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Board for Correction Case No. 234-01

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Board for Correction Case No. 234-01

124.00 Commissioned Officer Effectiveness Report (COER)-Includes Performance Evaluation - Change evaluation rating

TO: Deputy Assistant Secretary for Program Support

Through:

Nancy E. Ward

Executive Director

Board for Correction of PHS Commissioned Corps

Records

FROM: Chairperson

Board for Correction of PHS Commissioned Corps Records

SUBJECT: Board Members' Recommendation and Decision on Appeal of:

xxx xxxxxx xxxxxxx, Case Number 234-01

 

I. Relief Requested:

xxx xxxxxx asked the Board for Correction to:

1. Remove from his record his Annual Commissioned Officer's Effectiveness Reports (COERs) for the 1997, 1998 and 1999 evaluation periods.

2. Return 27 days of annual leave.

II. Summary by xxxx xxxxxx:

He stated that:

Removal of COERs

1. He was rated Well Above Average by his supervisor, xxxxxx xxxxx on his 1997 COER covering the period from xxxxxxx 1996 to xxxxxxxxx 1997. He believed that his rating had been influenced by his unwillingness to treat children and his unwillingness to do things which his profession considered to be unethical. He concurred with this evaluation because he did not plan to remain in the PHS Commissioned Corps and did not see it as a detriment to his professional career in the private sector.

2. He was evaluated twice during the 1998 COER evaluation period. He was rated Competent by his supervisor, xxxxxx xxxxxx, on his first 1998 COER covering the period from xxxxxxxx xx, 1997 to xxx xx, 1998. He disagreed with this evaluation and stated that he filed a rebuttal. xx xxxxxx rated him Well Above Average on his second 1998 COER covering the period from xxxx 1998 to xxxxxxx1998. He also disagreed with this evaluation and stated that he filed a rebuttal.

3. The record contained comments dated xxxxx x, 1998 and xxxx xx, 1998 to his first 1998 COER stating that: (a) he never received any orientation to his job duties and responsibilities, (b) he was told to take the lead on a project without any previous experience in the subject matter, (c) his background in xxxxxxxx xxxxxxxxx xxxxxxxxxx did not suit xxxxxxxxxx xxxxxxxxx in which he found himself working and (d) many, if not all, of the comments on this COER were without foundation; he took exception to the comment regarding his inability to coordinate and/or work with others, stating this had been based on only one person's complaints.

4. He was evaluated twice during the 1999 COER evaluation period. He was rated Well Above Average by his supervisor, . xxxxxxx, on his first 1999 COER (period covered not specified). He disagreed with this evaluation and stated that he filed a rebuttal. xxxxxxxxx rated him Exceptional on his second 1999 COER covering the period from xxxx 1999 to xxxxxxxxx1999. He concurred with this evaluation.

5. He commented on his 1999 COER on xxxxx 28, 1999 stating he: (a) managed the last project assigned to him in a timely manner, (b) was never told that he needed close supervision to complete this work, (c) wrote documents to communicate with the average American citizen, (d) demonstrated his ability to coordinate and/or work with others, (e) did not use the project review process as a means of improving the quality of the documents he produced and (f) always kept his supervisor informed of his projects and sought advice from others to improve the quality of his documents.

Return 27 days of annual leave

1. He reported to active duty at the xxxxxx, xxxxxx xxxxxxxx, on xxxxxxx xxx, 1997. His personnel order was effective xxxxxxx xx, 1997; he was to have reported to his new assignment on xxxxxxxx xx, 1997.

2. He began making inquiries about his personnel and moving orders three weeks prior to his reporting date. He made repeated calls to Rockville, Maryland and to xxxxxxxx xxxxxx attempting to make arrangements to ship his household goods; he was unsuccessful.

3. He reported to his new duty station late because he did not find out until xxxxxxxx x, 1997 that arrangements to ship his household goods had been completed. This did not allow him to report to his new duty station when scheduled. He contends that he made every effort to report to xxxxxx on time.

III. Summary by Division of Commissioned Personnel (DCP):

DCP stated that:

Removal of COERs

1. The record did not demonstrate that the officer exhausted his administrative remedies before appealing to the Board as required by Board policy. There was no evidence that he grieved the COERs he wanted removed from his record.

