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Board for Correction Case No. 225-00

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Board for Correction Case No. 225-00

124.00 Commissioned Officer Effectiveness Report (COER)-Includes Performance Evaluation - Remove AWOL from the record

 

Board Members' Recommendations and Decision on Appeal of:

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, Case Number 225-00

I. xxxxxxxxxxx Request for Relief:

 

1. Rescind the order terminating her from the Public Health Service (PHS) Commissioned corps. She was serving a probationary period having recently returned to active duty. She had almost 12 years of honorable active duty in the uniformed service including duty in the U.S. Xxxx.

2. Have a letter placed in her file stating that the Absence without Leave (A WOL) she received was administrative in nature only and at no time did she ever disrupt the functioning of a work environment by not reporting to work when scheduled.

3. Reimburse the $65.00 registration fee and associated per diem expenses she paid after being directed by the Xxxxxxx Xxxx Indian Health Service (IHS) to attend an AIDS conference in Xxxxxxx 1999 in Xxxxxxxxxx.

4. Arrange for her to speak with selected persons in IHS and to receive apologies from them.

5. Arrange a letter from the PHS Commissioned corps, apologizing for the manner in which her concerns about the legality of the nursing protocols at the Xxxxxxxxxxxxxxx were handled.

6. Arrange orders transferring her from the PHS Commissioned corps to the U.S. Xxxx XXXX. Like anyone else in her position, she would like to get a retirement. She is too old to get vested with a civilian hospital and with an involuntary separation on her record; she cannot qualify for civil service employment.

7. Arrange back pay and allowances and time in service form Xxxxxxx 2000 until the transfer orders take effect.

Xxxxxxxxxxxxxxx alleged that:

1. She attended an AIDS conference in Xxxxxxx 1999. She attempted to obtain formal orders to attend the conference but was not successful. She wrote personal checks to pay the registration fee and her travel, meals and lodging expenses. She was never reimbursed for her expenses.

2. The Federal Government does not have a Nurse Practice act. On Xxxx 1999 she wrote the Xxxxxxxxxxxxxxxxxxxxxxx asking whether the nursing protocols she was using at the Xxxxxxxxxxxxxxxxxxx, were legal (the xxxxxx state Board had said they were not). The protocols included having nurses triaging, diagnosing, treating and prescribing medication for after hours patients.

3. The Xxxxxxxxxxxxxxxxxxxxxxx advised her on Xxxxxx 1999 that the nursing protocols were not legal. . . . Xxxx management, the Chief Nurse, Xxxxxx Xxxx, XXX and the PHS Commissioned corps Liaison to the Xxxxxxx Xxxx received copies of the response, but no one contacted her regarding the matter. She and another officer offered to assist Xxxxxxxxxxxxxxxx, xxxxxxxx xx xxxxxxx to write protocols that would meet standards under State Nurse Practice Acts.

4. Nine days after writing the letter to the Xxxxxxxxxxxxxxxxxxxxxxx, she received a Letter of Reprimand (LOR) dated Xxxx xx, 1999. An AWOL was issued for 11 days on Xxxxx 1999 without the benefit of legal counsel. During the period of her AWOL, she had been on leave on an approved schedule and had over xx days of unused leave. She was verbally censured by nurse management for requesting an approved leave slip. She went on leave without signed and approved leave.

5. She learned during the month of Xxxxxxx 1999 that she was being "dishonorably discharged" from the PHS Commissioned Corps. Her decision to write to the Xxxxxxxxxxxxxxxxxxxxxxx led to negative documentation in her record regarding her conduct and performance and her eventual tennination. She had never had a bad evaluation or an administrative problem until she wrote the letter. The charges against her were not reviewed by higher management. She was not advised formally of this pending administrative action. She was unjustly terminated by the PHS Commissioned Corps with no review by the Xxxxxx xxxxxx xxxxxxx.. She miscalculated greatly when she thought her superiors in PHS would be interested in any wrongdoing in the xxxxxx xxxxxxx xxxxxxx.

II. Overview by Xxxxxxxxxxxxxxx:

1. I have done nothing wrong but now my xxx year Government career count for nothing. I cannot go to the reserves and finish before I am xxxxx unless I get credit for the past year as active duty service. Xxxxxxxxxxxxx, the PHS Adverse Actions Officer, told me that if I was involuntarily separated I could not even get a job at the Xxxxxxxxxxxxxxxxxxxxxxx. I do not know whether or not this is true. I sent for a Form SF 171; a questions asks whether or not one has been fired form a job. I do know that I was very intimidated by the XXX into resigning my commission; and I do believe that if I had not had five years in the Xxxx, and attended the Xxxx Officer Advanced Course, which discussed many legal issues, I would have caved into the pressure that was put on me by Xxxxxxxxxxxx, Personnel Officer, Xxxxxxx Xxxx Personnel Office, and Xxxxxxxxxx to resign

2. I do wonder how the PHS can accuse a person of A WOL and not provide any legal counsel about the charge or a defense. I was never A WOL. It would seem to me that the Xxxxxxxx hospital must have some responsibility for, or history of, adhering to the rule before they can charge a person with braking the rules. The Xxxxxxxxxxxxxxx never signed a leave slip for anyone [in nursing] before they went on leave. I was the first and only person, as far as I know, to insist that they do that for me when I first got there. I was verbally censured by nursing management in the summer of 1998 for requesting even that much of them. I will be happy to call witnesses to this if I can get legal counsel to tell me how to go about doing this.

3. I have been told that normally 10 to 30 Officers are separated from the commissioned corps every year and that this year over 150 Officers have been separated. I wonder how many more have been intimidated into resigning. If the demise of the XXX is at hand, or the single service medical corps concept is on the horizon, the fat can surely be trimmed in some other way than by intimidating and kicking out hard working nurses.

4. I want my commission restored to me and back pay form the time I was dismissed. I also want an apology from Xxxxxxx, to me and to the management of the Xxxxxxxxxxxxxx, for the comments made about me. I want documentation that she has demonstrated knowledge of the types of separations form the PHS Commissioned Corps. I also expect her to demonstrate knowledge of the types of separations from the United States Armed Forces and the types of offenses on must have been proven to have committed to receive such discharges. Especially, I want evidence that she is aware of the connotation of the term "dishonorable discharge" and the types of offenses one must have been proven to have committed to receive this discharge from the United States Armed Forces. I want the PHS liaison to the Xxxxxxx Xxxx Office, XXX, to know how serious an abuse of authority it was for Xxxxxxx to tell me, a former member of the United States Armed Forces, that she was going to have me "dishonorably discharged."

5. I want the money I should have been reimbursed by the Xxxxxxx Xxxx Office and the Xxxxxxxxxxxxxxx for the AIDS conference I was mandated to attend but could not get orders to do so. The AIDS conference was referenced in the memorandum regarding my involuntary separation. I also want a meeting or a telephone appointment with Xxxxxxx Xxxx xxxxxx xxxxxx xxxxxxx. His name is on several documents regarding my separation, but I was denied access to him. I want him to know my side of the story.

6. I have almost xx years experience as a nurse on active duty with the U.S. Government; over xxxxx years during a previous tour with PHS, over xxxx years with the xx Xxxx xxxxx xxxxx, and almost xxxxx years again with PHS before my tour was cut short by my termination. During these years, I have never had a bad evaluation. This includes my last evaluation at the Xxxxxxxxxxxxxxx. I will say this again, I have never had a bad evaluation or an administrative problem until I wrote to the Xxxxxxxxxxxxxxxxxxxxxxx regarding the illegal protocols in use at the Xxxxxxxxxxxxxxx.

