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Board for Correction Case No. 220-00

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Board for Correction Case No. 220-00

109.00 Appointment as Commissioned Officer - Recall to active duty

Board Members' Recommendations and Decision on Appeal of:
Xxxxxxxxxxxxxxxxxxxx, Case Number 220-00

Relief Requested

Xxxxxxxxx asked what he described as unjust and unsubstantiated records supporting termination of his commission be corrected or removed from his Public Health Service (PHS) records, that he be returned to PHS with his commission reinstated, and that he receive back pay and allowances, service, pay credit and other benefits to which entitled and all costs associated with his termination, including attorney's fees. He alleged that as a result of his termination, he incurred $4,500 in moving expenses and had to forfeit accrued annual leave. (PHS also asked him to pay $65,389.12 for not completing his service obligation. The Surgeon General later waived this obligation.)

Overview by Xxxxxxxxx:

He alleged that:

  1. "The Xxxxxxxxxxxxxx (XXX) did not provide him with appropriate supervision or an opportunity to correct his alleged performance deficiencies. XXX's policy clearly stated that mid-level practitioners, such as Xxxxxxxxx, should have their clinical duties supervised by the Health Services Unit's Clinical Director. The undisputed evidence shows that the xxxxxxx xxxxxxxx xxxxxxxx xxx, xxxxxxxx, xxxxxxxx, xxxxx xx xxxxxx, operated without an actual Clinical Director during his tenure at the facility. Furthermore, the acting Clinical Director and the Health Services Administrator failed to perform the minimum supervisory requirements established by the Xxxxxxxxxxxxxx. In particular, his supervisors failed to submit quarterly Performance Log entries to document his alleged performance deficiencies as required by XXX procedures.
  2. "The XXX did not follow the PHS regulation which set forth the procedures for preparing a Commissioned Officer's Effectiveness Report (COER). Xxxxxxxxx supervisor did not provide him a copy of his 1999 COER and all attachments for his review before it was forwarded to the Reviewing Official. The COER was also sent to higher levels of review without providing him with an opportunity to submit a contemporaneous rebuttal statement.
  3. "XXX and PHS failed to follow the procedures for initiating the involuntary separation of an PHS officer during his or her probationary period. In this case, the XXX and the PHS failed to insure that Xxxxxxxxx received proper notice of their intention to terminate his commission. In particular, XXX never advised him that it was seeking to have his commission terminated because of unsatisfactory performance. Since XXX never requested his termination, it never submitted a draft or final justification for his termination as required by PHS regulation.
  4. "PHS decided to terminate Xxxxxxxxx commission solely upon an unsubstantiated and inaccurate 1999 COER, which had been prepared by his administrative supervisor in violation of PHS and XXX procedures. Besides its procedural errors, this COER was unfair and unjust because it grossly misrepresented his performance between xxx 1998 and xxx 1999. As his clinical peers at xxx xxxxxx stated, he performed his duties in an "outstanding" manner. Although he was a relatively new mid-level practitioner, he carried more than his share of the workload and exhibited excellent clinical decision-making and medical knowledge: Moreover, although the COER was ordered to be substantially revised following a grievance he filed, the revised COER was not timely provided to PHS prior to his termination. Therefore, the termination decision was based upon a COER, which was in essence, invalidated."

Response by Division of Commissioned Personnel DCP):

"This case involves the involuntary separation of an officer during the probationary period. Pursuant to the Memorandum of Understanding (MOU) between the Xxxxxxxxxxxxxxxxxxxxxx, XXX and the Department of Health and Human Services (HHS), PHS, the XXX requested the officer's return to the PHS due to performance and suitability issues. Upon careful review of the record, the Director, DCP decided to terminate the officer's commission in accordance with INSTRUCTION 1 Subchapter CC47.3 and INSTRUCTION 3, Subchapter 23.7 of the Commissioned Corps Personnel Manual (CCPM). In making his decision, the Director, DCP, found that the officer's performance and suitability issues provided cause to terminate the officer's commission under the probationary authority.

"The officer disputed his 1999 COER and grieved the results following the procedures afforded by the Xxxxxxxxxxxxxx. The XXX Grievance Committee adjusted some of the individual ratings but upheld the finding that the officer's overall performance was marginal. The Director, DCP, upheld the decision to terminate the officer's commission.

