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Board for Correction Case No. 214-99

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Board for Correction Case No. 214-99

192.00 Pay and Allowances (Includes Allotments of Pay / Allowances / Basic Pay) - Retroactive special pay

Officer's Request for Relief:

Xxxxxxxx asked the Board to authorize Incentive Special Pay (ISP) for her effective xxxxx x, 1995 to xxxx xx, 1996.

Arguments by Officer:

Xxxxxxxx argued the following:

  1. She did not receive ISP effective Xxxxxx 1995, the second year of her 24 month contract. She believes that she is owed $16,000 plus interest.
  2. She does not remember ever receiving a contract to sign. One xxx have been included in the materials which accumulated in her office while she was on sick leave, but she has no knowledge of that.
  3. She was informed by the Division of Commissioned Personnel (DCP) that she did not receive ISP because she did not sign a contract for this payment. She argues that when she signed a contract in Xxxxxx 1994, she thought it covered a two-year period entitling her to ISP for both years. She did not know that the contract did not cover the second year of ISP.
  4. None of the bulletins and information she received ever informed her that ISP was renewable on a yearly basis and that she had to sign yearly contracts. Further, she never received any training on DCP policies and procedures dealing with special pay, nor did she have consistent supervision to assist her in handling such matters.
  5. Management did not inform her that they had not received her ISP contract or what she had to do to receive ISP during the second year. It was reasonable for her to have expected management to be aware of her situation since she received ISP during the first year and was on active duty during the second year.
  6. Her record showed that she had every intent of applying for ISP during her second year and that she worked that year even though she did not receive this special pay. During that time she worked faithfully, received outstandings on her COER evaluations and was given the "Employee of the Quarter" award.
  7. In finalizing her arguments, she considered DCP's contentions to be inaccurate, irrelevant or unsubstantiated for the following reasons:

    First of all, I disagree with the contention that I received adequate notice that my ISP contract was for one year. The fact that other officers received their contract has no bearing on whether I received mine. Furthermore, as I have stated previously, even if I had received my contract, I would not have sent it because I was unaware that I needed to complete it a second time. In my opinion, the contract is confusing with regards to how often one has to complete it for the various special pays. In addition, the liaison assigned to me to guide me through the paperwork did not fulfill her duty as defined by normal procedures when officers fail to sign their ISP contracts. There is documentation that she made one unsuccessful attempt to reach me and then did not try again. Thereafter, she was on sick leave xxxxxxx without an adequate substitute.

    Secondly, the argument that my record does not support my claim that I was incapacitated contradicts itself. DCP first argues that I was not on sick leave but provides no evidence of my working at the health center during the period in question. In the next paragraph, however, DCP states that I was able to do work "during my absence." Indeed, I was absent from work between mid Xxx 1996 and Xxxxxxx 1996, with the exception of approximately two weeks. However, I was able to do limited work from home during part of that period. Furthermore, I completed a sick leave slip. The fact that this was not received by commissioned corps personnel further supports my argument that my service unit was inadequately trained in the rules and procedures of the Corps and, therefore, was unable to provide guidance to me with my contract. As mentioned in previous documents, officers in other branches of the military receive days, if not weeks, of training on many topics including rules and procedures. Neither myself nor any of my advisors at Xxxxxxxxxxxxxxxxx received any formal training in these procedures and, therefore, we were insufficiently prepared to handle such matters.

    In conclusion, I admit that I failed to sign my second year ISP contract in a timely manner. However, this is because I was inadequately trained in the rules and procedures of the Corps and because procedures to protect officers from such a mistake were not followed. In failing to pay my second year ISP, the Corps is clearly failing to uphold the spirit of its regulations as well as the letter of some of its regulations and procedures.

Xxxxxxxx believed that the financial loss she sustained from not receiving ISP was an injustice not entirely her fault. She earned ISP based on her performance during her second year.

Arquments by DCP:

DCP argued the following:

DCP reviewed Xxxxxxxx application and found that she exhausted her administrative remedies and that her application is properly before the Board.

  1. Not entitled to payment as a matter of law

    Xxxxxxxx claims the United States Government owes her $16,000.00 based on an ISP contract. In accordance with Title 31 U.S.C. 3702, Xxxxxxxx claim was forwarded to the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, for review and disposition.