7. The Nursing Protocols at the Xxxxxxxxxxxxxxx are still in use. The Xxxxxxxxxxxxxxxxxxxxxxx and the Xxxxxxxxxxxxxxxx have said these protocols are illegal. I, and another PHS Commissioned Corps officer at the hospital offered to assist Xxxxxxxxxxxxxxx with rewriting these to a standard which would make them acceptable under the State Nurse Practice Acts. I have given the matter of rewriting the protocols much thought and have come to the conclusion that there is no way to write legal protocols which would have nurses diagnose. This is the realm of the Primary Care Provider which includes MDs, DOs, Nurse Practitioner and Physician Assistants. Unless a hospital has one of these in-house to examine patients, diagnoses by nurses cannot, under any state laws I am familiar with, be made.

8. What has the Xxxxxxx Xxxx, Xxxxxx, done about this matter besides be "in continued communication" with Xxxxxxx about the issue. What does "in continued communication" mean anyway? Is this a substitute for solving a problem? She has had over a year to work on it. It would seem to me that a prudent Nurse manager would send a copy of the entire protocols to the State boards of Nursing of each state the Xxxxxxxxxxxx straddles-Xxxxxxxxxxxxx, reviewed the protocols, and said they were "fine." This brings me back to the question I asked my senator. If, I must have a state license to practice nursing in a federal facility, and I am required to perform acts which are not legal under my state Nurse Practice act, under who's authority am I performing these acts? The Federal Government does not have a Nurse Practice Act.

9. Following is a description of the environment I was working in when I wrote the Xxxxx Stated board of Nursing on Xxxxxx were legal:

The Xxxxxxxxxxxxxxx received third party reimbursement for patients who had insurance. To receive reimbursement, patient visits had to be documented, including diagnoses. To get around the "sticky" point of patient diagnoses, nurses ask Medical Records Department at the hospital if patient visits can be written up without filling in the xxxx on the "patient visit record" dealing with diagnoses. "No," says the Medical Records Department "diagnoses must be written there." Medication must be prescribed based on diagnoses. Nurses at Xxxxxxxx are required by the protocols to prescribe medication when indicated. When patient visits are completed, Patients charts are placed in the stack of "after-hours" charts in the Medical Records Department. The next morning the physician, ostensibly "on call" during the past 24 hours, signs all charts. Patients with insurance are charged a doctor's visit, even if all care and treatment was provided by a staff nurse. Xxxxxxxx has two to three doctors on duty 24 hours a day, seven days a week. (This was my first experience where a Medical Records Department dictated the practice of doctors and nurses.) When reimbursement money is distributed each year, is "third party billing" cost recoupment figured into the equation? ( an approximate Xxxxxxxx budget is in the record obtained after a year long request from the xxxxx xx xxxxxx xxxxx xxxxx xxxx xxxxx.) With as much money as is available, it seems the service Unit could hire primary care providers to see patients after hours if management considered 24 hour care necessary.

Twice now, Xxxxxxxx has been offered money by the federal Government to convert its aging hospital into a new clinic. The offers have been refused. According to the Service Unit Director, "the xxxxxx (Xxxxxxxxxxxxxxxxxx served by the hospital) like to know the hospital is there for them, some don't like to go to the Xxxxxxxxxxxxxxxxxxxxx." According to the hospital census, 17 beds are "set up." There are perhaps decreased over the years. There is not enough nursing personnel to staff the hospital in accordance with the "master staff plan." If the hospital is to take care of inpatients, it should be staffed for this mission. If the hospital is to provide 24 hour clinic services it should be staffed for that mission.

The after hours services at Xxxxxxxx are so popular that even Marines from the local Marine Corps air station, who happen to be xxxxxx xxxxxxxxx and have "discovered" the hospital, come in at night and on the weekends because it is much easier than obtaining permission through military channels to visit the after hours clinic at the Xxxxxxxxxxxxxxxxxxxxx. Also, for the local xxxxxx xxxxxxxx population, it is much cheaper than purchasing medication at the local 24 hour K-Mart. It is very common for community members to call and ask nurses to have a medicine ready for them to "come in and pick up." Usually this is over-the-counter medication. Sometimes, it may be prescription medication they "just didn't have time" to pick up during regular clinic hours. I do not really have an opinion about whether these practices are right or wrong. They go on everywhere and are really just part of providing health care to a community. If or example, older people with high blood pressure may come in at 10:00 p.m. They may be out of medication and just need "a few pigs to tide them over." They may be going out of town the next day and need medication to take with them. It is very common for a mom to come in at 2:00 a.m. and ask for a bottle of albuterol for the baby's nebulizer machine. If patients do not obtain the medication they need, the health care system is just setting itself up to have to deal with more serious health problems when they return a lot sicker. It is management's decision on how patients are to be seen and treated and if medication is to be provided 24 hours a day in this manner.Xxxxxxxx is a Level 5 ER. The hospital policy says "emergencies only" are to be seen after hours. If a true emergency comes in, the procedure is to call 911. I am not making this up. On the other hand, according to the Service Unit Director, any patient who calls in after hours is to be told to come to the hospital to be seen, "no telephone triage."

The environment I worked in caused me to take the actions I did to try to clear up the legality of the nurse protocols being used. My efforts resulted in negative documentation being placed in my record regarding my conduct and performance without any review by the next level of management. The documentation was submitted by the Xxxxxxx Xxxx, xxx, to the PHS commissioned Corps, and again without further review, was used to terminate my commission after almost twelve years of loyal Government service.

10. On xxxxx xx 1999, I replied to a complaint made about me by relatives of a patient. The patient himself never made a complaint. This patient and family had the same last name as the Service Unit Director. The complaint and the response of the service Unit Director were very unfair in my opinion. The Xxxxxxx Xxxx, XXX said they were not "family members" of the Service Unit Director. They were relatives of the Service Unit Director. Oddly, XXX usually makes the opposite point; xxxxxx family relationships "brother," "aunt," "grandmother," etc., may not be this in fact, but considered "family members" nevertheless, and health care providers need to be aware of, and be respectful of that fact. The Service Unit Director did not seem to have a clue that she was ultimately responsible for the conditions, such as no triage nurse, no designated clinic nurse, and no physician in house after hours that contributed to making these people unhappy.

11. On Xxxx 1999, I sent a memorandum to the Director of Nursing and the Quality Assurance coordinator (who, until the end of 1998, was the director of Nursing) asking for a response [in writing] about the legality of the nursing protocols and stating my intention of writing my State Board of Nursing regarding this matter. The name of Xxxxxxxxxxxxxxxxxx was included as a recipient of this memorandum because by that time condition were so bad for myself and the other commissioned corps nurses at Xxxxxxxx that we all consulted with this man under the mistaken impression (which it seemed to me the commissioned corps fostered) that we were accountable under xxxx regulations. So far as I am aware, no written response regarding the legality of the nursing protocols at Xxxxxxx was ever prepared by any person at Xxxxxxx or by the Xxxxxxx Xxxx, XXX, management.

12. At some point during this time Xxxxxxx told my supervisor "has been a problem everywhere she has ever been" (referring to me). This was absolutely not true. I think many of the actions taken by my direct supervisor, Xxxxxxxxxxxxxxxx, Xxxxxxxx (who had only been employed with XXX for four months), were based on this wrong information. I want to know why Xxxxxxx said this about me.

13. On Xxxx 1999, I wrote to the Xxxxxxxxxxxxxxxx about the legality of the protocols in use by staff Rns at Xxxxxxxx. They were aware that I had wrote this letter. A Letter of Reprimand was issued to me on Xxxx 1999, by Xxxxxxxx. Her letter was a compilation of three incident reports she issued to me during the previous week. A rebuttal was sent to the PHS Liaison to the Xxxxxxx Xxxx Office, XXX, and to the Division of Commissioned Personnel.

14. On Xxxxxx 1999, I received a reply from the Xxxxxxxxxxxxxxxxxxxxxxx Examiners stating that the protocols at Xxxxxxxx were not legal for staff Rns to use. Xxxxxxxx management, the Chief Nurse, Xxxxxxx management, the chief Nurse, Xxxxxxx Xxxx, XXX and the PHS Liaison to the Xxxxxxx Xxxx Office, XXX, all received copies of the letter. I did not received copies of the letter. I did not receive a reason from any of them regarding this matter.

