MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 August 2001
         DOCKET NUMBER: AR2001052224

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Hubert S. Shaw, Jr.		Analyst

The following members, a quorum, were present:

Mr. James E. Vick		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that he receive Medical Additional Special Pay (MASP) for the period 1 October 1999 to 30 September 2000 and Incentive Special Pay (ISP) for the period 1 July 1999 through 30 June 2000.

APPLICANT STATES: In effect, that he is an active duty Medical Corps officer in the Army and that he had intended to complete his time in service in October 1999. As such, and so as not to incur additional service obligation, he did not receive his July 1999 ISP or his October 1999 MASP. He contends that he is entitled to the medical specialty bonuses because he served the obligate service period that these bonuses would have covered. He has contacted both his local finance office and also the Defense Finance & Accounting Service (DFAS) and was told that the only way DFAS could authorize retroactive payment of these bonuses for which he has served is through the Army Board for Correction of Military Records (ABCMR).

EVIDENCE OF RECORD: The applicant's military records show:

The applicant graduated from the United States Military Academy and was appointed a second lieutenant in the Army of the United States in the Field Artillery Branch effective 25 May 1983. He subsequently was appointed as a Reserve officer and ordered to active duty effective 13 July 1983 for the purpose of attending the Uniformed Services University of Health Sciences four year medical school.

The applicant was appointed as a Regular Army captain in the Medical Corps effective 16 May 1987. He was promoted to major effective 16 May 1993 and was promoted to lieutenant colonel on 16 May 1999.

At the time the applicant submitted his application to the ABCMR, he was serving on active duty in the rank of lieutenant colonel as a Medical Corps officer at Walter Reed Army Medical Center.

There is no evidence in the records available to the Board that the applicant executed an annual contract for MASP for the period 1 July 1999 through 30 June 2000 or executed an annual contract for Incentive Special Pay (ISP) for the period 1 October 1999 through 30 September 2000.

There also is no indication that the applicant executed an annual contract for MASP for the period 1 July 2000 through 30 June 2001 or executed an annual contract for ISP for the period 1 October 2000 through 30 September 2001.

There also is no indication that the applicant has executed or intends to execute an annual contract for MASP for the period 1 July 2001 through 30 June 2002 or for an annual contract for ISP for the period 1 October 2001 through 30 September 2002.
In the processing of this case an advisory opinion was obtained from the Chief of the Army Medical Department (AMEDD) Special Pay Branch of the Office of the Surgeon General of the Army. In that opinion, the Chief of the AMEDD Special Pay Branch stated the he cannot support the applicant’s request for retroactive MASP and ISP based on existing policy and procedures.

The advisory opinion points out that a review of the applicant’s military finance file indicates that his last executed and paid MASP for $15,000/year was effective 1 July 1998 through 30 June 1999; and his last executed and paid ISP for $29,000/year was effective 1 October 1998 through 30 September 1999.
The advisory opinion also pointed out that there is no record of any contract submissions by the applicant for MASP or ISP in 1999, 2000, or 2001.

The advisory opinion also pointed out that the applicant’s military personnel file indicates that he has an active duty service obligation until 1 April 2005 based on education and training he has received. The opinion also points out that there is documentation showing that the applicant requested release from active duty effective 1 October 1999, but that this request was disapproved on 20 July 1999 because of his remaining service obligation.

The advisory opinion also states that both the MASP and ISP contracts require execution and submission by the officer, through the officer’s chain of command, for payment. Further, officers may keep their contract anniversary effective dates as long as the contract is signed no earlier than 90 days, but no later than 30 days from effective date. After that point, date of signature becomes the new effective date.

The advisory opinion states that, based on the applicant’s intent to separate, he took the correct action in not executing his annual contracts for MASP and ISP. But, since his request for separation was disapproved, the applicant could have executed contracts to keep his anniversary effective dates; however, the applicant has not taken such action for contracts due in 1999 or 2000.

