RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-01902
                 INDEX CODE 128.04
                 COUNSEL:  None

                 HEARING DESIRED:  No
_________________________________________________________________

APPLICANT REQUESTS THAT:

He be  repaid  $66,000  of  the  $76,000  Multiyear  Special  Pay  and
Multiyear Incentive Special Pay (MSP-MISP) bonuses that  was  recouped
from him or, in the alternative,

He be granted the medical  bonuses  (1992-June  1998)  due  him  as  a
regular flight surgeon.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was approved for  the  MSP-MISP  bonuses  and  whoever  erroneously
reassessed his eligibility is  second-guessing  the  decision  of  the
Credentials Committee at    AFB in 1992.  He was  eligible  for  these
bonuses as a flight surgeon and they should not have been recouped. He
further states being board eligible  entitled  him  to  specialty  and
incentive pays.

A copy of applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Incentive Special Pay (ISP) is a lump sum annual payment for a Medical
Corps officer who is serving in a pay grade of 0-6 or  below,  is  not
undergoing medical internship or initial residency training, is  fully
qualified in a medical specialty, and is practicing in that specialty.
The Assistant Secretary of Defense (Health Affairs) (ASD(HA))  updates
the specialties authorized to receive ISP and the ISP amount for  each
specialty on an annual basis.

MSP is a lump sum annual payment for a Medical Corps officer who signs
a contract for two, three, or four years, is serving in the pay  grade
of 0-6 or below, has at least eight years of creditable service or has
completed any active duty  service  commitment  incurred  for  medical
education and training, and has completed specialty qualification  (or
is scheduled to complete initial residency training before  1  October
of the fiscal year in which the member wishes to receive MSP).

During the period in question, applicant was a colonel (date of  rank:
18 Jun 90) serving on extended active duty as a medical member of  the
USAF Informal Physical Evaluation Board (IPEB) at  .

Subsequent to  a  review  of  the  records  of  Air  Force  physicians
receiving MSP-MISP, an OSI  investigation  was  conducted  during  the
periods 11-22 September and 2 December  1997.  The  investigation  was
based on information alleging the applicant had fraudulently certified
official documents for the purpose of obtaining  various  special  pay
allowances offered to the medical career field.  The OSI investigation
resulted  in  court-martial  charges  being  preferred   against   the
applicant. Charge I  contained  two  specifications  of  making  false
official statements by alleging,  in  two  separate  applications  for
command positions, that he was a Fellow of  the  American  College  of
Preventive Medicine when he knew he was only a member, not  a  Fellow.
Charge II included two specifications of larceny,  alleging  applicant
had stolen $76,000 from the US (by receiving Special Pay to  which  he
was not entitled).  Charge III contained two specifications of  making
false claims against  the  US  by  preparing  Special  Pay  Agreements
claiming he was residency trained  or  Board  certified  when  he  was
neither.

An Article 32 investigation was conducted 8-9 January 1998  and  on  1
February 1998  the  investigating  officer  (IO),  a  military  judge,
recommended Charge I be withdrawn  and  that  the  other  offenses  be
disposed of by means of Article 15 punishment.

The Article 15  action  initiated  by  AFPC/CC  on  13  February  1998
contained two specifications alleging the applicant  was  derelict  in
the performance of his duties in that,  during  the  period  1 October
1992—1 October 1995, he negligently failed to ensure  his  eligibility
for Special pay prior to applying for  them  and,  during  the  period
1 October 1995—27 September 1997, negligently failed to realize he was
ineligible for them  as  he  continued  to  receive  them.  Punishment
extended to forfeiture of  $3230  per  month  for  two  months  and  a
reprimand. In his presentation, the applicant claimed he  believed  he
was entitled to receive Special  Pay  as  a  flight  surgeon  and  any
apparent deceit was merely a result of the confusion that  exists  Air
Force-wide on the subject of Special Pay.  He also pointed out that as
soon as questions were raised about his eligibility he repaid the  Air
Force $76,000.

The AFPC/CC recommended that applicant be  retired  in  the  grade  of
lieutenant colonel, noting that applicant certified qualifications  on
two different occasions three years apart attesting to information  he
knew not to be true and continued to receive money to which he knew he
was not entitled.