15. In September 1999, I was charged with being AWOL while on leave on an approved schedule. The rebuttal to this AWOL charge is part of the record. At the time I was charged, I had over xx days of unused annual leave. I had never taken sick leave. I had never missed a day of work. I went on leave prior to receiving a signed and approved leave slip. I did this routinely as did other nurses at Xxxxxxxx. This is why the first time I took leave at Xxxxxxxx, I diligently followed the (then) Xxxxxxxxxx, around to get my leave slip signed prior to going on leave. He seemed annoyed at my persistence in asking management to do anything within a time frame. I told him that the leave slip must be signed prior to an officer taking leave or an AWOL charge could result. No one at Xxxxxxxx had ever heard of that. " you don't have to have it signed ahead of time here, he told me. Just put your leave slip int the box and wen you see the leave appear on the schedule you will know it has been approved. You will get your signed leave slip back when we get to it." When I expressed incredulity to my peers the other commissioned corps nurse told me that in four years she had never had a leave slip signed prior to taking leave. The following explains the difficulty I had in obtaining leave documentation prior to going on leave:

In Xxxxxxx 1999, I was told by Xxxxxxxxxxxxxxxxx, and my boss for Infection Control, that I must attend a conference on AIDS in Xxxxxxxxxx in Xxxxxxx 1999. I did not particularly want to go to Xxxxxxxxxx in Xxxxxxxx. "Two people from each service unit have been funded by the National Institutes of Health to go to this conference, no one else wants to go either, you have been designated to go, you have to go." Prior to attending the conference, I went from person to person at Xxxxxxxx (specifically, Xxxxxxxxxx, Xxxxxx, Xxxxxx) trying to find someone who would admit to having the responsibility for cutting orders for this conference. All of these people told me they had nothing to do with any orders for the nursing staff (very understandable-did you se $82,000 in the Xxxxxxxx budget for travel? Not a dime of this was ever spent on the largest department in the hospital, the nursing staff, going anywhere. I was sure no one knew how to cut orders for travel for a staff nurse.)

I asked Xxxxxxxxxx what should I do. She told me I had to attend the conference. The schedule came out; I was listed as being on leave, so I went to Xxxxxxxxxx and attended the conference. Xxxxxxxx and I assumed that since we had been mandated by the National Institutes of Health and XXX to attend the conference we would be registered for it. We were registered, but no one bothered to pay our fee to attend. She and I both wrote personnel checks for the $65.00 conference fee. We both paid our own travel. Xxxxxxxx flew to Xxxxxxxxxx; I drove. We both paid our own meals and lodging. Upon return form the conference, we both tried to be reimbursed for our expenses. Months later, Xxxxxxxx finally did get her money. I, in keeping with the usual treatment the nursing staff received at Xxxxxxxx, never got a penny. (1 could sure use the $65.00 and travel money at this point in my life if anyone in Congress has any time to have PHS reimburse me this money). Of course, I went to the conference without a leave slip. No one ever mentioned AWOL; I was still the good little nurse then. I had not yet officially complained about the protocols.

16. In Xxxxxxx 1999, I was told by Xxxxxxx I was going to be "dishonorably discharged" from the PHS Commissioned Corps. This is how I found out. It was obvious to me that relations between myself and management at Xxxxxxxx were deteriorating fast after I wrote to the Xxxxxxxxxxxxxxxxx. I knew I had to get myself transferred out of there. I applied for a position in the Emergency Department at Xxxxxxxxxxxxxxxxxxxx. I had worked at XXXX in 1987/1988. I worked very hard while there. I was always proud of the 100 percent attendance award I received while at the Center. ( I later discovered as a nurse manager in the Xxxx that one of the biggest problems in the health care field was patient care providers show did not show up for work.) I was always proud to say I had worked at the Center. I was a "new" nurse at that time and I learned a lot in this very busy facility. I still counted some of the staff members there as my good friends and acquaintances. Xxxxxxxxxxxxxx, Emergency Department Secretary, was the Unit Secretary on the Internal Medicine ward when I worked at the Xxxxxxxxxxxxxx. She put in a good word for me so I could get the job in the Emergency Department: " told me a lot of good things about you and told me to hire you;" the Emergency Department supervisor joked with me over the phone when she told me I had been selected for the position.

When the Personnel Department at XXXX called and officially offered me the Emergency Department position, I called Xxxxxxx Xxxx, to be polite, to tell them I would be transferring out of Xxxxxxxx (nursing positions go unfilled for long periods of time at XXX facilities: the sooner an attempt is made to fill a position, the less time former coworkers have to work "short"). Within an hour the XXXX Personnel office called me and said they would have to rescind the job offer. "Why," I asked very alarmed: "You will have to call the Xxxxxxx Xxxx, they say you have personnel action pending there." When I reached Xxxxxxx I told her this. I asked her what they were talking about: "You have a letter of reprimand," she said. "I know that but that's not pending," I said. "Well, actually, there is a personnel action pending to have you put out of the corps." "You are going to be "dishonorably discharged." My blood ran cold in my veins.

Many phone calls later I discovered that the PHS Commissioned Corps did not have a designation "dishonorable discharge" (not that calling this by any other name made what happened to me any easier to bear). I wonder if Xxxxxxx ever knew this or if she just chose those words for maximal effect. I have never met Xxxxxxx. She never asked me to come to Xxxxxxx to talk to her face to face about any of the charges or any of the administrative actions. She has never been to Xxxxxxxx to my knowledge. No one at Xxxxxxxx ever told me anything about the administrative actions that were planned. No member of management at Xxxxxxxx ever told me anything about the personnel actions being taken by the Xxxxxxx Xxxx. Documentation had been sent by Xxxxxxx to the office of "Xxxxxx,"a Dentist who was the Liaison between PHS and the xxxxxx xxxxxx xxxxxxx. Xxxxxx, a xxxxxx, was his assistant. I met xxxxx briefly twice, once in 1986 and once in 1996. In 1988, I had a phone conversation with him. I was working at the xxxxxx, xxxx at the time. Whenever I had a scheduled day off, one or another of the local nurses would invariably call in sick. I was always asked to work for them. I was so naive; it took me some time to figure out there was a patten to this. After all, as a commissioned corps nurse, I covered shifts for them. The hospital did not have to pay overtime and nurses got to use their sick leave. I was working 60 and 70 hour weeks. I was working to the point to exhaustion, but in typical "new nurse" fashion, I thought I was being helpful.

When I finally figured out what was going on, I asked the Xxxxxx nursing management to help me. How many nurses have been to Xxxxxx in the past xx years anyway, is this a matter of public record? I would like to know this. Was there something wrong with all of those nurses? Might the service Unit itself have a problem? If a PHS nurse recognizes a problem to whom do they report it? Is the corps just a high priced staffing agency? What is a corps nurse's mission? The nurses who hemorrhage through the XXX facilities are real people who leave their homes and their friends to work in a strange and often remote place. Many of these nurses are full of excitement and anticipation about the privilege of being able to work with this country's xxxxx xxxxxxx and experience the beauty of the west (some just need the money, its true). How many leave, their hopes trample, their self respect shaken, and for some, their careers in shambles? Patients are basically the same everywhere. Its not the patients, it?s the management.

17. I called Xxxxxx, because he was the only person I had ever met in upper management, to see what I could do about my situation. He told me he only took care of doctors' problems and could not help me. Perhaps any request to XXX management for assistance in solving a problem branded one as a "problem" person for life (1 solved this problem myself by putting my mom and my cat in the car every time I had a scheduled day off, driving to Xxxxxxxxxx, and renting a cheap motel room, so I could get a whole night of uninterrupted sleep. Then, I transferred to the Xxxx Nurse Corps).

