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109.00 Appointment as Commissioned Officer - Recall to active duty

Recommendation of the Board for Correction on Request of: Xxxxxxx, Case No.144-92

Request:

Reinstate her on active duty. Monetary settlement for income, benefits and promotional opportunity lost because of termination from the Corps.

Summary of Officer's Argument and Documentation:

Xxxxxxx contends that the evaluations received on her annual COERs do not support the recommendation that she should have been terminated. She references the fact that she had always been recommended for promotion and for assimilation into the Regular Corps and that her COERs support her contention that she had been a professional and conducted herself in a manner expected of an officer.

Xxxxxxx contends further that the record does not contain any documentation to support her termination as required by Corps policy. She references statements by her xxxxxxxx indicating that she had been an "asset to the XX unit" and "above average in the quality of work" performed, "knowledgeable" and "presents good solutions to difficult problems." She considers such documentation to be necessary to refute differences about her performance and conduct between the time of her last COER and submission of the recommendation that she be terminated.

She also contends that the record does not contain any documentation supporting any action to improve her performance or conduct. She has asserted that she had never received counsel nor had the need for it been indicated. She contends that if her performance and conduct had been serious enough to warrant termination, the record should have included evidence of attempts to resolve them.

Summary of Division of Commissioned Personnel's Argument and Documentation:

DCP received an Agency Retention Recommendation, dated xxxx xx,xxx, from IHS on Xxxxxxx. The IHS had recommended that she not be retained beyond the probationary period. DCP requested and received from IHS its justification in the form of a memorandum from the Xxxxxxxxxxxxxx dated xxxxxxxx 1992. Under DCP policy, the Agency makes a recommendation for or against retention in the Corps. In the case of this officer, the Agency chose to consider not only the local xxxxxxxx comments but also those of the Xxxxxxxxxxxxxx and others above the duty station in the management chain.

In the justification for Xxxxxxx separation during probation, IHS indicated that although she had demonstrated acceptable clinical performance as a professional xxxxx, she did not demonstrate the commitment, attitude or conduct expected of a commissioned officer. The IHS recommendation had not been based on her clinical competence.

It is DCP's opinion that Xxxxxxx termination during probation had been appropriately recommended by IHS and implemented correctly by DCP, i.e., there had been no administrative error or injustice. The IHS specifically requested that she not be retained past her probationary period and furnished its justification shortly thereafter. DCP's position is that she is not entitled to reinstatement or due any monetary settlement for income, benefits and promotional opportunity lost. All personnel actions had been taken in accordance with the CCPM INSTRUCTIONs.

Board Action on Officer's Request:

Date of Board Meeting: xx x, 1993

Board Staff:

Ellen Wormser
Executive Director

Thomas E. White, Ph.D.
Executive Secretary

Members of the Board:

Sharon Smith Holston
Chairperson of the Board and Associate Commissioner for Management, FDA

Findings and Conclusions:

The Board considered whether the record supported the contention that xxx Xxxxxxx had not demonstrated the commitment, attitude or conduct expected of an officer during her probationary period and whether DCP policy had been followed. (Her clinical performance as a xxxxx had not been at issue.)

The Board found that the rating scales in the Commissioned Officers Effectiveness Report (COER) covered: ... characteristics considered most pertinent to the officer's performance in the Service." No clear distinction had been made between scales applicable to her performance as a xxxxx and scales applicable to her suitability as an officer as determined by her commitment, attitude or conduct. This finding had been significant since DCP policy required that ratings given support: "...recommendations for continued service or separation."

1. Facts

The Board considered the following ratings to have been applicable to her suitability as an officer as well as to her performance as a nurse:

It found for 1990, 1991 and 1992, that each year her overall performance had exceeded the average and that she had been considered fully qualified for promotion and assimilation into the regular corps. These were among the highest achievements to which an officer could have aspired attesting to her suitability as an officer.

It also found that during this period her xxxxxxxx had answered "no" to the question: "Does this officer have any limitations not identified above which might limit ... her effectiveness?" She also had been considered fully satisfactory or better in her knowledge and understanding of managerial systems and procedures and had: " ... shown advancement toward supervision" attesting further to her suitability as an officer.

2. DCP Policy

The Board evaluated the documentation on the basis of its compliance with DCP policy. The policy had required that:

the COER ratings assigned to her by her xxxxxxxx support the recommendation to terminate:

a. The Board found that her xxxxxxxx had answered "no" to a question on whether she had any "performance deficiencies" (the question did not distinguish between her performance as a xxxxx and her suitability as an officer) . It also found that they had answered "no" to a question on whether there had been a need to improve her performance and "no" to a question on whether she needed counseling or training or transfer to another billet.

b. the xxxxxxxx recommendation to terminate describe her commitment, attitude or conduct and explain how these failed to meet requisite standards:

The Board found that the Xxxxxxxxxxxxxx memorandum on xxxxx xx, 1992, describing characteristics held by the officer which supported the recommendation to terminate had not been supported by the COER ratings or the record. For example, the Xxxxxxxxxxxxxx had stated:

"Despite multiple requests and counsel, Xxx x xx has never purchased a PHS uniform .... " However, the Board found that her xxxxxxxx had written in 1992:

" is working in closed unit setting where uniform is inappropriate to wear. Is not required at this time." In 1991 her xxxxxxxx had written: "works in closed unit and is mandated to wear unit scrub suit which supersedes CC uniform regulation." In 1990 her xxxxxxxx had written: "uniform on order, works in area that requires scrubs. However, her xxxxxxxx wrote to her on xxxxxx, 1992, requesting that she wear her uniform to and from work each Wednesday.

