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Board for Correction Case No. 217-00

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Board for Correction Case No. 217-00

199.00 Promotion Program - Change training and experience date

Board Members' Recommendation and Decision on Appeal of: Xxxxxxxxxxxxxxxxxxxxxxxxxxx, Case Number 217-00

I. Officer's Request for Relief:

  1. Change his Training and Experience Date from Xxxxxx x, 1982 to Xxxxxx xx, 1974 when he became a college student. (Training and Experience includes the time allocable to an officer making him/her eligible for a higher rank.) 
  2. Give him six months retirement credit based on active duty served before Xxxx x, 1988.

II. Overview by Officer:

  1. The Xxxxxxxxxx did not advise him of the CCPM, Subchapter CC23.3, INSTRUCTION 4, policy on Training and Experience (T&E) credit upon appointment to the PHS Commissioned Corps and the T&E cap, nor of possible waiver of the cap before being called to active duty in the corps.
  2. PHS policy on T&E is inconsistent and differs from that of other Federal Agencies. No other Federal Agency or branch of service has similar discriminating policies against applicants who are otherwise overqualified for full grade appointments or who would be eligible for promotion shortly after appointment.

    The reason for the policy is not ethical. Any law or operational regulation could not delete years of real T&E time of any citizen for its own benefit. The civil rights of the affected applicant(s) was violated by granting real T&E time to officers appointed before the policy became effective.
  3. The provisions of CCPM, Subchapter CC23.3, INSTRUCTION 4, Section 6(c), page 15, limiting T&E credit to 17 years maximum is actually not practiced or observed by any Armed Force or Federal Agency. Furthermore, the policy outlined in INSTRUCTION 4 is in fact an injustice to all officers who can be appointed at higher ranks or who would be eligible for promotions shortly after appointments. Candidates for appointments before the date (Xxxx xx, 1995) of the policy were not affected by this provision. Allowing special exclusion or preferential treatment for PHS officers before the implementation date is not ethical since it creates a separate officer group.
  4. This policy also complicates the intent and plan of members of the Armed Forces who wish to complete a uniformed services career. Each applicant's scenario is different. The majority of them do not like to continue moving their families every two to three years, being deployed frequently for long periods of time to remote areas in the world, not being compensated adequately during each permanent change of station move, being involved in frequent field readiness training exercises, etc. It was not professional for Xxxxxxxxxxxxxxxxx, Division of Commissioned Personnel (DCP) Xxxxxxxx, to assume that officers coming from the Armed Forces fail to meet "up or out" promotion requirements. Medical Corps Armed Forces officers are not being or are ever released due to downsizing, but line officers are. This should be made clear to Board members.
  5. He was not selected for promotion for nine years. He felt pressed to comment on a statement by the DCP Xxxxxxxx regarding this issue. For the record, he served in two different branches of the Armed Forces for a little more than 10 years of combined service. The transition time from one branch to the other, and not being able to complete the required professional military education courses for higher rank, were out of his control and caused a delay in being promoted.
  6. Furthermore, not being briefed and counseled beforehand by anyone in the Xxxxxxxxxx or in the USPHS about CCPM, Subchapter CC23.3, INSTRUCTION 4 and the T&E cap policy and that another waiver request (in addition to the request for waiver of the eight year active Federal military service rule) could have been made before being called to active duty, constituted negligence and possible fraud (because it concealed vital information from him necessary to considering whether or not to accept or reject a job offer from the USPHS) .
  7. The T&E cap policy does not have a rational basis and is not equally mandated in any other Federal medical organization, military or nonmilitary. No Federal Government employee or job applicant to the commissioned corps should be downgraded in T&E credit. This valuable time has been earned and granted by accredited educational institutions involving high personal and family sacrifices, lifetime and honor. There is no legal or moral rationale to support this kind of unilateral policy that is against the equal opportunity principle.
  8. The time covered by his current T&E date is not correct. His appointment to the PHS Commissioned Corps in 1999 without a break in service should not affect the 17 year credit rule. He did not lose any T&E time when he transferred from the Xxxxxxxx to the Xxxxxxxx (likewise, he does not see why his transfer to the PHS Commissioned Corps should cause him to lose any time since all three are part of the uniformed service). As a result of the PHS T&E cap policy, he lost "8 years" of true T&E credit.