18. When I asked Xxxxxxx why she was taking all of the administrative actions against me with no attempt at all to verify anything, she replied: "You have been a problem everywhere you have ever been." This was not true. Why would she say this? "Why, I asked her, are you saying this?" "Xxxxxx told me this," she replied. I called Xxxxxx and asked him if he had said this. He denied ever saying this. I know a nurse who worked with Xxxxxxx years ago when they were staff nurses. She told me she thinks Xxxxxxx is a fair person. I do not believe xxxxxxx made this piece of misinformation up out of thin air. The actions taken against me by Xxxxxxx and xxx xxxxxx were tied to this slander.

19. The other commissioned corps nurse at Xxxxxxxx asked xxx xxxxxxx, why, if she did not want me at Xxxxxxxx, she did not let me transfer elsewhere. She replied with the exact same words Xxxxxxx had said to me: "xxxxx has been a problem everywhere she has ever been, you don't pass a problem on." Why, I asked her, don't you bring me my to the Xxxxxxx xxxxx xxxx xxxx and get an impartial evaluation of my job performance? "No" she said, "for you that is not an option." Why not!

20. In Xxxxxx 1999, I began 60 days of terminal leave. This leave had been arranged by Xxxxxxx with Xxxxxx, Director, Xxxxxxxx Service Unit. Xxxxxxx never told me the leave had been arranged. It was to start on xxxx. On Xxxxxx. I called her and asked if I was going to get any of my leave. "You are on leave," she told me. I told her I was at work as scheduled. "Xxxxx xxxx was here last week and I told her that you would be taking terminal leave. She agreed that you would start leave the 1st" Xxxxxxx to her office for her to sign. She told me she did not know anything about any terminal leave for me. I told her what Xxxxxxx had told me. "Well, all right, I will sign that leave slip, but you have to wait there at the nurses' station until I send Xxxxxx, (the Nursing Secretary) to pick up the leave slip and bring it to me. I am busy now." As soon as she said that, I went across the street to Administration and into Xxxxxx office with my leave slip in hand. One of her relatives was relining in a chair with her feet draped over the side when I appeared at the office door. They both stared at me. "Bring that over here and I will sign it," she said. I discover as I passed Xxxxxx desk on the way out of Administration that the nursing secretary had not come into work that day at all.

21. I was involuntarily separated from the PHS Commissioned Corps in December 1999. I appealed to Xxxxxxxxxxxxxxxxxx, Director, Division of Commissioned Personnel, to no avail. Please be aware, I rescinded my offer to resign my commission-1 was frightened and upset. After thinking it over, I knew I had done nothing wrong. I will never resign my commission. (Xxxx xxxxxx was kind enough to point out, however, that it did not matter whether I reigned or not; he had already kicked me out).

22. I hope my appeal can be settled satisfactorily based on the documentation I have provided. I have requested copies of documents under the Freedom of Information Act regarding me which were forwarded by the Xxxxxxx Xxxx Office, XXX, to the Public Health Service. I have also requested a copy of the documentation on my appeal which an anonymous (anonymous to me also) caller told me was so full of inaccuracies that the person using it, Xxxxxx, could not have made any other decision than to dismiss me after reading it. I would like to know exactly what the accusations were in the document and speak to them. I was also told by the same caller that a document existed regarding an investigation completed by DCP after I first asked for an appeal of my situation. This document, I was told, exonerated me from any wrongdoing. I do not know if such a document "officially" existed. I understand a copy was taken home by a person in DCP. I was told this person would produce the document if subpoenaed to do so by a court of law. I would like to preset all of these document to the Board, and any comments I may have about them, when, and if, I am ever allowed to see them myself.

23. The record references that I received bullet casings in the mail which I considered a threat. Receiving these has been a seismic event in my life. I was raised with th opinion that the vast majority of Americans hold that the Federal Government basically tries to do the right thing. I hope with all my heart that this vile, aggressive and vengeful act is not going to be just swept under the rug. Someone sent those bullet casings. I hope, and am assuming, that no mention was made of them in the Case Summary because this is being "investigated" by some other entity, hopefully the xxxxxxxx xx xxxxx. The last couple of years have taught me not to assume anything. However, to date, no one has contacted me to tell me that this incident is being looked into. I want the board members to know about the bullet casings on a franked USPHS envelope in which the were delivered can be contacted. This might be a good place to start. I have the bullet casings and am willing to cooperate in any way I can to find out who was responsible. I definitely think that this action was related to what I have written the Board and what I am writing now. In "case" the Board members can't read sign language the sending of the bullet casings says loud and clear, to me anyway, BACK OFF.

24. The letter from Xxxxxxxxxx, Agency Representative to the Surgeon General's Professional Advisory Committee to DCP, dated Xxxxxx 1999, recommending that I be put out of the service states that: "...during the eighteen months of duty at xxxxx, xxxxxxx has demonstrated a lack of skills and an unwillingness to meet the expectations of a nurse officer." What about the excellent evaluations I received at xxxx xxxx during this same xx month time period? Did Xxxxxx not know about these? If he did not, then why not? I told xxxxxxx in a phone conversation that the personnel action had been brought against me in spite of the fact that I had excellent evaluations. I believe I also told xxxxxx this. It would seem the job performance expectations of these two "Commissioned Corps Liaisons" should have included some sort of attempt to gather true and complete information on an officer before making value. Especially when the officer says he or she has not done anything wrong! Allowing an accused officer access to the charges against him or her and allowing the officer access to counsel, as is done in every other sector of American society, would help take care of this kind of [intentional?] oversight.

Do these two persons [Xxxxxx and xxxxxxxx] actually work for xxx or are they only tangentially connected with an organization called the Commissioned Corps of the United States Public Health Service? They show no interest in officer retention! Are these two, Liaisons for the Commissioned Corps to XXX or are they Liaisons for XXX to Commissioned Corps? Does anybody know? Does anybody care?

25. I received from the Xxxxxxx Xxxx a letter signed by a "xxxxx xxxxx" for xxx xxxx, dated Xxxx 2000. The letter told me, I did not "demonstrate the performance, conduct, dedication to duty or professional attitude and attributes of an Officer" for the United States of America. Excuse me, but if xxxxxx wished to make this sort of statement about a person who had served their country honorably for over a decade, and who had received two Xxxx Commendation medals and Bronze Star, and who had NEVER had a bad evaluation, I believe he should have had the moxie to sign the letter himself. I have no idea who xxxx xxxxxx was but I believe a statement such as the one above should have come from an official representative of the Congress of the United States of America. The letter told me I had no route for appeal or review a "party line" maintained in the commissioned corps until they learned I had found out abut the Board for Correction on my own in Xxxx of 2000.

As you see in the orders involuntarily separating me from the Commissioned Corps, an "indebtedness" to the General Government of $1,701.33 was assigned to me for failure to complete an "accession" bonus. I was not the reason this "bonus time frame" was not completed. I was put out of the commissioned corps, I did not refuse to complete my bonus contract. Established federal law in the armed services says, if a soldier is put out for being overweight, inability to perform on the PT test or for practically any reason the service chooses to dismiss a soldier before an accession bonus contract is completed, the soldier cannot be docked monies for the uncompleted contract time. A contract is a two way street. Both parties have obligations. (Novel concept!)

26. The Statement about the request for monies for the AIDS conference needing to be cleared through the Xxxxxxxxxxxxxxxxx (XXX) is one of the more bizarre things about this whole bizarre affair! I would like a clear explanation of why payment for a conference put on by NIH for persons connected with the Department of Health and Human Services (HHS) needs to be cleared through the Xxxxxxxxxxxxxxxxx! I can only imagine what XXX would have to say about this. I would be happy to convey this request to HHS and to the Congress of the United States. However, I would want a written copy of the commissioned corps "regulation" or "reasoning" so this could be included with my correspondence.