On 6 May 1998, the Secretary of the Air Force  (SAF)  Personnel  Board
concluded he had failed to meet the standard normally expected  of  an
officer of his grade and experience. Had the evidence demonstrated  he
knowingly and willfully falsified his certification, the members could
have readily found his service unsatisfactory. Given the evidence, the
members could not conclude  that  the  applicant  was  any  more  than
grossly  negligent  in  certifying  his  entitlement.  His   negligent
certification was abetted by the  negligent  approvals  of  superiors.
While the board agreed he should have done more to clarify his  status
to the special pay, the state of evidence did not support a conclusion
that he had totally forfeited his integrity.  Therefore,  the  members
recommended the applicant retire in the grade of colonel.

On 8 June 1998, the SAF, acting through the Director, Air Force Review
Boards Agency, found the applicant had served  satisfactorily  in  the
grade of colonel and directed he be retired in that grade.

Applicant was retired in the grade of colonel on 1 July 1998.

Pursuant to an inquiry from the  AFBCMR  Staff,  DFAS-FYCC  informally
advised that, in addition  to  the  MSP/MISP  bonuses,  the  applicant
received the following special compensations:

           Variable Special Pay (VSP) – Monthly  compensation  to  all
Medical and Dental Corps officers. From 18 June 1988 to 30 June  1998,
the applicant received VSP varying from approximately $583 to $750 per
month.

           Additional Special Pay (ASP) – Annual lump sum payment  for
Medical and Dental Corps officers.   The  applicant  received  $15,000
annually from 1992 to 1997.  In 1998, $7,500  was  recouped  from  the
$15,000 due to his retirement.

           Flight Pay – From 29 November 1989 to 25  March  1991,  the
applicant received $495 per month.  From 26  March  1991  to  25 March
1994, he received $385 per month.  From 26 March  1994  to  21  August
1995, he received $250  per  month.   DFAS  believed  his  flight  pay
stopped after 21 August 1995 because he then  had  over  25  years  of
service, which apparently ends entitlement.
_________________________________________________________________

AIR FORCE EVALUATION:

The Superintendent, Special Pay Branch, HQ AFPC/DPAMF1, reviewed  this
appeal and states the applicant never completed an  initial  residency
in Aerospace Medicine or Family Practice  specialties.  In  accordance
with Title 37, USC, Section 301d, eligibility for MSP-MISP is  subject
to  completion  of  an  initial   residency,   fellowship   or   board
certification under a  grandfather  provision  in  a  specialty.   The
applicant was neither residency trained nor grandfathered.  His  claim
that board eligibility meets MSP-MISP entitlement  is  incorrect.  His
five-week  Occupational  and  Environmental  Medicine  Program  course
sponsored by the University of California San Francisco (UCSF)  School
of Medicine and receipt of continuing medical  education  credit  does
not meet the requirements of an initial residence per AFI  41-109.  As
he was not eligible to receive MSP-MISP bonuses during 1992-1996,  all
bonuses he received during that time were recouped on 30 October 1997.
 Disapproval is recommended.

A copy of the complete Air Force evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory and states that, after finishing  what
was then called a “mini-residency” in Occupational  and  Environmental
Medicine at UCSF in 1991, he applied and  was  accepted  to  take  the
Board Certification examination for Occupational Medicine during  that
year. At that time, to the best of his  knowledge,  board  eligibility
was sufficient to apply for entitlement  to  specialty  and  incentive
pays upon approval by the Credentials Committee.  His application  was
approved. Had his application been disapproved,  he  would  then  have
applied for the regular flight surgeon specialty and incentive pays as
in the past. He requests that the Board obtain a copy of  the  minutes
of the Credentials Committee.  If the Board follows the  AFIs  to  the
letter and not the  spirit  of  giving  incentive  medical  pay  to  a
deserving individual, it would be only fair to grant him  the  regular
flight surgeon pay which he was duly entitled to receive from 1992  to
June 1998. He asks for basic, fundamental fairness.

