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199.00 Promotion Program - Promotion to higher grade

Board Members' Recommendation and Decision on Appeal of: Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, Case Number 208-98

I. Xxxxxxxxxx Request for Relief:

Xxxxxxxxxx appealed to the Board asking it to promote him retroactively to the 0-8 (Xxxx xxxxxx, xxxx xxx xxx xxxx, effective from xxxxxx xx, 1997 through xxxxx xx, 1998, with retroactive pay and benefits and change of retirement status at that grade. If retroactive promotion is not permissible, he requests reinstatement in the PHS Commissioned Corps at the 0-8 flag grade for the minimum time required to retire at that grade.

II. Overview bv Xxxxxxxxxx:

Xxxxxxxxxx served on detail as Xxxxxxx for the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, Government of the Xxxxxxxxxxxxxxx, Washington D.C., on behalf of the United States District Court. The detail was for a two year period starting xxxxxx 1997 with an option for renewal not to exceed xxxxx, 2000. His appointment commenced on xxxxx xx, 1997. He served as Xxxxxxx at the xxx grade until his retirement from the Public Health Service (PHS} Commissioned Corps on xxxxx 1998.

Xxxxxxxxxx disagreed with the PHS contention that he did not exhaust his administrative remedies and that his complaint about not being promoted should have been processed as a grievance. He stated that:

1. The General Counsel, Office of the Secretary, indicated to him that his appeal to the Board was appropriate. The Counsel advised him that because the decision not to promote him was made by the Surgeon General, who also would be the deciding official on a grievance, no administrative remedy was available to him except through the Board.
   
2. Use of the Indian Health Service (IHS) grievance procedure would have been inappropriate since his position had been assigned to IHS only for administrative convenience and was not related to the IHS program. Xxxxxxxxxx said Xxxxxxxxxxxxxxxxxxxxx, xxxx xxxx xx xx xxxx xxxxxxx xx xxx, acknowledged that his position should have been and ordinarily would have been assigned to the Office of the Surgeon General instead of to the Indian Health Service.
   
3. The IHS commissioned corps staff confirmed that a grievance through IHS would have been inappropriate due to the above factors.

Xxxxxxxxxx stated that Board policy did not require him to submit affidavits in support of his appeal as suggested by the Division of Commissioned Personnel(DCP). He knew of no precedent for using affidavits in Board cases and that affidavits could jeopardize jobs in DCP and PHS officials elsewhere. He asked the Board to consider his appeal and promote him to the 0-8 rank for the following reasons:

1. Failure of the PHS to make his rank commensurate with the level of his assigned and documented responsibilities.
   
   Xxxxxxxxxx authorities included the powers of the Xxxxxxxxxxxxxxxxxxxxxxxxxx, responsibility for a FY 2000 budget of $205 million and 2100 employees, and supervision of up to 92 commissioned corps officers on detail to the District. He mentioned that the last officer who occupied the post as xxxxxxxxxxx xxx xxxxxx xxxxx, who represented only a small part of his responsibilities as Xxxxxxx, held an 0-8 grade.
   
2. Failure of the PHS to adhere to its policies of ranking officers based on job responsibilities and its policies and procedures for scoring billets.
   
   Xxxxxxxxxx cited several examples of officers holding an 0-8 grade who had substantially less responsibility than him as Xxxxxxx. He alleged that the PHS officer who scored his billet had been ordered to rate it as an 0-6, rather than scoring it objectively. PHS had stated that "the duties and responsibilities of the billet could have supported a higher rating. "
   
3. An acknowledgment by PHS that the "political climate" affected the application of PHS policies related to management of flag grades.
   
4. Use of reasons for not promoting him which were not supported by the facts. These included statements to the effect that:
   
   
   1. PHS was required to use a Board process for flag grade promotions. Xxxxxxxxxx called this statement incorrect. He stated that while the Board process was commonly used, he knew of several well-known exceptions by the Surgeon General, including the promotion of Xxxxxxx to the 0-8 grade outside of the usual Board process.
      
