his records had been stolen nor did he identify the records involved.

    Recommendation and Correction to the Record:

    The Board agreed with DCP that recovery of Xxxxxxxxxxx records should be pursued through legal channels. Accordingly, the Board did not recommend any action to resolve this matter or any correction to his record.
  4. Award him $300,000 for a career cut short by xxxxxx X's lack of investigation and collusion with Xxxxxxxxx.

    Facts:

    The Board was persuaded that Xxxxxxxxxxx reassignment and later decision to retire from the commissioned corps had been influenced in part by the way in which he had been treated and the allegations against him.

    He also mentioned that he had retired to go to medical school. DCP believed that his request for compensatory damages was a matter that should be pursued through legal channels.

    Conclusions:

    The remedy requested by Xxxxxxxxxxx did not involve a correction to his record. It should be handled by the court.

    Recommendation and Correction to the Record:

    The Board agreed with DCP that the matter of compensatory damages should be pursued through legal channels. Accordingly, the Board did not recommend any action to resolve this matter or any correction to his record.
  5. Provide him with a letter of reference written for him from xxxxxx X and the NHSC.

    Facts:

    No letters of reference or records of conversations by xxxxxx X or the NHSC, adverse to Xxxxxxxxxxx, were found in the record.

    DCP believed that the Board could not grant the ­remedy requested.

    Conclusions:

    As concluded above, the "counseling session" with Xxxxxxxxx had been conducted improperly; her conclusions contained a psychiatric diagnosis she was not qualified to make and her letter to Xxxxxxxxx had been improperly distributed to several members of the XXXXX staff and others.

    The "Letter of Reproval" from Xxxxxxxxx and Xxxxxxxxxxx included charges not fully substantiated by the record other than Xxxxxxxxx own communications. Several instances of alleged misconduct were either dubious (except that they displeased Xxxxxxxxx) or were petty.

    There was little doubt that these two documents together with comments made verbally (as noted in e­mail messages and in summaries of them) severely damaged Xxxxxxxxxxx reputation as a xxxxxxxxxxxxx. This damage seemed unjust considering his sterling COER evaluations and awards he received.

    Recommendation and Correction to the Record:

    The Board determined that the damage done to Xxxxxxxxxxx reputation (see also #6 below) resulted in an injustice that required remedy. Accordingly, the Board recommends that letters of recommendation be obtained from the heads of the two organizations xxxxxxx Regional Office and XXXXX attesting only to Xxxxxxxxxxx skills and abilities as a xxxxxxxxxxxxx and that these letters be sent to Xxxxxxxxxxx. The Board also recommends that his record be corrected by placing a copy of the letters and correspondence with these two officials in his official files.

  6. Remove his 1996 COER from his file.

    Facts:

    Xxxxxxxxxxx 1996 COER was dated Xxxx 1996. He signed it on Xxxx xx, 1996. The Board did not find a COER rating period on his COER (they assumed it covered the previous 12 months from Xxxx 1995). Xxxxxxxxxxx sent a copy of the COER to Xxxxxxxxxxx on Xxxx xx, 1996.

    DCP believed that Xxxxxxxxxxx 1996 COER ratings had been appropriate and that COER procedures had been properly followed in completing his evaluation and that he failed to provide evidence to the contrary. DCP also believed that his 1996 COER should remain in his record as completed.

    Xxxxxxxxxxx wanted his 1996 COER removed from his file because of comments added by Xxxxxxxxxxx on the following elements:

    Supervisory Skills and Managerial Responsibility:

    Xxxxxxxxx rated Xxxxxxxxxxx "F" (has no supervisory responsibilities) for the 1996 COER rating period. (He was removed from his supervisory position in Xxxxxxxx 1995 about three months into the 1996 rating period and had none since his transfer to Xxxxxxxxxx). Xxxxxxxxx rated him "D" (resolves problems and improves employee's performance) on this element in 1994 and 1995.

