LinkedIn Logo

Board for Correction Case No. 229-01

""

Board for Correction Case No. 229-01

192.00 Pay and Allowances (Includes Allotments of Pay / Allowances / Basic Pay) - Service credit for pay computation

Board Members' Recommendation and Decision on Appeal of: xxxxxxxxxx,

Case Number 229-01

I. xxxxx Request for Relief:

Xxxxxx appealed to the Board asking it to arrange for him to receive higher compensation for serving while on active duty in a higher billet than that in which he usually performed. He asked to receive higher compensation for past service while serving in the position of Xxxxxx (approximately four years) by changing his salary and benefits while in that position from a Grade 0-5 to a Grade 0-6.

II. Overview by Xxxxxx:

The following will briefly describe the situation to which I refer:

  1. I enrolled in the USPHS on Xxx 1951 as a xxxxxxxxxx and was soon transferred to the xxxxxxxxxxx from which I separated on xxx 1952 with an Honorable Discharge. I then reverted to the USPHS where I pursued my career as a xxxxxxx stationed as Xxxxxx in xxxxxxx, xxxxxx; xxxxx Xxxxxx in xxxxx; and Xxxxxx in xxxxxxx. I retired from the USPHS as CDR Grade 05 on xxxxx 1971 after fulfilling a fine professional career .
  2. On xxxxxx 1955, I reported for active duty at the USPHS Hospital in xxxxxxx as the xxx Xxxxxx to xxxxxx, Xxxxxx. The structure of the hospital and clinic required that pharmacy be supervised, managed and operated by a pharmacist who held the rank of xxxx Grade 06 as did xxx xxx.
  3. In the late 1950s Xxxxxx (now deceased) transferred to Xxxxxx, xxxxx. This left an opening for a Xxxxxx. Upon a strong recommendation by Xxxxxx of me to the xxxxxxxxxx, xxxxx ( deceased), I was chosen by him to act in the capacity of Xxxxxx with unforgettable words urging me to "carry on". I had served as liaison for about five years to Xxxxxx. At no time was there any mention or discussion that another Xxxxxx would be sought to replace Xxxxxx. xxxxxx xxxxxxx (deceased), xxxxxxxxxxxx, xxxxx, was informed of my selection for this higher billet and gave his tacit consent for me to replace Xxxxxx. He directed Xxxxxx to have me continue in the role of Xxxxxx with no consideration for a replacement. This situation continued for three to five years. In xx 1963, I transferred to the USPHS Hospital in xxxxxxx, as Xxxxxx. 
  4. I conducted all functions pertinent to pharmacy matters, hospital and clinic operations, and internal and external duties properly and efficiently in this position (note Form PHS-4392, line 5 and line 10 in the Case Record). Xxxxxx selection of me to operate the pharmacy placed me in a billet that called for the rank of a CAPT Grade 0-6 when I was in actual fact a Grade 05.
  5. As xxxxx, I made innovations for greater efficiency at the hospital. For instance, I instituted methods of "cutting costs" for prescription payments to up-state contract pharmacies (satellite pharmacies that served eligible PHS patients with prescription dispensing). This led to a savings of $25,000 the first year from reducing "over charging" on prescription prices. The second year, the hospital saved $35,OOO from minimizing over-charges. Evidently, no one at the hospital had made an effort to control the pricing of prescriptions or other operations at the hospital prior to my efforts (not doing so, had resulted in inflated charges).
  6. Through my efforts, I was able to get the Xxxxxxxxxxxxxxx, to grant exemption of payment of the xxxxxx annual income tax by non-resident commissioned officers. I had a fine rapport with the medical staff and full cooperation with the personnel of other departments of the hospital. All in all, it was an excellent professional career and a great experience with other good and helpful activities accomplished.
  7. I believe there is no need for "xxxxx xxx" to be exercised in making a judgment in this matter. I trust your wide understanding will render a fair decision by allowing me to receive a Four-Stripe pension in lieu of the Three ­Stripe pension I now receive for services described above. I would like this increased payment to be retroactive to the time I carried out these services. Clearly, I performed the duties of a Grade 06 while holding the rank of a Grade 05.

III. Response by DCP :

Issue: Is there an error or injustice in the Service Record of Xxxxxx with regard to his pay grade while on active duty and during retirement?

Controlling Authorities (See Case Record)

Analysis

  1. Xxxxxx failed to submit his appeal within the time frame required by law and failed to show that it is in the interest of justice to waive the statute of limitations. This appeal is not properly before the Board because more than 30 years have lapsed since he retired from active duty. In Xxx 1996, the Board published an article about the Board in the Commissioned Corps Bulletin (See Case Record). The Bulletin was circulated to all commissioned officers including active duty , inactive reserve and retired officers. More than three years have lapsed since the Board notified all officers of its existence. Xxxxxx failed to provide a valid reason why it would be in the interest of justice for the Board to consider his appeal. Therefore, the Board should dismiss his appeal for untimeliness.
  2. Xxxxxx failed to provide any relevant evidence of a material error or injustice in his service record. 