   2. Flag grade positions were not available. Xxxxxxxxxx also called this statement incorrect; he said he was aware of two unfilled slots at the time of his appointment as Xxxxxxx.
      
   3. An Office of Management and Budget "policy" prohibiting the promotion of officers on detail and continuing flag grades of officers on detail. Xxxxxxxxxx alleged that this policy did not exist.
      
5. Current and past favoritism and bias in awarding flag ranks and allowing officers to retain flag grades within the commissioned corps. Xxxxxxxxxx mentioned that several officers had retained their flag grades even though transferred to lower level positions. Their billets were not changed (as required by PHS policy). He also stated that PHS failed to promote him in the past as his job responsibilities would have dictated as evidence of favoritism and bias.
   
6. His contention that biased and inconsistent management of flag grades by the commissioned corps unjustly denied him promotion to the 0-8 grade. He considered his evidence to be substantial and credible in support of his belief that he had been treated unfairly and that he had suffered an injustice from the way in which commissioned corps promotion policies and procedures had been applied to him.

III. Response bv DCP:

Xxxxxxxxxx seeks a retroactive promotion to the 0-8 grade for the 10 month period he served as Xxxxxxx for the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Further, he seeks retired pay at the 0-8 grade effective the date of his retirement. DCP recommends that the Board consider denying his appeal on procedural grounds for the following reasons:

1. The Department of Health and Human Services (HHS) policy required Xxxxxxxxxx to exhaust all available administrative remedies before appealing to the Board. He was knowledgeable of the grievance procedure but opted not to follow protocol. Therefore, using a strict reading of the regulation, his application is not properly before the Board.
   
   Xxxxxxxxxx contests the rating of his billet as assigned by his sponsoring Operating Division, the Indian Health Service. A grievance would have allowed IHS the opportunity to respond in a timely manner, to address the issues of Indian Preference and Xxxxxxxxxx billet rating, and to reconsider approval of his detail. Further, it would have developed the record to provide a fully informed review by the Board.
   
   However, DCP notes that it would be unreasonable for Xxxxxxxxxx to file a grievance at this time since he is no longer on active duty. Although, DCP does not object to review of the merits of his appeal, DCP recommends that the Board consider the failure to follow the grievance procedure in its total assessment of whether equitable remedies are appropriate in his case.
   
2. Xxxxxxxxxx makes reference to an xxxxxxx x, 1983 personnel order promoting him to the 0-7 grade that was later rescinded. DCP recommends that the Board reject this claim due to his resting on his rights for more than 15 years. The claim fails to meet the three year statute of limitations and he has provided no justification for the Board to find that it would be in the best interest of justice to entertain this untimely claim at this time. The equitable principle of laches should bar the entertainment of this issue and its consideration as supporting evidence in his appeal.

DCP's review of the facts in the appeal failed to provide sufficient relevant evidence of an error or injustice. Therefore, DCP recommends that his appeal be denied on its merits for the following reasons:

1. As a Uniformed Service, pay grade is determined by the rank vested in the person. This is distinguished from civil service wherein the pay is determined by the rating of the position. Title 42 U.S.C. Section 206(b), delineates the only positions required to be flag ranked (also CCPM, Subchapter 23.4, INSTRUCTION 7, policy on selection and assignment of flag officers). Xxxxxxxxxx did not occupy one of those positions.
   
2. Title 42 U.S.C. Section 206(c), permits the Surgeon General, with the approval of the Secretary, to create certain temporary positions in the grade of Assistant Surgeon General. Commissioned corps policies developed pursuant to this statute require that an officer occupy a billet rated at the 0-7 grade or higher in order to be appointed to Assistant Surgeon General. In order to hold a pay grade above the 0-6 grade, an officer must occupy a billet rated at the 0-7 grade or above and undergo the review process specified in INSTRUCTION 7. This policy also stipulates that an officer must serve in an 0-7 grade for at least three years in order to be considered for promotion to the 0-8 grade. Xxxxxxxxxx w~s not eligible for promotion to the 0-8 grade in the first instance.
   
