B-206863 L/M, JUN 17, 1982

B-206863 L/M: Jun 17, 1982

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WE HAVE CONCLUDED THAT THE PHS WAS ACTING WITHIN ITS LAWFUL AUTHORITY IN WITHHOLDING THE TRAVEL AND TRANSPORTATION ALLOWANCES IN QUESTION. MCINERNEY STATES THAT IN THE FALL OF 1979 HE WAS RECRUITED BY THE HOSPITAL ADMINISTRATOR AND THE MEDICAL STAFF AT THE PHS INDIAN HOSPITAL AT KEAMS CANYON. HE WAS RECRUITED TO RETURN TO THE SAME HOSPITAL IN OCTOBER 1980 FOR 1 YEAR. HE SAYS THAT IT WAS AGREED IN WRITING BY THE HOSPITAL ADMINISTRATORS AT KEAMS CANYON THAT HE COULD LEAVE AFTER 1 YEAR. IT WAS ALSO UNDERSTOOD THAT IF HE LEFT AFTER 1 YEAR HIS MOVING EXPENSES WOULD BE PAID. ADVISED HIM THAT PAYMENT OF HIS MOVING EXPENSES WOULD HAVE TO BE WITHHELD BECAUSE HE HAD NOT COMPLETED 2 YEARS OF CONTINUOUS ACTIVE DUTY.

B-206863 L/M, JUN 17, 1982

DIGEST: A MEDICAL OFFICER OF THE PUBLIC HEALTH SERVICE MAY PROPERLY BE DIVESTED OF TRAVEL AND TRANSPORTATION ALLOWANCES UNDER PARA. M6457, 1 JTR, FOR FAILING TO COMPLETE 2 YEARS OF CONTINUOUS ACTIVE DUTY, NOTWITHSTANDING THAT LOCAL HOSPITAL OFFICIALS RECRUITED HIM FOR 1 YEAR'S SERVICE, SINCE THOSE OFFICIALS HAD NO AUTHORITY TO APPROVE A SPECIAL AND LIMITED 1-YEAR ACTIVE DUTY ASSIGNMENT. ALSO, 1-YEAR VARIABLE INCENTIVE PAY AGREEMENT MADE BY OFFICER UNDER 37 U.S.C. 313 DID NOT EXPUNGE THE OFFICER'S SUSCEPTIBILITY OF BEING DIVESTED OF TRAVEL ALLOWANCES FOR FAILURE TO COMPLETE 2 YEARS' SERVICE.

TIMOTHY E. WIRTH, UNITED STATES HOUSE OF REPRESENTATIVES:

WE REFER TO YOUR LETTER DATED MARCH 9, 1982, WITH ENCLOSURES, ON BEHALF OF YOUR CONSTITUENT, DR. JOHN R. MCINERNEY OF 510 NORTH FORD STREET, GOLDEN, COLORADO 80403. DR. MCINERNEY QUESTIONS THE PROPRIETY OF ACTION TAKEN BY THE UNITED STATES PUBLIC HEALTH SERVICE (PHS), IN WITHHOLDING TRAVEL AND TRANSPORTATION ALLOWANCES FROM HIM IN OCTOBER 1981 WHEN HE COMPLETED A 1-YEAR PERIOD OF SERVICE AS A PHS MEDICAL OFFICER AT THE PHS INDIAN HOSPITAL, KEAMS CANYON, ARIZONA.

WE HAVE CONCLUDED THAT THE PHS WAS ACTING WITHIN ITS LAWFUL AUTHORITY IN WITHHOLDING THE TRAVEL AND TRANSPORTATION ALLOWANCES IN QUESTION.