    Xxxxxxxxx rated him "F" (has no managerial responsibilities) for the 1996 COER rating period. (He had been removed from his managerial responsibilities in Xxxxxxxx 1995.) Xxxxxxxxx did not rate him on this element in 1994 and 1995.

    Since Xxxxxxxxxxx was considered not to have performed supervisory or managerial responsibilities during his 1996 COER rating period, Xxxxxxxxxxxx comments on this COER seemed to the Board to have resulted from Xxxxxxxxx report (followed by removal from his supervisory position) and problems during another rating period in supervising and managing employees.

    Ability to Work With Others:

    Xxxxxxxxx rated Xxxxxxxxxxx "D" (is able to cooperate with others in a manner that helps produce better work than anyone member of the group could produce) during the 1996 COER rating period. He also rated him "D" in 1994 and 1995. Xxxxxxxxxxxx comments: "There are several incidents described verbally and in writing by XXXXX xxxx xxxxx which clearly indicate Xxxxxxxxx has problems working cooperatively with staff and board members". These comments were not in accord with the observations of Xxxxxxxxx who had day-to-day contact with the officer. The Board found only one such ­incident during the 1996 COER rating period: the alleged insults given by Xxxxxxxxxxx to a board member at the opening of the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 1996. "On the other hand, there was evidence in the record that board members were supportive of xx Xxxxxx and that they objected to his departure from Xxxxxxxx." (Xxxxxxxx xx, 1996 letter from Xxxxxxxxxxxxxxxx.)

    Professional Skills in Present Activity:

    Xxxxxxxxx rated Xxxxxxxxxxx "E" (is recognized outside his program as an expert) during the 1986 COER rating period. He also had rated him "E" in 1994 and 1995. Xxxxxxxxxxxx comments: "A xxxxxx X clinical program consultant who participated in an employee counseling session with Xxxxxxxxx to discuss XXXXX's behavioral expectations witnessed outbursts of behavior by Xxxxxxxxx which were the most unprofessional he had ever seen in 20 years of clinical practice" were not based on Xxxxxxxxxxxx personal knowledge (nor was there any indication of the manner in which these outbursts had been expressed).

    Responsiveness to Supervision:

    Xxxxxxxxx rated Xxxxxxxxxxx "D" (works with supervisory guidance constructively) during the 1986 COER rating period. He had rated him "E" in 1994 and 1995. Xxxxxxxxxxxx comments: "XXXXX's Xxxxxxxxxxxxx and xxxxxx xxxx have both expressed concerns to XXXXXX X staff about xxx Xxxxxx resistance to supervisory guidance" were not based on Xxxxxxxxxxxx personal knowledge.

    Conclusions:

    Supervisory Skills and Managerial Responsibility: Xxxxxxxxxxx had been relieved of his supervisory and managerial responsibilities on Xxxxxxxxxxxx 1995. (This decision was made Xxxxxxxxxxx, 1995 to take effect immediately. He was given until Xxxxxxxxxxx, 1995 to decide to accept.) He was informed that he would be reassigned to the Xxxxxxxxxxxxxxxxxxxxxxxx. As mentioned before, it appeared to the Board that Xxxxxxxxx report was a factor in this decision. Further, it was unclear from the record that the decision had been reached because of supervisory delinquencies; the only delinquency the Board was able to document was the alleged mistreatment of four individuals (described in the Xxxxxx, 1995 memorandum from Xxxxxxxxx). This occurred during the previous COER rating period (1994-1995).

    Ability to Work With Others:

    It was unclear from the record that the "negative experiences" with Xxxxxxxxxxx all occurred during his 1996 COER rating period (incidents which occurred prior to the 1996 COER rating period should not have been subjects for evaluation during the current period). At least one such experience, the alleged insulting behavior towards Xxxxxxxxxx may have been in doubt since the record documents that on Xxxxxxxxxx, 1997 she wrote a favorable letter to the Board about him. She referred to him as: "an excellent care provider."

