AIR FORCE BOARD FOR CORRECTION,OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-01988 
COUNSEL:  NONE 
HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT: 
He receive Nurse Anesthetist Incentive Special Pay of $13,849.20. 

APPLICANT CONTENDS THAT: 
His  ineligibility  to  apply  f o r   and  collect  nurse  anesthetist 
specialty pay due to lack of proper and appropriate counseling. 
In  support  of  his  appeal,  the  applicant  provided  a  personal 
statement,  a  copy  of  his  Nurse  Anesthetist  Pay  Agreement,  a 
message  regarding  Incentive  Special  Pay  (ISP)  for  Certified 
Registered  Nurse  Anesthetists  (CRNAs),  and  other  documents 
associated with the matter under review. 
Applicant's  complete submission is at Exhibit A. 

STATEMENT OF FACTS: 
Applicant was relieved from active duty on 31 Oct 97 and retired, 
effective 1 Nov 97, in the grade of major.  He was credkted with 
20 years and 21 days of active duty service. 
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. 

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AIR FORCE EVALUATION: 
The  Special  Pay  Branch,  AFPC/DPAMFl,  reviewed  this  application 
and  indicated  that  the  applicant  was  given  the  opportunity  to 
renegotiate his Nurse Anesthetist  Incentive Special Pay in 1995 
due  to  an  increase  in  the  entitlement  from  $6000.00  to 

$15,000.00.  The applicant did not take the opportunity to change 
his effective date at this time and  kept his  effective date of 
29 Nov. 
According  to  DPAMF1,  they  received  a  Nurse  Anesthetist  Pay 
Agreement from the applicant with an effective date of 2  Nov 96. 

At  that  time, he  had  a date  of separation  (DOS) of  31 9 Oct  97. 

They contacted the Nurse Utilization Branch  requesting that the 
applicant's  DOS be extended to 28 Nov 97 to match the active duty 
service  commitment  for  the  pay.  The  Nurse  Utilization  Branch 
informed  DPAMFl  that  the  applicant  had  a  mandatory  separation 
date of 31 Oct 97 due to his promotion pass-over status. 
DPAMFl stated that, on 23 Oct  96, they returned the contract to 
the  Military  Personnel  Flight,  Lackland  AFB,  explaining  their 
inability to process the contract due to the applicant's  lack of 
retainability. 
USC  Title  37  does  not  allow  for  prorated 
Members  must  have  12  months 
distribution  of  special  pay. 
retainability to receive Nurse Anesthetist Incentive Special Pay. 

ived a memorandum, dated 7 Nov 
Chief Nurse Anesthetist, 
a waiver for the applica 
The  memorandum  was  forwarded  to  HQ 
ncentlve  S 
HQ  USAF/SGW  Memorandum,  dated 
USAF/SGW  for  consideration. 
17 Dec 96, stated "a  waiver  is not possible  to award  less than 
one year's  prorated amount of this special pay." 
According  to  DPAMF1,  they  were  unable  to  pay  the  applicant  a 
prorated  special pay  for the last 11 months  of his  active duty 
service  due  to  USC  Title  37.  His  failure  to  renegotiate  his 
agreement  in  1995  led  to  his  ineligibility to  collect  special 
Pay- 
The  applicant  believes  he  did  not  receive  adequate 
counseling  in  1995. 
DPAMFl  recommended  approval  of  the 
applicant's  request  due  to  him  not  fully  understanding  the 
renegotiation process offered in 1995. 
A complete copy of the DPAMFl evaluation is at Exhibit C. 1 

on 
Pursuant to the Board's  request, DPAMFl provided an advisory 
the  most  appropriate  way  to  correct  the  record,  since  the 
specific  relief  sought by  the  applicant  is  prohibited  by  law. 
According  to  DPAMF1,  the  applicant  selected  Option  One  on 
10 Feb 95,  requesting  that  he  keep  his  anniversary  date  of 
29 Nov.  A  $6,000 payment had been  authorized on 29 Nov  94, so 
the  additional  $9,000 payment  was  authorized by  the Accounting 
and  Finance Center on 12 Mar  95.  He  received  the full $15,000 
CRNA  I S P   payment  on  29  Nov  95.  Information  provided  to  the 
applicant  was  no  different  from  that  provided  to  similarly 
situated officers when he was offered the four options concerning 
his ISP.  DPAMFl stated that, if approved, and the applicant is 
allowed to select Option 4, his anniversary date would be changed 
retroactive to  31 Oct  94 and  his pay  prorated.  His  29 -Nov 95 

