RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-00353
COUNSEL: NONE
HEARING DESIRED: YES
APPLICANT REQUESTS THAT:
She receive Physician Additional Special Pay (ASP) from 2010 to 2013.
APPLICANT CONTENDS THAT:
She thought when she filed for her specialty pay bonuses in 2010 that the ASP was part of the Multi-year Incentive Special Pay (MISP) and Multi-year Special Pay (MSP) contracts she submitted, but it was not. Because of that oversight, she missed the $15K ASP bonus for the years 2010-2013, though she served and was qualified for the bonuses during that time. She requests to be retroactively paid the ASP bonuses for the years 2010-2013.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The applicant commenced a period of active service with the Air Force Reserve on 23 Apr 86.
On 15 Jul 88, the applicant was released from active duty with an honorable discharge.
On 20 May 95, the applicant commenced a period of active service with the Regular Air Force.
On 30 Jun 10, the applicant signed a four-year MSP/MISP contract.
On 31 Jul 14, the applicant was honorably discharged and retired, effective 1 Aug 14, and was credited with 21 years, 5 months, and 4 days of active service.
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
AFPC/DPANF recommends denial indicating there is no evidence of an error or an injustice. After reviewing the applicants record, she correctly submitted MSP, MISP, and ASP contracts and received concurrent pay from 2006 to 2010. In 2008 and 2010, she submitted an MSP/MSIP contract (2008 because of a rate increase and 2010 to line up with her retirement date); however, ASP contracts were not submitted for 2010, 2011, and 2012. Per the MSP/MISP contract, the applicant signed in 2010, first paragraph, she initialed that she read the FY10 AF Medical Officer Special Pay Plan. The pay plan addresses MSP/MISP in section F and ASP in section I as separate pay types. While the applicant annotated the correct MSP and MISP rates for each pay, and there was no area to annotate the ASP rate, there is no way to tell why she thought ASP was combined with MSP/MISP when she correctly submitted all of the required contracts for the different pay types previously. According to the Comptroller General, retroactive administrative pay is generally prohibited barring an administrative error. In addition, when interpreting statutes, there is a presumption against retroactivity. Statutes should generally not be read to have retroactive effect unless specific language requires. Further, Federal Courts have consistently defined injustice within Title 10, United States Code (USC), §1552 as behavior or action that rises to the level that shocks the sense of justice. This is a high standard which requires more than merely deciding that an action taken might be viewed as unfair or which has had arguably adverse consequences. The applicants record should not be altered as the error was on the part of the applicant, not the Air Force, and the circumstances simply do not rise to a level that shocks the sense of justice. The administrative error was on the part of the applicant failing to submit the required contract to receive ASP. Furthermore, the statute at issue, Title 37, U.S.C. 302, Special pay, medical officers of the armed forces, contains no retroactive language (Exhibit MISC).
A complete copy of the AFPC/DPANF evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 28 Jul 14 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office.
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 an error or injustice. We took notice of the applicants complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.
4. The applicants case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered.
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2014-00353 in Executive Session on 27 Jan 15 under the provisions of AFI 36-2603:
The following documentary evidence for AFBCMR Docket Number
BC-2014-00353 was considered:
Exhibit A. DD Form 149, dated 7 Jan 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPANF, dated 28 Mar 14,
w/atchs.
Exhibit D. Letter, SAF/MRBR, dated 28 Jul 14.
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