27. The Chain of Command. This has been mentioned over and over. What is the Chain of command from a commissioned corps officer in an XXX facility up to the Surgeon General of the USPHS? Wouldn't the Chain of Command include direct supervision at each step by commissioned corps officers? Why are the ranking commissioned corps officers at each location not included in this Chain of Command? Why is a commissioned corps officer allowed to apply for an obtain a job based on "xxxxxx xxxxxxx"? According to federal law, "xxxxxxxxxxxx" is allowed for "xxxxx employees" only. If a commissioned corps officer is suddenly a "xxxx employee" but still in charge of other commissioned corps officers, who are not accorded this ethnic preference, what does this do to the supposed chain of Command?

I have on more "excellent" commissioned corps evaluation which I have not yet referred to or submitted to the Division of Commissioned Personnel. Why? The last day I was on the job at xxx my supervisor, whom I think a lot of, gave me a blank COER evaluation form and told me to fill it out myself, "I don't have any idea how to fill these things out for the commissioned corps employees" (this is not meant to be a criticism of him). Well, I took it home, the next day the movers came; I had moving to contend with, orientating to a new job, and when I finally took the COER form out, I was a little intimidated myself as to how to fill it out. Not that I was unfamiliar with the concept. I had let my xxxxxxxx fill out her own evaluations in the xxx Xxxx xxxxx xxx because I knew how intimidating "evaluations day" could be. I felt that allowing her to do her own took a lot of pressure off and made the evaluation process a learning experience for both of us. After all, how bad could a xxxxxxxx who came to work every day and tried reasonably hard to do a good job, mess up? The difference was I had been trained by the xxxx to be able to fulfill my responsibilities as a supervisor; I knew how to do the evaluation. After we went over the responses together, I filled out the "actual" evaluation.

I think this show how little the Commissioned Corps Chain of Command concept means in the field. I still have the "excellent" evaluation I fille out on myself, signed by my former supervisor, but I have not had a chance to get up to Xxxx have it signed bye the Xxxxxxxx xx Xxxxxxx xx xxx Xxxxxxx Xxxx Xxxxxxxx there. In fact, I am not sur which one of these is next in the chain of Command and I have been afraid of bringing this up to the commissioned corps hierarchy because of the "lets kick somebody's ass" attitude I referred to before whenever a problem is presented to them. If an organization such as the commissioned corps, with an atypical command structure, want to make an issue of following the Chain of Command, every officer should be provided a copy of the current and direct Chain of Command up to the Surgeon General for each "billet description."I want a written diagram of the Commissioned Corps Chain of Command for the billet I was in at Xxxxxxxx before Chain of Command is brought up again in any more discussions about how I " did not follow" this Chain of Command!

28. Via a FOIA request, I obtained what were purported to be job descriptions for Xxxxxx and Xxxxxxx. Xxxxxxx job description called for the person occupying her position to "have a solid working knowledge of the Commissioned Corps "personnel system." As I mentioned in the "Case Summary," a "dishonorable" discharge did not exist in the commissioned corps personnel system. Yet, I was told by Xxxxxxx I would receive a "dishonorable" discharge. I would like to point out that exhibiting familiarity with the personnel system was not only requested by my "appeal and review" to the Board, but a requirement of Xxxxxxx job description. (See Case Record for job description)Xxxxxx was director of budget in excess of three million dollars. I found it very difficult to believe that a job such as this had no qualifications except maintaining a current driver?s license! The Joint Commission on Hospital Accreditation had standards for the Executive Director of a Hospital and they included mor than an associate degree and a drivers license! Why were these standards not incorporated by XXX into the position description? Adherence to these standards was supposedly required to receive Federal monies. I protest that Xxxxxx was not properly in her position and I certainty protest that she was ever considered to be in my Chain of Command. This whole personnel action regarding me was very much about Xxxxxx maintaining her "power base!" Why does the United States of America want to contort itself and it?s values to genuflect to Xxxxxx? One other thing about the success Xxxxxx has had at putting people out during the "probationary period" at xxxxxx: there was a young man named xxxx xxx or xxxxxx xxxx or something like that (an xxxxx xxxxxxxx hire from xxxxxxx) who was the "finance officer" at the hospital when I got there. He had some qualms about the financial practices at Xxxxxxxx and mad the mistake of voicing his concerns. He was put out of the civil service, and I know he spent at least a year trying to get "his side" of the story heard. As far as I know, he was never successful.

29. When DCP said my case should be "dismissed on it's merits" what did this mean? I am a native English speaker but I don't understand this. To my way of thinking, what they are trying to say is "dismissed in spite of it's merits." I request that this "legalese" be explained to me by an attorney.

30. The LOR I received with no hearing is the same punishment the Navy Submarine Commander, whose ship crashed into the Japanese trawler received, after a lengthy military legal proceeding. I want the Board member to be aware that the three subjects of this "career ending" LOR were: (a) interrupting a weekly meeting to give a message, (b) breaking a pill in half ( there was no unit does system and no pill cutter) and (c) responding to a supervisor who signaled me out for admonishment for practice ever nurse at Xxxxxxxx does!

31. The Case Record contains correspondence from the American nurses Association (ANA). Please refer to the opinion of the ANA Nurse Practice Counsel regarding the need for further inquiry into the staffing situation, the nursing protocols and the billing practices at the Xxxxxxxxxxxxxxx.

32. I am not trying to hid anything. I WANT everything I have said here to be checked out. In fact, I find it difficult to believe that, as far as I am aware, not a single phone call has been made on my behalf by anyone to check out my side of the story!

III. Response by DCP:

The applicant, Xxxxxxxxxxxxxxx, is a former Nurse Officer whose commission was terminated in accordance with secretarial Regulations published at INSTRUCTION I, Subchapter CC43. 7 of the Commissioned Corps Personnel Manual (CCPM) and the related INSTRUCTION I, Subchapter cc 23.7 of the CCPM. She seeks reinstatement and retroactive pay and benefits to which she would be entitled should her request be approved. This portion of her application is properly before the Board. The applicant seeks to have a letter placed in her file stating that the AWOL she received was administrative in nature only and at no time did she ver disrupt the functioning of a work environment by not reporting to work when scheduled. This request is inappropriate and goes beyond correcting an error or injustice in the record The applicant also seeks reimbursement for registration fees and per diem to an AIDS conference in Xxxxxxxxxx she attended without proper approval. This matter is not properly before the Board because it is a claim for payment which should be processed through the XXX, Office of Hearings and appeals, before going to the Board. In addition to the above, the applicant seeks apologies from selected persons in XXX, the Xxxxx Xxxxx Xxxxxxx and the arrangement of orders transferring her to the xxx Xxxx xxxxx xxxx. These requests are not properly before the Board because they to beyond correcting the Service record.

Issue: Is there an error or injustice in the applicant's Service Record due to her involuntary separation under the probationary authority?

Answer: The Service Record of the applicant contains clear and convincing evidence that during her last tour on active duty she displayed conduct and performance problems making her unsuitable for continued active duty service.

Law: 42 U.S.C. 216-Regulations

Regulation: INSTRUCTION I, Subchapter CC43.7 of the CCPM-Separation under Probation INSTRUCTION I, Subchapter CC26.1 of the CCPM-Standards of Conduct Board for Correction of PHS Commissioned Corps Records

Chronology: (See Case Record)

Analysis of merits of the case:

1. Misconduct and Poor Performance

The applicant was separated from PHS for cause as documented in the chronology and submission from the Agency requesting her separation (See Case Record). The record documented performance problems, issues of misconduct and insubordination and general demeanor not becoming of an officer. Her performance and conduct placed the Department at risk for possible embarrassment of lawsuit as there were documented instances of medication errors and patient complaints of maltreatment. Therefore, in accordance with the provisions of the above cited INSTRUCTIONS, her commission was correctly terminated.