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AFBCMR 97-01988 

d 

contract  date  would  be  changed  to  31  Oct  95,  and  his  final 
contract would be effective 31 Oct 96 and he would be eligible to 
receive his special pay bonus  for his final 12 months of active 
duty.  DPAMFl  recommended approval based  on  the  fact  that  the 
applicant  felt  he  did  not  receive  adequate  counseling  in  1995 
before selecting Option One. 
A complete copy of the DPAMF1 evaluation is at Exhibit D. 
The Staff Judge Advocate, AFPC/JA, reviewed this application and 
recommended denial.  In  JA's  opinion,  the  applicant's case  is 
without merit and should be denied.  He has not proved an "error 
or injustice''  and, consequently, is not entitled to relief.  To 
claim,  as  he  does,  that  the  message  failed  to  give  "some 
explanation as to why  the Air  Force was allowing change of the 
anniversary date,"  is simply wrong.  Within the message is notice 
that  the  I S P   entitlement  increased  in  the  recently-enacted 
National  Defense  Authorization  Act  from  $6,000  to  $15,000  per 
year, effective 5 Oct  94.  The obvious purpose  of the  4 Jan 95 
message was to inform CRNAs of the increased I S P   entitlement and 
permit  them to make  decisions that best  suited them insofar as 
taking advantage of the increase.  The best option for maximizing 
I S P   would have been to renegotiate from 29 Nov to 5  Oct because 
the  rate  of  daily  I S P   would  be  greater  for  the  intervening  55 
days.  However, because the message was not  sent out  until  the 
new tax year and, consequently, the newly renegotiated  lump sum 
I S P   would not be received until 1995, a renegotiation to another 
date in 1994  ( L e . ,  5 Oct to 3 1   Dec  94) would result in two I S P  
payments in 1995  (e.g., the 5 Oct 94 and 5 Oct  95 payments) and 
increased taxes.  No doubt the tax consequences of renegotiation 
led  some not  to  renegotiate; whether  that  was  the  applicant's 
reason is unknown.  But  the point is this:  The message was not 
designed  to  address  the  long-term  consequences  of  changing 
anniversary  dates,  which  would  vary  from  individual  to 
individual.  The  applicant has  not  pointed  to  anything  in  the 
message that was in error; nor are we aware of any error therein. 
JA  indicated that, at  best,  the applicant would  have  the Board 
believe the failure to include in the message information about 
him needing to have one year of retainability at the time of his 
last  I S P   anniversary  date  was  an  injustice.  Simply  put,  the 
action  by  the  Air  Force  does  not  shock  the  conscience,  the 
standard  to  be  applied  by  this  Board  in  assessing  whether  an 
action  constitutes  an  injustice.  Moreover,  the  applicant  had 
notice each time he signed his ISP agreement that he had to have 
one year of active duty eligibility.  The statute  (37 U.S.C.  § 
302e) has always so provided, as have the governing regulations. 
Apparently, because there could have been some explanation in the 
message  about  the  possible  effects  that  changing  the  I S P  
anniversary date might have upon end-of-service I S P   eligibility, 
JA  noted  that  DPAMFl  has  taken  a  position  supporting  relief. 
However, JA viewed the lack of additional explanation, under the 
circumstances,  to  fall  short  of  the  "shock  the  conscience" 

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AFBCMR 97-01988 

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standard required for relief.  Consequently, they did not concur. 
Finally, although the applicant believes it unfair to not pay him 
special pay  for 11 months of services as a CRNA, JA noted  that 
the purpose of such special pay  is not compensation for special 
duty, but  rather, the  retention of nurse  anesthetists.  When  a 
CRNA  refuses to serve f o r   at  least one more  year, or lacks the 
requisite retainability, he is not entitled. 

