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Board for Correction Case No. 197-97

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Board for Correction Case No. 197-97

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

Board Members Recommendation and Decision on Appeal of: xxxxxxxxxxxxxx, xxxx, Case Number 197-97

Relief Requested by Office

Xxxxxxx asked the Board to remove his 1995 COER and attachments from his record. Following his promotions to the Permanent Grade 0-4 and Temporary Grade 0-5, he modified his appeal eliminating his request for a promotion.

Arguments by Officer

Xxxxxxx argued the following:

  1. He believed that his low 1995 COER scores were the result of a personality conflict between his former supervisor (xxxxxx xxx xxxxx) and the xxxxxx xxxxx xxxxx (xxxxxxxxxxxxxxx). He should not have received a marginal rating. One month after giving him a low COER, Xxxxxxx retired from the corps.
  2. He believed that his 1995 COER was deliberately written to deny him a promotion. He should not have been evaluated by dentists who had prior knowledge of his strengths and weaknesses and could have used that against him. He should have been evaluated by those who had no such knowledge.
  3. Before 1995, he had been rated highly by Xxxxxxx on two COERS and she had highly recommended him for a General Practice residency. His 1995 COER was not consistent with two previous COERS completed on him by the same supervisor.
  4. Persons who worked with him in the past or may have supervised him all attested to the quality of his work and his performance.
  5. The record clearly stated the value of his performance as a credit to the commissioned corps.

Xxxxxxx believed that his 1995 COER was not based on a true evaluation of his performance but that he was a victim of a personality conflict between xxxxxxxx and xxxx

Arguments by the Division of Commissioned Personnel (DCP)

DCP argued the following:

  1. Xxxxxxx application was properly before the Board. On Xxxxxxxxx, 1995, he received a decision from xxxxxxxxxxxx, xxxxxxxxxxxxx, xxxxx, xxxxx finalizing his appeal through the PHS Commissioned Corps grievance process. The XXX management concurred with the decision rendered at the secondary level finding no merit to his claim regarding his 1995 COER.
  2. xxxxxxx xxxxx, Service Unit Director's response to the second level grievance identified specific areas which supported the XXX management decision that Xxxxxxx 1995 COER should remain unchanged as written by xxxx xxxx. These included:

    1. The XXX had a productivity standard for dentists of a total of 64,001-83,000 minutes per year. Xxxxxxx service minutes of 67,058 met the standard but did not exceed the standard. Therefore, the "C" rating was appropriate.
    2. Xxxxxxx performance was weak in several areas of dentistry such as treatment planning, pediatric dentistry and endodontics.
    3. A patient's complaint about dental care provided by Xxxxxxx and his poor attitude led to a low performance rating.
    4. An incident report documented that Xxxxxxx left the root of a tooth in a patient's mouth. This also contributed to a low performance rating.
  3. Xxxxxxx assertions were insufficient to overcome "...the strong, but reputable, presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith. "Guy v. United States, 221 Ct. Cl. 427,431 (1979). In addition, the General Administrative Manual (GAM) provides the Board shall presume that COER ratings are appropriate and that COER procedures have been properly followed: QAM, PHS 16-00-70, Deliberations and Disposition.

    1. Xxxxxxx asserted in one instance that his 1995 COER was a result of a personality conflict between Xxxxxxx and Xxxxxxx. The record did not support this claim. Further, both xxxxxxxxx and xxxxxxx documented deficiencies in Xxxxxxx performance.
  4. Xxxxxxx contended that his 1995 COER was deliberately written to deny him a promotion. The documented performance deficiencies disproved this contention. Further, the chart below showed that Xxxxxxx would not have been competitive for promotion even if his COER scores had been held constant at a rating of 73 from 1994 to 1995:

    1995 1994 1993 1992

    Lowest COER Score of Promoted Dental Officer 96 97 96 92

    Xxxxxxx 56 73 74* 92*
    -----------------------------------------------------------------------------------------------------------------------------------
    *Not eligible for promotion.
  5. During the 1996 Dental Promotion Cycle, Xxxxxxx competed with 82 other dental officers for promotion to the Temporary 0-5 Grade. Of that number, only 26 were promoted. Although Xxxxxxx was reconunended for promotion, he failed to score high enough to be reached for promotion during the 1996 promotion cyle. A total of 52 dental officers who scored higher than Xxxxxxx also were not promoted.
  6. In spite of allegations by Xxxxxxx regarding the correctness of his 1995 COER, he was promoted to the Permanent Grade 0-4 and Temporary Grade 0-5 effective Xxx, 1999. The 1995 COER was part of his record when he was considered for promotion. Therefore, the Board should conclude that this COER did not cause an error or injustice or that it was detrimental to his promotional opportunities. The COER should remain in his record.

Board Action on Officer's Appeal

Date of Board Meeting: xxxxxxx, 2000

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 Records

Members of the Board:

William F. Raub, Ph.D.
Chairperson of the Board and Deputy Assistant Secretary for Science Policy
Office of the Assistant Secretary for Planning and Evaluation, OS

Findings, Conclusion, Recommendation and Correction to the Record

Findings

  1. Xxxxxxx was stationed at the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx when alleged injustice occurred.
  2. Before appealing to the Board, he filed a grievance concerning his 1995 COER that was denied on its merits.
  3. The record did not document a personality conflict between Xxxxxxx and Xxxxxxx or how it could have impacted negatively on Xxxxxxx.
  4. The record documented performance problems and actions by XXX management to assist him in correcting them. Examples included: (a) not exceeding the performance standard, (b) professional weaknesses in treatment planning, pediatric dentistry and endodontics (c) patient complaints about dental services and (d) his poor attitude.
  5. Before 1995, he had been rated highly by Xxxxxxx on two previous COERS: his overall rating was "well above average" in 1994 and 1993. She rated him "marginal" on his 1995 COER.
  6. He was promoted to the Permanent Grade 0-4 and the Temporary Grade 0-5 after completion of his 1995 COER evaluation.

Conclusion

The Board members concluded that Xxxxxxx 1995 COER should remain in his record as written. The record documented repeated problems and remedial actions by xxx management to improve his performance. His 1995 COER, was not a detriment to his promotion to Temporary Grade 05 and Permanent Grade 04 (and assimilation into the Regular Corps).

Recommendation and Correction to the Record

The Board members recommended that Xxxxxxx request be denied. This requires no change to his 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 this matter.

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

Finally, we certify that a quorum was present on xxxxx xx, 2000 when Xxxxxxx appeal was considered.

If you approve, please sign below.

William F. Raub, Ph.D.
Chairperson of the Board
and Deputy Assistant Secretary
for Science Policy
Office of the Assistant Secretary for Planning and Evaluation, OS

Reviewed and Approved:

I hereby (x) approve ( ) disapprove the Board members' recommendation on Xxxxxxxs 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 PHS 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 as stipulated. He is entitled to review his record to ensure compliance with this decision.

Linda 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.