2. Federal V. State Scope of Practice

No relationship between scope of practice issue and applicant's tennination. The applicant suggested that she was subjected to disciplinary actions and eventful termination because she sought an opinion from the Xxxxxxxxxxxxxxxxxxxxxxx on a scope of practice issue. To support her position, she cited the fact that her first LOR was issued after she wrote the Xxxxxxxxxxxxxxxxxxxxxxx.The pattern of insubordination, misconduct, and questions of competency were noted well before the officer raised allegations of scope of practice issues. A careful review of the documentation provided in the Initial Advisory Opinion, Xxxxxxx 2000, showed the following:

Prior to her Xxxx 1999-letter to the Xxxxx State Board of Nursing, the applicant was counseled on at least eight different occasions on issues including lack of courtesy and professionalism, failure to follow policy, failure to follow chain of command and multiple cases of medication errors. The LOR predated the response from the Xxxxxxxxxxxxxxxxxxxxxxx by two weeks. The LOR was for displaying rude behavior to peers and supervisors, insubordination and lack of courtesy during patient care issues for which she had been counseled. In accordance with appropriate action following multiple instances of ineffective counseling.

To make a case of retaliation, the applicant must demonstrate that her supervisor knew that she engaged in a protected activity and took certain actions as a result of that knowledge. She made an unsupported statement that the Xxxxxxxx xx Xxxxxxx and the xxxxxx Xxxx xxxxxxxx were aware she had written to the Xxxxxxxxxxxxxxxxxxxxxxx. She then stated she showed them the letter from the Xxxxxxxxxxxxxxxxxxxxxxx when she received it. However, that was two weeks after the issuance of the Letter of Reprimand. Based on the above, the Board should find that they learned of the letter to the Xxxxxxxxxxxxxxxxxxxxxxx only after the issuance of the Letter of Reprimand. The Board therefore, should conclude that she failed to make a case that her termination was in retaliation for contacting the Xxxxxxxxxxxxxxxxxxxxxxx.The record lacks any evidence the applicant was disciplined for refusal to perform duties she felt were beyond the scope of her practice. The Board should find that the Scope of Practice allegations were not germane to the issue of her termination.

Scope of Practice in Federal Sector:

The applicant suggested she was required to provide professional services that were beyond the scope of nursing practice as authorized by the State of Xxxxx. However, the jurisdiction of the Board of Nursing for the State of Xxxxx was limited. The Stated of Xxxxx lacked jurisdiction over duties and responsibilities assigned to officers of the Uniformed Services in connection with their Federal positions.

The Xxxxxxxxxxxxxxxxxxxxxxx made a determination that on nursing protocol at Xxxxxxxx exceeded the scope of nursing practice for the State of Xxxxx. Generalizations cannot be made regarding the general scope of nursing practice at Xxxxxxxx based on Xxxxx? reading on one issuance. The record lacked evidence suggesting that the applicant was disciplined for refusal to perform that specific protocol. Therefore, the letter from the Xxxxxxxxxxxxxxxxxxxxxxx should be dismissed as not germane in determining the merits of this case.

The Federal Tort Claim Act and the Hold Harmless Provisions of the Public Health Service Act cover all member of the PHS Commissioned Corps for all acts performed within the scope of their duties. The Practice were considered within the scope of her duties. Therefore, she was covered for malpractice for any acts performed that were consistent with the published nursing protocols. She should have addressed any questions concerning the legality of the requirements of her position to the Chief Nurse and or the Office of the General Counsel, Department of Health and Human Services.

3. Other Issues Not Properly Before the Board

The record lacked evidence that XXX approved the applicant's request to attend the AIDS Conference. She attended the conference without approval and was therefore A WOL and not entitled to any payment. See INSTRUCTION 1, Subchapter CC29.1 of the Commissioned Corps Personnel Manual.

This case is distinguished from case Number 226-01. DCP found no error or injustice that would warrant a correction to the record in the present case. The applicant produced no properly signed leave slips, memoranda, travel orders or personnel orders authorizing either annual leave or administrative leave. Further, she produced no travel vouchers to document the expenses she now claims. Finally, a memorandum dated Xxxx x, 1999 submitted by the applicant documented the fact that requisitions for travel and training would be denied. She seeks money and therefore her claim for payment should be processed by the XXX, Office of Hearings and Appeals.

In Case Number 226-01, DCP found that the record in fact contained an administrative error. Based on this finding of an administrative error, DCP recommended that the Board correct the record to permit the officer to be paid in accordance with the correction.

AWOL

This issue should be dismissed for lack of substantial evidence that the applicant's service Record contains a material error of injustice due to her A WOL status. The record documents that her request for leave from Xxxx 1999 was not officially approved prior to her departure. The Commissioned Officers' Handbook, provided to all officers clearly stated:"Except in cases of emergencies, leave taken by the officer must be approved in advanced by the officer?s leave granting authority. Form PHS1345 is used to request leave. The leave form is signed by the officer's immediate supervisor. The completed leave request which indicated approval or disapproval (this is the copy that has original signatures of the leave granting authority) should be returned to the officer. A copy is given to the officer?s leave maintenance clerk. The officer should carry the top copy of the leave slip with him/her wile on leave." (See Case Record).

A review of the applicant's leave record documented she had taken annual leave on three occasions that year, suggesting she was aware of the proper procedure to be used in requesting and obtaining leave (See case Record). Further, it appeared that she acknowledged she was AWOL in her request for relief: "Have a letter placed in her file stating that the A WOL she received was administrative nature only and at no time did she ever disrupt the functioning of a work environment by not reporting to work when scheduled."This issue should be dismissed with prejudice.

4. Characterization of her Discharge:

The applicant received an honorable discharge from the PHS Commissioned Corps. She was provided a copy of her Statement of Service which reflected the characterization of her discharge. This issue should be dismissed due to lack of evidence of material error or injustice in her Service Record.

IV. Board Action on Xxxxxxxxxxxxx Appeal:

Date of Board Meeting: Xxxxxxx 2001

Board Staff: Members of the Board:

Wayne C. Richey, Jr. Kenneth W. Harris

Executive Director Chairperson of the Board

Board for Correction of and Mathematical Statistician

PHS Commissioned Corps National Center for Health

Records Statistics

Thomas E. White, Ph.D.

Executive Secretary

Board for correction of

PHS Commissioned Corps

Records

Request for Relief

The Board Members determined that the following requests were not within the purview of the Board and for this reason were not considered:

1. Arrange for her to speak with selected persons in IHS and to receive apologies from them.

2. Arrange a letter from the Xxxxx Xxxxx, PHS Commissioned Corps, apologizing for the manner in which her concerns about the legality of the nursing protocols at the Xxxxxxxxxxxxxxx were handled.

3. Arrange orders transferring her from the PHS Commissioned Corps to the Xxxx xxx. Like anyone else in her position, she would like to get a retirement. She is too old to get vested with a civilian hospital and with an involuntary separation on her record, she cannot qualify for civil service employment.

Findings, Conclusion, Recommendations and corrections to the Record:

Findings

1. Xxxxxxxxxxxxx was terminated from the PHS Commissioned Corps on xxxxxx 1999 during her probationary period that started xxx 1997. She had completed approximately eight months of the last year of her probation (her probation would have ended on or about xxx 2000). She was serving as a Nurse Officer at the Xxxxxxxx xxxxxx xxxxxx xxxxxxx Hospital when terminated. She had previously been on active duty in the commissioned corps from Xxxxxxx 1986 to xxxxxxx 1989. During the period xxxxxxx 1989 to Xxxxxx 1994, she had been on active duty in the xx Xxxx.