I 

Although they recommended strongly against relief, JA closed by 
addressing the question of  "the most  appropriate way to correct 
the record." should the Board chose to do so. 
According to JA, 
the answer would be to correct the applicant's  records to show he 
selected option four in early  1995  and chose a  renegotiated I S P  
anniversary date of 31 October 1994. 
A complete copy of the JA evaluation is at Exhibit E. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

A copy of the Air Force evaluation was forwarded to applicant on 
10 Nov 97 for review and response.  As of this date, no response 
has been received by this office (Exhibit F). 

The applicant has exhausted all remedies provided by existing 

THE BOARD CONCLUDES THAT: 
1. 
law or regulations. 
2.  The application was timely filed. 
3.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable  injustice.  A majority of 
the Board noted that the applicant was denied special pay in 1996 
as  a  nurse  anesthetist because  he  lacked  the  required  12-month 
retainability for receiving the pay.  The Board majority further 
noted  that  the  applicant failed to  renegotiate his  special pay 
agreement after the entitlement was  increased in 1995. 
Had  he 
done  so,  he  could have  changed  the  effective date  (anniversary 
date) of his contract resulting in his eligibility to receive the 
special  pay. 
The  applicant  asserts  that  his  failure  to 
renegotiate his agreement was the result of inadequate counseling 
and AFPC/DPAMFl agrees.  After a thorough review of the available 
evidence, the Board majority  believes that corrective action is 
warranted  in this case.  It  is apparent to the Board  majority, 
that  the applicant did  not  understand  the  ramifications of  his 
failure  to  change  the  effective  date  of  his  special  pay 
agreement.  In the Board majority's  view, the applicant would not 
have made  a  decision  so contrary to  his  best  interests had  he 
been  provided  the  necessary  information  so  as  to  clearly 
understand  the  consequences of  his  decision.  In  view  of  the 

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AFBCMR 97-01988 

above, and to avoid the possibility of an injustice, a majority 
of the Board recommends 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 2 Oct 95, he 
selected Option Four for payment of Incentive Special Pay  (ISP) 
for Certified Registered Nurse Anesthetists; and, that he chose a . 
renegotiated ISP anniversary date of 31 Oct 94. 

1 

The following members of the Board considered this application in 
Executive Session on 19 May  98, under the provisions of  AFI 36- 
2603: 

Ms. Patricia J. Zarodkiewicz, Panel Chair 
Mr. Jackson A. Hauslein, Member 
Mr. Robert W. Zook, Member 

By  a majority  vote,  the Board  voted  to correct  the records, as 
recommended.  Mr.  Zook voted to deny applicant's request and has 
submitted a minority report which is attached at Exhibit G.  All 
members  voted  to  correct  the  records,  as  recommended. 
The 
following documentary evidence was considered: 

Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 

A. 
B. 
C. 
D. 
E. 
F. 
G. 

DD Form 149, dated 24 Apr 97, w/atchs. 
Applicant's Master Personnel Records. 
Letter, AFPC/DPAMFl, dated 1 Aug 97. 
Letter, AFPC/DPAMFl, dated 9 Sep 97. 
Letter, AFPC/JA, dated 17 Oct 97. 
Letter, SAF/MIBR, dated 10 Nov 97. 
Minority Report. 

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AFBCMR 97-01988 

DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

AFBCMR 97-01988 

f€B  0.5  1999 

J 

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: 

ilitary records of the Department of the Air Force relating t 
e corrected to show that,  on 2 Oct 95, he selected Option 
ecial Pay (ISP) for Certified Registered Nurse Anesthetists; ‘and, that he 
anniversary date of 31 Oct 94. 

Air Force Review Boards Agency