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AF | BCMR | CY2003 | BC-2003-00657
Original file (BC-2003-00657.doc) Auto-classification: Approved

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00657
            INDEX NUMBER:
      XXXXXXXXXXXXXXX  COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His eligibility date for Medical Continuation Pay be  changed  from  1
Dec 01 to 1 Oct 01.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was miscounseled by the Medical Special Pays Branch  at  AFPC  that
because he was doing an interservice transfer on 2 Aug 02, he was  not
eligible for his bonus on 1 Oct 01.  He later learned that he  was  in
fact eligible because of his transfer being delayed due to stop-loss.

He was paid the bonus with an eligibility date of 1 Dec 01,  resulting
in a greater debt to the Air Force when he  transferred  to  the  U.S.
Public Health Service on 2 Aug 02.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining  to  this  case  are  contained  in  the
evaluation prepared by the appropriate office of the Air  Force  found
at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPAMF1 recommends denial of the applicant’s request.

The applicant contacted their office stating his intention to separate
from the Air Force to become a member of the Public Health Service  on
2 Aug 02.  He was advised that he would be ineligible for the 1 Oct 01
Medical Continuation Pay because according to  Title  37,  Chapter  5,
Section 302, paragraph c, “an officer is not  eligible  for  incentive
special pay for any  twelve-month  period  unless  the  officer  first
executes a written agreement under which the officer agrees 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 pay.”

The  applicant  was  approved  for  an  interservice   transfer,   but
separation was delayed due to Stop-Loss.  Title 37, Chapter 5, Section
302f authorizes involuntarily retained officers medical  special  pays
on a monthly basis.  However, on 2  Nov  01,  HQ  USAF/SG  implemented
policy to pay involuntarily retained officers medical special pays  on
an annual basis with the understanding  the  member  would  repay  the
government the unearned portion of any payment received.  This policy,
as well as HQ AFPC/DPA MPFM 01-32  (instructions  for  completing  and
submitting all medical special pay agreements) were posted on  the  HQ
AFPC  Medical  Special  Pays  web  page  on  6  Nov  01.   The  posted
instructions included guidance that for agreements to be  effective  1
Oct 01, they must be received by AFPC/DPAMF1 not later than 30 Nov 01.
 Agreements received after this date would be effective the date  they
were signed.  Late  submissions  could  be  excused  when  a  member’s
medical group commander documented on the request that the member  had
been unavailable to  sign  in  a  timely  manner  due  to  deployment,
extended hours, etc.

The applicant’s faxed request for Stop-Loss exemption was received  on
31 Jan 02.  His signature is dated  28  Jan  02.   His  medical  group
commander’s signature is  dated  31  Jan  02.   There  was  no  reason
indicated for  the  late  submission.   The  applicant  indicated  his
effective date as 30 Nov  02  (not  30  Nov  01)  and,  following  the
published guidance and directives, his effective date was  established
as 1 Dec 01.

In accordance with the pay agreement he signed, the applicant received
$28,000 for the twelve-month period of 1 Dec through 30 Nov 02.   When
he was discharged from the Air Force on 2 Aug 02, he was  required  to
repay the unearned portion for the period 3 Aug 02 through 30 Nov 02.

The complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, applicant states that  he
was not aware of the information posted on the  Medical  Special  Pays
web site.  He was also not advised of this site when he contacted  the
Medical Special Pays Branch by phone.   He  accepted  the  information
that he was given, that he was not eligible for the bonus, and did not
try to receive the bonus.

It was late in Jan 02 when he found out through a colleague  that  the
“Stop-Loss Specific Pay Agreements” option should apply to him.   When
he contacted the Medical Special Pays Branch, he was advised  that  he
had been given the wrong information and that his agreement could  not
be backdated.  He was not informed that his  medical  group  commander
could get this waived  by  indicating  he  was  unavailable  to  sign.
However, this option is irrelevant since he was available to sign, but
was given the wrong information.

The applicant’s complete response is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice.  While it appears that the  applicant
may have been given correct  information  about  his  eligibility  for
incentive special pay at the time he  contacted  the  Medical  Special
Pays Branch, the Board is not  convinced  that  the  dissemination  of
information about the newly implemented  Stop-Loss  Incentive  Special
Pay (ISP) program via a web page was sufficient to make the  applicant
aware of the requirements for him to receive the Stop-Loss ISP and  to
get his effective date established as 1 Oct 01.  The  Board  finds  it
reasonable to conclude that the applicant was not aware of  the  Stop-
Loss ISP requirements since failure to meet the established  deadlines
could result in a large monetary loss, such as the  applicant’s.   The
Board believes that the doubt that exists should be  resolved  in  the
applicant’s  favor.   Therefore,  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  competent  authority
determined that, due to circumstances beyond his control, he  was  not
available on or before 30 Nov 01, to sign  the  Single-Year  Incentive
Special Pay (ISP) Agreement, signed on 28 Jan 02 and  endorsed  on  31
Jan 02, and that his Stop-Loss Incentive Special Pay effective date is
1 Oct 01.

_________________________________________________________________

The following members of the Board considered Docket  Number  BC-2003-
00657 in Executive Session on 21 May 2003, under the provisions of AFI
36-2603:


      Mr. Thomas J. Topolski, Panel Chair
      Ms. Marilyn Thomas, Member
      Ms. Ann-Cecile McDermott, Member

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

     Exhibit A.  DD Form 149, dated 19 Feb 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPAMF1, dated 17 Mar 03.
     Exhibit D.  Letter, SAF/MRBR, dated 21 Mar 03.
     Exhibit E.  Letter, Applicant, dated 25 Mar 03.




                                   THOMAS J. TOPOLSKI
                                   Panel Chair


AFBCMR BC-2003-00657


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:

      The pertinent military records of the Department of the Air
Force relating to XXXXXXXXXXX, XXX-XX-XXXX, be corrected to show that,
due to circumstances beyond his control, he was not available on or
before 30 Nov 01, to sign the Single-Year Incentive Special Pay (ISP)
Agreement, signed on 28 Jan 02 and endorsed on 31 Jan 02, and that his
Stop-Loss Incentive Special Pay effective date is 1 Oct 01.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency

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