    Title 42 U.S.C. 204 et seq. provides that commissioned officers are appointed and compensated without regard to civil-service laws. Title 37 U.S.C. Section 201 and following prescribes how members of the Uniformed Services are paid based on rank. The commissioned corps personnel system is one of rank in the person; therefore, the pay grade of an officer is unaffected by the grade of the billet occupied by the officer. Xxxxxx was properly compensated at the pay grade he held.

    Xxxxxx failed to show he actually occupied a billet that was graded at the 0-6 level. The grading of a Xxxxxx position varies based on the size of the facility to which the officer is assigned and range of duties of the officer. Item number nine, Minimum Qualifications, of the billet submitted by Xxxxxx states that to perform satisfactorily the incumbent should be at least a Full Grade (0-4). This suggests that this billet was graded at the Full Grade (0-4) or at most, (0-5). Due to the lapse in time, DCP is unable to verify the rating of this billet. In 1965 he was relieved of duties as Xxxxxx and reassigned to a Deputy Xxxxxx billet.

    Xxxxxx service record shows he competed, but was not recommended, for promotion to the Temporary 0-6 Grade from 1964 through 1971, when he voluntarily retired. Additionally, his record documents that he competed for but was not recommended for permanent promotion to the 0-5 Grade by three separate boards of his peers in three successive years (See Case Record). The Promotion Boards cited a long career of interpersonal problems and poor performance, and recommended his retirement upon completing 20 years of service. His Commissioned Officer's Efficiency and Progress Reports support the Promotion Board's findings (See Case Record). His Official Personnel Folder documents that he voluntarily retired in 1971 in lieu of facing an Involuntary Retirement Board (See Case Record). Based on the above, the Board should find no error or injustice in his service record.

Conclusion

In accordance with regulations published in Section E(3)(d) of INSTRUCTION 1, Subchapter CC49.9 of the CCPM, this appeal should be denied on the basis of untimeliness. Additionally, the appeal should be denied in accordance with Section E (3)(a) because Xxxxxx failed to provide sufficient relevant evidence to demonstrate the existence of a probable material error or injustice in the record.

IV. Board Action on xxxx Appeal:

Date of Board Meeting: Xxxxxxx 2001

Board Staff:

Wayne C. Richey, Jr. Executive Director
Board for Correction of PHS Commissioned Corps Records

Thomas E. White, Ph.D. Executive Secretary
Board for Correction of PHS Commissioned Corps Records

Members of the Board:

Kenneth W. Harris
Chairperson of the Board
and Mathematical Statistician National Center for Health Statistics

Findings, Conclusions, Recommendation and Correction to the Record:

Findings

  1. U.S.C. 1552 stipulates that no correction can be made to an officer's record unless the officer files a request for the correction within three years after he discovers the error or injustice. However, the Board xxx excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.
  2. Xxxxxx stated he discovered the injustice of which he complained in xxxxx 2001. 
  3. In xxx 1963 , Xxxxxx transferred to the USPHS Hospital in Xxxxxxxxx as Xxxxxx. He stated: "Xxxxxx selection of me to operate the pharmacy placed me in a billet that called for the rank of a CAPT, Grade 0-6 when I was in actual fact a Grade 05.... Clearly, I performed the duties of a Grade 06 while holding the rank of a Grade 05."

Conclusions

The Board members concluded that Xxxxxx did not file his appeal with the Board within the required time frame. He had known as early as xxx 1963 of the discrepancy between his rank and the rank of the billet he occupied. The Board members did not believe the passage of time since xxx 1963 was a basis on which they should waive the statute of limitations. Xxxxxx had stated: "the reason for my delayed inquiry concerning this situation is simply that at no time in my PHS career did I know or been made aware or had any information of this method of appeal or inquiry."

Recommendation and Correction to the Record

U.S.C. 1552 did not concern when Xxxxxx discovered the Board [1996], but rather when the injustice came to his attention.

Therefore:

The Board members recommended not to waive the statute of limitations. For this reason, they did not to consider the merits of Xxxxxx appeal. This requires no correction to his record.

We certify that the Board members' recommendation reflects their views and actions after considering Xxxxxx 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 Xxxxxx 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 xxxxx 2001 when xxxxx appeal was considered.

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 (x )approve ( ) disapprove the Board members' recommendation on Xxxxxx appeal received and considered in accordance with the authority of Section 221a(a)(12) of the Public Health Service .L.9 ed) and 42 U.S.C. 213a(a)(12).

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.