    The description of the xxxx incident by xx Xxxxxx lacked specificity and supporting documentation in the form of letters from others. If such documents ­existed, the Board did not find them in the record.

    Professional Skills in Present Activity:

    The remark regarding an emotional outburst by Xxxxxxxxxxx and his lack of professionalism were apparently ascribed to Xxxxxxxxxx in an Xxxxxx 1996 letter from Xxxxxxxxx to Xxxxxxxxxxx requesting a formal reprimand. The Board did not find any documentation by Xxxxxxxxxx to support the remark. However, the record did document that Xxxxxxxxxxx had been recognized for his professionalism in 1996 by being designated the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

    The Board considered the term "unprofessional" as used by Xxxxxxxxxxx to have meant: "ungentlemanly" or "uncouth" without reference to Xxxxxxxxxxx' ability as a xxxxxxxxxxxxxx (this was the only way the Board could interpret use of the term since the record documented that his skills and their use in providing service to patients had never been in doubt). The Xxxxxxxx xx, 1995 e-mail message from Xxxxxxxxxx to Xxxxxxxx described a site visit at XXXXX at which Xxxxxxxxx presented Xxxxxxxxxxx with a letter: "regarding behavior and change in his assignment. During this episode, xx Xxxxxx became immediately outraged after reading the contents of the letter, then engaged in an approximate 15 minute nonstop barrage of accusations." The term "unprofessional" was not used nor was it clear that the behavior had not been provoked. The term "most unprofessional" came not from Xxxxxxxxxx but from a letter from Xxxxxxxxx to Xxxxxxxxxxx on Xxxxxx 1996 requesting a letter of reproval.

    Xxxxxxxxxxx did not question Xxxxxxxxxxx clinical ability in his Xxxxxxxxx 1996 letter to him denying his grievance. To have done so would have been contrary to the facts in the record supporting his performance as a xxxxxxxxxxxxxx. Xxxxxxxxxxx cited only two documents in his letter to Xxxxxxxxxxx: the first was a Xxxxxx, 1996 memorandum titled "Expectations." This memorandum was written in the prior rating period. It described incidents in that period and was the only documented source supporting an accusation of poor or offensive supervision by him of others.

    The second was the letter of reproval. It described four incidents: (a)unprofessional and demeaning behavior towards two board members at the xxxx opening; (b) manipulation of board members and instigating dissatisfaction; (c) discussions with board members; and (d) offering personal and financial support to a suspended nurse. The first three of these incidents occurred during the 1996 COER rating period but the last may have occurred before. The Board questioned whether items (b) and (c) involving interactions with local board members should have been grounds for reproval.

    Xxxxxxxx, who conducted Xxxxxxxxxxx Exit Interview, and who may have had a more objective view of the situation, was concerned about Xxxxxxxxxxxx comments on Xxxxxxxxxxx 1996 COER. He asked on Xxxx xx, 1996 whether they: "could support a charge of defamation of [Xxxxxxxxxxx] clinical reputation and professional standing."

    Responsiveness to Supervision:

    The only documentation the Board found addressing Xxxxxxxxxxx resistance to supervision was in a Xxxxxxxx x, 1996 e-mail message from Xxxxxxxxxxxxxxx to Xxxxxxxxxxxx (heavily edited by the Freedom of Information officer). Xxxxxxxxxxx commented: "Xxxxxxxx (sic) expressed his concern about Xxxxxx not accepting leadership from him as Xxxxxxxxxxxxx. He said that Xxxxxx keeps his own schedule with little or no direction from Xxxxxx or xxxxx (sic). " Also, "Xxxxxx was very concerned about the negative impact upon production which would be caused by the loss of Xxxxxx." Xxxxxxxxxxxx comments on Xxxxxxxxxxx' 1996 COER were written on Xxxx xx, 1996 almost two months before Xxxxxxxxxxx expressed his concerns.

