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165.00 Inactive Reserve Corps - Credit for service in the Inactive Reserve

Board Members' Recommendation and Decision on Appeal of: Xxxxxxxxxxxxxxxxxxxxxxxx, Case Number 206-98

I. Officer's Appeal to the Board:

Xxxxxxxxxxxx asked the Board to:

Authorize an adjustment in his pay covering the period xxx xx, 1988 to xxxxxxx x, 1992 based on credit for his time in the Xxxxxxxxxx inactive reserve. He asked that the Board consider: (1) waiving the six-year rule so he could receive full retroactive pay or (2) change the date of discovery to the summer of 1988 when he first tried to obtain credit for his service.

II. Accept or Deny Officer's Application:

The record contained conflicting opinions on whether Xxxxxxxxxxxx application should be accepted by the Board or whether it should be sent to the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (XXXX). In support of not accepting his application, the Division of Commissioned Personnel (DCP) argued that:

1. Xxxxxxxxxxxx did not exhaust his administrative remedies. He should have filed his appeal with XXXX. Board policy encourages applicants to delay filing until other remedies had been exhausted. His appeal did not involve a correction to his record.
   
2. The Board cannot grant the relief requested since it cannot waive the law (31 U.S.C. 3702) establishing the six-year rule; only the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx can waive the six year rule. Therefore, his application should be sent to XXXX.
   
3. His application is not properly before the Board because he did not file it in a timely manner.

Conclusions

1. 10 U.S.C. 1552 empowers the Board to change an officer's record to correct an error or remove an injustice (in this instance, denial of pay for service credit) . The Office of the General Counsel advised that Xxxxxxxxxxxx appeal was properly before the Board since it involved potentially a correction to the record. According to the record, he also had been advised earlier by a DCP staff official to appeal to the Board.
   
2. Xxxxxxxxxxxx presented two options: (a) waive the six-year rule or (2) change the date of discovery. The option of correcting his record by changing the date of discovery is within the Board's statutory authority.
   
3. The three year statute of limitations could not start until after Xxxxxxxxxxxx obtained evidence of his eligibility for pay credit (allowing him to determine whether an error or injustice had occurred. Not knowing whether he was eligible, he could not allege error or injustice or appeal to the Board since the Board is not an investigatory agency.
   
   According to the record, Xxxxxxxxxxxx began seeking information concerning his eligibility as early as xxxx xx, 1988. He followed this on xxxxxxxx xx 1988 with a memorandum to a DCP staff official. He also discussed this matter with other DCP officials but received no assurance that he was eligible. There also was an indication that a problem in locating his records delayed processing his Statement of Creditable Service in the Xxxxxxxxxx.

Accordingly, the Board members waived the statute of limitations and accepted the application.

III. Officer's Appeal for Relief

The Board members accepted Xxxxxxxxxxxx application and considered his appeal on its merits. In support of his appeal, Xxxxxxxxxxxx argued that:

1. He first inquired into his eligibility during the summer of 1988 and was told by the Xxxxxxxxxx that he was not eligible for credit for base pay. He did not receive any written documentation to that effect. Nor did he receive any documentation when he inquired during the summer of 1989 and was told he was not eligible.
   
2. He served in the Xxxxxxxxxx inactive reserve from xxxxxxxxx xx 1985 to xxxxxxx xx 1987.
   
3. He had not seen a written policy (or some other documentation in writing) stating whether xxxxxx time or time in the inactive reserve would or would not be creditable towards establishing his Base Pay Entry Date (BPED).
   
4. XXX Xxxxx xxxxxxxx, the xxx xxxxxx Staffing Officer, told him he thought his service should be creditable, but was not able to obtain credit for him or provide documentation on this matter.
   
5. xxxx xxx, a DCP personnel technician, told him the regulations allowed him to receive credit for his time in the inactive reserve and retroactive pay.
   
6. He had been delayed in obtaining a statement of his Xxxxxxxxxx service because of a lack of information on where his records had been located.
   