2. The COERs in question demonstrated above average performance by the officer. DCP questioned whether the removal of these COERs would be in the best interest of the officer or of the PHS Commissioned Corps.

3. The officer did not provide sufficient evidence to demonstrate the existence of a probable material error or injustice to justify removal of the COERs from his record.

Return 27 days of annual leave

1. xxxx xxxxxxx opted to take 27 days of annual leave rather than be placed on AWOL due to his late arrival at his new duty station.

2. The officer was still in probationary status when scheduled to report to his new duty station and could have been terminated if AWOL.

3. The officer did not provide sufficient evidence to demonstrate the existence of a probable material error or injustice to justify restoring 27 days of annual leave.

IV. Board Action on xxxx xxxxxxx Appeal:

Date of Board Meeting: xxxxxxxx xx, 2002

 

Board Staff: Members of the Board:

Nancy E. Ward Betty L. Jones

Director Deputy Director

Human Resources Service Office of Compliance

and Executive Director Center for Drug Evaluation and Research, FDA

Board for Correction of and Chairperson

PHS Commissioned Corps Board for Correction of

Records PHS Commissioned Corps Records

 

Thomas E. White, Ph.D. xxxxxxxxxxxxxxxxxxxx

Executive Secretary xxxxxxxxxxxxxxxxxx

Board for Correction of xxxxxxxxxxxxxxxxxxxxxxxxxxxxx

PHS Commissioned Corps

Records xxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxx

 

Removal of COERSs

The General Administration Manual, PHS Chapter 16-00-30-D, Other Remedies provides that an applicant exhaust: "...all pertinent administrative or other remedies afforded him/her by existing law or regulation as the Board may determine are practical and appropriately available to the applicant" before appealing to the Board. xxxx xxxxxx had the option of grieving his COERs under INSTRUCTION 5, Subchapter CC 26.1 of the Commissioned Corps Personnel Manual (CCPM). If not satisfied with the outcome of this process, he was entitled to appeal to the Board. He did not grieve his COERs. His rebuttal was not a substitute for filing a grievance. The Board concluded that xxxx xxxxxxx did not exhaust his administrative remedies.

Upon review of the merits of the case, the Board determined that xxxx xxxxxx ratings were above average. xx xxxxxx his supervisor, rated him Exceptional on his second 1999 COER covering the period from xxxx 1999 to xxxxxxx 1999. He concurred with that evaluation. His overall ratings continued to improve under xxxxxxxxxxxx. The Board did not find evidence that allowing the COERs to remain in his record would result in a probable material error or injustice to the officer nor did it find that he made a compelling case to have them removed from his record. Rather, the Board found that xxx xxxxxx appeared to do an exceptional job in substantiating the rating on each COER element, bring issues of concern to xxxx xxxxxx in a timely and appropriate manner, and documenting performance improvement as appropriate.

Return 27 days of annual leave

1. The record did not document calls that xxxx xxxx claimed he had made to Rockville and to xxxxxx regarding his personnel and moving orders.

2. There was no indication in the record that xxxx xxxxxx sought higher management participation in arranging to have his goods shipped as he approached his reporting date. It was not clear that he was dealing with the right people. Many of those he contacted appeared to be his friends.

3. There was no evidence that he attempted to have his reporting date changed when it became clear that he would not be able to meet the assigned date.

4. He had spent time during this period looking for a place to stay in xxxxxx which contributed to his delay in reporting to his new duty station.

5. The record did not provide evidence of an error or injustice documented by his best effort to contact the right people or to have his reporting date changed so he could have reported to his new duty station on time.

Therefore:

The Board members recommended that xxxxx xxxxx request be denied in its entirety.

I certify that the Board members' recommendations reflect their views and actions after considering xxxx xxxxxx 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 xxxx xxxxxx 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 xxxxxxx xx, 2002 when xxxx xxxxxx appeal was considered.

If you approve, please sign below.

 

Betty J. Jones

Deputy Director

Office of Compliance

Center for Drug Evaluation and Research, FDA

and Chairperson

Board for Correction of PHS Commissioned

Corps Records

Reviewed and Approved:

I hereby ( ) approve ( ) disapprove the Board members' recommendations on xxxx xxxxx 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.

 

Mike Blank

Deputy Assistant Secretary for Program Support

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.