    Recommendation and Correction to the Record:

    The Board determined that:

    Xxxxxxxxxxx had been unfairly damaged by the contents of Xxxxxxxxx' report and by the distribution of confidential material to so many people. The report contained many deletions and "white-outs" which limited the ability of the Board to fully evaluate its contents. There was no indication that Xxxxxxxxxxx was given the opportunity to review or comment on the report or to appear before the XXXXX Board of Directors to present his side of the issues. The Board was persuaded that the report had been a factor in the decision to, remove Xxxxxxxxxxx from his supervisory and management responsibilities.

    Xxxxxxxxxxx had been evaluated by Xxxxxxxxxxx on factors other than his performance as a xxxxxxxxxxxxx. The Board was persuaded that his comments reflected factors not part of the 1996 COER rating period. The record was unclear on the direct relationship of Xxxxxxxxxxx to Xxxxxxxxxxx and how he could have learned of the officer's performance except through information given to him by others. As an example, the Xxxxxxxx xx, 1996 e­mail message from Xxxxxxxxxx to Xxxxxxxx was based on information obtained from the XXXXX staff. The XXXXX staff did not document their concerns. The message contained many deletions and "white-outs." Xxxxxxxxxxx inability to work with others had not been fully documented especially since that did not seem to have affected his performance as a xxxxxxxxxxxxx. The record should have documented the alleged incidents and instances involving his performance and behavior (Xxxxxxxxxxx stated that he preferred not to provide detailed documentation since doing so could jeopardize Xxxxxxxxxxx record and his status with the commissioned corps). The effect of not providing full documentation placed the Board in the position of having to speculate on what may have happened and what the consequences may have been.

    There also was little documentation of allegations against Xxxxxxxxxxx by persons who may have been offended (other than references to Xxxxxxxxx own communications). Many of the allegations were based on second-hand information or accounts given by persons other than the affected parties.

    Based on these determinations, the Board recommends that Xxxxxxxxxxx request be upheld and that his record be corrected by removing his 1996 COER and all documents related to that COER from his records in their entirety.
  7. Protect him as a whistleblower.

    Facts:

    During Xxxxxxxxxxx exit interview and in communications with the Board, he made a number of serious allegations of financial mismanagement, financial misconduct and personal impropriety at XXXXX. There was no paper trail of the allegations nor was it clear to whom they had been made.

    Conclusions:

    If the allegations were made to members of the XXXXX Board of Directors or to any of Xxxxxxxxxxx superiors in the XXXXX hierarchy, then he probably would be protected against retaliatory personnel action and not have that protection limited only to those instances where he communicated with the Inspector General or members of Congress. The legal authorities for this are USC 10:1034 for the military and USC 5:1213 for other personnel.

    If the allegations were made to xxxxxx X or to members of the XXXXX Board of Directors, the flurry of adverse personnel actions and memoranda commencing in the Xxxxxx 1995 would give the appearance of retaliation. Also, the incident described by Xxxxxxxxx in his letter of reproval involving an employee who was suspended because of discussions with a physician suggested a disposition on his part to retaliate.

    Recommendation and Correction Action:

    The Board finds no basis for correcting his record. USC 10:1034 provides for appeal to the Inspector ­General of an allegation of retaliation. Xxxxxxxxxxx has this recourse.

 

The Board recommends that Xxxxxxxxxxx appeal be upheld in part and that his record be corrected in accordance with the recommendations as stipulated.

We certify that the recommendations reflect the views and actions taken by the Board on Xxxxxxxxxxx appeal and that they have concurred in the recommendations.

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

Finally, we certify that a quorum was present on Xxxxxxxxxx, 1997 when the Board considered Xxxxxxxxxxx appeal.

If you approve, please sign below.

Richard Asofsky, M.D. Chairperson 
of the Board and Assistant Director
for Special Emphasis Programs
Division of Intramural Research,
NIAID/NIH

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