    10 U.S.C 122207 capping constructive credit at the 0-4 grade in the Armed Forces became effective on Xxxxxxx x, 1996, as provided by Act on Xxxxxxx x, 1994, did not apply to him (since his continuous military personnel history without a break in service started on Xxxx x, 1988 with the Xxxxxxxx, then with the Xxxxxxxx from Xxxxxx x, 1992, long before 10 U.S.C. 122207 became effective).
  9. The Xxxxxxxx Agency Support Division in Xxxxxxxx, gave him six additional months retirement credit for active duty served before Xxxx x 1988. This requires changing his Retirement Credit Date from Xxxx x, 1988 to Xxxxxx x, 1988.

Summary:

  1. His true T&E exceeds the 14 years allowed by DCP policy. started his undergraduate education and training on Xxxxxx xx, 1974 (xxxxxx).
  2. His appeal should be granted and approved on the merits that the accepting agency failed and mislead him about the application of the T&E cap policy before he accepted a job transfer from the Armed Forces.
  3. He was not briefed on the existence of the T&E cap policy or on the opportunity to negotiate with the PHS Xxxxxxxxxx Xxxxxxxx on a waiver of the policy before being called to active duty.
  4. A recommendation to annul the policy should be made to the Office of the Surgeon General. If the policy was established in response to criticism that the PHS Commissioned Corps was top heavy with many senior officers, new commissioned officers should not be victims of that criticism. There are other solutions possible. Most of the large civilian corporations as well as the Armed Forces offer early retirement and/or retirement longevity caps (20 years to the maximum) to high cost senior ranking officers.

He believed that he was unjustly denied credit for his T&E time causing an eventual delay in his promotion to xxxx x by about seven years.

III. Response bv DCP:

  1. The applicant was advised that the Xxxxxxxxxx would not support a request for his appointment to the 0-5 grade.
  2. Based on documents in the applicant's Official Personnel Folder, the Armed Forces caps constructive credit, the equivalent of T&E credit, at 14 years. PHS is more generous in capping T&E at 17 years.
  3. Distinctions made with regard to longevity with the PHS violates no laws, regulations, policies or procedures. The longevity in PHS affords managers an opportunity to evaluate an officer's performance over an extended period of time. Sustained superior performance is desirable for promotions to the Senior Grades.
  4. The applicant made it clear that part of his intent in applying to the PHS was the increased opportunity for promotion. See Item Number 40 on the applicant's PHS-50, "Application for Appointment as a Commissioned Officer in the U.S Public Health Service." Although officers assigned to the Armed Forces seek appointment to the PHS for a variety of reasons, many such officers seek appointments for promotion opportunities because of the "up or out" policies of the Armed Forces. The Xxxxxxxxx 2000 issue of the xxxxxxx, p. 14, documents that:

    Each service has its own procedure for offering continued service to active-duty officers who have failed two successive promotion opportunities. Eligibility for continuation can vary from year to year and among specialities, depending on service needs, according to personnel officials.

    Some Armed Forces officers who failed two successive promotions and have been offered a continuation seek appointment with PHS for reasons of security. PHS established its policies and procedures with the intent of meeting the mandated requirements of law and the needs of the Service.
  5. The applicant failed to be promoted his nine to the 0-5 grade during Forces. After 18 months promoted to the year tenure with the Armed of active duty with the PHS, he was Temporary Grade 0-5.

