B-191501, FEB 19, 1980

B-191501, FEB 19, 1980

DIGEST: MEMBER OF THE COMMISSIONED OFFICER CORPS OF THE PUBLIC HEALTH SERVICE (PHS) WAS APPOINTED A RESERVE OFFICER OF THE PHS IN 1957 AND RECRUITED BY THE PHS FOR CIVILIAN EMPLOYMENT WITH THE INTERNATIONAL COOPERATION ADMINISTRATION IN 1958 IN CONTEMPLATION OF HER EVENTUAL CALL TO ACTIVE DUTY FOR A LONG TERM CAREER IN THE PHS COMMISSIONED CORPS. THE CALL TO ACTIVE DUTY WAS DELAYED UNTIL 1964. IN THE PARTICULAR CIRCUMSTANCES PRESENTED, THE LAST 5 YEARS OF EMPLOYMENT PRIOR TO 1964 MAY BE TREATED AS "ACTIVE SERVICE WITH THE PHS" FOR ESTABLISHING RETIREMENT ELIGIBILITY UNDER 42 U.S.C. 212. B-191501, MARCH 8, 1979, MODIFIED.

HEALTH SERVICES DIRECTOR PEGGY S. PENTZ, PHS:

THE DIRECTOR OF COMMISSIONED PERSONNEL OPERATIONS, PUBLIC HEALTH SERVICE (PHS), AND HEALTH SERVICES DIRECTOR (0-6) PEGGY S. PENTZ, A MEMBER OF THE PHS COMMISSIONED CORPS, HAVE REQUESTED RECONSIDERATION OF OUR DECISION B-191501 OF MARCH 8, 1979. IN THAT DECISION WE DETERMINED THAT MISS PENTZ WAS NOT ENTITLED TO INCLUDE TIME SPENT BETWEEN 1958 AND 1964 AS A CIVILIAN EMPLOYEE OF THE INTERNATIONAL COOPERATION ADMINISTRATION, DEPARTMENT OF STATE, AS "ACTIVE SERVICE WITH THE PUBLIC HEALTH SERVICE" FOR PURPOSES OF ESTABLISHING ELIGIBILITY FOR RETIREMENT FROM THE COMMISSIONED CORPS OF THE PHS UNDER THE PROVISIONS OF 42 U.S.C. 212. UPON RECONSIDERATION, AND IN LIGHT OF ADDITIONAL NEW INFORMATION SUBMITTED, WE ARE MODIFYING OUR EARLIER DECISION.

MISS PENTZ BECAME A MEMBER OF THE INACTIVE RESERVE OF THE COMMISSIONED OFFICER CORPS OF THE PHS ON SEPTEMBER 26, 1957. THE PHS SUBSEQUENTLY RECRUITED HER FOR CIVILIAN EMPLOYMENT WITH THE INTERNATIONAL COOPERATION ADMINISTRATION, AND SHE WAS APPOINTED TO THE CIVIL SERVICE POSITION OF HEALTH EDUCATION ADVISOR WITH THAT AGENCY EFFECTIVE DECEMBER 13, 1958. SHE REMAINED A CIVILIAN EMPLOYEE OF THE STATE DEPARTMENT UNTIL SEPTEMBER 8, 1964, PERFORMING SEVERAL OVERSEAS ASSIGNMENTS IN THE FIELD OF HEALTH EDUCATION. HER SALARY WAS PAID BY THE INTERNATIONAL COOPERATION ADMINISTRATION AND SHE WAS COUNTED ON THAT ORGANIZATION'S ROLLS FOR EMPLOYMENT PURPOSES, BUT SHE WAS SUPERVISED IN LARGE PART BY PHS OFFICERS AND EMPLOYEES DETAILED TO THE INTERNATIONAL COOPERATION ADMINISTRATION.

ON SEPTEMBER 8, 1964, MISS PENTZ WAS GIVEN AN ACTIVE DUTY APPOINTMENT TO THE COMMISSIONED CORPS OF THE PHS, AND THE PHS SIMULTANEOUSLY DETAILED HER TO THE SAME HEALTH PROJECT IN THE REPUBLIC OF VIETNAM IN WHICH SHE WAS THEN ALREADY WORKING IN HER CIVILIAN POSITION. THUS, ALTHOUGH HER CIVILIAN EMPLOYMENT WITH THE STATE DEPARTMENT WAS ADMINISTRATIVELY TERMINATED UPON HER CALL FROM RESERVE TO ACTIVE DUTY STATUS AS A PHS COMMISSIONED OFFICER, HER ACTUAL DUTIES AND HER DUTY LOCATION REMAINED UNCHANGED.

MISS PENTZ HAS BEEN ON ACTIVE DUTY AS A CAREER OFFICER OF THE PHS COMMISSIONED CORPS SINCE 1964. IN 1978 THE PHS REQUESTED THAT OUR OFFICE RENDER AN ADVANCE DECISION ON THE QUESTION OF WHETHER ANY OF HER CIVILIAN EMPLOYMENT BETWEEN 1958 AND 1964 COULD BE CONSIDERED AS CREDITABLE SERVICE IN DETERMINING HER ELIGIBILITY FOR RETIREMENT FROM THE PHS.

