RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2014-01648

	 	COUNSEL:  NONE

		HEARING DESIRED:  YES 


APPLICANT REQUESTS THAT:

He receive his entitlement to Additional Special Pay (ASP) and Incentive Special Pay (ISP), which was not disbursed.  

His records be corrected to reflect his status as a board-certified plastic surgeon during the period of June 2013 through October 2013.  


APPLICANT CONTENDS THAT:

He transferred to a staff non-clinical position and requested a credentials transfer.  However, he was unable to validate his ASP and ISP form for specialty pay due to an unforeseen delay in the transferring and processing of his credentials application.  Had he known such a significant delay would occur, he would have requested the pay under the category of a Headquarters staff physician whose duties preclude clinical care.  He is entitled to the requested special pay; however, Air Force Medical Services (AFMS) stopped authorizing retroactive ISP and ASP after October 2013.  

The applicant’s complete submission is at Exhibit A.


STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of colonel (O-6).  

According to the applicant’s master military pay account (MMPA), he was awarded ASP for the periods of 1 July 2012 through 30 June 2013, and 1 July 2014 through 30 June 2015.  He was not paid ASP during the period of 1 July 2013 through 30 June 2014.  

According to the applicant’s MMPA, he was awarded ISP for the periods of 1 June 2012 through 31 May 2013, and 19 March 2014 through 18 March 2015.  He was not paid ISP during the period of 1 June 2013 through 18 March 2014.  

The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibit C and D.  


AIR FORCE EVALUATION:
	
AFPC/DPANF recommends denial of the applicant’s request to be awarded ASP and ISP.  According to the Comptroller General, retroactive administrative pay is generally prohibited bar an administrative error.  In addition, there is a presumption against retroactivity.  Unless specific language is used, statutes should generally not be read to have retroactive effects.  Specifically, Title 37 United States code (USC) Section 302, contains no retroactive language.  Due to a delay in the applicant’s credential processing, verification could not be made that he had credentials and privileged by 1 June 2013, which was the ISP effective date.  In addition, eligibility for ASP requires a member to have a current, valid, unrestricted license.  Based on a current and valid license as of 1 July 2013, the applicant would have been eligible for ASP from 1 July 2013 to 30 June 2014.  Nevertheless, the applicant could have requested endorsement as a HQ Staff Physician; however, he did not pursue this option and elected to await credentials validation.  

In October 2013, AFMS Medical Special Pays discontinued retroactive ISP/ASP contract processing, and the only way for a member to request retroactive special pay is to submit a claim to the Air Force Board for Correction of Military Records (AFBCMR).  A member must show by a preponderance of the evidence some error or injustice warranting corrective action by the board.  

Also, the applicant has been receiving board certification pay since 1996.  His records erroneously list his primary Air Force Specialty Code (PAFSC) as Thoracic Surgeon (T45S3A) and his current certification does not specify plastic surgery.  If he has obtained board certification as a Plastic Surgeon (45S3G) the AFSC has not been updated appropriately in his personnel file.  Members update board certification on their record by submitting an AF Form 2096, Classification/On-The-Job Training Action, to their unit’s Commander Support Staff (CSS), Force Support Squadron (FSS), Military Personnel Section (MPS) or Military Personnel Element (MPE).  Colonels send their AF Form 2096 to the Colonel’s Group for action.  As such, the applicant should pursue board certification updates to his personnel records by submitting the required documentation to the Colonel’s Group.  

A complete copy of the AFPC/DPANF evaluation is at Exhibit C.

AFPC/JA recommends denial.  In accordance with 31 USC 1551-1553, the Anti-Deficiency Act may prohibit back-dating contracts and retroactive application of contractual obligations.  Whether or not current fiscal law restrictions may prohibit the applicant from receiving retroactive pay is an issue to be resolved by the Office of General Counsel, Defense Finance and Accounting Service (DFAS).  

A complete copy of the AFPC/JA evaluation is at Exhibit D.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states he made a reasonable effort to honor the stipulations outlined for clinicians, yet due to circumstances beyond his control the application process was flawed.  He is in a non-clinical setting and has been board-certified in plastic surgery since November 2011 with a valid, unrestricted state license.  

He held a valid unrestricted state license and was board-certified in plastic surgery.  However, his CSS did not timely submit his documented certification for plastic surgery.  He is working with his current CSS to update his board-certification.  

The applicant’s complete response, with attachment, is at Exhibit F. 


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 an error or injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe that corrective action is warranted.  While we note the comments of the Air Force offices of primary responsibility indicating the restrictions which prohibit back-dating contracts and retroactive payments associated with contractual obligations, we believe that through no fault of his own, the delay in the applicant’s credential processing caused him to be unable to receive the required validation for his specialty pay.  In this respect, based on the evidence presented, we believe given the fact that the applicant was a fully qualified member of a career field which the Air Force identified as requiring such specialty pay and he timely submitted his credentialing documentation, denial of his specialty pay constitutes an injustice.  In this case, specialty pay was withheld that the applicant would otherwise qualify for by making the very commitment the Air Force intended.  However, with regard to the ISP effective date, we note that AFPC/DPANF1 has verified he did not obtain his credentialing until 1 July 2013, thereby making his effective date for the ISP 1 July 2013. With regard to the applicant’s request that his records be corrected to reflect his status as a board-certified plastic surgeon during the period of June 2013 through October 2013, the applicant has advised the Board that he is working with his Commander Support Staff to accomplish this task, consequently, Board action on this portion of his request is not required.  Therefore, we recommend the applicant’s records be corrected as indicated below.  

4.  The applicant’s 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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be correct to show that:

		a.  On 30 June 2013, he submitted an Additional Special Pay (ASP) Medical Corps (MC) Contract Request for the period 1 July 2013 through 30 June 2014 and competent authority approved his application for ASP of $15,000.00 annually for the period 1 July 2013 through 30 June 2014.  

		b.  On 30 June 2013, he submitted an Incentive Special Pay (ISP) Medical Corps (MC) Contract Request for the period 1 July 2013 through 30 June 2014 and competent authority approved his application for ISP of $30,000 annually for the period 1 July 2013 through 30 June 2014.  

	c.  On 30 June 2014, he submitted an Incentive Special Pay (ISP) Medical Corps (MC) Contract Request for the period 1 July 2014 through 30 June 2015 and competent authority approved his application for ISP of $30,000 annually for the period 1 July 2014 through 30 June 2015, instead of the incentive Special Pay (ISP) contract approved for the period 19 March 2014 through 18 March 2015.  

	d.  His 19 March 2014 through 18 March 2015 Incentive Special Pay (ISP) contract be removed from his record.  


The following members of the Board considered AFBCMR Docket Number BC-2014-01648 in Executive Session on 3 March 2015, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  Due to the retirement of the Panel Chair, XXXX has agreed to sign as Acting Panel Chair.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-01648 was considered:

	Exhibit A.  DD Form 149, dated 15 April 2014.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPANF, dated 10 July 2014, 
                 w/atchs.
Exhibit D.  Letter, AFPC/JA, dated 3 October 2014.
	Exhibit E.  Letter, SAF/MRBR, dated 10 November 2014.
	Exhibit F.  Electronic Mail, Applicant, dated 15 April 
                 2014, w/atch.
						
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