INSTRUCTION I, Subchapter cc23. 7, set forth the policy and procedures concerning the involuntary separation of an officer during the three-year probationary period. According to Section D,1 an officer may be separated from active duty at any time during the probationary period. The XXX recommended Xxxxxxxxxxxxx for termination on Xxxxxxx 1999 during the last year of her probation. Section E,5, required DCP to have arranged a status reviewed by XXX of her performance and conduct during her probationary period and for the review to have been completed during the last year of her probation. The review was intended to provide justification for deciding whether to recommend her for retention or termination at the end of her probationary period. The XXX recommendation was due to DCP (on or by Xxxxxx 1999) to allow at least nine full months time before the end of her probation so remedial action could be taken within the probationary period.

Xxxxxxxxxxxxxxx wrote the Xxxxxxxxxxxxxxxxxxxxxxx on Xxxx 1999. She had concerns about being asked to triage, diagnose, treat and prescribe medication for after hour patients and whether this violated her license. She received a response from the Nurse board on Xxxxxx 1999 advising that the practice was not in accord with state requirements. The xxx wrote her on Xxxxxx 1999 stating that she could no longer perform duties as a registered nurse since her license had expired.

2. Xxxxxxxxxxxxxxx was allegedly told by the Xxx Xxxxxxxxxx and her supervisor for infectious disease control that she along with xxxx had been designated to attend training at an AIDS conference in Xxxxxxxxxx, xxx xxxx in Xxxxxxx 1999. She was unable to obtain personnel orders to attend the conference. Later, the nursing schedule showed her on approved leave to attend, so she went without approved leaved and was not placed on AWOL. Upon arriving she discovered that the registration fee of $65.00 had not been paid. She and xxxx paid their registration fees, travel, meal and lodging expenses from personal funds.

3. The nursing schedule approved by xxxx (xxxxxxxxxxxx) reflected approved annual leave from Xxxx to Xxxxxx 1999.

Conclusions

1. The record did not document that DCP arranged to have XXX complete a status review on Xxxxxxxxxxxxxxx or that DCP notified XXX when she entered her last year of probation, as required by CCPM policy; nor did XXX acknowledge receipt of such notice. The notification to XXX should have been as early as xxxx 1999 (approximately xx months prior to the end of her probation). Not following policy denied her the opportunity of benefitting form remedial actions by XXX to improve her performance and conduct. There was an obligation to follow the policy.

2. The record did not document whether Xxxxxxxxxxxxx received official orders to attend the AIDS conference (even though she stated she asked for them). It also did not document her expenses of attending the conference. The Board member understood Xxxxxxxx was reimbursed for her expenses.

Recommendations and Corrections to the Record

1. The Board member were concerned that Xxxxxxxxxxxxx with a (presumably) good/excellent xx year service record suddenly generated a large number of complaints and needs for counseling. She had received an Excellent Rating on Xxxxxxx 1999; was a Most Valuable Employee in xx 1999; received a Well Above Average rating on xxxxx 1999; these during a period when complaints and counseling sessions were being registered, and had received Fully Successful Ratings and above since starting her probation in 1997.

2. There seemed to have been an inconsistency in proof requirements for Xxxxxxxxxxxxx compared with her chargers. It seemed that several of her claims re: leave taking, requirement to attend to AIDS Conference, failure to be reimbursed, etc., had a "ring of truth." Her arguments about an informal leave approval system seemed to have had no bearing on whether she had approval to attend the AIDS Conference or ve on leave; the leave approval system could have led to disciplinary action.

Her ar~ent about the nursing protocols also could have led to disciplinary action. The Letter of Reprimand (LOR) was written on Xxxx 1999 after she wrote the Xxxxxxxxxxxxxxxxxxxxxxx on Xxxx xx, 1999; her intention could have been known in her immediate work environment. The LOR also was dated the same day she signed her leave slip for which she was later placed on A WOL for not having it approved. The XXX gave the same reasons for requesting her termination as for issuing the Letter of Reprimand.

Therefore

After consideration of all the documentation received, the Board members recommended that Xxxxxxxxxxxxx appeal be upheld in part. This requires that her record be corrected by:

1. Expunging Personnel Order xxxx.xx, dated Xxxxxx xx, 1999 (terminating her from the PHS Commissioned Corps as of xxxxxxxx xx, 1999), and that she be retroactively reinstated as of Xxxxxxx 2000. It also requires that she receive all pay and allowances, service, pay credit and other benefits to which she is entitled as a result of this reinstatement.

2. Placing a memorandum in her record setting forth the Board members' findings and conclusions concerning the A WOL issued to her covering the period from Xxxx 1999 through Xxxxxx 1999.

3. Reimbursing her the $65.00 registration fee she paid to attend the AIDS Conference in Xxxxxxxxxx in Xxxxxxx 1999 upon presenting to DCP appropriate information documenting this expense. The Board members did not consider it cost-effective that this matter be referred to the Xxxxxxxxxxxxxxxxx, office of Hearings and Appeals, due to the amount involved.

We certify that the Board members' recommendations reflect their views and actions after considering Xxxxxxxxxxxxx's 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 Xxxxxxxxxxxxx's appeal; and in addition to applicable statutes, regulations and policies, it was considered by the Board members.

Finally, we certify that a quorum was present on Xxxxxxx 2001 when Xxxxxxxxxxxxxxx appeal was considered.

If you approve, please sign below.

 

Kenneth W. Harris

Chairperson of the Board

and Mathematical Statistician

National Center for Health

Statistics

 

Review and Approved:

I hereby ( ) approve ( ) disapprove the Board members' recommendations and corrections to the record on xxxxxx xxxxxx 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 213 a(a) (12), extending to the PHS Commissioned Personnel, 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.

 

Curits L. Coy Date

Director

Program Support Center

Attachment: Case Record

 

Board for Correction Application In the Case of xxxxxxxxx, Case Number 225-00

Under the authority delegated to me by the Secretary, Health and Human Services, and pursuant to Commissioned Corps regulations published in the Commissioned Corps Personnel manual (CCPM), INSTRUCTION 1, Subchapter CC 49.9, I non concur with the recommendations of the board for Correction of PHS Commissioned Corps Records and hereby deny the application of xxxxxxxxxxxx, (Hereinafter, applicant) case Number 225-00, for reasons specified below.

After careful consideration of the facts in this case, I find that the Board's recommendations are contrary to regulations and policy, inconsistent with the preponderance of Board's own precedents and unsupported by the record. Further, the Board failed to address all fo the applicant's requests or to justify its denial or dismissal of certain requests. Therefore, I am nonconcurring with the recommendations of the Board and denying this application in its totality.

I. Secretarial regulations published in the CCPM provided that during the 3-year probationary period, commissioned officers may be terminated without cause. (INSTRUCTION1. Subchapter CC43.7 of the Commissioned Corps Personnel Manual (CCPM), Section C(1). Implementing policy provides that "At any time during the probationary period, an officer may be separated from active duty for reasons including, but not limited to, unsuitability and failure to demonstrated the level of professional attitude and attributes expected of an officer in the Uniformed Service. (Emphasis added (See INSTRUCTION 1, Subchapter CC23.7 of the CCPM)). Section E(2) (a) of INSTRUCTION 1 Specifies the procedures for termination an officer due to unsatisfactory performance or conduct. Status reviews of officers on probation as described in Section E (2). The Board misapplied and/or misinterpreted the policy when it concluded that the Division of Commissioned Personnel (DCP) failed to conduct a status report. As a result, th Board erroneously concluded the DCP failed to follow its own policy.

II. The Board's recommendation that the applicant be reinstated on active duty is inconsistent with their own precedent-setting decisions involving termination under probation. See Case Number 156-94, 180-94 and 211-98. In the most recent decision involving termination under probation, the Board failed to document features of this case that distinguished it from established precedents, thus justifying a different outcome. Without such justification, the Board's recommendations appear to be arbitrary and capricious,.

