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Board for Correction Case No. 200-97

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Board for Correction Case No. 200-97

175.00 Leave (Includes Annual / Home / Sick / Station Leave) - Pay for unused annual leave

Board Recommendation and Decision on the Appeal of: xxxxxxxx, Case Number 200-97

Xxxxxxx Appeal for Relief:

Officer asked the Board to:

Grant him lump sum payment for unused annual leave from Xxxx 1997 to Xxxx, 1997 or restore him to active duty.

Summary of Xxxxxxx Arguments and Documentation:

  1. He never applied to use annual leave during the month of Xxxx 1997 or to use terminal leave. 
  2. Payment for his unused annual leave had been approved incident to retiring from the commissioned corps and should not have been retroactively denied. He had specifically requested payment for his unused annual leave.
  3. Payment for his unused annual leave was a benefit to which he was entitled by corps policy when he signed PHS Form 1373 upon retiring. He considered the provisions of this form to have been binding upon approval by management officials.
  4. Not knowing that payment for unused annual leave was an option when he considered retirement, he advised his temporary supervisor at that time that he would apply for terminal leave upon separation. He learned about the lump sum payment option two weeks before receiving his retirement package. Upon learning of the option, he applied for payment for his unused annual leave. The Division of Commissioned Personnel (DCP) did not honor his request but charged 30 days against his unused annual leave balance. 
  5. He had been a victim of a personnel vendetta by officials at the xxxx xxxxxxxx where he worked because of his whistleblowing activities.
  6. An attempt was made to reduce his grade by convening a Promotion Review Board to act on a XXXX recommendation that he be demoted. The Surgeon General dismissed the recommendation after learning of the procedure followed by DCP in processing the recommendation.

Xxxxxxx believed that applying his unused annual leave to the period when he was considered AWOL (even though he was not AWOL) was an injustice because it reduced his entitlement to pay for unused annual leave.

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

  1. Officer did not provide evidence that he had been directed to return to work for XXXX for the period Xxxx 1997 to Xxxx 1997 or that he physically reported to duty at any XXXX duty station during the period he was AWOL. Absent such evidence, he was AWOL. 
  2. Officer did not provide sufficient relevant evidence to demonstrate the existence of a probable error or injustice.
  3. Officer was not at his duty station nor on approved annual leave during the period for which he sought payment for unused annual leave. He was AWOL during that period.
  4. Officer was permitted to use unused annual leave to cover the period he was AWOL rather than face the consequences of having been AWOL.
  5. Officer had been made aware that he had the option of accepting payment for his unused annual leave rather than using terminal leave.
  6. Officer contended that he was at home during the period in question and called XXXX daily. XXXX stated that non-duty status had not been authorized nor did the officer perform any work for them while in AWOL status. 
  7. Officer's contention that the expiration date on his building pass determined the expiration date of his assignment was invalid since passes covered 60 days with a potential 30 day renewal.
  8. The issues in officer's whistleblowing activities were not considerations in his being AWOL.

DCP believed that Xxxxxxx best interest was served by placing him on annual leave for the month of Xxxx 1997 when he was AWOL. This reduced his unused annual leave balance. There was no error or injustice in his record.

Board Action on Xxxxxxx 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

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 and Recommendation:

Findings:

  1. xxxxxxxxxx, xxxxxxxxxxxxx, XXXX, placed Xxxxxxx in non-duty status with pay effective xxxx 1996. He was instructed to report daily by telephone to xx xxxxxxx, XXXX. xxx stated that he would remain in non-duty status with pay until officially notified otherwise.
  2. xxxxx instructed Xxxxxxx on xxxxxx 1997 to report to xxxxxxxxxxx, Public Health Service (PHS), Regional Health Administrator, xxxx xx xxx xxxxxxxxxxx, for a Temporary Duty (TDY) assignment. The instruction placed no end date on the duration of the assignment. Xxxxxxx wrote on xxxxx 1997 that xxxxxxxx told him on xxxxxx 1997 that his assignment would end on xxxx 1997 (later confirmed by the timing of his return to xxxxxx supervision) .
  3. xxxxxxxx assigned Xxxxxxx to work under xxxxxxxxxx, xxxxxxx xxxx, xxx, xxx xx. The Board members found no documentation reassigning him to Xxxxxxx nor did they find any evidence that Xxxxxxx had a different opinion of the duration of his assignment than did Xxxxxxx. The assignment was not in dispute.
  4. Xxxxxxx assignment with Xxxxxxx ended xxxxx 1997 (one month before his planned retirement on xxx 1997). He wrote Xxxxxxx on xxxx 1997 telling him that he planned to take leave from Xxxx 1997 through xxxx 1997 and then retire. The leave would be deducted from his unused leave balance. 
  5. DCP considered Xxxxxxx to be on AWOL from Xxxx 1997 to Xxxx 1997 because he did not have approved leave. He was placed on annual leave for this period to avoid being considered AWOL one month prior to his retirement. The Board members found no documentation indicating that xxxx ever asked that he be placed on AWOL or that a personnel order was ever issued officially placing him on AWOL.
  6. At Xxxxxxx retirement, 30 days of annual leave was deducted from his unused leave balance covering the month of Xxxx 1997. This reduced the lump sum payment he was entitled to receive for his unused leave.

Conclusions:

The Board members' recommendation turned on whether Xxxxxxx was on duty or AWOL or annual leave during the month of Xxxx 1997. They concluded that he was in non-duty status with pay for the month. They were persuaded that:

  1. After completing his assignment on xxxxx 1997, Xxxxxxx returned to his original non-duty with pay status, under xxxx, as was his status prior to being assigned to Xxxxxxx. The Board members found no documentation indicating that anyone ever officially notified him that he would not remain in non-duty with pay status after his return to Xxxxxxx.
  2. Xxxxxxx acknowledged receiving telephone calls from Xxxxxxx during the month of Xxxx 1997 (she had received such calls before his assignment to xxxxxx xxx) . The Board members found no documentation indicating that she or anyone else ever complained about not knowing of his whereabouts or that he was otherwise unavailable or that he did not complete assigned work during the month prior to his retirement. They also did not find any documentation indicating that Xxxxxxx ever considered him to be AWOL during the month of Xxxx 1997. 
  3. DCP considered Xxxxxxx AWOL from Xxxx 1997 to Xxxx 1997 because he was not on approved leave. However, Xxxxxxx' xxxx 1996 letter reassigning him stated that he would remain in non-duty with pay status until officially notified otherwise (the Board members found no documentation indicating that he was ever officially notified of any change in his status). Xxxxxxx, his supervisor, seemed to have been aware of where he was and what he was doing. The Board members found no documentation indicating that she ever complained about not being able to reach him (in fact, she said he called too often). He defended his whereabouts by claiming that he performed work during Xxxx 1997 responding to technical assistance calls. The record did not support this claim one way or the other. 
  4. Xxxxxxx learned that he could receive payment for his unused annual leave after he wrote Xxxxxxx about his retirement plan on xxxxxxx 1997. He learned this on xxxxx 1997. He changed his mind about taking leave and instead requested payment for his unused leave upon completing his separation papers two days later on xxxxx 1997.

Recommendation and Correction to the Record:

The Board members recommend that Xxxxxxx appeal be upheld and that he receive payment for 30 days of annual leave covering the month of Xxxx 1997. Implementation of this recommendation also requires that the AWOL, and related documents, be removed from his record and that appropriate personnel orders be issued. He 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 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 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 xxxxx 1998 when 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 (X) approve ( ) disapprove the Board members' recommendation 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 authorize the Director, DCP, to correct his record as stipulated and issue appropriate personnel orders. He is entitled to review his record to ensure compliance with this decision.

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.