    The applicant may compete for an Exceptional Capability Promotion (ECP) during the next promotion cycle, and every promotion cycle thereafter, until he is eligible for promotion to the Temporary Grade-06 based on his T&E. See CCPM, Subchapter 'CC23.4, INSTRUCTION 3. Therefore, the Board should conclude that the applicant suffered no injustice because of the T&E cap.
  6. DCP concurs with the assessment of xxxxx,xxxxx, DGP, that a decision to request a waiver of a T&E cap rests solely and exclusively with the selecting agency and not with the applicant. The Xxxxxxxxxx acted in accordance with commissioned corps policy in this regard. 
  7. As noted above and in previous submissions, the Armed Forces caps constructive credit. See 10 U.S.C. 12207. The basis for PHS' limitation is to maintain the appropriate balance of senior ranking, full grade and junior officers. The policy also allows former members of the Armed Forces to complete a uniformed services career in the PHS without compromising the balance in the mix of grades of officers. The policy has been consistently applied to other former members of the uniformed services as well as to civilians seeking PHS appointments. PHS officers with exceptional capabilities are afforded an opportunity to compete for advancement under ECP policies. 
  8. The applicant did not execute an inter-service transfer pursuant to 10 U.S.C. Section 716 and related regulations. As a new applicant to the PHS Commissioned Corps, his T&E and other credits were correctly calculated.

Summary:

This appeal should be denied on its merits. Granting this request will result in an injustice to all other officers who were appointed with a T&E cap. Further, upholding this application may have a chilling effect on DCP's willingness to appoint certain applicants who are otherwise overqualified for full grade appointments.

IV. Board Action on Officer's Appeal:

Date of Board Meeting: xxxxx 2001

Board Staff:

Norman E. Prince, Jr.
Staff Director
Program Support Center 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:

Joseph H. Autry, III, M.D.
Chairperson of the Board and Acting Administrator for SAMHSA

Findings, Conclusion, Recommendation and Correction to the Record:

Findings

  1. Change his Training and Experience Date from Xxxxxx x, 1982 to Xxxxxx xx, 1974. 

    The Board members found that DCP acted within its authority in allowing xxxx xxxx 17 years T&E credit instead of xx years to which he believed he was entitled. This was not a violation of law, policies, regulations or procedures. An officer whose T&E exceeds the cap can compete for promotion under ECP policies.

    The officer alleged that PHS failed to advise him or misled him about the T&E cap policy before he accepted an appointment to the PHS Commissioned Corps. However, the Board members did not find that he made any attempt to, personally investigate all circumstances, rules and regulations applicable to the appointment. They expected him to have investigated these matters since this was not his first transfer to another uniformed service.

    The officer alleged that he was not briefed on the existence of the T&E cap policy or on the opportunity to negotiate with the PHS Xxxxxxxxxx Xxxxxxxx on a waiver of the cap before his call to active duty. xxxx xxxx would have learned about the waiver provision when he learned about the T&E cap. Further, according to CCPM, Subchapter CC23.3, INSTRUCTION 4, Section 6 (c), page 15, the authority to request waiver of the T&E cap rested with the receiving service (the PHS Commissioned Corps) not the Xxxxxxxxxx or the officer.

    Xxxxxxxxxx asked the Board to recommend to the Office of the Surgeon General that ,the T&E policy be annulled. The Board members did not consider the Board the proper forum for recommending an overhaul of an established policy and practice.
  2. Give him six months retirement credit based on active duty served before Xxxx 1988.

    The Xxxxxxxx notified him on xxxxx of the decision to allow him six additional months of retirement credit. He was advised by the xxxxxx xxx on xxxxxxx 2000 that his record had been corrected allowing him the credit. Therefore, this request is moot.

Conclusion

The PHS Commissioned Corps had an established policy on T&E credit for rank purposes. The cap on T&E allowing 17 years credit (compared to 14 years by the Armed Forces) had a clear rationale. The policy was governed by statute. xxx xxx did not document that PHS failed to follow its own policy or that it was applied to him in a different way than to other officers in the same situation. He had the responsibility to become aware of the PHS T&E cap and its waiver provisions especially since he had previously transferred from another branch of the uniformed service.

Recommendation and Correction to the Record

The Board members recommended that Xxxxxxxxxx appeal to change his Training and Experience Date from Xxxxxx x, 1982 to Xxxxxx xx, 1974 be denied. This requires no correction to his record.

We certify that the Board members' recommendation and correction to the record reflect their views and actions after considering Xxxxxxxxxx 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 Xxxxxxxxxx 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, 2001 when Xxxxxxxxxx appeal was considered.

If you approve, please sign below.

Joseph H. Autry, III, M.D.
Chairperson of the Board and Acting Administrator for SAMHSA

Reviewed and Approved:

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

Curtis L. Coy
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.