DR. MCINERNEY STATES THAT IN THE FALL OF 1979 HE WAS RECRUITED BY THE HOSPITAL ADMINISTRATOR AND THE MEDICAL STAFF AT THE PHS INDIAN HOSPITAL AT KEAMS CANYON, ARIZONA, A PLACE WHERE HE HAD PREVIOUSLY SERVED AS A PHS MEDICAL OFFICER FOR 2 YEARS. HE WAS RECRUITED TO RETURN TO THE SAME HOSPITAL IN OCTOBER 1980 FOR 1 YEAR, AND POSSIBLY A SECOND. HE SAYS THAT IT WAS AGREED IN WRITING BY THE HOSPITAL ADMINISTRATORS AT KEAMS CANYON THAT HE COULD LEAVE AFTER 1 YEAR, AND IT WAS ALSO UNDERSTOOD THAT IF HE LEFT AFTER 1 YEAR HIS MOVING EXPENSES WOULD BE PAID. HE INDICATES THAT ON THE BASIS OF THAT AGREEMENT HE RETURNED TO SERVE AT KEAMS CANYON IN OCTOBER 1980, BUT A YEAR LATER WHEN HE LEFT KEAMS CANYON OFFICIALS AT PHS HEADQUARTERS NEAR WASHINGTON, D. C., ADVISED HIM THAT PAYMENT OF HIS MOVING EXPENSES WOULD HAVE TO BE WITHHELD BECAUSE HE HAD NOT COMPLETED 2 YEARS OF CONTINUOUS ACTIVE DUTY. DR. MCINERNEY DISAGREES AND SUGGESTS THAT HE SHOULD INSTEAD BE PAID IN ACCORDANCE WITH HIS 1-YEAR AGREEMENT.

THE PHS PERSONNEL RECORDS WE HAVE REVIEWED IN THIS MATTER REFLECT THAT DR. MCINERNEY WAS SEPARATED FROM ACTIVE DUTY AS A PHS MEDICAL OFFICER UPON THE COMPLETION OF AN ASSIGNMENT AT KEAMS CANYON ON JUNE 24, 1977, AND HIS PHS RESERVE OFFICER'S COMMISSION WAS SUBSEQUENTLY TERMINATED AT HIS REQUEST. IN 1979 HE APPLIED FOR A NEW COMMISSION, AND ON NOVEMBER 13, 1979, THE INDIAN HEALTH SERVICE AREA OFFICE AT PHOENIX, ARIZONA, INITIATED A REQUEST TO THE PHS COMMISSIONED PERSONNEL OPERATIONS DIVISION ON A PHS FORM 1662, COPY ENCLOSED, THAT HE BE CALLED TO ACTIVE DUTY ON OCTOBER 1, 1980, TO AGAIN SERVE AT KEAMS CANYON. AS A RESULT, THE DIRECTOR OF PHS COMMISSIONED PERSONNEL OPERATIONS ISSUED PERSONNEL ORDER NUMBER 0224.017 DATED AUGUST 8, 1980, COPY ENCLOSED, APPOINTING DR. MCINERNEY A PHS MEDICAL OFFICER AND CALLING HIM TO ACTIVE DUTY EFFECTIVE OCTOBER 1, 1980. DR. MCINERNEY WAS SEPARATED FROM ACTIVE DUTY 1 YEAR LATER. THIS WAS DONE AS THE RESULT OF A REQUEST FOR SEPARATION FROM SERVICE HE SUBMITTED IN AUGUST 1981 ON A PHS FORM 1373, COPY ENCLOSED.

THE PERSONNEL RECORDS ON FILE AT THE PHS COMMISSIONED PERSONNEL OPERATIONS DIVISION RELATING TO DR. MCINERNEY'S OCTOBER 1980 APPOINTMENT AS A PHS MEDICAL OFFICER, AND HIS CALL TO ACTIVE DUTY, CONTAIN NO REQUEST OR STIPULATION THAT HIS TOUR OF ACTIVE DUTY BE LIMITED TO 1 YEAR. HOWEVER, IT DOES APPEAR THAT DR. MCINERNEY DID EXECUTE A WRITTEN AGREEMENT UNDER WHICH HE WOULD RECEIVE ADDITIONAL VARIABLE INCENTIVE PAY FOR COMPLETING 1 YEAR OF CONTINUOUS ACTIVE DUTY.