"The record suggests that the staff at XXX Xxxxxxx was divided on several issues. It is unclear whether this polarization existed prior to the applicant's arrival at the facility, but it is clear that the issues concerning the applicant contributed to the polarization of the staff. The applicant and his supporters, (Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx; Xxxxxxxxxxxxxxx; and Xxxxxxxxxxxxxxxxxxxxxxxx) had a very different view of Xxxxxxxxx performance than did Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx; Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx; Xxxxxxxxxxxxxxxxxxxxxxxxxx Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx; and Central Office Staff. The Xxxxxxxxxxxxxxxxxx, in his request to have the applicant removed from the facility, noted that the applicant's continued presence at the facility was disruptive. Although the record is replete with documentation of complaints, counseling, and admonitions, the applicant categorically denies these documented charges. Further, the applicant claimed that certain actions were taken against him in retaliation for his filing a complaint with the Office of the Inspector General regarding the Xxxxxxx time and attendance. (Although DCP has documentation that the applicant filed a complaint with the Inspector General against the Xxxxxxx, a commissioned officer, DCP, has no record of any official investigation or finding against the Xxxxxxx.)

"During this period while officer's performance and conduct were under consideration, the applicant was promoted to the 0-4 grade, a promotion that was based on his 1998 COER and the information available in the Official Personnel Record as of late Xxxxxxxx 1998. Decisions regarding promotion are made by a DCP convened Promotion Board. Eighty percent of the eligible candidates for promotion to the 0-4 grade were promoted. Information regarding this officer's performance and suitability and the request of the return of the officer were not provided to DCP until Xxxxxxxx 1999, well after the officer was promoted.

" Although this case appears to be properly before the Board for Correction of PHS Commissioned Corps Records (BFC), it is questionable whether the Board can grant effective relief. The applicant was detailed to the Xxxxxxxxxxxxxx. The BFC lacks jurisdiction over XXX personnel activities. Therefore, even if, for argument sake, the Board found that the applicant was wrongfully terminated, neither the Board nor the PHS can require that the XXX reinstate the applicant. Further, it is unlikely that the Board can require another PHS Agency to accept the applicant, because, unlike our sister services, the PHS has a decentralized personnel structure. Since the applicant was not on the roles of a PHS agency at the time of his separation, no PHS agency has a duty to reinstate the officer and give him back pay. Therefore, in accordance with regulations published in INSTRUCTION 1, Subchapter CC49.9, Section E(3) and Board policy published in INSTRUCTION 5, Subchapter CC29.9, Section 16-00-40 (B)(3), the Executive Director should deny this application.

"However, if the Board decides to review the merits of this case, the Board should rely on applicable statutes, regulations authorizing the termination under probation of an officer's commission without cause, policy that provides guidance on issues that may result in involuntary termination, case law that dictates a presumption that management officials carry out their duties fairly and in good faith, and the Board's own recent precedent noting that the commissioned corps has broad discretion to terminate the commission of an officer during the probationary period. The application of the above regulations and case law to the facts in this case reveals that no material error exists in this applicant's service records. Therefore, the Board should deny this request."

Board Action on Xxxxxxxxx Appeal:

Date of Board Meetings: Xxx x, 2002, Xxx x, 2002 and Xxx xx, 2002

Board Staff:

Nancy E. Ward
Director
Human Resources Service and Executive Director Board for Correction of PHS Commissioned Corps Records

Thomas E. White, Ph.D.
Executive Secretary
PHS Commissioned Corps Records

Members of the Board:

Sharon Lynn Holmes
Chairperson of the Board and Director
Office of Equal Employment Opportunity and Civil Rights, SAMHSA

Findings:

  1. Xxxxxxxxx supervision and performance.

    Xxxxxxxxx was assigned to the Xxxxxxxxxxxxxxxxxxxxxxx in Xxxxxxxxxxxxxxxxxxx on xxx 1998 as a xxxx xxxxxxxxxx. He worked under the supervision of Xxxxxxxxxxxx, the Health Services Administrator. He complained about the supervision he received alleging it affected his performance. The Board members were persuaded by the record of complaints, counseling notes, acts of insubordination regarding his performance and suitability as an officer in the PHS Commissioned Corps. On xxxxx 1999, the Xxxxxxxxxxxxxxxxx requested that the Central Office, XXX, assign him to a non-XXX site.

    INSTRUCTION 3, Subchapter CC 23.7 provided guidance on recommending an officer to DCP for termination following completion of the probationary period. Sections 5c and d covered individual cases (like Xxxxxxxxx). The justification for termination was to describe the conduct or performance which was unsatisfactory, how that performance failed to meet requirements and what actions were taken to improve the performance or conduct. The guidance stipulated that the time periods mentioned in the sections did not apply and that justifications should be prepared as expeditiously as possible. The record was replete with references to counseling notes, memoranda and comments by peers drawing the attention of the officer to performance and conduct issues. There were indications he had been counseled by supervisory staff regarding performance and other rating factors such as medication procedures, security, communication, chain-of-command and ability to work with others. These provided him with an opportunity to learn about his shortcomings and improve his performance.
  2. Xxxxxxxxx 1999 COER.