The opinion further points out that the applicant was eligible to execute one-year obligatory MASP for $15,000/year effective on 1 July 1999 and 1 July 2000, as well as an ISP for $29,000/year effective on 1 October 1999 and 1 October 2000. However, payment requires the applicant’s action to execute and submit contracts for payment no earlier than 90 days, but no later than 30 days from effective date. After that period, date of signature becomes the new effective date. The Chief, AMEDD Special Pay Branch states that there is no policy or procedure that can support the applicant’s request for payment of past contracts without an ABCMR directive decision.

On 4 June 2001, the advisory opinion was furnished to the applicant for review and possible rebuttal. The applicant’s counsel responded with a letter of rebuttal, dated 26 June 2001. In summary, counsel points out that there is no policy that prevents the Army from compensating an officer for work performed. The applicant earned his specialty pay, and while he was delayed in requesting it, for good reason, there is no statute, regulation or excuse that keeps the Army from doing what is right, equitable, and fully warranted. Counsel states that the applicant could not possibly have requested payment on the time schedule referred to in the advisory opinion because “he took the correct action” pending his request to separate. The applicant now requests to be paid for what he has done, only after his request for separation was denied and his service for the periods involved have expired.

Title 37, United States Code, Sections 301d, 302, 302f, and 303a provide for multiyear retention bonuses and special pays for medical officers and health professionals of the armed forces. For Army Medical Corps Officers (Physicians), these special pays are: 1) Variable Special Pay (VSP) which is paid to all Medical Corps Officers monthly upon entry on active duty; 2) Board Certification Pay (BCP) which is paid monthly to all board certified Medical Corps Officers based upon their date of board certification and their creditable service used to establish the Health Professional Pay Entry Date (HPPED); 3) Medical Additional Special Pay (MASP) which is paid to all Medical Corps Officers upon completion of internship (not during initial residency) at the current rate of $15,000 (less taxes) for a one year active duty obligation that can be served concurrently with all other obligations; 4) Incentive Special Pay (ISP) which is paid based on a variable rate to selected Medical Corps Officers who hold the specialties eligible to receive this pay for a one year active duty obligation that may be served concurrently with all other obligations; and 5) Multiyear Special Pay (MSP) which is paid based on execution of a contract for 2, 3, or 4 years of active duty to selected Medical Corps Officers based on their specialty. This pay is authorized concurrently with Medical Additional Special Pay and Incentive Special Pay. MASP, ISP and MSP all require the execution of a contract.

Multiyear retention bonuses and special pays for medical officers, as authorized under selected provisions of Title 37 United States Code and the Assistant Secretary of Defense (Health Affairs) Medical Officer Special Pay Plan, are implemented by the Surgeon General of the Army in an annual message, subject: Army Medical Corps Officer Special Pay Policy, Plan and Rates. This message establishes, among many requirements, the specialties eligible for and rates for special pays, active duty obligations, contractual requirements, and the Department of the Army policies governing the five special pays for active duty Medical Corps Officers.

The Fiscal Year 2001 Army Medical Corps Officer Special Pay Policy, Plan and Rates message (date/time group 181153Z SEP 00) was effective 1 October 2000. Paragraph 6 of this message specified requirements for Medical Additional Special Pay (MASP) and stated in part: “Entitlement to pay is contingent upon execution of a legally binding written agreement to remain on active duty for 1 year beginning on the effective date of the agreement.”

Paragraph 7 of the Fiscal Year 2001 Army Medical Corps Officer Special Pay Policy, Plan and Rates message describes discretionary special pays and states in part: “There are two discretionary pays for MC [Medical Corps] officers. They are the incentive special pay (ISP) and the multiyear special pay (MSP). Both pays require legally binding written agreements entailing active duty obligations.”

