DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

OCT 2 a.  1998 

* .

 

Office of the Assistant Secretary 

AFBCMR 95-03636 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for 

Correction of Military Records and under the authority of Section 1552, Title 10, United States 
Code (70A Stat 116), it is directed that: 

tary records of the Department of the Air Force relating t- 
corrected to show that, on 22 May 92, the applicant agreed to remam 
on active duty as a medical officer for the year beginning 10 Jul92 and ending 9 Jul93, and, that 
he was authorized to receive Additional Special Pay (ASP) by competent authority. 

Air Force Review Boards Agency 

RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
BCT 2 119398 
DOCKET NUMBER:  95-03636 
(Case 2) 

IN THE MATTER OF: 

COUNSEL:  NONE 

HEARING DESIRED:  NO 

APPLICANT REOUESTS THAT: 
He  be  retroactively paid  a  pro-rata  portion  of  his  Additional 
Special Pay  (ASP) bonus that he was entitled to receive in 1992. 

APPLICANT CONTENDS THAT: 

As  a  physician  on. active  duty,  he  was  entitled  to  certain 
allocations of bonus pay.  As an ophthalmologist, he was entitled 
to  a  yearly  bonus  called  Incentive  Special  Pay  (ISP) . 
He  was 
also  entitled  to  a  yearly  bonus  of  ASP.  The ASP  was  a  bonus 
which  all  active  duty military  physicians  received  on  a  yearly 
basis,  regardless  of  specialty. 
In  1992,  prior  to  his 
separation, he  did receive his entitled ISP bonus.  However, he 
did not  receive any portion of  his ASP  bonus  for  1992, despite 
the fact that it became payable several months before his actual 
separation date.  He is appealing now because he believes that he 
may still be entitled to receive ASP for the period in question. 
In  support  of  his  appeal,  the  applicant  provided  a  personal 
statement and  other  documents associated  with  the matter  under 
review. 

Applicant’s complete submission is at Exhibit A. 

STATEMENT OF FACTS: 
Applicant  was  appointed  a  second  lieutenant  (Medical  Service 
Corps  (MSC)), Reserve of  the Air  Force, on  28 Apr  82.  He  was 
appointed  a  captain  (Medical Corps)  (MC), Reserve  of  the  Air 
Force,  on  10  Feb  86 and voluntarily  ordered  to  extended active 
duty on 10 Jul 90.  He was relieved from active duty and his name 
was  placed  on  the  Temporary  Disability  Retired  List  ( T D R L ) ,  
effective 27 Oct 92, in the grade of captain.  On 18 Aug  95, the 
applicant‘s name was removed from the TDRL and he was discharged 

in the grade of captain by reason of a physical disability, with 
entitlement  to  severance pay.  He  was  credited with  13 years, 
2 months,  and  10  days  of  service  for  basic  pay,  and  2  years, 
3 months, and 1 7   days of service for severance pay. 
The relevant  facts pertaining  to this application are contained 
in  the  letters prepared  by  the  appropriate  offices  of  the Air 
Force.  Accordingly, there is no need  to  recite these facts in 
this Record of Proceedings. 