   Xxxxxxxxxx occupied an 0-6 grade billet. Although there is evidence to support a finding that the billet could have been rated higher, he accepted the position at the lower grade. Further, any error that may have resulted from the rating was a harmless error; pursuant to 42 U.S.C. Section 206, the Acting Assistant Secretary for Health had made it clear to all parties that a promotion to the 0-8 grade would not be approved.
   
   Xxxxxxxxxx made unsupported allegations of bias in the award of flag ranks within the commissioned corps. There is no evidence that the procedures outlined in INSTRUCTION 7 were violated in his case.
   
3. Xxxxxxxxxx did not occupy one of the positions identified in 42 U.S.C. Section 206(b), or INSTRUCTION 7(A) (2) (a). Therefore, even if he occupied a higher billet, he was not entitled to the pay grade of a higher billet simply by virtue of holding that billet. Further, he did not undergo the selection process specified in INSTRUCTION 7; therefore, he was not entitled to the promotion.
   
4. INSTRUCTION 7 provides guidance for selecting flag billets and for promoting individuals to flag ranked billets. Section C(6) notes that the relative position of billets submitted by Agencies outside of PHS will be included as an addendum to the Flag Officer Billet Board final rank order list of flag billets submitted to the Surgeon General. This section, read together with section D(4), makes clear that billets and officers assigned outside of PHS are not included in the priority list for flag grade promotions.
   
5. Even if Xxxxxxxxxx billet had been rated at the 0-8 grade, it is unlikely that he would have been promoted to that grade. Pursuant to 42 U.S.C. Section 206, the number of flag grade positions is restricted to one percent of the strength of the Regular Corps. The number of officers who occupy 0-7 and 0-8 billets far exceeds the number of flag ranked positions authorized by statute. As of xxxx 1998, a total of 80 officers occupied 0-7 and 0-8 billets but held 0-5 and 0-6 pay grades. Some officers have functioned successfully in these flag billets for a number of years. However, they have not been promoted due to the limited number of vacancies. It would be a miscarriage of justice to grant Xxxxxxxxxx request and disregard the established procedure for promoting officers to 0-7 and 0-8 grades.
   
6. Details to non-HHS programs are voluntary (CCPM, Subchapter 23.5, INSTRUCTION 5, details of commissioned officers). Usually, an officer is provided a copy of a Memorandum of Understanding (MOU) and asked to sign a statement accepting the terms of an agreement with the organization to which detailed. In a memorandum dated xxxxxxx 1997, Xxxxxxxxxx stated he understood and accepted his assignment to the Xxxxxxxxxxxxxxx.
   
   The MOU was for Xxxxxxxxxx's detail and did not mention a promotion for him. Additionally, the reimbursement costs specified on page seven reflect the pay and benefits that accrue to a Medical Officer at the 0-6 grade, including special pays. The court order referenced in the MOU is the xxxx xx, 1997 order granting the motion for appointment of a Xxxxxxx. Nothing in the MOU could be construed as agreeing to promote Xxxxxxxxxx to the 0-8 grade upon becoming the Xxxxxxx and accepting the detail.
   
7. The record provided by Xxxxxxxxxx documents that he was advised prior to accepting the position of Xxxxxxx, that the Department would not approve a promotion for him to the Temporary 0-8 Grade. The decision by the Office of the Secretary to approve his detail was premised on the fact that there would be no promotion. Further, the Assistant Secretary for Health left the door open for the court to fill the position through some other mechanism. This included his acceptance of the position as a civilian which he did. In good faith and in reliance on the terms of the agreement, the Department entered into a reimbursable detail with the Xxxxxxxxxxxxxxx as specified in the Memorandum of Understanding. He is now before the Board seeking to overturn an essential term of the agreement. The Board should apply the equitable principle of unclean hands in finding that he has breached the good faith agreement by seeking a retroactive promotion.
   