Paragraph 16 of the Fiscal Year 2001 Army Medical Corps Officer Special Pay Policy, Plan and Rates message states the effective date for medical specialty pay agreements: “Agreement effective date - in order to retain the effective date indicated on the medical occupational data system (MODS) eligibility roster, the officer must sign the agreement not later than 30 days following the entitlement date indicated on the roster, or not later than 30 days following the date of the roster, which ever is later. Agreements signed after that date will be effective upon the date of signature.”

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The Board noted that the applicant requested release from active duty effective 1 October 1999.

2. The Board considered the applicant’s contention that he did not execute MASP and ISP contracts in 1999 so that he would not incur an additional service obligation which would conflict with his request for release from active duty effective 1 October 1999. The Board noted that the advisory opinion from the Office of the Surgeon General of the Army points out that based on the applicant’s intent to separate, he took the “correct action” in not executing his annual contracts for MASP and ISP in 1999.

3. However, the Board also noted that the applicant’s request for release from active duty was denied on 20 July 1999. Therefore, given that the applicant could execute these contracts no earlier than 90 days, but no later than 30 days from their effective dates, it is clear that the applicant had 10 days after denial of his request for release from active duty in which to execute his contract for MASP for $15,000/year effective on 1 July 1999. Further, the applicant had over 90 days from the denial of his request for release from active duty in which to execute his annual contract for ISP for $29,000/year effective on 1 October 1999.

4. The Board also noted that the applicant did not execute annual contracts for MASP for the period 1 July 2000 through 30 June 2001 or for ISP for the period 1 October 2000 through 30 September 2001.
5. There also is no indication that the applicant has executed or intends to execute an annual contract for MASP for the period 1 July 2001 through 30 June 2002 or that he intends to execute an annual contract for ISP for the period 1 October 2001 through 30 September 2002.

6. Based on the foregoing, the Board determined that the applicant had sufficient time to execute annual MASP and ISP contracts for the year 1999 to 2000 after his request for release from active duty was disapproved on 20 July 1999. The Board also noted that the applicant has had ample time to execute annual contracts for MASP and ISP for the year 2000 to 2001. Finally, the Board noted the applicant has not yet executed, nor has he indicated his intent to execute, annual MASP and ISP contracts for the year 2001 to 2002 which should be in progress at this time.

7. Also based on the foregoing, the Board has determined that the reason stated by the applicant and his counsel for not executing annual MASP and ISP in July 1999 and October 1999, respectively, is without merit. The facts in this case clearly indicate that there was time for the applicant to file the appropriate contracts for MASP and ISP in July and October 1999. The applicant and his counsel have also failed to explain why the applicant did not execute any annual MASP and ISP contracts after October 1999 to the present. Contrary to counsel’s inference that denial of the applicant’s request demonstrates the “Army’s intent to punish this physician”, the Army expects its commissioned officers, particularly senior field grade officers such as the applicant, to act responsibly by complying with law, regulations, policy and suspenses.

8. The Board noted the applicant’s contention that he is entitled to the medical specialty bonuses because he served the obligate service period that these bonuses would have covered. However, the Board has determined the issue in this case is not eligibility for MASP and ISP; rather, the issue is timely filing for receipt of these bonuses in compliance with governing law, regulation and policy. The Board does not dispute the applicant’s eligibility for medical specialty bonuses. It is clear to the Board, however, that the applicant’s only requirement in this matter was to complete and to submit the contracts for MASP and ISP for the past two years, which he did not do, and to complete and to submit the contracts for MASP and ISP for the current year, which he has not yet done, for some unexplained reason. Therefore, in the absence of any action by the applicant to execute annual contracts for MASP and ISP for the period 1999 to 2000 or for the period 2000 to 2001 as required by regulation, there is no injustice or error in this case.

9. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
10. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JEV__ __WDB__ __BJE___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001052224
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010821
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY	MR CHUN
ISSUES 1.	128.1600.0000
2.	128.1700.0000
3.
4.
5.
6.