7. In order for DCP to address his appeal, the Board would have to waive the six-year rule.
   
8. Since his appeal involved official PHS personnel records, it should not go to XXXX.

DCP argued that:

1. The Officer has not exhausted administrative remedies.
   
   Departmental regulations found in the Commissioned Corps Personnel Manual, INSTRUCTION 1, Subchapter CC49.9, Section E, 1, states:
   
   "An application may not be considered by a Board until the applicant has exhausted all effective administrative remedies afforded him/her by existing law or regulations. . . . "
   
   Based on this provision of the regulation, the Board advises applicants:
   
   "The Board is the highest administrative appeal within the Department of Health and Human Services for Corps officers. . . . You should delay filing your appeal until after you have exhausted all effective administrative remedies available to you by law or regulation. These may include filing a grievance or EEO complaint or appealing to the Comptroller General, if applicable. "
   
   Source: Board for Correction of Public Health Service Commissioned Corps Records: Information for Applicants, xxxxxxx 1996.
   
   DCP corrected Xxxxxxxxxxxx BPED on xxxxxxx x, 1998 and he was paid retroactively up to six years. Xxxxxxxxxxxx seeks payment beyond the six-year limitation. He asks that the Board:
   
   "Waive the 'six-year rule' so that the Compensation Branch would be allowed to make the full retroactive pay adjustment. "
   
   "Change the 'date of DCP Discovery' .... "
   
   Effective administrative remedies are available through filing a claim with the XXXX. This remedy should be exhausted before the officer's application can be deemed to be properly before the Board for Correction.
   
2. The Board cannot grant the remedies being sought: effective relief cannot be granted by the Board.
   
   Pursuant to Departmental Regulations found in the Commissioned Corps Personnel Manual, INSTRUCTION 1, Subchapter CC49.9, Section (E) (3) (b), "the Chairperson, without approval of the Secretary or his/her designee, may deny an application when. . .effective relief cannot be granted by the Board."
   
   The Board is authorized to correct errors or injustices in the service record of an officer. However, in this case there is no error or injustice in the record that requires correction. The correction was made by DCP and the payment that is authorized was made in accordance with the law. The officer is seeking a waiver of the law, a remedy that the Board is not authorized to grant.
   
3. The Board lacks jurisdiction to hear the case: the Board does not have jurisdiction to determine the matters presented.
   
   Pursuant to Departmental Regulations found in the Commissioned Corps Personnel Manual, INSTRUCTION 1, Subchapter CC49.9, Section (E) (3) (c), "the Chairperson, without approval of the Secretary or his/her designee, may deny an application when. . .the Board does not have jurisdiction to determine the matters presented."
   
   Xxxxxxxxxxxx seeks waiver of the six-year rule. By law, only the Xxxxxxxxxxxxxx, has that authority. Therefore, the Board should dismiss this case for lack of jurisdiction.
   
   The 1996 amendments to 31 U.S.C. 3702 transferred the authority to process claims of Uniformed Services members from the General Accounting Office to the Xxxxxxxxxxxxxx. Subsection 3702(e) provides:
   
   "Upon the request of the Secretary concerned, (as defined in section 101 of Title 37, United States Code), the Secretary of Defense may waive the time limitations set forth in subsection (b) or (c) in the case of a claim for pay or allowances provided under title 37...."
   
4. This case is not properly before the Board because the officer failed to file his claim in a timely manner.
   
   Case barred by statute of limitation:
   
   Pursuant to Departmental Regulations found in the Commissioned Corps Personnel Manual, INSTRUCTION 1, Subchapter CC 49.9, Section (E) (3) (D), "the Chairperson, without approval of the Secretary or his/her designee, may deny an application when...the application has not been timely filed under section D(3) and the interests of justice does not require its acceptance."
   
   "An application for correction must be filed within three years after the discovery of the alleged error or injustice. An application filed after that time may not be accepted unless the Board finds that it would be in the interest of justice to do so. Reasons why its acceptance would be in the interest of justice must be stated in the application."
   
   The record indicates that in 1988 the officer wrote a letter inquiring about BPED credit. In his application to the Board he noted that he let the matter drop for the time being. The Official Personnel Folder lacks evidence of any other attempts by the officer to correct the record until 1997, when the officer attempted to obtain the records from the Xxxxxxxxxx.
   