    XXX ruled that, based upon the record, Xxxxxxxx is not entitled to the payment of $16,000.00. She was required to sign a second contract in order to receive ISP for the period Xxxxxx 1995 to Xxx 1996. XXX found she did not sign the contract until xxxxx x, 1996, and was correctly not paid ISP at that time because Title 37 U.S.C. 301(b) (1) requires ISP be paid for a 12 month period of active duty and she separated from active duty on Xxxxxx x, 1996. There is no evidence of an error in fact in the record from XXX to support Xxxxxxxx assertion that she is entitled to a payment of $16,000 for an ISP contract covering the period Xxxxxx x, 1995 to xxxx xx, 1996. XXX opinion and ruling is incorporated herein by reference.
  2. Adequate notice that ISP Contract was for one year

    The Administrative Report, incorporated herein by reference, provides documentation of the multiple notices to the officer that ISP is an annual contract.

    Specific sources of notice included:

    a. The Commissioned Officer's Handbook provided upon appointment.

    b. Medical Special Pay package provided upon appointment.

    c. Commissioned Corps Bulletin articles for xxxx 1995 xxxxxx 1995, and xxxx 1996 sent to all officers.

    d. Personnel order dated xxxxx xx 1994 noting ISP is a one Year contract effective xxxxx x, 1994

    e. Notice from Indian Health Service (IHS) in xxx and again in xxxxx 1995.

    DCP provided Operating Divisions' Liaisons with lists containing names of officers who were required to sign special pay contracts. Of the 65 officers receiving ISP in the xxxx xx, HIS, during the period xxxxx x, 1994 to xxxxxxx xx, 1996, Xxxxxxxx was the only officer who alleged not receiving a contract during the period in question. Sixty-four other officers completed their contracts in a timely manner and were paid. The Board should conclude that she received the same notice as the other officers in that area, but through no fault of the PHS or the IHS, failed to complete and return the form to DCP in a timely fashion.
  3. The record does not support xx xxxxxx claim that she was incapacitated during the period in question

    a. The Administrative Report is incorporated herein by reference. DCP had no Form PHS-1345, documenting use of sick leave by Xxxxxxxx during the period in question as required by INSTRUCTION 4, Subchapter CC29.1, "Sick Leave, " of the Commissioned Corps Personnel Manual.

    b. Xxxxxxxx supervisor stated that she continued to work from home during her absence. This demonstrates that she was able to complete paperwork such as that necessary to complete a contract.

    Xxxxxxxx failure to execute an ISP contract in a timely manner xxx have been due to an oversight on her part. However, such an oversight, without evidence that IHS or PHS failed to perform its duties, does not warrant, nor constitute a finding of an error or injustice. For the aforementioned reasons, DCP recommends that this application be denied.

Board Action on Officer's Appeal:

Date of Board Meeting: xxxx xx, 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, Conclusions, Recommendation and Correction to the Record:

Findings:

  1. Xxxxxxxx was called to active duty on Xxxxxx x, 1994; she separated on Xxxxxx x, 1996.
  2. She was assigned to IHS on Xxxxxx x, 1994 as a physician at the xxxxxx xxxxx xxxx, xxxxxx xxxxxxxxx , xxxxxx, xxxxx. She was a new officer in the commissioned corps.
  3. She signed the first year of her ISP contract on Xxxxxx xx, 1994.
  4. On or about Xxx 1995, she was sent notice requiring certification to entitle her to receive ISP during the second year of her contract. She had not signed for the second year thinking her initial signing covered 24 months. She signed for the second year on xxxx 1996.
  5. Those administering her contract seemed to have supported paying her ISP during the second year by writing on Xxxxx 1996: "The earliest effective date for the Incentive Special Pay would be the date you signed the contract, xxxx 1996. Payment of ISP will be process [ed] when we receive your concurrence with the xxx effective date."
  6. Those administering her contract also seemed to supported paying her ISP during the second year writing on xxxx x, 1997: "Notification of acceptance of the xxxx x, 1996 date was not received; therefore, no ISP contract was consummated, and no payment was made."
  7. She served at an ISP hardship site during the second year and received recognition for her performance.
  8. DCP summarized information provided to her on administering ISP contracts.