IN OUR DECISION OF MARCH 8, 1979, WE NOTED THAT PROVISIONS OF LAW GOVERNING RETIREMENT FROM THE COMMISSIONED CORPS OF THE PHS ARE CONTAINED IN SECTION 212 OF TITLE 42, UNITED STATES CODE. SUBSECTION 212(A) AUTHORIZES RETIREMENT OF PHS COMMISSIONED OFFICERS UPON COMPLETION OF 20 YEARS OF ACTIVE SERVICE OF WHICH NOT LESS THAN 10 YEARS ARE COMMISSIONED SERVICE IN ANY OF THE UNIFORMED SERVICES. SUBSECTION 212(D) DEFINES "ACTIVE SERVICE" IN PERTINENT PART AS FOLLOWS:

"(D) THE TERM 'ACTIVE SERVICE,' AS USED IN SUBSECTION (A) OF THIS SECTION, INCLUDES:

"(2) ACTIVE SERVICE WITH THE PUBLIC HEALTH SERVICE, OTHER THAN AS A COMMISSIONED OFFICER, WHICH THE SURGEON GENERAL DETERMINES IS COMPARABLE TO SERVICE PERFORMED BY COMMISSIONED OFFICERS OF THE SERVICE, EXCEPT THAT, IF THERE ARE MORE THAN FIVE YEARS OF SUCH SERVICE ONLY THE LAST FIVE YEARS THEREOF MAY BE INCLUDED ***."

IN OUR MARCH 8, 1979 DECISION, WHILE IT WAS NOTED THAT MISS PENTZ WORKED CLOSELY WITH PHS OFFICERS BETWEEN 1958 AND 1964 AND THAT HER CIVILIAN DUTIES SEEMED COMPARABLE TO THE DUTIES PERFORMED BY A PHS OFFICER, IT WAS CONCLUDED THAT HER EMPLOYMENT WITH THE STATE DEPARTMENT'S INTERNATIONAL COOPERATION ADMINISTRATION COULD NOT PROPERLY BE REGARDED AS "ACTIVE SERVICE WITH THE PUBLIC HEALTH SERVICE" UNDER THE TERMS OF THE ABOVE- QUOTED PROVISION OF LAW. THAT CONCLUSION WAS BASED ON THE FACT THAT BETWEEN 1958 AND 1964 MISS PENTZ WAS ACTUALLY A CIVILIAN EMPLOYEE OF THE INTERNATIONAL COOPERATION ADMINISTRATION. THAT AGENCY RATHER THAN THE PHS HAD THE ULTIMATE AUTHORITY TO HIRE, DISMISS, TRANSFER, AND INITIATE THE DISCIPLINARY ACTION AGAINST HER. CONSEQUENTLY, IT WAS DETERMINED THAT HER EMPLOYMENT BETWEEN 1958 AND 1964 DID NOT CONSTITUTE "ACTIVE SERVICE WITH THE PUBLIC HEALTH SERVICE" AND COULD NOT BE CREDITED AT ALL IN COMPUTING HER YEARS OF SERVICE FOR PURPOSES OF ESTABLISHING ELIGIBILITY FOR RETIREMENT AS A PHS COMMISSIONED OFFICER UNDER 42 U.S.C. 212.

MISS PENTZ AND THE CONCERNED PHS AUTHORITIES HAVE SINCE SUBMITTED MORE DETAILED INFORMATION CONCERNING HER INITIAL RESERVE APPOINTMENT TO THE PHS COMMISSIONED CORPS IN 1957 AND THE CONDITIONS OF HER EMPLOYMENT BETWEEN 1958 AND 1964, AND THEY HAVE URGED THAT WE RECONSIDER THE EARLIER DECISION RENDERED IN HER CASE. IN SUBSTANCE, IT IS NOW INDICATED THAT MISS PENTZ WAS GIVEN THE RESERVE COMMISSION AS A PHS OFFICER IN 1957 FOR THE PURPOSE OF SECURING HER PARTICIPATION IN THE INTERNATIONAL COOPERATION ADMINISTRATION HEALTH PROGRAM. IT WAS INITIALLY CONTEMPLATED THAT SHE WOULD BE CALLED TO ACTIVE DUTY FOR THAT PURPOSE. BECAUSE OF ADMINISTRATIVE LIMITATIONS IMPOSED ON THE NUMBER OF ACTIVE DUTY OFFICERS, THE PHS LATER ASKED HER TO ACCEPT THE CIVILIAN POSITION WITH THE UNDERSTANDING THAT SHE WOULD BE CALLED TO ACTIVE DUTY AS SOON AS PRACTICABLE AS A CAREER PHS OFFICER. ALSO, WE ARE ADVISED THAT THE CONDITIONS OF MISS PENTZ'S EMPLOYMENT WERE CONTROLLED IN LARGE MEASURE BY THE PHS BETWEEN 1958 AND 1964:SHE COULD NOT HAVE BEEN HIRED WITHOUT A RECOMMENDATION INITIATED BY THE PHS, AND THE INTERNATIONAL COOPERATION ADMINISTRATION TRANSFERRED HER ONLY ON THE BASIS OF RECOMMENDATIONS OF THE PHS.

