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Board for Correction Case No. 196-97

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Board for Correction Case No. 196-97

175.00 Leave (Includes Annual / Home / Sick / Station Leave) - Remove AWOL from the record

Board Members' Recommendation and Decision on Appeal of: Xxxxx xx xxxxx, xx Case Number 196-97

Statute of Limitations:

The Board members waived the statute of limitations in the interest of justice.

Officer's Appeal for Relief:

Xxxxxxx asked the Board to:

Remove an Absence Without Leave (AWOL) and all related documents from her record.

Summary of Officer's Arguments and Documentation:

Xxxxxxx contended that:

  1. On Xxxxxxxxx, 1986 she requested an "early honorable discharge" from the Public Health Service (PHS) to pursue a xxxxxxxxxxxxxxxxxxxx. She was advised to submit her request to the Division of Commissioned Personnel (DCP) .
  2. On Xxxxxxxxx, 1986 she wrote the National Health Service Corps (NHSC) requesting waiver of the remaining 82 days on her NHSC Scholarship obligation. She expected that she would either be allowed early dismissal from the program or given an excused leave of absence so she could enter a residency.
  3. On Xxxxxx, 1986 she wrote NHSC a second letter inquired about penalties involved if she did not complete her service obligation.
  4. The NHSC responded to her Xxxxxxxxx, 1986 and Xxxxxx, 1986 letters on Xxxxx, 1986 (nine days after school started on Xxxxx, 1986). She became aware that she would have to repay $15,508.68 if she did not complete her obligation.
  5. She enrolled in the residency on Xxxxx, 1986. She was on annual leave from Xxxxx, 1986 to Xxxxxx, 1986. She was not told until after she enrolled that she would be declared AWOL and/or that any formal action would be taken to have her dismissed as a commissioned corps officer should she pursue the residency. She was willing to complete her scholarship obligation after completing the residency.
  6. After completing the residency she reentered the scholarship program and completed the remaining days of her scholarship obligation under a civil service appointment.
  7. On Xxxxxxxxxx, 1994, Xxxxxxxxxxxxxxxx, Department of Health and Human Services (HHS) in the regional office, wrote to the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx where Xxxxxxx sought staff privileges, telling them about her AWOL and her use of unauthorized leave. She had reason to believe that as a result of his letter, she was forced to withdraw her application. This caused significant damage to her medical career.
  8. She admits to a human mistake in deciding to leave the commissioned corps before completing her service obligation. She believes that continuing to keep the AWOL and related documents in her record after she satisfied her service obligation, is an injustice placing her at a disadvantage in obtaining medical privileges and practicing her profession.

Summary of Commissioned Corps' Arguments and Documentation:

  1. Xxxxxxx came to the Board with unclean hands. She abandoned her duty station and misrepresented her intent to remain there. She accepted a residency without completing her service obligation. DCP reasserts its argument that Xxxxxxx appeal should be rejected under the equitable doctrine of unclean hands.
  2. She was placed on AWOL and terminated because she was absent from her duty station for more than 30 days. She was "Dropped from the Rolls."
  3. Her decision to abandon her duty station was not justified by her desire for additional training. She did not accept the denial of her request for waiver of her service and payment obligation. Her conduct was inexcusable, not only because there were legitimate mechanisms in place for officers to go into residency training which she chose to circumvent, but also because she embarked on a trail of deceitful behavior to cover her misconduct.

    In addition to being AWOL, she engaged in misconduct when she: (a) commenced employment with Xxxxxxxxxxxxx while still on active duty, (b) falsified the reason for being absent by claiming to be on sick leave, (c) falsely indicated her intent to remain at her duty station until Xxxxxxxxxxx, 1986, and (d) mislead the Board for Correction regarding information she received on her AWOL.
  4. She received information from DCP on long-term training that should have enabled her to plan her training and complete her service obligation, but she was not interested in incurring an additional service obligation. She was not recommended for placement in the Inactive Reserve or for future active duty assignments.
  5. The fact that Xxxxxxx served as a civilian for the minimal amount of time needed to avoid prosecution by the Xxxxxxxxxxxxxxxxxx for the $15,000 debt she incurred by breaching her NHSC contract, is a separate and distinct issue from her conduct as accurately reflected in her commissioned corps records. In fact, Xxxxxxx sole argument is that maintaining accurate records rendered an injustice to her. Highly selective employers would have the benefit of accurate information when making decisions as to whether or not to grant privileges to prospective providers. The Board should note that Xxxxxxx is gainfully employed.

    The fact that she completed her NHSC obligation in 1990 had no effect on the fact that she abandoned her duty station and was AWOL in 1986. Serving her obligation merely relieved her of having to make monetary payments to fulfill her obligation.
  6. DCP has no record of any information given by DCP to the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx about her AWOL that may have affected her application for staff privileges. She withdrew her application based on questions raised by the medical staff. However, she successfully obtained staff privileges at other hospitals. She did not provide any evidence that the AWOL was a detriment to her career.
  7. She was duly notified of the availability of the Board for Correction as an appeal mechanism. In light of the facts presented and the equitable principles involved, the Board should find that there is no basis to grant her appeal.