AIR FORCE EVALUATION: 
The  Special  Pay  Branch,  AFPC/DPAMFl,  reviewed  this  application 
and  recommended  denial. 
According  to  DPAMF1,  the  applicant 
admitted  in  his  application to  signing an  "alternate  contract" 
which  was  actually  a  declination  statement.  The  declination 
statement was  attached to the original ASP  agreement.  Medical 
officers  eligible  for ASP  receive  their  agreements  through  the 
personnel data system  (PDS), approximately 150 days prior to the 
scheduled payment date.  By accepting the ASP payment, the member 
incurs  an  active  duty  service  commitment  (ADSC) to  remain  on 
active duty for one year from the date payment is received.  If 
the ADSC  is  not  totally  served  the member  agrees  to  repay  the 
unearned  portion  of  the  payment.  Both  the  ASP  agreement  and 
declination  statement  are  endorsed  by  the  member's  commander. 
The  signing of  the declination statement does  not  preclude  the 
member from signing an ASP agreement at a later date. 
DPAMFl  indicated  that,  under  the  provisions  of  37  USC  302,  a 
medical  officer who  is on active duty under  a  call or order to 
active duty for a period of not less than one year is authorized 
to  receive  ASP. 
In  order  to  be  entitled  to  ASP,  a  medical 
officer is required to execute a written agreement to remain on 
active duty for a period of not less than one year beginning on 
the  date  the  officer  accepts  the  award  of  such  payment. 
According to AFP 36-58, Health Professional Special Pay, chapter 
2,  paragraph  2-9,  the  only  time  ASP  is  pro-rated  is  for  a 
mandatory  retirement. 
Based  on  these  two  provisions  the 
applicant would not have been eligible to receive ASP. 
DPAMFl stated that if the applicant would have signed his initial 
ASP  agreement, instead of the declination statement, this would 
have been evidence of his intent to remain on active duty for the 
given  period  of  time  regardless  of  the  outcome  of  his 
hospitalization. 
In  the  absence  of  an  executed  written 
agreement, the fact than an officer is qualified to receive ASP 
and serves on active duty for the required period of time is not 
sufficient  to  entitle  him  to  the  pay. 
If  failure  to  sign  an 
agreement was due to lack of information or misinformation and it 
could be  shown that  had  the  agreement been  timely presented  to 
the member he would have executed it, then substantial compliance 
with the requirements of the statute may be  inferred.  Based  on 

2 

AFBCMR 95-03636 

the facts presented by  the applicant,  DPAMFl  did not believe he 
demonstrated the "intent" to remain on active duty. 
A complete copy of the DPAMFl evaluation, with attachments, is at 
Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
In his response, the applicant indicated that, in a sense, he did 
face a mandatory  retirement that  is  comparable to  the  examples 
cited  in the  governing  regulation.  The only difference is the 
fact that his own discharge was ordered prematurely.  Therefore, 
he believes that he should have been given the opportunity to at 
least  apply  for  a  prorated  ASP  bonus  for  the  time  that  he 
remained  on  active  duty  following  his  date  of  eligibility  for 
that bonus.  His  failure to  submit a  written  agreement  was  not 
solely his responsibility since his commander had refused to sign 
it.  Furthermore, his strong desire to remain on active duty is 
well-documented  in  his  record,  and  should  give  notice  of  his 
intentions at that time.  Unfortunately, it was not sufficient to 
convince his caretakers that he  should be  given the opportunity 
to do so.  His failure to sign the agreement earlier during the 
hospitalization was  indeed due to a  lack of  information at  the 
time about his eligibility.  He certainly would have executed the 
agreement, regardless of the outcome of his hospitalization, had 
he known that he would, at the least, be eligible for a prorated 
bonus upon  the contingency of an early discharge.  By  the very 
nature of  that unplanned  discharge, he  was  unable to  apply for 
the bonus  in advance, as usually required in cases of mandatory 
retirements. 
When  he  did  attempt  to  complete  the  agreement 
later,  his  commander  failed  to  contact  anyone  to  verify  his 
eligibility,  and  did  not  submit  a  written  declination  for  his 
request. 
He  attempted  to  comply  with  the  provisions  of  the 
statute,  but  was  substantially  impeded  by  his  own  commander. 
Thus, he decided to pursue the matter at a later date. 

Applicant's  complete response is at Exhibit E. 
With  a  subsequent  response,  the  applicant  provided  additional 
documentary evidence for the Board's  consideration (Exhibit F.) 

ADDITIONAL AIR FORCE EVALUATION: 

Pursuant  to  the  Board's  request,  The  Staff  Judge  Advocate, 
AFPC/JA,  also  reviewed  this  application  and  provided  an 
assessment.  JA noted that the applicant entered active duty on 
10 July 1990, as a medical officer  (ophthalmologist) with a date 
of separation of 9 Jul 94.  On 9 Mar 92, following the breakup of 
his  marriage  and  his  return  from  overseas  service  in  DESERT 

3 

AFBCMR 95-03636 

STORM,  he  attempted  suicide  by  ingesting  an  overdose  of 
prescribed medication.  On 27 Oct  1992, his  name was placed on 
the temporary disabled retired list (TDRL), and, on 1 8   Aug 95, he 
was discharged with a 10 percent disability rating. 