Conclusions:

The Board members concluded that Xxxxxxxx assertion that she thought her ISP contract was coextensive with her 24-month contracts for Retention Special Pay (RSP) and Multi-year Retention Bonus (MRB) was plausible for the following reasons:

  1. Notwithstanding the ISP-specific statements contained in the Commissioned Officers' Handbook, articles in the Commissioned Corps Bulletin, and other documents, the Board recognized that a new officer could fail to understand that ISP contracts were issued one year at a time-even if they were initiated pursuant to the same Medical Special Pay (MSP) contract request that covered multi-year contracts for RSP and/or MRB, as was the case for Xxxxxxxx. The one year limitation on ISP contracts is not intuitively obvious in this context.
  2. Further, the Board noted that Form PHS-6300-1, "Special Pay Contract Request, " could mislead some readers regarding the tenure of ISP contracts. The pertinent language on the form is as follows: "1 year-If MRB contract, rate of concurrent ISP contract fixed for duration of MRB. " A new officer could easily misinterpret the latter part of this statement to mean the one year limitation does not apply in the context of a concurrent Multi-year Retention Bonus.

Xxxxxxxx assertion that she had no recollection of receiving the form to renew ISP was plausible for the following reasons:

  1. Xxxxxxxx was not at her duty station during the period when the ISP renewal form might have arrived. From Xxx xx, 1995 to Xxxxxx x, 1995 xxxx xxxx and working at home xxxx xxxx xx xx xxx. She returned to work for two weeks and, xxxxx xxxx xx xxx on Xxxxxx xx, 1995, was away from her duty station again until xxxxxx xx, 1995, on a combination of xxxxxx xxx xx xxx xxx. Documents addressed to her apparently were not sent to her home but instead were allowed to accumulate at her duty station.
  2. Xxxxxxxx supervisor (xxxx x xxxx, xx, xxxxxxx, xxxxxxx xxxxxx xxxx) , indicated (letter of Xxx 1996 to Xxxxxxxxxxxxxxxxxxxxx, Director, DCP), that her organization was not able to provide Xxxxxxxx any significant administrative support or guidance regarding requirements of the commissioned corps. In particular, xx xxxxx noted that: "xxxxxx is a very isolated environment and one which has very few commissioned officers. None of the executive management team is a member of the commissioned corps and we therefore do not have access to some of the more esoteric correspondence received by our officers... the lack of a Federal budget this year limited all training and it was impossible for any of us to have obtained the necessary commissioned corps training in time to prevent this situation from occurring. "
  3. Thus, the Board viewed Xxxxxxxx circumstances as unique due to the combination of: (a) her extended absence from her duty station and (b) paucity of administrative support at the xxxxxx xxxxxx xxx regarding commissioned corps forms and procedures. In this context, the fact that the other 64 officers assigned within the xxx xxx of IHS apparently received the forms necessary to renew their ISP contracts and completed them on time should have little bearing on the disposition of Xxxxxxxx appeal.

To deny ISP to Xxxxxxxx for the period Xxxxxx x, 1995 to xxxx xx, 1996 would be an instance of rules at the expense of justice, for the following reasons:

  1. Xxxxxxxx fulfilled the two-year MSP contract she signed on Xxxxxx 1994.
  2. Xxxxxxxx worked with an under served population in a hardship area.
  3. Xxxxxxxx willingly took extra training to be able to take evening and weekend emergency calls involving adult patients even though her speciality was xxxxxxxx (reference xxxxxxxxxx letter).
  4. Xxxxxxxx was an asset to the xxxxxx xxxxxx xxxx and her performance was recognized in part by receipt of the "Employee of the Quarter Award."
  5. The documentation as to whether Xxxxxxxx received notification to sign for the second year of her ISP contract, and if received, failed to follow instructions or did not receive notification, was inconclusive due to the lack of verification that she received such information (use of certified mail would have been appropriate in this instance). There was sufficient cause to conclude that this matter was a genuine accident and misfortune not due solely to the officer.

Recommendation and Correction to the Record:

The Board members recommended that Xxxxxxxx be paid $16,000 for the second year of her ISP contract covering the period Xxxxxx x, 1995 to xxxx xx, 1996 and that her record be corrected to show she signed her contract on the certification date necessary to make the second year of her contract effective. The Office of the General Counsel stated that the Board did not have the legal authority to authorize her to receive interest for the period involved.

We certify that the Board members' recommendation and correction to the record reflect their views and actions after considering Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx 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 and correction to the record on Xxxxxxxx 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 her record as stipulated. She is entitled to review her 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.