III. The case record documents multiple separate instances of patient complaints regarding care, complaints by staff members regarding officer's conduct or attitude, and several incidents of medication errors. The record also documented at least 12 counseling sessions prior to the issuance of a Letter of Reprimand and two instances of additional counseling following the issuance of the Letter or Reprimand. The progressive discipline of this former officer culminated in the request for her termination under probation. Therefore, the Board's finding that "The record did not document that any effort had been made to correct these problems" is clearly erroneous. Further, the termination regulations and policies place no burden on the Department to correct identified deficiencies found in the performance or conduct of members in a probationary status. It appears that here again, the Board misinterpreted the applicant is unsuitable for active-duty service and her recall to active -duty service places patients and the Department at unwarranted risk.

The record contains overwhelming evidence to support the conclusion that the officer is a potential danger to her patients and unsuitable for active-duty Service. The record contains three separate incidents of medication errors by the applicant. The record also contains at least five separate instances of patient complaints regarding the quality of nursing care and/or professionalism of the applicant. The record demonstrates that the applicant is unsuitable for active-duty service and her recall to active-duty service places patients and the Department at unwarranted risk.

The Board's dismissal of the documentation of the applicant's deficiencies is unsupported in the Board's report. Administrative law provides for a presumption that managers carry out their duties in good faith. The burden of production of evidence rests with the applicant to demonstrate the existence of a probable material error in the record that led to the applicant's separation. The Boards' report fails to show that the applicant supplied credible evidence that would refute the presumption that her supervisors acted in good faith. Therefore, the Board's dismissal of the documentation of deficiencies is unwarranted and unjustified.

IV. The Bard correctly noted that the record lack evidence that the applicant received temporary duty travel orders either before or after she executed travel. Therefore, there is no justification to pay the officer?s registration fee for the AIDS conference, per diem and travel expenses associated with government-sponsored travel. Further, the applicant appears to admit to being absent without leave when she requested to, "Have a letter placed in her fille stating that the A WOL she received was administrative in nature only and at no time did she ever disrupt the function of a work environment by not reporting to work when scheduled." Therefore, it appears that the A WOL orders were correct and there is no basis upon which to change the record.

V. The Applicant requested that the Board arrange for her to: 1) speak with selected persons in XXX and to receive apologies from them; 2) get a letter from the Xxxxx Xxxxx apologizing for the manner in which her concerns about the legality of the nursing protocols at Xxxxxxxxxxxxxxx were handled; and 3) arrange for her transfer to the Xxxx. These requests are beyond the jurisdiction of the Board for Correction and are hereby dismissed.

 

 

Curtis L. Coy

Director

Reconsideration of the Appeal of xxxxxxxxxx xxxxxxx (xxxxxxx), Case Number 225-00

You requested on Xxxxxxx 2002 that the Board obtain and Advisory Opinion from either the former or current Xxxxx Xxxxx Xxxxxxx on issues pertaining to the professional practice of Nursing for consideration by the Board members (Addendum 1). The Board obtained an opinion dated xxxxxxx 2002 from the current Xxxxx Xxxxx Xxxxxxx, xxxx xxx xxxx (Addendum 2). Xxxxxxxxxxx was given an opportunity to rebut the opinion provided by the Xxxxx Xxxxx Xxxxxxx. She provided rebuttal comments dated xxxx 2002 (Addendum 3). There was no additional new documentary evidence to the Board.

The Board members met on xxxxx 2002 to reconsider Xxxxxxxxxxxxxxx appeal in light of xxxxx opinion and the rebuttal to that opinion provided by Xxxxxxxxxxxxxxx. They were unanimous in their view that the additional information provided did not in any way affect their prior findings, conclusions and recommendations regarding the disposition of this case. They viewed xxxxx xxxx opinion as strengthening the position they had previously taken.

The Xxxxx Xxxxx Xxxxxxx had made the point that xxxxxxxxx had allowed her state nursing license to expire. Xxxxxxxxxxxxxxx's rebuttal comments included a statement dated xxxxxxx 2002 from the Board of Nurse Examiners for the State of Xxxxx. The statement documented that her nursing license was in good standing at this time, would expire the last day of Xxxxxxx 2003 and had never lapsed at this time. There was concern among the Board members that no effort had been made by the xxxxxxx xxxxxx xxxxxxx management to verify whether her license had ever expired. This failure raise doubts in their minds concerning the actions and statements repeated in the record about xxxxxxxx performance and conduct.

The Division of Commissioned Personnel (DCP) referenced a pattern of insubordination, misconduct and questions of competency on the part of Xxxxxxxxxxxxxxx. However, the record did not document that any effort had been made to correct these problems. INSTRUCTION I, Subchapter CC23.7, set forth the policy and procedures for use during the three year probationary period to address issues of performance and conduct affecting the retention of an officer. The Board interpreted Section ES to mean that DCP was to have arranged a status review by XXX of her performance and conduct during her probationary period and for the review to have been completed during the last year of her probation. The review was intended to provide justification for deciding whether to recommend her for retention or termination at the end of her probationary period allowing at least nine months before the end of her probation so remedial action could be taken. The record did not document that the arrangement had been mad to have XXX complete a Status review or that XXX had been notified when she entered her last year of probation. Not following the policy denied her the opportunity of benefitting from remedial actions to improve her performance and conduct.

The Board members were not convinced by the documentation in support of separating xxxxxxxx from the PHS Commissioned Corps. She had been "written up" and counseled without any effort to solve the problem as required by INSTRUCTION I, Subchapter CC23. 7. She had received good evaluations, commendations and awards. Also, there was an instance where she had been placed on AWOL during a time when the hospital schedule showed her on approved leave.

Therefore:

After reconsidering Xxxxxxxxxxxxxxx appeal, the Board members unanimously reaffirmed their prior findings, conclusions and recommendations and corrections to the record attesting to the occurrence of an injustice. She should be afforded those remedies the Board member believed were just and equitable by:

1. Expunging Personnel Order xxxxxx.xxx, dated Xxxxxx 1999 (terminating her from PHS Commissioned Corps as of xxxxxx 1999), and that she be retroactively reinstated as of Xxxxxxx xx 2000. It also requires that she receive all pay and allowances, service, pay credit and other benefits to which she is entitled as a result of this reinstatement.

2. Placing a memorandum in her record setting forth the Board members? findings and conclusions concerning the AWOL issued to her covering the period from Xxxx 1999 through Xxxxxx 1999. (See Attachment)

3. Reimbursing her the $65.00 registration fee she paid to attend AIDS Conference in Xxxxxxxxxx in Xxxxxxx 1999 upon presenting to DCP appropriate information documenting this expense. The board member did not consider it cost-effective that this matter be referred to the Xxxxxxxxxxxxxxx, Office of Hearings and Appeals, due to the amount involved.

The Board members did not consider any other requests by Xxxxxxxxxxxxxxx.

I certify that the reaffirmation of the findings, conclusions and recommendations and corrections to the record by the Board members reflected their views and actions after reconsidering xxxxxxxx appeal and that they have concurred in this matter.

I certify, further, that the Case Record contains all fo the additional documentation received on Xxxxxxxxxxxxxxx appeal; and that in addition to applicable statutes, regulations and policies, it was considered by the Board members.

Finally, I certify that a quorum was present on xxxx 2002 when Xxxxxxxxxxxxxxx appeal was reconsidered.

If you approve, please sign below.

 

Kenneth W. Harris

Chairperson of the board

and Mathematical Statistician

National Center for Health

Statistics

 

Reviewed and Approved:

I hereby ( ) approve ( ) disapprove the Board members' recommendations and corrections to the record based on reconsideration on xxxxxxxx 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. 213 a(a) (12), extending to the PHS Commissioned Corps the provisions of 10 U.S.C. 1552, and empower the Director, Division of Commissioned Personnel, Program Support Center, to implement this decision and correct her record as stipulated. A copy of the Board memorandum dated Xxxxxx 2001 (attached) is to be placed in her Official Personnel File. She is entitled to review her record to ensure compliance with this decision. Except when procured by fraud, a correction under 10 U.S.C 1552 is final and conclusive on all officers of the United States.

 

Curtis L. Coy

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.