JA  also  noted  that,  during  his  active  duty  time  in  1992,  the 
applicant  was  entitled  to  two  lump-sum  medical  special  pays: 
incentive  special pay  (ISP) for his  specialty  in  ophthalmology 
and  additional  special  pay  (ASP) by  virtue  of  being  an  Air 
Force physician. 
Both  are  designed  as  retention  tools  and 
require  the  officer  to  agree  to  remain  on  active  duty  for  a 
period  of  not  less  than  one  year  beginning  on  the  date  the 
officer accepts the award of such special pay.  Presumably, his 
ISP anniversary date was earlier in the year than his ASP  date, 
and he entered his ISP agreement and received payment.  When his 
ASP agreement was presented to him, he was hospitalized away from 
his base of permanent assignment and declined payment because, in 
his words, he  "was under evaluation for Major  Depression at the 
time,  and 
did  not  know  if  [he]  would  be  discharged,  or 
retained." Subsequently, he  claimed  to  have  called  the  Special 
Pay  Branch  at  AFMPC  (AFPC)  and  was  told  that  he  should 
theoretically be eligible for the bonus.  On 22 May 92, he signed 
the ASP  agreement for the period  of  1 0   Jul  92 to  9 Jul  93 and 
presented it to his commander, who, according to him, declined to 
approve it. 
JA  indicated  that  they  concur with  AFPC/DPAMFl  insofar  as  the 
statement  of  the  governing law  is concerned.  That  is,  if  the 
applicant intended to remain on active duty for the year covered 
by the ASP agreement, he was entitled to receive ASP.  Given his 
initial  declination,  DPAMFl  concluded  he  did  not  have  the 
requisite intent.  However,  in his  reply to  DPAMFl's advisory, 
the applicant has produced a  copy of  the  1992 ASP  agreement he 
received and which he apparently signed on 22 May  92 agreeing to 
"remain on active duty for a continuous period of one year."  It 
is  this  agreement  that  he  claims  his  commander  declined  to 
endorse. 
In JA's  opinion, it was an error on the part of the commander to 
not  endorse  the  ASP  agreement,  either  approving  it  or 
recommending to the Air Force Surgeon General as designee of the 
Secretary of  the Air  Force  that  the  ASP  be  withheld.  At  the 
time, the applicant had an active duty service commitment  (ADSC) 
beyond the one year he would incur by entering the ASP agreement 
(which would run concurrently with his existing ADSC).  According 
to JA, as long as a medical officer executes a written agreement 
to remain on active duty for at least one year, he is entitled to 
additional  special  pay. 
The  Secretary  (or her  designee)  can 
withhold  the  special pay  pursuant  to  regulations.  In  the Air 
Force, the  regulatory bases  for withholding are  "unprofessional 
conduct,  medical  incompetence,  noncompliance  with  Air  Force 
standards, or substandard performance."  JA stated that while one 
or  more  bases  for withholding  might  have  been  present  in  this 
case, no action was taken to effect withholding.  In the absence 

4 

AFBCMR 95-03636 

' 

of action by the commander to initiate the withholding by written 
notification  to  the  applicant  and  to  subsequently  forward  the 
case  to  the  Surgeon  General, the  applicant  is  entitled  to  his 
ASP. 