PARAGRAPH M6457, VOLUME 1 OF THE JOINT TRAVEL REGULATIONS (1 JTR), PROVIDES FOR THE DIVESTMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES OF A PHS OFFICER WHO RESIGNS OR SEPARATES OF HIS OWN VOLITION PRIOR TO COMPLETING EITHER:

"1. 2 YEARS OF CONTINUOUS ACTIVE DUTY, OR

"2. A PERIOD OF ACTIVE DUTY AGREED TO IN WRITING." UNDER THIS REGULATION AS IT HAS LONG AND UNIFORMLY BEEN APPLIED BY THE PHS, ALL PHS OFFICERS ENTERING ON ACTIVE DUTY ARE DIVESTED OF TRAVEL AND TRANSPORTATION ALLOWANCES IF THEY ARE THEREAFTER SEPARATED OF THEIR OWN VOLITION PRIOR TO COMPLETING 2 YEARS OF CONTINUOUS ACTIVE SERVICE, UNLESS THE DIRECTOR OF PHS COMMISSIONED PERSONNEL OPERATIONS HAS AUTHORIZED A SHORTER FIXED TERM OF SERVICE IN AN INDIVIDUAL CASE. WE HAVE UPHELD THIS REGULATION AS BEING VALID AND CONSISTENT WITH THE GOVERNING PROVISIONS OF STATUTORY LAW CONTAINED IN 37 U.S.C. 404(B) AND 406(C). SEE MATTER OF MANGES, 58 COMP.GEN. 77, 80 (1978); AND ALSO 41 COMP.GEN. 767, 769 (1962).

UNDER THE PROVISIONS OF 37 U.S.C. 313, PHS OFFICERS ARE ELIGIBLE TO EXECUTE WRITTEN ACTIVE DUTY AGREEMENTS UNDER WHICH THEY WILL RECEIVE ADDITIONAL VARIABLE INCENTIVE PAY FOR COMPLETING A SPECIFIED NUMBER OF YEARS OF CONTINUOUS ACTIVE DUTY. THE STATUTE ALLOWS OFFICERS TO ENTER INTO INCENTIVE PAY AGREEMENTS EVEN IF THEY HAVE OTHER CONCURRENT ACTIVE DUTY SERVICE COMMITMENTS.

IN THIS CASE IT APPEARS THAT THE WRITTEN 1-YEAR AGREEMENT REFERRED TO BY DR. MCINERNEY MAY BE THE VARIABLE INCENTIVE PAY AGREEMENT HE EXECUTED UNDER 37 U.S.C. 313. HOWEVER, AS INDICATED, UNDER THE STATUTE THIS WAS AN AGREEMENT HE WAS ELIGIBLE TO ENTER INTO IRRESPECTIVE OF ANY OTHER SERVICE OBLIGATIONS HE HAD, OR OF HIS SUSCEPTIBILITY OF BEING DIVESTED OF TRAVEL AND TRANSPORTATION ALLOWANCES FOR NOT COMPLETING A SERVICE OBLIGATION SPECIFIED BY PARAGRAPH M6457, 1 JTR.

IN ANY EVENT, LOCAL HOSPITAL AND INDIAN HEALTH SERVICE OFFICIALS IN ARIZONA HAD NO AUTHORITY TO APPROVE A LIMITED 1-YEAR TOUR OF ACTIVE DUTY AT KEAMS CANYON FOR DR. MCINERNEY, SINCE THAT AUTHORITY WAS RESERVED TO THE DIRECTOR OF PHS COMMISSIONED PERSONNEL OPERATIONS. IN CONFORMITY WITH DECISIONS OF THE UNITED STATES SUPREME COURT, WE HAVE LONG HELD THAT IN THE ABSENCE OF SPECIFIC STATUTORY DIRECTIVE, THE FEDERAL GOVERNMENT MAY NOT BE HELD LIABLE FOR THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE, E.G., MATTER OF VETERINARY AND OPTOMETRY OFFICERS, 56 COMP.GEN. 943, 950 (1977). HENCE, ANY UNAUTHORIZED AGREEMENTS AND UNDERSTANDINGS DR. MCINERNEY MAY HAVE HAD WITH THE LOCAL OFFICIALS IN ARIZONA CONCERNING HIS SERVICE OBLIGATIONS, OR ANY ERRONEOUS ADVICE HE RECEIVED FROM THEM CONCERNING HIS TRAVEL AND TRANSPORTATION ENTITLEMENTS, COULD UNDER NO CIRCUMSTANCES AFFORD A LEGAL BASIS FOR AN EXPENDITURE OF APPROPRIATED FUNDS.

