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Board for Correction Case No. 212-98

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Board for Correction Case No. 212-98

109.00 Appointment as Commissioned Officer - Recall to active duty

Board Members' Recommendations and Decision on Appeal of: Xxxxxxxxxxxxxxxxxx, Case Number 212-98

Officer's Request for Relief:

Xxxxxxxxx appealed to the Board asking it to expunge Personnel Order xxxxxxx, dated Xxxxxx 1997 {terminating him from the commissioned corps), from his records and retroactively reinstate him in the conunissioned corps as of that date.

Arguments by Officer:

Xxxxxxxxx argued the following:

He contended that he was wrongfully terminated from the Public Health Service (PHS) as a result, at best, of a misunderstanding, or at worst, because of misrepresentations made to him by personnel officers in the Division of Commissioned Personnel (DCP). He asks that he be reinstated to allow him to continue his service as a PHS officer and not forfeit benefits he had earned. His arguments were as follows:

  1. During early 1997 his working relationship with supervisor, Xxxxxxxxxxxxxxxx, deteriorated to the point where both thought it best for him to a different position within the Public Health Service.
  2. He took accrued leave for most of the summer of 1997 while seeking a transfer appropriate to his qualifications and interest. When his unused leave approached exhaustion, a dispute arose over how his leave had been calculated. He was allegedly threatened with being placed on AWOL as a result of his leave situation.
  3. Because of his leave situation and because no suitable transfer appeared immediately available, Xxxxxxxxxxxxxxxxxxxxx, [now xxxx], xxxxxx xxxxx xxxx, DCP, advised him to apply for "inactivation, while continuing to search for a position. He stated that he had no reason to view this advice suspiciously; in fact, it seemed a reasonable temporary solution while searching for a job. It was based on advice from DCP's Office of Human Resources.
  4. Acting on Xxxxxxxxxx advice, he applied for "inactivation on Xxxxxx 1997. His application was approved by his supervisor on Xxxxxx 1997. He stated that he never was advised that requesting inactive reserve status would be seen as a breach of contract and never was notified that he could or would be terminated rather than inactivated. He stated that he never would have applied for inactivation had he known that doing so could lead to termination.
  5. He left his post at the xxxxxx xxxxxxxxx xxx xxxxxxxx xxxxxxxxxx (xxxx) thinking he would be inactivated since he had not received a termination order. He learned from the Xxxxxx, while considering a position there, that his request for inactivation had been denied and that he had been terminated making him ineligible for reactivation. The Xxxxxx hired him in a civilian capacity.
  6. He alleged that he did not breach his special pay contract; he was not AWOL, and he was not under any adverse job review, rating or disciplinary action. He only applied for inactivation. It is DCP which breached his contract by involuntarily terminating him. The appropriate manner in which DCP should have handled the request for inactivation, if DCP felt the request improper, was to deny it and inform him of the denial, putting to him the choice of returning to his post or requesting termination.

Xxxxxx believed he had been treated unfairly and that he suffered an injustice from the circumstances which led to his termination from the Corps.

Arguments by DCP:

DCP argued the following:

  1. Xxxxxxxxx stated that his former supervisor suggested that he seek a different position within the Public Health Service. However, Xxxxxxxxx sought and accepted a position with the Xxxxxx, an entity outside of the PHS and outside the control of the Secretary, Department of Health and Human Services.
  2. Xxxxxxxxx was absent from his assigned duty station for almost five months using a combination of sick leave and annual leave. He exhausted all available annual leave and was AWOL for 12 days prior to separation. The facts seem to indicate that Xxxxxxxxx did not intend to return to his assigned duty station. Had he not been separated on xxxx 1997, pursuant to his request for voluntary separation, he would have been dropped from the roles in mid-late Xxxxxx 1997 for being AWOL in excess of 30 days pursuant to Secretarial Regulations published in the CCPM, Subchapter CC46.4, INSTRUCTION 1, "Disciplinary Action."
  3. Xxxxxxxxxx, in sworn affidavit, stated that he informed Xxxxxxxxx of the full ramifications of seeking inactivation. His request for inactivation was correctly denied by the Director, DCP, because Xxxxxxxxx failed to fulfill an active duty obligation incurred as a result of receiving Retention Special Pay. But for two impediments, breach of contract and AWOL, Xxxxxxxxx request for inactivation would have been honored.
  4. Xxxxxxxxxx stated that he advised Xxxxxxxxx of the consequences of requesting separation prior to completing his special pay contract. On Xxxxxx 1997, Xxxxxxxxx requested "Separation from Active Duty" indicating that his last day at his duty station would be Xxxxxx 1997. In fact, Xxxxxxxxx did not return to his duty station, but applied for annual leave for the period Xxxxxx 1997 through Xxxxxx 1997. Although officers are usually divested of annual leave when separating while breaching a contract, the Director, DCP, upon request from XXXX, allowed Xxxxxxxxx to use all the leave that had been credited to him before his request for separation. Xxxxxxxxx had exhausted all his annual leave by Xxxxxx 1997.
  5. Xxxxxxxxx left his post at XXXX months before submitting his request for separation. On Xxxxxx 1997, DCP forwarded a copy of Personnel Order Number xxxxxxx to his Xxxxxx address as indicated on his separation form. Xxxxxxxxx could have submitted an application for reappointment at any time and it would have been processed as a call to active duty. Even if he had been placed in the Inactive Reserve Corps (IRC), he would have had to meet the medical appointment standards for recall to active duty. The Board should decline recalling Xxxxxxxxx to active duty without a determination of the officer's medical qualifications.
  6. Even if the Board finds an error or injustice in the denial of inactivation, there is no basis for recalling Xxxxxxxxx to active duty retroactive to the date of his voluntary separation. The appropriate remedy upon such a finding would be placement in the Inactive Reserve Corps. Xxxxxxxxx current position is not with the PHS and he has identified no Operating Division willing to support his assignment as a detail. There is no evidence that he sought or is seeking an assignment within the Public Health Service. He has not sought recall to active duty by submitting an application.