In this case, the applicant has requested the pro-rata portion of 
ASP  corresponding  to  the  portion  of  the  period  he  served  on 
active duty.  While this is a reasonable request and appears to 
be  the  equitable  solution, the  fact  is  that  had  his  commander 
processed  the  agreement as  he  should have,  the  applicant would 
have  received  the  full  lump  sum  in  Jul  92,  and  because  his 
failure to serve for one year was due to disability, none of the 
amount  would  have  been  recouped.  Consequently,  JA  is  of' the 
opinion  the  applicant  is  entitled  to  the  entire  ASP  amount 
without recoupment for the unserved portion. 
Accordingly,  JA  recommended  that  the  Board  correct  the 
applicant's  military  record  to  reflect  that  in  return  for 
additional special pay,  he agreed to remain on active duty as a 
medical  officer  for the year beginning  1 0   July  1992 and  ending 
With  such  correction,  the  applicant  will  be 
9 July  1993. 
entitled  to  retroactive  payment  of  ASP  for  such  year. 
JA 
indicated that even though they have offered their opinion that 
no portion of the ASP is subject to recoupment, they recommended 
that this  issue be  left  for the  Defense Finance and Accounting 
Service to resolve in accordance with  the applicable provisions 
of  the  Department  of  the  Defense  pay  manual  in  effect  at  the 
time . 
A complete copy of the JA evaluation is at Exhibit G. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 
Applicant  indicated  that  it  was  refreshing  to  have  someone  in 
authority  authenticate  the  true  facts  of  the  matter. 
He 
appreciated AFPC/JA's  honest appraisal of his contention, as well 
as their admission that he was actually entitled to the full ASP 
payment under Air Force regulations. 

Applicant's  complete response is at Exhibit I. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

2.  The application was timely filed. 
3.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  Having 

5 

AFBCMR 95-03636 

carefully  reviewed  this  application,  we  agree  with  the 
recommendation of AFPC/JA and adopt their rationale as the basis 
for our decision that the applicant has been the victim of either 
an error or an injustice.  After reviewing the evidence provided, 
we  are  of  the  opinion  that  sufficient  evidence  does  exist  to 
support  a  finding  that  the  applicant  attempted  to  execute  an 
agreement  to  remain  on  active  duty  for  at  least  one  year  as 
required, which would have entitled him to ASP.  In view of the 
above, we recommend that the applicant's  records be corrected as 
indicated below. 

THE BOARD RECOMMENDS THAT: 
The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be  corrected to show that, on 22 May  92, 
the  applicant  agreed  to  remain  on  active  duty  as  a  medical 
officer  for  the  year beginning  10  Jul  92 and  ending  9 Jul  93, 
and,  that  he  was  authorized  to  receive  Additional  Special  Pay 
(ASP) by competent authority. 

The following members of the Board considered this application in 
Executive Session on  11 Aug  98, under the provisions of AFI  36- 
2603: 

Mr. Douglas J. Heady, Panel Chair 
Mr. Joseph G. Diamond, Member 
Mr. Henry Romo, Jr., Member 

All  members  voted  to  correct  the  records, as  recommended.  The 
following documentary evidence was considered: 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H. 
Exhibit I. 

DD Form 149, dated 26 Oct 95, w/atchs. 
Applicant's Master Personnel Records. 
AFPC/DPAMFl, dated 5 Jan 96. 
Letter, 
Letter, 
SAF/MIBR, dated 29 Jan 96. 
applicant, dated 3 Feb 96. 
Letter, 
applicant, dated 11  Feb 96. 
Letter, 
Letter, 
AFPC/JA, dated 3 Sep 97. 
Letter, 
AFBCMR, dated 20 Apr 98. 
Letter, 
applicant, dated 25 May 98. 

DOUGLAS J. H E A ~ Y  
Panel Chair 

6 

AFBCMR 95-03636 

5 January  1996 

MEMORANDUM FOR AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

(AFBCMR) WASHINGTON, DC 20330-1430 

FROM:  HQ AFPCDPAMFl 

550 C Street West, Suite 27 
Randolph AFB TX 78 150-4729 

SUBJECT: Application for Correction of Military Record 

Recommend disapproval of -request 

Additional Special Pay (ASP). 