IT APPEARS THAT WHILE DR. MCINERNEY, AS WELL AS THE HOSPITAL AND INDIAN HEALTH SERVICE OFFICIALS IN ARIZONA, COULD HAVE REQUESTED THE DIRECTOR OF PHS COMMISSIONED PERSONNEL OPERATIONS TO APPROVE DR. MCINERNEY'S REAPPOINTMENT FOR A SPECIAL 1-YEAR TOUR OF ACTIVE DUTY AT KEAMS CANYON BEGINNING IN OCTOBER 1980, THIS WAS NOT DONE. AS A RESULT, THE PHS COMMISSIONED PERSONNEL OPERATIONS DIVISION HAD NO OCCASION OR OPPORTUNITY TO CONSIDER WHETHER THE SITUATION WARRANTED A SPECIAL, LIMITED DUTY ASSIGNMENT. CONSEQUENTLY, IT APPEARS THAT THE REAPPOINTMENT APPLICATION WAS ROUTINELY APPROVED, AND STANDARD ORDERS WERE ISSUED CALLING DR. MCINERNEY TO EXTENDED ACTIVE DUTY FOR AN INDEFINITE TERM, RATHER THAN TO A SPECIAL 1-YEAR TERM OF ACTIVE DUTY. IN THOSE CIRCUMSTANCES, OUR VIEW IS THAT UNDER PARAGRAPH M6457, 1 JTR, HE WAS SUSCEPTIBLE OF BEING DIVESTED OF TRAVEL AND TRANSPORTATION ALLOWANCES WHEN HE VOLUNTARILY LEFT THE PHS IN OCTOBER 1981 PRIOR TO COMPLETING 2 YEARS OF CONTINUOUS ACTIVE DUTY, AND WE THEREFORE CONCLUDE THAT THE PHS WAS ACTING WITHIN ITS LAWFUL AUTHORITY IN WITHHOLDING THOSE ALLOWANCES.

MS. MARY WIBERG OF YOUR STAFF HAS ASKED THAT WE PROVIDE INFORMATION AND APPLICATION FORMS RELATING TO THE CORRECTION OF RECORDS UNDER 10 U.S.C. 1552 AND 42 U.S.C. 213AA)(12) (SUPP. III, 1979) IN THE EVENT WE ARE UNABLE TO CONCLUDE THAT DR. MCINERNEY IS ENTITLED TO THE TRAVEL AND TRANSPORTATION ALLOWANCES AT ISSUE HERE. THOSE PROVISIONS OF STATUTE AUTHORIZE THE SECRETARY OF HEALTH AND HUMAN SERVICES, ACTING THROUGH A BOARD OF CIVILIANS, TO CORRECT PERSONNEL RECORDS OF THE PHS COMMISSIONED CORPS "WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE." THE APPLICATION FORMS ARE ENCLOSED AS REQUESTED, TOGETHER WITH A COPY OF THE PHS REGULATIONS PRESCRIBING CORRECTION BOARD PROCEDURES (PERSONNEL INSTRUCTION 1, SUBCH. CC49.9, PHS COMMISSIONED CORPS PERSONNEL MANUAL).

WE TRUST THIS WILL SERVE THE PURPOSE OF YOUR INQUIRY.

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