Second, the memorandum stated: "xxxxxxxxx commitment to duty lasts exactly 40 hours per week.... She does not participate in hospital committee work or staff special project or initiatives." The Board found, however, that the record showed instances in which she had exceeded her duties and responsibilities as a xxxxx. Her xxxxxxxx had written in 1992: "has helpful suggestions for problems on the OB unit. Is willing to help problem solve." In 1991 her xxxxxxxx had written: "usually has solutions to problems before presenting the problem." In 1990 her xxxxxxxx had checked the COER rating: "usually understands and presents good solutions to new and particularly difficult problems" and had written: "has revised printed booklet on 'Newborn Care' and adapted it to the xxxxx culture. According to the record, she also wrote a note to her xxxxxxxx in 1992 volunteering to do Quality Assurance.

Third, the memorandum also stated: "Xxxxx displays a lack of concept of cooperation and teamwork, attributes critical to providing staffing in a rural, isolated reservation hospital in which staffing needs vary. " However, the Board found that her xxxxxxxx had written in 1992: "has worked in tense situations with other staff and acted professionally despite personal feelings" and had rated her: " ... able to cooperate with others in a manner that helps produce better work than anyone member of the group could produce." In 1990 and 1991 her xxxxxxxx had been in agreement with this rating. In addition, in 1991 her xxxxxxxx had written: "seems to work well with a variety of personalities and cope with stressful stuations" and "has gained trust from peers."

Fourth, the memorandum stated further: "Xxxxx is reluctant to accept her xxxxxxxx decisions, questions rationale, and will continue to address issues after they are closed." The Board found that the COER ratings assigned by her xxxxxxxx in 1990, 1991 and 1992 were in agreement that she: "works with xxxxxxxx guidance constructively."

Fifth, the memorandum stated: "Xxxxx is reluctant to accept assignments outside of unit in compliance with hospital policy. She will float out to another unit but will 'badger' the xxxxxxxx through out the assignment. " In this instance the record had been in accord with this observation causing her xxxxxxxx to write in 1992: "needs to be more flexible when floating to other units. xxxxxxx administration utilizes the ... system and floating is mandatory. " However, in 1991, her xxxxxxxx had written: "I feel this individual needs to be more flexible in the assigned schedule for this assignment. This information was gathered from input by other xxxxxxxx. In my 6 months I have not seen this inflexibility. " Her xxxxxxxx did write to her on xxxxx, 1992, about floating to xxxxx. She had questioned the decision but agreed to the assignment.

c. the recommendation to terminate be accompanied by all available documentation regarding her unsuitability as an officer based on her commitment, attitude or conduct:

The Board found that the COER ratings assigned to her during her probationary period had not supported the recommendation to terminate due to deficiencies expressly related to her commitment, attitude or conduct.

d. the recommendation to terminate include a summary of all discussions held with her and any action taken to improve her commitment, attitude or conduct and that despite such efforts her suitability remained unsatisfactory:

The Board found that the recommendation to terminate had not referenced any actions taken to correct any deficiencies expressly related to her commitment, attitude or conduct.

e. the xxxxxxxx provide enough factual information to the officer about her commitment, attitude or conduct to make clear the basis for recommending termination:

The Board found that the recommendation to terminate had been written by the Xxxxxxxxxxxxxx, not by her xxxxxxxx. Her xxxxxxxx had recommended her for promotion and assimilation into the regular corps not for termination and this had been concurred in by the reviewing official.

f. DCP policy had required the IHS to provide supporting documentation specifying whether she had been: "highly-qualified, qualified, or not qualified for retention."

The Board found no indication that this policy had been complied with.

g. xxxxxxxxxxx had alleged that her xxxxxxxx and the Xxxxxxxxxxxxxx were xxxxxxxx suggesting possible nepotism in how she had been treated. The Board did not find any documentation to rebut this allegation.

Based upon the material facts in the record and DCP policy regarding termination during the probationary period, the Board concluded that she should not have been terminated.

Recommendation:

Accordingly, the Board recommends that xxxxxxxxxx be reinstated in the Commissioned Corps effective xxxxxx 1992, the date of her termination and that she receive all pay and allowances to which entitled.

We certify that this recommendation reflects the views and action taken by the Board on her request and that it has been concurred in by the Board members.

We certify, further, that the Case Record, shown as an Attachment contains all of the documentation received on her request and that, in addition to applicable statutes, regulations and policies, it had been considered by the Board in arriving at this recommendation.

Finally, we certify that a quorum of Board members was present on xxx, 1993, when her request was considered.

If you approve, please sign below.

Reviewed and Approved:

I hereby approve the recommendation of the Board members on the request of xxx Xxx x xxxx 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. 212a(a)(12), and authorize the Director, Division of Commissioned Personnel (DCP), Office of the Surgeon General/PHS to correct her record as stipulated and issue a Personnel Order reinstating her in the Commissioned Corps effective xxxxxx 1992, and authorizing her to receive all pay and allowances to which entitled.

Wilford J. Forbush
Director, Office of Management

Attachement: 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.