8. Xxxxxxxxxx seeks to justify his current actions by claiming he was the only qualified individual acceptable to the court and the Xxxxxxxxxxxxxxx to fulfill the role of Xxxxxxx. Although this may have been the, case, the record indicates that he had the option of fulfilling the role either as an 0-6 active duty officer or as a civilian with full retired pay and pay from the Xxxxxxxxxxxxxxx. In a communication from the xxxxxxxxxxx xxxxxxxxx noted that the court or the officer could choose to fill the Xxxxxxx position through some other means than through the detail of a commissioned corps officer. The record lacks evidence that either xxxx xxx or Xxxxxxxxxx ever responded to the communication expressing dissatisfaction with the terms of the Memorandum of Understanding.
   
9. The Secretary, the Assistant Secretary for Health, and Surgeon General have management discretion in responding to the changing needs of the Service. The PHS Commissioned Corps remains under the close scrutiny of the Office of Management and Budget and Congress with regard to assignment of flag ranked officers outside the Service. A policy decision not to promote officers into flag positions outside the Department was an appropriate response by the Office of the Secretary to the changing political and administrative climate. Further, the decision is consistent with INSTRUCTION 7, Subsection C-6 and D-4.
   
10. The Office of the Secretary's decision not to promote Xxxxxxxxxx is distinguishable from other decisions detailing flag ranked officers (former Surgeon General and former Deputy Surgeon General) to non-HHS entities for a limited period. These individuals held the necessary grade and billet prior to detail. However, the political climate changed after decisions on their details were made and resulted in one flag ranked officer having to accept a demotion in order to be on detail to the Xxxxxxxxxxxxxxx. This demotion discredits Xxxxxxxxxx claim that flag grades are assigned to meet affirmative action quotas. A decision to uphold his request would be a miscarriage of justice and would subject the Department to claims of prohibited discrimination.
    
    Xxxxxxxxxx references two flag ranked officers in IHS who he claims were removed from flag ranked billets but retained their grades. He should be required to produce the evidence necessary to support such allegations. Commissioned corps policy requires that, an officer lose a flag rank pay grade if he or she is removed from a flag ranked billet and placed in a billet below the 0-7 grade. DCP is not aware of any violations of this policy.
    
11. Xxxxxxxxxx noted that in 1983 he had been selected for a position as xxxxx xxxxxxx xxx and would have received an 0-7 grade. It should be noted that at the time, the xxxx was part of PHS. Therefore, the issue of detail outside the Department was nonexistent. The policies and procedures governing appointment as Assistant Surgeon General in 1997 differed from those in 1983.
    
    Xxxxxxxxxx Official Personnel Folder seems to indicate that in 1983 he wished to remain on detail to the Xxxxxxxxxxxxxxxxx and for this reason declined the position at xxxxxxxxxx xxx and promotion to the 0-7 grade. (Commissioned corps policy required his concurrence to extend the detail and remain in xxxxxx). Therefore, it seems that even in 1983, detail to a non-PHS entity involved a loss of flag grade. Although DCP believes the Board should not consider the merits of this claim due to untimeliness, should it decide to do so, it should conclude that Xxxxxxxxxx voluntarily declined promotion to 0-7, if assigned to xxxxxxxx xxxxx xxxx, in favor of remaining on detail to the xxxx xx xxxxxx. The Board should also conclude that what happened in 1983 has no bearing on his current request for promotion upon detail to the Xxxxxxxxxxxxxxx.
    
