PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 2 October 2001
         DOCKET NUMBER: AR2001052671


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

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Ms. Karol A. Kennedy		Member
Mr. Richard T. Dunbar		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that her Multi-Year Specialty Pay (MSP) and linked Muti-Year Incentive Special Pay (MISP) contract of February 1996 be backdated to 21 June 1995, and that her active duty service obligation be changed to run concurrently with the time of payment, which is 21 June 1995 to 21 June 1999. Further, she requests that all subsequent contracts be corrected accordingly.

3. The applicant states, in effect, that she became eligible for MSP on 21 June 1995, when she reached 8 years of active duty service. She claims that at that time she was changing duty stations from Fort Belvoir, Virginia to Walter Reed Army Medical Center, Washington D.C. and was never made aware of her eligibility by the finance sections at either location. She did not become aware of her eligibility until colleagues informed her that they were receiving MSP in February 1996. At that time she signed a 4 year contract; however, she had actually began her Infectious Disease Fellowship on 1 July 1995 and she should have been offered an MSP contract on 21 June 1995. She also claims that her MSP obligation would have been concurrent with her training obligation. Instead the obligation time became sequential based on the money she received from February 1996 until February 2000, which resulted in her incurring a service obligation from July 2000 through July 2004. She claims that the dates covered by her first MSP contract should be changed to coincide with her eligibility
(21 June 1995 to 21 June 1999), which will provide her parity with her many colleagues who entered fellowship exactly as she did, with the same 8 years of active duty, but who were offered MSP contracts when they became eligible only days before starting their fellowship. She also requests that the obligation dates of her subsequent contracts be corrected to reflect an immediate follow-on to that contract and obligation period.

4. The applicant’s military records show that on 4 August 1983, she was appointed first lieutenant in the Medical Corps (MC) of the United States Army Reserve (USAR). On 22 June 1987, she entered active duty and has continued to serve in that status until the present. She is currently a lieutenant colonel performing duties as the Chief, Military Pediatric Center, San Antonio, Texas.

5. In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Army Medical Department (AMEDD) Special Pay Branch, Office of The Surgeon General (OTSG). It provides the following discussion: eligibility for MSP requires 8 years of creditable service from the officer’s Health Professional Pay Entry Date (HPPED) or completion of all active duty obligations (ADO) for training and education. The applicant’s HPPED is 21 June 1987, and her ADO for training in June 1995 was 30 June 1996. Based on this historic data, she would have been eligible on 21 June 1995 (HPPED + 8 years) to execute the MSP and linked MISP contracts.
6. The opinion goes on to indicate that based on the historical information above, the applicant is requesting to backdate her initial Fiscal Year (FY) 1996 four-year MSP at $8,000/year and linked MISP at $8,000/year that were effective for payment annually from 1 February 1996 through 31 January 2000, with an obligation effective 1 July 2000 to 30 June 2004, to an adjusted effective date of 21 June 1995. If this date is adjusted MSP rates would change. The FY 1995 rate for a four-year is MSP $5,000/year and linked MISP is $8,000/year, effective for payment annually from 21 June 1995 to 20 June 1999, which would be a difference of $12,000 due to the government for the four-year MSP adjustment. The MSP obligation would change, the applicant’s ADO for training in June 1995, was 30 June 1996, there would be an adjusted total ADO (Training+MSP) to
30 June 2000.

7. Additionally, the opinion confirms that in FY 2000, the applicant executed a new four-year MSP at $8,000/year and linked MISP at $14,000/year effective for payment annually beginning 1 July 2000, with a current total obligation to
30 June 2008. If the contract above were adjusted, this contract would also require an obligation adjustment to 30 June 2004.

8. The Chief, AMEDD Special Pay Branch, OTSG finally opines that applicant was eligible to sign an MSP at an earlier opportunity based on the information presented and approval of the applicant’s request would result in an obligation benefit. However, there is an associated $12,000 recoupment and there is no Army policy or procedure that would allow the OTSG to approve an adjustment of past contracts. A directive from this Board would be required in order to make the contract adjustments outlined in this advisory opinion.

9. On 1 June 2001, the applicant was provided a copy of the OTSG advisory opinion in order to be provided an opportunity to respond. On 13 June 2001, the applicant did reply by concurring with the findings and recommendations contained in the OTSG advisory opinion.

10. On 22 June 2001, a member of the Board staff contacted the applicant to confirm that when she concurred with the OTSG advisory opinion she understood that if her MSP and linked MISP contracts were adjusted as requested by her and outlined in the OTSG opinion, there would be a recoupment of $12,000 due from her to the government. She responded in the affirmative and indicated that she still desired the contract adjustment.

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11. In reviewing the special pay policies and procedures of the OTSG, the Board was able to determine that medical officers are counseled and brief on Army Medical Department (AMEDD) Special Pay Programs at different points in their career. However, the Board could find no formally established notification procedure that required any particular office or agency, such as the local finance or personnel office, to notify members of their eligibility for AMEDD special pay upon their gaining eligibility.

CONCLUSIONS:

1. The Board notes the applicant’s contention that she failed to enter into a MSP and linked MSIP contracts when she first became eligible because she was unaware and never informed of her eligibility through officials channels and it finds no evidence of record to contradict this claim.

2. The Board takes special note of the advisory opinion rendered by the OTSG, the agency responsible for administering AMEDD Special Pay Programs to include MSP and linked MISP contracts, in which it is confirmed that the applicant was initially eligible to execute an MSP and linked MISP contract on
21 June 1995.

3. Lacking evidence to the contrary, the Board must presume that the applicant’s failure to enter into an MSP and linked MSIP contracts on 21 June 1995, was the result of her being unaware of her eligibility to do so. Further, it is clear the applicant was performing in a medical specialty that authorized MSP and MISP that was being received by her contemporaries. These factors, coupled with the findings and recommendations of the OTSG, as concurred with by the applicant, compels the Board to conclude, in the interest of equity, that it would appropriate to adjust the applicant’s MSP and linked MISP contracts as outlined in the OTSG advisory opinion, which includes a $12,000.00 recoupment that the applicant is aware of.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by adjusting the MSP and linked MISP contracts of the individual concerned as outlined in the enclosed advisory opinion from The Chief, AMEDD Special Pay Branch, OTSG, dated 29 May 2001, and by recouping any monies due the government as a result.

BOARD VOTE:

__MKP___ __KAK__ __RTD__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Margaret K. Patterson _

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INDEX

CASE ID	AR2001052761
SUFFIX
RECON
DATE BOARDED	2001/10/02
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 1045	128.2100
2.
3.
4.
5.
6.