    He was issued a marginal COER on Xxx 1999 documenting poor performance, misconduct and unsuitability. He rebutted this COER on Xxx 1999. His rebuttal was intended to provide evidence to rebut the presumption that his COER ratings were inappropriate and that COER procedures had been followed properly. He was unsuccessful.

    He contested his ratings in a memorandum to the Performance Rating Grievance Committee on Xxxxxxxx 1999. The Grievance Committee found some merit in his arguments and on that basis changed most of his ratings but did not change his overall evaluation from marginal. The Board members believed the committee made a conscious decision not to change his overall evaluation, and that this was not an oversight. The evaluation by the committee members was in effect an evaluation of Xxxxxxxxxxxx perception of the officer and the competency of her evaluation procedures. Her evaluation that he was a marginal officer was critical to the process of terminating him since her actions supported the documentation that eventually went to DCP leading to the decision to terminate him. DCP made that decision based on Xxxxxxxxxxxx evaluation that he had been a marginal officer. The Board members supported DCP in this action.
  3. Xxxxxxxxx separation from the PHS Commissioned Corps.

    XXXX was terminated from the PHS Commissioned Corps under the provisions of INSTRUCTION 1, Subchapter CC 47.3 and INSTRUCTION 3, Subchapter CC 23. 7 of the CCPM due to performance and suitability issues experienced while assigned to the XXX during his probationary period. CC 47.3 allowed the Director, DCP, to terminate the officer without cause. CC23.7 provided guidance on reasons which could result in termination. The action by XXX documenting instances of poor performance and unsuitability and the recommendation that he be transferred to a non-security facility supported DCP's action terminating him from the commissioned corps.

    The Board members considered whether DCP exceeded its authority by not basing its action on a XXX recommendation to terminate. DCP could have terminated the officer without cause regardless of the XXX recommendation. However, the record documented they had cause. The record referenced many instances of inappropriate performance or conduct/behavior. He rebutted the instances and the lack of written documentation. However, the lack of written documentation did not negate poor performance which had been reflected in his COER. The decision to terminate the officer was a DCP decision not a XXX decision within the authority delegated to the Director, DCP, to involuntarily separate an officer during the probationary period. In making this determination, DCP had access to his Officer Personnel File that included his 1999 COER; his Adverse Actions File that included the accompanying notes by XXX and the Grievance Committee Report. There was no where else to place him due to his marginal COER. He was notified of his termination on xxxxxxx 1999 and given an opportunity to respond.

Conclusions:

The Board had no authority to correct records outside of the Department of Health and Human Services; outside the jurisdiction of the Secretary, Health and Human Services. The XXX records were outside the jurisdiction of the Board. DCP had the authority to terminate Xxxxxxxxx. The Board members found no material error or injustice in the exercise of that authority .

Therefore:

  1. The Board members are denying Xxxxxxxxx request. They are aware that XXX did not modify his 1999 COER as requested by the Grievance Committee. Accordingly, the Board for Correction directs DCP to remove xxxx 1999 COER and accompanying information from his Official Personnel File and replace it with a memorandum that indicates that since the XXX did not submit a revised COER, the Board directed that the 1999 COER be removed from Xxxxxxxxx record for administrative reasons but its removal in no way changes the employment status of Xxxxxxxxx.
  2. Additional Board observations. During consideration ofXxxxxxxxx appeal, the Board members became aware of situations in the evaluation of officers which could benefit from further attention. Specifically, they recommend that DCP review its policies and consider the following:

    a. That the rating system used to evaluate officers be reviewed with the purpose in mind of devising a numerical rating system for individual rating elements and a numerical score for the officer's overall rating (based on an average, total or range of individual ratings). This would reduce the current reliance on subjective evaluations to reflect job performance and effectiveness.

    b. That the resulting quantitative rating system be used in making all human resource personnel decisions.

    c. That CC25.1-Performance Evaluation be revised to require minimal semi­annual evaluations.

    d. That rating officials be required to develop documentation to support counseling sessions. That sign-offs be obtained from officers on all sessions. And, that all documentation be shared with officers.

I certify that the Board members' recommendations reflect their views and actions after considering Xxxxxxxxx appeal and that they have concurred in this matter.

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

Finally, I certify that a quorum was present on Xxx xx, 2002, Xxx xx, 2002 and Xxx xx, 2002 when Xxxxxxxxx appeal was considered.

If you approve, please sign below.

Sharon Lynn Holmes
Chairperson of the Board and Director
Office of Equal Employment Opportunity and Civil Rights, SAMHSA

Date

Reviewed and Approved:

I hereby ( ) approve ( ) disapprove the Board members' recommendations on Xxxxxxxxx appeal 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. Xxxxxxxxx is entitled to review his record to ensure compliance with this decision.

Mike Blank
Deputy Assistant Secretary for Program Support

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.