Wednesday, September 13, 2006
My name is John Agwunobi, and I am the Assistant Secretary for Health with the U.S. Department of Health and Human Services (HHS). As the Assistant Secretary for Health (ASH), I serve as the Secretary's primary advisor on matters involving the nation's public health and oversee the U.S. Public Health Service (PHS) for the Secretary. The PHS is comprised of agency divisions of HHS and the Commissioned Corps, a uniformed service of more than 6,000 active duty health professionals who serve at HHS and other federal agencies, including the Bureau of Prisons, the Department of Homeland Security, and the U.S. Coast Guard. The mission of the Commissioned Corps is: “Protect, promote, and advance the health and safety of the Nation.” I am the highest ranking member of the Commissioned Corps; I am a Regular Corps officer and hold the rank of Admiral.
The Public Health Service
The scope of activities of the Marine Hospital Service also began to expand well beyond the care of merchant seamen in the closing decades of the nineteenth century, beginning with the control of infectious disease. As immigration increased dramatically in the late nineteenth century, the Marine Hospital Service was assigned the responsibility for the medical inspection of arriving immigrants at sites such as Ellis Island in New York. Because of the broadening responsibilities of the Service, its name was changed in 1912 to the Public Health Service. The Service continued to expand its public health activities as the Nation entered the twentieth century, with the Commissioned Corps leading the way. As the century progressed, PHS Commissioned Corps officers served their country by controlling the spread of contagious diseases such as yellow fever and smallpox (eventually assisting in the eradication of this disease from the world), conducting important biomedical research, regulating the food and drug supply, providing health care to underserved populations, supplying medical assistance in the aftermath of disasters, and in numerous other ways.
As America’s uniformed service of public health professionals, the Commissioned Corps achieves its mission to, “Protect, promote, and advance the health and safety of the Nation,” through rapid and effective response to public health needs, leadership and excellence in public health practices, and the advancement of public health science. The Corps today is a specialized career system designed to attract, develop, and retain health professionals who may be assigned to Federal, State or local agencies or international organizations. The PHS, with the Commissioned Corps at its center, has grown from a small collection of marine hospitals to one of the most significant public health programs in the world. In doing so, the tradition of a long and successful partnership has evolved with the agencies where officers are employed. Corps members have served honorably and been at the forefront of many of the advances in public health over this nation’s history.
Disciplinary and Administrative Actions
Corps officers are expected to uphold the highest standards of ethical behavior, both in their official roles and in their personal conduct. Commissioned Corps officers are on duty 24 hours a day, seven days a week, similar to our sister Services. The Corps takes seriously allegations of illegal infractions or other wrongdoing that brings discredit and dishonor to the Corps and the Department. We believe the Corps should strive for excellence of character and excellence in performance of duty, and we expect nothing less. When a determination is made that an officer has engaged in misconduct, he/she is subject to disciplinary action.
As a preliminary matter, I note that Commissioned Officers in the PHS and the National Oceanic and Atmospheric Administration (NOAA) are not generally under the purview of the Uniformed Code of Military Justice (UCMJ). Under the UCMJ jurisdictional statute, 10 U.S.C § 802, PHS and NOAA officers are subject to the UCMJ only when they are assigned to and serving with the armed forces.
If this jurisdictional prerequisite is not satisfied, cases of alleged misconduct involving individual Corps officers are solely handled in accordance with Commissioned Corps policies, as set forth in published Corps issuances. If there are potential criminal issues involved, these must be referred to the HHS Office of the Inspector General (OIG), which will coordinate with the Department of Justice for purposes of law enforcement investigation and prosecution. Non-criminal misconduct may be investigated by the agency operating division or by the Corps, depending on the situation.
Generally speaking, under Corps policy issuances, there are two broad categories of disciplinary administrative action available for uses in cases involving PHS Commissioned Corps officers: those actions not requiring a hearing – which include only a Letter of Reproval and a Letter of Reprimand – and those actions requiring a hearing – that is, all other administrative disciplinary actions up to and including termination of an officer’s commission. The nature of the hearing requirement may differ depending on the officer’s status (probationary vs. non-probationary, Reserve Corps vs. Regular Corps, etc.), as I will more fully describe in a moment. Moreover, involuntary termination of an officer’s commission results in the loss of all benefits otherwise associated with the officer’s uniformed services status.