Applicant’s complete rebuttal, with attachments, is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Superintendent, Special Pay Branch, HQ AFPC/DPAMF1,  reviewed  the
rebuttal and  advises  that  his  office  was  unable  to  locate  the
Credentials Committee minutes from 1992 at   AFB Hospital, largely due
to deactivation of this medical treatment facility (MTF) when the base
closed.  The author explains why the applicant’s original  claim  that
board eligibility meets MSP-MISP entitlement  criteria  is  incorrect.
Public law determines eligibility criteria for medical  special  pays,
and he did not meet the requirements to receive  MSP-MISP  from  1992-
1997. MTF credential committees may  authorize  providers  to  perform
aspects  of  care  based  on  completion  of  training  or   establish
limitations for those not meeting standards of care. These  committees
do not have the authority to determine eligibility for  special  pays.
Disapproval is again recommended.

A complete copy of the additional evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant provided a second rebuttal indicating he cannot contest  the
advisory  opinion  without  the  Credentials  Committee  minutes.   He
therefore requests the Board grant him the medical bonuses  (1992-June
1998) due him as a regular flight surgeon. He explains why  he  should
receive this alternate relief if the residency-trained pay is  denied.
He provides a supporting statement from a retired three-star general.

Applicant’s complete response, with attachment, is at Exhibit H.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief,  Aerospace  Medicine  Division,  AFMOA/SGOA,  reviewed  the
appeal and states that it is clear that the applicant was never board-
certified  in  either  Occupational  or  Aerospace  medicine.   Though
eligible, he never took the American College of Preventative  Medicine
(ACPM) certifying exam in Occupational Medicine.  Though he  may  have
served as a flight  surgeon,  he  was  never  board-certified  by  the
American College of Preventative  Medicine  and  thus  should  not  be
compensated as such.

A complete copy of the additional evaluation is at Exhibit I.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A complete copy of the last evaluation was forwarded to the  applicant
on 30 September 1999 for review and comment within  30  days.   On  23
November 1999, the AFBCMR Staff received his 3 November 1999 rebuttal.
 He states he is not asking for  compensation  as  a  Board  Certified
flight surgeon, but it is only fair to compensate him based on his Air
Force Specialty Code (AFSC) as a regular flight surgeon.

Applicant’s complete response is at Exhibit K.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was timely filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice. After a thorough  review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded that he is entitled to repayment of recouped monies  or  any
additional special pay  or  bonus.  He  asserts,  in  part,  that  the
Personnel Council’s decision to retire him in the grade of colonel  is
an unequivocal exoneration, and seems to believe that this  inherently
supports his entitlement to further compensation.   We  disagree.  The
evidence of record clearly indicates that he should not have been paid
the MSP-MISP bonuses he received, and he has not  provided  persuasive
evidence that he is entitled to receive any additional pay  or  bonus.
It appears he received payment for VSP from 1988  to  1998,  ASP  from
1992 to 1997 with partial payment in 1998, and flight  pay  from  1989
until August 1995 when his years of service  rendered  him  ineligible
for continued flight pay. He has  failed  to  sustain  his  burden  of
having suffered an error or an injustice, and his submission does  not
support his contention that he is entitled to compensation beyond that
which he has already  received.  In  view  of  the  above  and  absent
persuasive evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought.
_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable  material  error  or  injustice;
that the application was denied without  a  personal  appearance;  and
that the application will only be reconsidered upon the submission  of
newly  discovered  relevant  evidence   not   considered   with   this
application.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 14 December 1999, under the provisions of AFI 36-
2603:

                  Ms. Patricia J. Zarodkiewicz, Panel Chair
                  Ms. Patricia D. Vestal, Member
                  Ms. Melinda J. Loftin, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 4 Jul 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPAMF1, dated 10 Aug 98.
   Exhibit D.  Letter, AFBCMR, dated 31 Aug 98.
   Exhibit E.  Letter, Applicant, dated 8 Sep 98, w/atchs.
   Exhibit F.  Letter, HQ AFPC/DPAMF1, dated 14 Dec 98.
   Exhibit G.  Letter, AFBCMR, dated 4 Jan 99.

                             PATRICIA J. ZARODKIEWICZ
                             Panel Chair