,. 

for retroactive payment of 

-admits 

in his application of signing an “alternate contract” which is actually a 

declination statement (Atch 1). The declination statement is attached to the original ASP 
agreement (Atch 2).  Medical officers eligible for ASP receive their agreements through the 
personnet data system (PDS), approximately 150 days prior to the scheduled payment date.  By 
accepting the ASP payment, the member incurs an active duty service commitment (ADSC) to 
remain on active duty for one year from the date payment is received.  If the ADSC is not totally 
served the member agrees to repay the unearned portion of the payment.  Both the ASP 
agreement and declination statement are endorsed by the member’s commander.  The signing of 
the declination statement does not preclude the member from signing an ASP agreement at a 
later date. 

states that once he returned to his home base,  pending discharge, he tried to 
apply for ASP with his commander refusing to indorse the agreement.  Under the provisions of 
37 U.S.C. 302, a medical officer who is on active duty under a call or order to active duty for a 
period of not less than one year is authorized to receive ASP.  In order to be entitled to ASP, a 
medical officer is required to execute  a written agreement to remain on active duty for a period 
of not less than one year beginning on the date the officer accepts the award of such payment. 
According to AFP 36-58, Health Professional Special Pay, chapter 2, paragraph 2-9 (Atch 3), the 

ASP is pro-rated is for a mandatory retirement.  Based on these two provisions- 

would have not been eligible to receive ASP. 

1-ould 

have signed his initial ASP agreement, instead of the declination 
statement, this would have been evidence of his intent to remain on active duty for the given 
period of time regardless of the outcome of his hospitalization. In the absence of an executed 
written agreement, the fact than an officer is qualified to receive ASP and serves on active duty 

% 

for the required period of time is not sufficient to entitle him to the pay.  If failure to sign an 
agreement was due to lack of information or misinformation and it could be shown that had the 
agreement been timely presented to the member he would have executed it, then substantial 
compliance with the requirements of the statute may be inferred. 

Based on the facts presented by-e 

feel that he did not demonstrate the 

“intent” to remain on active duty, therefore we are unable to grant administrative relief. 

‘L- 

a

.

 

. .  

I 

II 

- 

MEDICAL CORPS ADDITIONAL SPECIAL PAY (ASP) AGREEMENT 

I request ASP under the provisions of 37 U.S.C 302b and DOD Pay Manual. 

Conditions of Agreement.  I understand that: 
P

a.  I will receive $

A

S

derived from my medical service pay date. 

based on 

 

years of creditable service as 

b.  The effective date of my entitlement to ASP is 
c.  I will incur a 1-year active duty service commitment (ADSC) beginning on the effective date 

L 

of my entitlement as indicated in b above. 

d.  The appropriate Air Force officials must approve this agreement. 
e.  My entitlement to ASP under this agreement will terminate for any of the following reasons: 

(1)  I do not complete my ADSC under this agreement for any reason. 
(2)  I enter an internship or initial residency. 
(3)  The Surgeon General so directs for reasons that include, but are not limited to, military 

or medical unprofessional conduct, substandard performance (includes decredentialing matters or 
suspension of clinical privi1eges)or incompetency, or noncompliance with Air Force standards. 

f.  If my ASP entitlement is terminated before I complete my ADSC, then I will repay ASP 
payments made to me under this agreement.  If terminated, I am entitled to ASP only for the fraction of 
the year served and must refund any amount in excess of that entitlement before my release from active 
duty. 

' 

g.  Should I request voluntary release from active duty prior to the end of my ADSC under this 

agreement, the Secretary of the Air Force or designee will base approval or disapproval on Air Force 
needs, and my offer to repay the ASP will not influence this decision. 

h.  With my projected DOS of 

, I authorize the Air Force to use this contract as 
authority to extend my DOS to match my ASP ADSC.  I understand that I will not receive payment until 
the Air Force approves my request for extension. 
(NOTE:  This paragraph not required if the officer has sufficient retainability.) 

(Please sign name, rank and SSAN on line) 

1st Ind, 

TO:  MPFDPMQA 

HQ AFMPCDPAMFl 
INTURN 

Recommend approval/disapproval. 

(Signature of MTF Commander or Equivalent) 

2 

. _  

'AFP 36-58 6 ;. 