Board Action on Officer's Appeal:

Date of Board Meeting: xxxxxxx xx, 1998 xxxxxxxxx x, 1999

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.
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 and Correction to the Record:

Findings:

  1. Xxxxxxx was called to active duty on xxxxxxxx xx, 1983. Her appointment was intended to enable her to satisfy her NHSC service obligation. The appointment ended on Xxxxxxxxxxx, 1986; her NHSC obligation ended on the same date.
  2. On Xxxxxxxxx, 1986 she wrote Xxxxxxxxxxxxx, Director, PHS Sub Regional Office, asking for an early discharge or other options she could pursue that would enable her to enroll in a residency at Xxxxxxxxxxxxx beginning Xxxxx, 1986. Her selection as a resident was confirmed on xxxxx x, 1986.
  3. On Xxxxxxxxx, 1986 she wrote NHSC requesting waiver of the remaining days on her NHSC obligation and the effects a waiver would have on her benefits.
  4. On Xxxxxx, 1986 she wrote NHSC a second letter after her Xxxxxxxxx, 1986 letter. She sought information on waiving her service obligation.
  5. NHSC responded to her Xxxxxxxxx, 1986 and Xxxxxx, 1986 letters on Xxxxx, 1986 (nine days after the residency began) describing the circumstances under which her service obligation could be waived.
  6. She negotiated with Xxxxxxxxxxxxx to accept and attend a residency although still on active duty in the commissioned corps (she was required by corps policy to be on duty 24 hours a day).
  7. She requested separation from the corps on Xxxxxxx, 1986, effective Xxxxxx 1986, but enrolled in the residency on Xxxxx, 1986 while on annual leave from Xxxxx, 1986 to Xxxxx, 1986.
  8. She was reported AWOL as of Xxxxxx, 1986 and "Dropped from the Rolls" as of xxxxxxx xx, 1986 for being AWOL more than 30 days.
  9. DCP issued a formal personnel order on xxxxxxxx xx, 1987 stating her indebtedness to the Federal government for not completing her service obligation. Her indebtedness was $15,508.68.

Conclusions:

  1. Xxxxxxx did not act in accord with DCP policy nor did she have the approval of PHS, NHSC, management when she commenced a residency training program with Xxxxxxxxxxxxx. while still on active duty. While the Board members did not condone her actions, they believed she did not willfully act to abdicate her NHSC obligation. She received no timely response (four months) to repeated attempts to reconcile her remaining obligation with the desire to enter the residency training program. The fact that she eventually satisfied that obligation argued in her favor.
  2. According to Xxxxxxxxxx Xxxxxxxxxx, 1994 memorandum, Xxxxxxx was removed from the rolls and placed in default of her service obligation for not submitting a physician's certificate after being on sick leave more than three days. The record did not rebut her statement of Xxxxxx, 1996 that she sought medical attention at the XXXXX XXXX XXXXX for a XXXX injury sustained in a car accident and that she submitted several requests for leave which were not honored (there was no documentation from XXXXXX XXXX XXXXXX confirming or denying she had been a patient there).
  3. DCP received Form PHS 1373, "Request for Separation" from Xxxxxxx on Xxxxxxx, 1986. According to DCP policy, this form had to be received at least 30 days before the end of her appointment. She indicated her intent to remain at her duty station until Xxxxxxxxxxx, 1986 (the last day of her NHSC obligation). The Board members concluded that when she completed the form, she was waiting for a response from the NHSC on her request for waiver of her NHSC obligation. The NHSC responded on Xxxxxx, 1986. The record was inconclusive as to whether she anticipated that her request for waiver of her NHSC obligation would be denied (thus requiring her to remain on active duty) or whether she had already decided to leave the corps, (thus falsely completing Form PHS 1373).
  4. Personnel Orders xxxxxxxx, xxxxxxx, xxxxxxxxx and xxxxxx had been sent to Xxxxxxx regarding her separation and AWOL. The Board members concluded that she knew about her AWOL. However, her argument to the Board was not that she did not know about the AWOL, but that she did not know PHS would continue to use it in subsequent references after she completed her AWOL obligation. She learned in xxxxx 1994, when she applied for staff privileges at the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, that completing an NHSC obligation did not remove the AWOL designation.

Xxxxxxx made three inquiries regarding what accommodations might be available to her to allow her to enroll in a residency. The response from NHSC was dated nine days after the residency began. This delay left to speculation what other options she might have pursued and what the effects might have been. The Board members did not conclude that anybody explained to her how she could have accepted the residency and still met her service obligation without penalty, e.g., by placing her on leave without pay. A timely response would have enabled her to better evaluate her options.

Therefore, the Board members concluded that Xxxxxxx and PHS, NHSC, management did not follow PHS protocol in a timely manner. This contributed to the events leading to the AWOL.

Recommendation:

The Board members recommend that Xxxxxxx be granted partial relief and that the period of her AWOL, and all records and documents pertaining to that AWOL, be removed from her record.

Correction to the Record:

The Board members recommend that her record be corrected to state that she resigned from the corps on Xxxxx, 1986 with divesture of all separation benefits and entitlements as of that date.

They also recommend that her annual leave from Xxxxx, 1986 to Xxxxx, 1986 be invalidated and that she reimburse the U.S. Government for all pay and allowances and any other financial benefits she may have received for that period (DCP is to delay removing the AWOL and related documents until this financial requirement is satisfied).

She is entitled to review her record to ensure compliance with the recommendation and correction to the record.

We certify that the Board members' recommendation and correction to the record reflect their views and actions after considering Xxxxxxx appeal and that they have concurred in these actions.

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

Finally, we certify that a quorum was present on xxxxxx xx, 1998 and xxxxxxx x, 1999 when Xxxxxxx appeal was considered.

If you approve, please sign below.

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

xxxxx

Reviewed and Approved:

I hereby (X) approve ( ) disapprove the Board members' recommendation and correction to the record on 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 empower the Director, Division of Commissioned Personnel, Human Resources Service, Program Support Center, to implement this decision and correct her record as stipulated (to include issuing appropriate personnel orders) . She is entitled to review her record to ensure compliance with this decision.

Lynda M. Reagan
Director
Program Support Center

Date

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.