Board Action on Officer's Appeal:

Date of Board Meeting: xxxx 2000

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.
Executive Secretary
Board for Correction of PHS Commissioned Corps Records

Members of the Board:

Harold P. Thompson
Chairperson of the Board and Executive Officer
Office of Public Health and Science, OS

Findings, Conclusions, Recommendations and Corrections to the Record:

Findings

  1. PHS Form-1373, "Separation of Commissioned Officer" is completed by officers when separating from the commissioned corps. The form allows them to indicate whether they wish to terminate, inactivate or retire. According to CCPM Pamphlet No.32, "Information on Separation, terminate means an officer wishes to: " ... sever all ties to the PHS; ­inactivate means an officer wishes to: "...retain [his/her] commission in the PHS Commissioned Corps through an appointment in the Inactive Reserve Corps.
  2. CCPM Pamphlet No.32 provides officers with the following guidance after completing PHS Form-1373:

    If you requested appointment to the inactive reserve corps, DCP will send you a packet of information and request a response from you. You will need to provide the following to DCP: completed PHS Form-6127, "U.S. Public Health Service Commissioned Corps Questionnaire; a current curriculum vita; and a photocopy of your current professional license or registration or certification. After reviewing the inactive reserve program information, if you elect to terminate your commission, complete and return PHS Form-6125, "Resignation---PHS Commissioned Officers Inactive Reserve.
  3. The record did not document that Xxxxxxxxx was sent or received the packet referenced in CCPM Pamphlet No.32 describing the inactive reserve program nor did it document that PHS Form-6127 was sent and received by him. The record also did not document that he was sent or received PHS Form-6125 or that he completed a form electing to terminate his commission.
  4. Xxxxxxxxx had not completed his special pay contract when he requested inactivation. CCPM Pamphlet No.32 stated that failure to complete a special pay contract upon separating required the officer to repay the unserved portion of the contract and be terminated. (He reimbursed the U.S. ­Government for the unserved portion of his contract and was terminated.) PHS Form-1373 was processed by DCP as a request for termination without knowledge from Xxxxxxxxx that he understood inactivation could lead to termination.
  5. DCP stated that but for the following impediments: breach of special pay contract and AWOL, Xxxxxxxxx request for inactivation would have been honored. According to his 1997 leave record, he was on approved annual leave from Xxxxxx 1997 to Xxxxxx 1997 and AWOL starting Xxxxxx 1997. He applied for inactivation on Xxxxxx 1997 (his supervisor approved his request on Xxxxxx 1997). His approved leave ended on Xxxxxx 1997 (10 days after he applied for inactivation) . There was a discrepancy regarding the amount of leave he had. According to the Xxxxxxxxxxxxxxxxxxxxxx, XXXX, he only had leave through Xxxxxx 1997 (instead of through Xxxxxx 1997).
  6. Xxxxxxxxxx stated in an affidavit that he: "...informed Xxxxxxxxx of the policies and procedures for requesting inactivation by an active duty officer with contractual obligations. Xxxxxxxxx stated that Xxxxxxxxxx actually suggested inactivation to him when he sought his advice.

Conclusions

  1. The record did not document that DCP's policy, as outlined in CCPM Pamphlet No- 32, was followed fully in processing Xxxxxxxxx request for inactivation. The information provided by PHS Form-6127 and PHS Form-6125 was not available. He did not have an opportunity to formally express his wish regarding an appointment in the inactive reserve after learning about the program requirements or to retract his request when it became evident that inactivation would lead to termination. There was no indication that DCP sought confirmation of his intention to terminate his commission since that would have been a major career decision.
  2. CCPM, Subchapter 23.0, INSTRUCTION 1, "PHS Inactive Reserve Corps, containing policies and procedures for the Inactive Reserve Corps, is not consistent with CCPM Pamphlet No.32 since it makes no reference to PHS Form-6127 or PHS Form 6125, leading to possible confusion.
  3. Xxxxxxxxxx statement regarding his conversation with Xxxxxxxxx was inconclusive since it did not specify what information he gave the officer.