PUBLIC HEALTH SERVICE AUTHORITIES NOW ACKNOWLEDGE THAT THE CONSEQUENCES OF RECRUITING MISS PENTZ FOR CIVILIAN EMPLOYMENT WITH ANOTHER AGENCY IN LIEU OF ACTIVATING HER RESERVE COMMISSION, OR GIVING HER A CIVILIAN POSITION WITH THE PHS, WERE NOT FULLY CONSIDERED. MISS PENTZ STATES THAT AT THE TIME SHE ASSUMED THAT SHE WOULD RECEIVE RETIREMENT CREDIT FROM THE PHS FOR HER WORK BETWEEN 1958 AND 1964 BASED ON ASSURANCES SHE RECEIVED AND THE FACT THAT DURING THAT TIME SHE HAD BEEN A PHS RESERVE OFFICER RECRUITED BY THE PHS TO PARTICIPATE IN PUBLIC HEALTH PROJECTS THAT WERE LARGELY ADMINISTERED BY PHS PERSONNEL. HOWEVER, YEARS LATER WHEN SHE BEGAN TO CONSIDER THE POSSIBILITY OF RETIRING FROM THE PHS, SHE LEARNED THAT THE LAW MIGHT IMPOSE LIMITS ON THE CREDIT SHE COULD RECEIVE FOR THE SERVICE SHE HAD PERFORMED BETWEEN 1958 AND 1964. SHE THEREFORE MADE INQUIRIES TO HIGHER PHS AUTHORITIES ABOUT HER RETIREMENT RIGHTS, AND THE PHS THEN REQUESTED OUR ADVANCE DECISION ON THE MATTER BECAUSE OF THEIR UNCERTAINTY. PUBLIC HEALTH SERVICE AUTHORITIES NOW ADVISE US THAT THEIR UNCERTAINTY AROSE PARTLY BECAUSE MISS PENTZ WAS THE ONLY PHS RESERVE OFFICER RECRUITED FOR EMPLOYMENT WITH THE INTERNATIONAL COOPERATION ADMINISTRATION FOR PURPOSES OF A LATER CALL TO ACTIVE DUTY AND A LONG TERM CAREER WITH THE PHS.

THE PHS PARTICIPATES IN MANY PROJECTS SPONSORED BY OTHER FEDERAL AGENCIES INVOLVING THE FIELD OF PUBLIC HEALTH, AND COMMISSIONED OFFICERS OF THE PHS ARE ROUTINELY PLACED ON EXTENDED DETAILS TO OTHER FEDERAL AGENCIES. REMAINS OUR VIEW THAT A CIVILIAN EMPLOYEE OF A FEDERAL AGENCY (OTHER THAN THE PHS) WHO LATER BECOMES AN ACTIVE DUTY MEMBER OF THE PHS COMMISSIONED CORPS MAY NOT HAVE HIS PREVIOUS CIVILIAN EMPLOYMENT CREDITED AS "ACTIVE SERVICE WITH THE PUBLIC HEALTH SERVICE" UNDER THE PROVISIONS OF 42 U.S.C. 212. IN THAT CONNECTION, IT WOULD BE IMMATERIAL THAT THE PHS ASSISTED THE MEMBER IN OBTAINING THAT PREVIOUS CIVILIAN EMPLOYMENT, OR THAT HE WORKED IN CLOSE ASSOCIATION WITH PHS OFFICERS AND PERFORMED DUTIES COMPARABLE WITH THEIRS, SINCE THE MEMBER WOULD NOT ACTUALLY HAVE BEEN IN SERVICE WITH OR BEEN EMPLOYED BY THE PHS ITSELF.

HOWEVER, IN THE PARTICULAR CIRCUMSTANCES NOW PRESENTED IN THIS CASE, SINCE IT NOW APPEARS THAT MISS PENTZ WAS APPOINTED A RESERVE OFFICER OF THE PHS IN 1957 AND SUBSEQUENTLY RECRUITED BY THE PHS FOR EMPLOYMENT IN THE HEALTH PROGRAM OF THE INTERNATIONAL COOPERATION ADMINISTRATION PRIMARILY IN CONTEMPLATION OF HER EVENTUAL CALL TO ACTIVE DUTY FOR A CAREER IN THE PHS, AND IN LIGHT OF THE APPARENT MISUNDERSTANDING THAT OCCURRED AND THE POSITION NOW TAKEN BY THE PHS IN THE MATTER, WE WOULD NOW INTERPOSE NO OBJECTION IF THE PHS WERE TO CREDIT MISS PENTZ WITH 5 YEARS'"ACTIVE SERVICE WITH THE PUBLIC HEALTH SERVICE" UNDER 42 U.S.C. 212 BASED ON HER EMPLOYMENT BETWEEN 1958 AND 1964.