3 August 1992 

dentists  facing  a  mandatory  retirement  date 
(i.e.,  20-year  IRS officers,  Regular  lieutenant 
colonels with 28 years of service, Regular colo- 
nels with 30 years of service, and retirement eli- 
gible officers who have reached their maximum 
active duty age) may apply for a pro-rated pay- 
ment for their last ASP contract. To apply, for- 
ward ASP contract and a brief letter of explana- 
tion  to  AFMPC/DPMMUFl.  Officers  must 
apply for the pro-rated ASP 1 year before their 
mandatory retirement date. 

2-10.  Requests  For  Release From Active 
Duty  While  Under  a  Special  Pay  Agree- 
ment.  The Air Force does not favorably con- 
sider resignations and requests for release from 
active duty during the committed period of ser- 
vice of a health professional  special pay agree- 
ment except for hardship or when in the best in- 
terest of the Air Force as defined  in AFR 36-12. 

- An officer who receives approval to voluntarily 

terminate active duty service or  has commis- 
sioned  status  terminated  by  operation  of  law 
during the period for which the officer received 
health  professional  special  pays,  must refund 
the unearned portion of the payme&  before re- 
lease from active duty. The refund is pro-rated 
on a day-for-day basis. 

system as eligible (i.e., incorrect AFSC). If a RIP 
is not produced, CBPO/DPMQA prepares agree- 
ments  in  the  format  shown  in  figure  2-3. 
AFMPC/DPMMUFl will prepare ISP contracts 
for residency training program directors, if eli- 
gible. 
NOTE: Hospital commanders eligible for ISP 
must have their agreements indorsed by their 
MAJCOM/SG. 
c.  MSP and MISP RIPs.  Due to the com- 
plexity  of  the  contracts  and  their  associated 
ADSCs, AFMPUDPMMUFl will produce MSP  . 
and MISP RIPs on eligible officers after talking 
with  the officers or  receiving  a request  from 
CBPO  Special  Actions.  AFMPC/DPMMUFl 
will also produce RIPS for officers currently un- 
der  MSP  or  MISP  contracts  150 days  before 
their contracts expire. MSP and MISP RIPS will 
not be available until 1 Jul93. Until that time, 
physicians can get blank contracts from their lo- 
cal CBPO Special Actions Office. 

2-8.  Declination  of  Health  Professional 
Special  Pays.  Officers  eligible  for  ASP, 
NAP, ISP, or MSP that do not wish to accept the 
pay must sign a declination  statement (figure 
2-7). 

29.  Pro-rated ASP for Officers Facing a 
Mandatory  Retirement. 
Physicians  and 

c 

/ I -  

I 

1 

I i 

3 

D E P A R T M E N T  OF T H E  A I R   F O R C E  

H E A O O U A R T E R S  AIR  FORCE  P E R S O N N E L  C E N T E R  

R A N D O L P H  AIR  FORCE  BASE T E X A S  

3 September 1997 

MEMORANDUM FOR AFBCMR 

FROM:  HQ AFPCIJA- 

550 C Street West Suite 44 
Randolph AFB TX 78 150-4746 

SUBJECT:  Application for Correction of Military Records- 

We provide the following in response to your request that we review and assess the issues 

raised by the applicant regarding his request for retroactive payment of Additional Special Pay 
(ASP). 

The applicant entered active duty on 10 July 1990, as a medical officer (ophthalmologist) 

with a date of separation of 9 July 1994.  On 9 March 1992, following the breakup of his 
marriage and his return from overseas service in DESERT STORM, he attempted suicide by 
ingesting an overdose of prescribed medication.  On 27 October 1992, he was placed on the 
temporary disabled retired list (TDRL), and on 18 August  1995, he was discharged with a 10 
percent disability rating. 