   Upon call to active duty, all officers are provided with a copy of the Commissioned Officer's Handbook which provides the officer with information on submitting an application to the Board. This officer should have received copies of the 1986 Commissioned Officer's Orientation Guide and the 1990 Commissioned Officers Handbook which describe the Board.
   
   DCP's primary position is that this case is not properly before-the Board due to exhaustion and jurisdictional issues. However, if the Board finds that the record contains sufficient evidence to overcome these deficits, then DCP argues, in the alternative, that the officer failed to pursue his case in a timely manner. He was aware of the alleged error, had knowledge of the Board process, and tailed to meet the time requirements as required by regulations.
   
5. DCP took corrective action as soon as the documentation was received.
   
   The xxx xxxxxx provided to DCP in 1988 did not contain sufficient information for the staff of the Compensation Branch, DCP, to determine that officer was eligible for the BPED he requested. The necessary verification was transmitted to DCP on xxxxxxxxx,1998. DCP took swift corrective action when on xxxxxxxx, 1998, DCP issued orders changing his BPED from xxxx xx, 1988 to xxxxx x, 1986.

IV. Board Action on Officer's Appeal:

Date of Board Meeting: xxx xx, 1999

Board Staff:

Norman E. Prince, Jr.
Staff Director
Program Support Center Executive Director
Board for Correction of PHS Commissioned Corps

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

Members of the Board:

Douglas J. Pruett
Chairperson of the and Director Personnel Security Testing Division, ASMB

Findings, Conclusion, Recommendation and Correction to the Record:

Findings:

1. Xxxxxxxxxxxx was in the Xxxxxxxxxx inactive reserve from xxxxxxxx xx, 1985 to xxxxxxx xx, 1987.
   
2. He did not receive pay credit for the period xxx xx, 1988 to xxxxxxx x, 1992.
   
3. He inquired regarding his Xxxxxxxxxx service as early as xxxx xx, 1988 when he wrote Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.
   
4. xxxxxx xxxx, xxxxxx xxxx, xxxxxxxxxxx xxxx, DCP, noted on Xxxxxxx xx, 1988 that Xxxxxxxxxxxx was not eligible for pay credit. Considering xx xxxxxx duties and responsibilities, his opinion was influential.
   
5. The different opinions by DCP staff officials regarding his eligibility for pay credit caused a delay in pursuing this matter.
   
6. Under 31 U.S.C. 3702, his claim had to arise within six years after the claim accrued (interpreted by Board members to mean date of discovery).

Conclusion:

The Board members concluded that Xxxxxxxxxxxx suffered an injustice when he did not receive pay credit for all service in the Xxxxxxxxxx inactive reserve. The date his claim accrued, defined by 31 U.S.C. 3702, was in dispute: he considered the date of discovery to be xxxxxxxx xx, 1988. DCP considered the date to be xxxxxxxxx x, 1998.

Recommendation:

The Board members recommend that Xxxxxxxxxxxx appeal be upheld and that the date of discovery be changed from Xxxxxxx x, 1998 to Xxxxxxx xx, 1988 when the high level DCP official commented on his eligibility.

Correction to the Record:

The Board members recommend that Xxxxxxxxxxxx record be corrected adjusting his pay to reflect his service in the Xxxxxxxxxx inactive reserve from xxxx xx, 1988 to Xxxxxxx x, 1992.

We certify that the Board members' recommendation and correction to the record reflect their views and actions after considering Xxxxxxxxxxxx appeal and that they have concurred in this action.

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

Finally, we certify that a quorum was present on xxx xx, 1999 when Xxxxxxxxxxxx appeal was considered.

If you approve, please sign below.

Douglas J. Pruett
Chairperson of the Board
and Director Personnel Security and Drug
Testing Division, ASMB

Reviewed and Approved:

I hereby (x) approve ( ) disapprove the Board members recommendation and correction to the record on 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. 213a(a)(12), extending to the commissioned corps the provisions of 10 U.S.C. 1552, and empower the Director, Division of Commissioned Personnel, Human Resources Service, Program Support Center, to implement this decision and correct his record as stipulated (to include issuing personnel orders as appropriate). He is entitled to review his record to ensure compliance with this decision.

Lynnda M. Regan
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.