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Board for Correction Case No. 192-97

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Board for Correction Case No. 192-97

199.00 Promotion Program - Promotion to higher grade

Recommendation of the Board for Correction on Appeal of: Xxxxxxxxxxx, Case Number 192-97

I. Xxxxxxxxxxxxxxx Appeal for Relief:

Officer asked the Board to retroactively promote her to the Temporary Grade 0-6, as of the date when she should have been promoted with her peers, and pay her back pay allowances.

II. Summary of Xxxxxxxxx Arguments and Documentation:

She contended that:

  1. The agency recommendation board did not conduct its meetings for determining agency recommendations to the 1996 Promotion Board in accordance with applicable regulation, law or policy causing her to receive a lower ranking than she should have.
  2. The Promotion Board did not conduct its meeting in which officers were rated and ranked in accordance with applicable regulation, law or policy causing her to receive a lower score than she should have.
  3. The Public Health Service (PHS) did not require minutes to be taken at agency recommendation meetings so no record existed of their deliberations or how decisions had been made.
  4. PHS did not adhere to its negotiated agreement and allowed an individual who had chaired a Board of Inquiry, and who had prior knowledge of disciplinary action taken against her, to serve on her agency recommendation committee. This was a conflict of interest since the individual did not recuse herself and was in a position to communicate information to members that could have adversely affected her ranking.
  5. The overall rating by the Promotion Board and that by Rater #5 deviated significantly from the Commissioned Officer Effectiveness Report (COER) ratings she had received over the past five years, causing concern as to whether the ratings had been influenced by information communicated to members by the individual who had chaired the Board of Inquiry.

III. Summary of Division of Commissioned Personnel's (DCP) Arquments and Documentation:

DCP argued that:

  1. This application be denied on its merits because the applicant supplied insufficient relevant evidence to demonstrate the existence of probable material error or injustice.
  2. The applicant has the responsibility of providing the Board with documented evidence in support of his or her application. (General Administration Manual, 16-00-30. and 16-00-70). Mere allegations and speculations are insufficient to qualify as circumstantial evidence. (See Black's Law Dictionary.)
  3. Although the applicant xxxxx xxxxxxxxx has made numerous allegations, she failed to provide documentary evidence that the Merger Meeting and/or the PHS Health Services Officer (HSO) Promotion Board were conducted in a manner contrary to established law, regulations or policy.
  4. Under penalty of perjury xxxx xxxxx xxxxx xxxxxxx declared that she made no comments regarding xxx xxxxxx at the Merger Meeting. Further, xxxxx declared that she had no involvement with the Annual HSO Promotion Board. xxxxxxx provided no evidence to refute these declarations.
  5. The record indicated that xxxxxxxxxx would not have been rated high enough to have been promoted even if she had been placed in the first Cohort by the Merger Meeting.
  6. The record shows that several officers with better COER ratings than xxxxxxx also did not get promoted.
  7. xxxxxxxxxx COER ratings were based on her performance in an 0-5 billet. The majority of HSOs who were promoted to the Temporary Grade 0-6 occupied 0-6 billets. xxxxxxxxx has not occupied an 0-6 billet since xxxxxxx, 1990. 
  8. Letters of recommendation with various 1997 dates, which xxxxxxx submitted to the Board, are not germane in determining if there was an error or injustice in the 1996 Promotion Board results. 
  9. The deliberations of all Boards are considered confidential and are not releasable. Boards are not required to keep minutes of their deliberations and any minutes kept are confidential.

IV. Board Action on xxxxxxxx Appeal:

Date of Board Meeting: xxxxx, 1998

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:

Joseph H. Autry, M.D.
Chairperson of the Board and Acting Deputy Director
Center for Substance Abuse Prevention, SAMHSA

Findinqs, Conclusions and Recommendation:

Facts:

  1. The conflict of interest issue did not invalidate the 1996 Promotion Board's process and procedures since the record did not document the allegation that xxxxxxx had shared with others information detrimental to Xxxxxxxxxxxxxxx promotional opportunities. 
  2. The Board members found xxxxxx xxx, 1997 statement, given under the penalty of perjury, that she did not share with others information detrimental to Xxxxxxxxxxxxxxx promotional opportunities to be compelling. Also, was her effort to have the "pink slip" from the Board of Inquiry matter removed from the Official Personnel File.
  3. She was not in an 0-6 billet when she became eligible to be considered for promotion. She was in an 0-5 billet and according to DCP had not been in an 0-6 billet since 1990. The majority of the HSOs promoted in 1996 were in 0-6 billets.
  4. The xxxx case (Benjamin F. Hardison, Jr. v. Clifford Alexander, Jr., Secretary of the Army, et. al) to which she referred did not seem to apply to her situation because the record did not document an error in her record. 
  5. The record also did not document that she had recently received any awards which could have helped her be promoted. 
  6. The minutes to which the officer alluded were not available since it was not the practice to record such information.

Conclusions:

xxxxxxx xxxxxx was recommended for promotion but did not place high enough to be selected. The failure to select was influenced not only by the ratings she received, but also by the number of promotional openings available. It would not be a fair assessment of the facts to conclude that her failure to be selected was only the result of information that may have been communicated by xxxxxxx to other participants in the promotion process and ignore other factors.

Recommendation and Correction to the Record:

The Board members recommend that Xxxxxxxxxxxxxxx appeal be denied. This requires no correction to her record.

We certify that this recommendation reflects the views and actions taken by the Board members on Xxxxxxxxxxxxxxx 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 Xxxxxxxxxxxxxxx appeal; and in addition to applicable statutes, regulations and policies, it was considered by the Board members in arriving at the recommendation.

Finally, we certify that a quorum was present on xxxxx, 1998 when the Board members considered Xxxxxxxxxxxxxxx appeal.

If you approve, please sign below.

Joseph H. Autry, M.D.
Chairperson of the Board and
Acting Deputy Director Center for Substance Abuse Prevention, SAMHSA

Reviewed and Approved:

I hereby (x) approve ( ) disapprove the recommendation of the Board members on the appeal of xxxxxxx received and considered in accordance with 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. This recommendation requires no correction to her record.

Lynnda M. Regan
Director
Program Support Center

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.