* 

During his active duty time in 1992, applicant was entitled to two lump-sum medical 
special pays:  incentive special pay (ISP) for his specialty in ophthalmology and additional 
special pay (ASP) by virtue of being an AF physician.  Both are designed as retention tools and 
require the officer to “agresl)to  remain on active duty for a period of not less than one year 
beginning on the date the officer accepts the award of such special pay.”  (37 U.S.C.  9 302(c)( 1)) 
Presumably, his ISP anniversary date was earlier in the year than his ASP date, and he entered 
his ISP agreement and received payment.  When his ASP agreement was presented to him, he 
was hospitalized away from his base of permanent assignment and declined payment because, in 
his words, he “was under evaluation for Major Depression at the time, and  did not know if [he] 
would be discharged, or retained.”  Subsequently, he claims to have called 
Branch at then-AFMPC and been told that he should “theoretically be eligible for the bonus.” 
On 22 May  1992, he signed the ASP agreement for the period of 10 July 1992 to 9 July 1993 and 
presented it to his commander, who, according to him, declined to approve it. 

e Special Pay 

iR 

We concur with AFPCDPAMF, in their 5 January  1996 advisory insofar as the statement 
of the governing law is concerned.  That is, if the applicant intended to remain on active duty for 
the year covered by the ASP agreement, he was entitled to receive ASP.  Given his initial 
declination, DPAMF concluded he did not have the requisite intent.  However, in his reply to 
DPAMF’s advisory, the applicant has produced a copy of the 1992 ASP agreement he received 
and which he apparently signed on 22 May  1992 agreeing to “remain on active duty for a 
continuous period of one year.”  It is this agreement that he claims his commander declined to 
endorse. 

* 

In our opinion, it was error on the part of the commander to not endorse the ASP 

agreement, either approving it or recommending to the AF Surgeon General as designee of the 
Secretary of the Air Force that the ASP be withheld.  At the time, the applicant had an active 
duty service commitment (ADSC) beyond the one year he would incur by entering the ASP 
agreement (which would run concurrently with his existing ADSC).  As long as a medical officer 
“executes a written agreement ... to remain on active duty for [at least] one year,” he is “entitled 
to additional special pay ....”* (37 U.S.C.  tj 302(a)(4))  The Secretary (or her designee) can 
withhold the special pay pursuant to regulations.  In the Air Force, the regulatory bases for 
withholding are “unprofessional conduct, medical incompetence, noncompliance with Air Force 
standards, or substandard performance.”  (AFP 36-58,  para 3-1)  While one or more bases for 
withholding might have been present in this case, no action was taken to effect withholding.  In 
the absence of action by the commander to initiate the withholding by written notification to the 
applicant and to subsequently forward the case to the Surgeon General, the applicant is entitled to 
his ASP. 

In this case, the applicant has requested the pro-rata portion of ASP corresponding to the 
portion of the period he served on active duty.  While this is a reasonable request and appears to 
be the equitable solution, the fact is that had his commander processed the agreement as he 
should have, the applicant would have received the full lump sum in July 1992, and because his 
failure to serve for one year was due to disability, none of the amount would have been 
recouped.2 Consequently, we are of the opinion he is entitled to the entire ASP amount without 
recoupment for the unserved portion. 

Accordingly, we recommend the Board correct the applicant’s military record to reflect 
that in return for additional special pay, he agreed to remain on active duty as a medical officer 
for the year beginning 10 July 1992 and ending 9 July 1993.  With such correction, the applicant 

’ When a medical officer is facing mandatory retirement within one year, as alluded to in the DPAMF advisory, he 
cannot agree to remain on active duty for one year.  In this case, there is authority in the regulations to terminate the 
next-to-last agreement early (with pro-rated recoupment) in order that the officer can enter a new agreement for the 
final 12 months of active duty. 
’ The DoD Pay Manual, Part One, para  10527 (1 Jan 93), in relevant part, provided: 

c.  Recoupment of unearned additional special pay is not required when the officer’s failure to complete 

during a period of unauthorized absence; 

the period of active duty specified in the agreement is due to: 

(1)  Death or disability that is not the result of misconduct or willful neglect and not incurred 

2 

. 

U 

.

.

 

will be entitled to retroactive payment of ASP for su 
opinion that no portion of the ASP is subject to recoupment, we recommend that this issue be left 
for the Defense Finance and Accounting Service to resolve in accordance with the applicable 
provisions of the DoD pay manual in effect at the time. 

year.  Even though we have offered ow 

3