Recommendations and Corrections to the Record:

When Xxxxxxxxx completed PHS Form-1373, he checked "Inactivation meaning he wished to separate but retain his commission through an appointment in the Inactive Reserve Corps. He did not wish to sever all ties with the commissioned corps or be terminated.

Therefore:

After consideration of all the documentation received, the Board members recommended that Xxxxxxxxx appeal be upheld. This requires that his record be corrected by expunging Personnel Order xxxxxxx, dated Xxxxxx 1997 (terminating him from the commissioned corps), and that he be retroactively reinstated as of Xxxxxx 1997. It also requires that XXXX provide him with a suitable billet and arrange a reimbursable detail to the Xxxxxx, if he considers that desirable; and that he receive all pay, allowances and benefits to which he is entitled as a result of this recommendation (as adjusted by any service or compensation received from his employment with the Xxxxxx).

We certify that the Board members' recommendations and corrections to the record reflect their views and actions after considering Xxxxxxxxx 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 Xxxxxxxxx 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 xxxx 2000 when Xxxxxxxxx appeal was considered.

If you approve, please sign below.

Harold P. Thompson
Chairperson of the Board and Executive Officer
Office of Public Health and Science, OS

Reviewed and Approved:

I hereby (I) approve () disapprove the Board members' recommendations and corrections to the record on Xxxxxxxxx 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 and correct his record as stipulated. He is entitled to review his record to ­ensure compliance with this decision.

Lynnda M. Regan
Director
Program Support Center

Attachment: Case Record

Board for Correction Case of Xxxxxxxx xxxxxxx, Case Number 212-98

The following correspondence is attached for your review:

  1. Xxxxxx 2000, letter from the Chairperson, Board of Correction of PHS Commissioned Corps Records.
  2. Xxxxxx 2000, approval of the Board's recommendations signed by Lynda M. Regan, former Director of the Program Support Center.
  3. xxxxxxxx 2000, letter from Director, Division of Commissioned Personnel.
  4. xxxxxxx 2001, letter from Associate General Counsel.

The Xxxxxx 2000, and Xxxxxx 2000, documents referenced above were the Board's recommendations and the Approving Authority approval in the case of Xxxxxxxxxx xxxx. The approved Board decision required the Division of Commissioned Personnel (DCP) to expunge Xxxxxxxxx removal order, retroactively reinstate him as of Xxxxxx 1997, provide him with a suitable XXXX billet, arrange a reimbursable detail to the Xxxxxx, and provide him with retroactive pay and other benefits. By letter of xxxxxx 2000, the Director, DCP advised the Board that Xxxxxxxxx had been reinstated in the Inactive Reserve Corps but that the remainder of the Board's decision had not been implemented pending a review by the Office of General Counsel. On xxxxxxx 2001, the Associate General Counsel advised that the Board's authority is limited to recommending correction of records and does not extend to giving agencies operational directions. The Associate General Counsel further advised that the correction of Xxxxxxxxx records to expunge the record of termination is within the Board's authority but that the direction to arrange a reimbursable detail to the Xxxxxx exceeds the Board's authority.

This case has languished since receipt of the xxxxxx 2001, OGC letter. In accordance with the OGC opinion, I am recommending that you revise the former PSC Director's decision in this case. Since the decision was never fully implemented, you may resolve this case by using your authority as the individual delegated to decide Board matters on behalf of the Secretary. I recommend that you revise the Board's decision by directing that Xxxxxxxxx removal order be expunged and that he be reinstated to the Inactive Reserve Corps effective Xxxxxx 1997, that his records be annotated accordingly, and that he receive any pay and/or benefits that may result from this action. Further, I recommend that you disapprove the remaining Board recommendations which were to provide him with a suitable XXXX billet and arrange a reimbursable detail to the Xxxxxx, and that you also disapprove retroactive pay and other benefits that might result from these actions.

I have coordinated this recommendation with the Office of the General Counsel, Business and Administrative Law Division, which has concurred with the lawfulness of the recommendations outlined above, and with your authority to take these actions.

Nancy E. Ward

I hereby (x) approve ( ) disapprove the above recommendations on Xxxxxxxxx appeal and direct the Director, Division of Commissioned Personnel, Program Support Center, to implement this decision and correct Xxxxxxxxx record as stipulated. Xxxxxxxxx is entitled to review his record to ensure compliance with this decision.

Curt Coy

Director
Program Support Center

Date


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.