12. The fact that Xxxxxxxxxxx, Office of the General Counsel, Office of the Secretary, may have advised Xxxxxxxxxx that the Board was the appropriate mechanism for addressing the failure of promotion issue, Xxxxxxxx statement should not be construed as commentary on the merits of his case. Further, policy required that officers exhaust administrative and other remedies before appealing to the Board. Officers cannot grieve Board processes. Xxxxxxxx correctly advised him that the Board had jurisdiction to determine promotion issues.
    
    However, Xxxxxxxxxx failed to exhaust his administrative remedy with respect to his billet grade; therefore, that issue is not properly before the Board. Because his appeal involves promotion to the 0-7 grade, the billet issue must be addressed before the promotion issue. Since the billet issue is not properly before the Board, and promotion to the 0-7 grade is dependent on the billet rating, it appears, therefore, that the promotion issue is not properly before the Board.
    
13. DCP suggests the Board consider the "Analysis" in Section 4 of the Case Record in considering Xxxxxxxxxx appeal.
    
14. DCP is of the opinion that the Board lacks the authority to grant the relief sought. In Delegations of Authority, published in the Federal Register on xxxxxxx x, 1988, the Secretary retained to herself the authority to approve the selection of individuals to the temporary position of Assistant Surgeon General. Since the Secretary retained this authority, it is DCP's position that the Board does not have the authority to promote officers to flag grades.

IV. Board Action on Xxxxxxxxxx Appeal:

Date of Board Meeting: xxxx xx, 2001

Board Staff:

Norman E. Prince, Jr.
Staff Director
Program Support Center 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:

Joseph H. Autry, III., M.D.
Chairperson of the Board and Acting Administrator for SAMHSA

Findings, Conclusion, Recommendation and Correction to the Record:

Findings

1. The position of Xxxxxxx, Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx was at the 0-6 grade. Xxxxxxxxxx signed a MOU for detail to the position at the 0-6 grade.
   
2. At the request of the Surgeon General, the Flag Officer Billet Board evaluated and ranked flag grade billets and recommended officers for promotions to 0-7 and 0-8 flag grades. The record did not document that the Xxxxxxx position was ever ranked at the flag grade or that Xxxxxxxxxx was ever recommended for promotion to the 0-8 flag grade.
   
3. Xxxxxxxxxx believed he deserved special consideration by the Surgeon General, outside of the Flag Officer Billet Board, based on his responsibilities as Xxxxxxx and his qualifications as an officer.

Conclusion

It was the prerogative of the PHS to rank billets and assign grades dependent upon a variety of considerations including officer responsibilities, number of flag vacancies, number of flag officers and PHS staffing requirements. The Surgeon General exercised his discretion by not requesting the Flag Officer Billet Board to evaluate and rank Xxxxxxxxxx position or to consider his qualifications for promotion to the 0-8 flag grade. Xxxxxxxxxx had not been promised a promotion. There was precedent for having officers work in billets above and below their grades.

Recommendation and Correction to the Record

The Board members agreed in the interest of justice to waive the Board policy requiring Xxxxxxxxxx to have exhausted all available administrative remedies before appealing to the Board.

According to INSTRUCTION 7, the promotion of Xxxxxxxxxx to the 0-8 flag grade required that he be in an 0-8 billet and serve for three years at the 0-7 flag grade. He did not occupy an approved flag grade billet nor did he serve for three years at the 0-7 flag grade as required by the policy.

Therefore:

The Board members recommended that Xxxxxxxxxx appeal be denied. This requires no correction to his record.

We certify that the Board members' recommendation and correction to the record reflect their views and actions after considering Xxxxxxxxxx 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 Xxxxxxxxxx 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 xxxx xx, 2001 when Xxxxxxxxxx appeal was considered.

If you approve, please sign below.

Joseph H. Autry, III, M.D.
Chairperson of the Board
and Acting Administrator
for SAMHSA

Date

Reviewed and Approved:

I hereby (x) approve( ) disapprove the Board members' recommendation on Xxxxxxxxxx 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).

Curtis L. Coy
Director
Program Support Center

Date

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.