How does the Corps define officer misconduct? Misconduct by a Regular or Reserve Corps officer includes violation of the HHS Standards of Conduct Regulations or of any other Federal regulation, law, or official Government policy. Such misconduct by an officer constitutes grounds for disciplinary or administrative action.
Some examples of officer misconduct include, but are not necessarily limited to:
Typically, administrative and disciplinary cases occurring within the Corps involve marginal or substandard performance, periods of being Absent Without Leave (AWOL), and cases of minor misconduct. The actual number of disciplinary cases is less than 1 percent of the Corps’ active duty strength. In the past two years, there were approximately 100 disciplinary actions or pending actions that involved a total of 82 officers.
The Corps has a variety of administrative and disciplinary actions that can be initiated to address officers who engage in misconduct. The decision as to which type of administrative or disciplinary action to be applied is based upon the nature of the infraction and the status of the officer. Lesser offenses may result in a Letter of Reproval, an administrative action generally taken by a supervisor, which does not become part of an officer’s personnel folder. More serious offenses can lead to the termination of an officer’s commission based on the recommendation of a Board of Inquiry or an Involuntary Termination Board. If a determination is made that an officer’s commission should be terminated, then the status of the officer determines what mechanism to be used and the level of due process that must be afforded to the officer in carrying out the action. For example, an officer who is on probation during their first three years on active duty may be summarily terminated upon 30 days notice with an opportunity to provide a written statement to the Director, Office of Commissioned Corps Operations. However, a Regular Corps officer or an officer who is eligible for retirement is afforded an opportunity to appear at a Board and present witnesses.
As a practical matter, disciplinary and administrative actions are enacted or recommended at the lowest level of the supervisory and administrative chain. Through delegation, the HHS Operating and Staff Division Heads, regional offices, the Surgeon General and Deputy Surgeon General, or the Director, Office of Commissioned Corps Operations (OCCO) have the authority to issue a letter of reproval or a letter of reprimand and to make recommendations to the Commissioned Corps regarding more serious disciplinary actions.
To summarize, the disciplinary and administrative actions that may be taken against an officer may be grouped into two classifications, those actions not requiring Board review and recommendation and those disciplinary actions that require board review and recommendation. It is important to note, however, that even in cases that do not require Board review, the agency to which the officer is assigned works in consultation with the Commissioned Corps in developing a reasonable plan of disciplinary action.
Actions not requiring board review and recommendation are the following:
The Commissioned Corps also has disciplinary actions that require board review and recommendation; they are the following:
To explain a little more fully, a Board of Inquiry consists of at least three PHS commissioned officers, who are Commander or Captain in rank. A PHS representative(s), one or more PHS commissioned officers, is appointed to prepare the statement of charges and specifications against the officer and to act in the interest of the Government before the Board. The hearing is conducted by a Presiding Officer and the proceedings are not limited by formal rules of evidence, but do require reasonable standards of competency, relevancy, and materiality. All testimony before the BOI is given under oath or affirmation. When the BOI has completed its deliberations, its recommendations are forwarded to the ASH for final decision making.
The officer who is being charged does have the right to 30 days advance written notice, the opportunity to appear in person, with or without counsel, before the Board, and the opportunity to present witnesses before the BOI.
Particularly for the Board of Inquiry, when allegations brought forward against an officer include possible violations of the United States criminal code, the law requires the matter to be referred to the OIG. In such cases, we do not conduct any further proceedings, including any investigations, without the prior express concurrence of an authorized representative of OIG. We proceed only when it is determined that the Board of Inquiry will not pose any risk to criminal proceedings.
These are the disciplinary actions that can be taken by the Commissioned Corps in cases of misconduct by an officer. They are based in the policies and procedures that currently govern our Service. As you are aware, HHS Secretary Leavitt is directing a major transformation of the Corps. As part of this transformation, we are examining our policies and administrative systems to ensure they are robust and rigorous. We seek to ensure that our disciplinary approaches and procedures match those serious ethical questions that face us today and in the future.
In conclusion, I fully understand the gravity of the issues being explored by the Subcommittee and want to thank you again for inviting me to testify. I am ready to answer questions posed by the Subcommittee.
Last Revised: October 2, 2006