MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 June 2002
         DOCKET NUMBER: AR2001060764

         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. Lee Cates		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		Member
Mr. Harry B. Oberg		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: That her records be corrected to show entitlement to award of Medical Additional Special Pay (MASP) for the period 1 July 2000 to 30 June 2001.

APPLICANT STATES: That she did not receive the requested MASP. She provides a memorandum, dated 16 July 2001, signed by a military personnel clerk, GS-05, which indicates “Due to an oversight the above individual did not received her MASP, which was due on 02 Jul 2000. The individual stated she did not sign a declination for this bonus.” An original copy of the contract was provided.

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

On 2 July 1995, the applicant entered active duty. Her contractual service obligation date was established as 28 February 2001.

On 21 September 2000, a DA Form 2173 (Statement of Medical Examination and Duty Status) indicates that she was injured while lifting weights for strength training in the local gym. The diagnosis was left shoulder chronic impingement syndrome.

On 9 January 2001, it was determined that her injury was in the line of duty and that no formal investigation was necessary.

She was retained on active duty beyond her scheduled separation. The applicant indicates it was for Medical Evaluation Board processing.

On 17 May 2001, she executed a MASP contract for the period 1 July 2000 to 30 June 2001.

On 17 May 2001, she executed a declination memorandum (for the following year), since she was being separated.

On 31 August 2001, she was honorably released from active duty and assigned to the USAR Control Group (Reinforcement), effective 1 September 2001. Her separation document indicates she had 6 years, 1 month and 29 days of creditable service.

On 12 October 2001, the Chief, Army Medical Department Special Pay Branch, Office of The Surgeon General (OTSG) opined that the applicant did not execute a new one-year obligatory MASP due to her pending retirement (sic). The officer submitted a declination memorandum dated 17 May 2001. A contract can only be signed if the individual concerned has tenure to complete the contract period.

On 25 October 2001, the OTSG opinion was provided to the applicant for her acknowledgement/rebuttal.

On 8 January 2002, she rebutted the OTSG opinion by indicating she was on active duty for the full period in question. The OTSG opinion referred to her approved retirement; however, she did not qualify for retirement. She indicates that the declination memorandum, dated 17 May 2001 was intended for the period 1 July 2001 to 30 June 2002.

Departmental guidance concerning Army Medical Corps (MC) Officer Special and Incentive Pay Policy, Plan and Rated, indicates, in pertinent part, that the “Agreement Effective Date – In order to retain the effective date indicated on the Medical Occupational Date 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 following the date of the roster, whichever is later. Agreements signed after that date will be effective upon the date of signature.” The “no earlier than 90 days” comment is not written, but equates to the MODS Eligibility Program which will not have the eligible population or a contract posted until 90 days prior to the effective date; therefore, the contract is not signed any earlier than 90 days prior to the effective date. Further, MASP is paid annually to Medical Corps officers who are not participating in internship or initial residency training. 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. The annual rate, regardless of years of creditable service, is $15,000.

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) 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) 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) 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 MASP and ISP. The basic intent of MASP, ISP and MSP is to extend a physician beyond their current obligation.

This Board operates under the standard of presumption of regularity in governmental affairs. The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper. There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

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, it is concluded:

1. Contrary to the OTSG opinion, the applicant could not execute the MASP because she did not have tenure to complete the contract period as opposed to having an approved retirement.

2. The applicant, in effect, failed to comply with Departmental guidance because she did not have tenure to complete the contract period as opposed to having an approved retirement.

3. The evidence of record clearly shows the applicant did not submit a MASP contract within the designated 90 days earlier and 30 days later than the effective date; therefore, there is no error or injustice and she is not entitled to MASP for the period 1 July 2000 to 30 June 2001.

4. 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.

5. 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

_fne____ _rwa____ _hbo____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060764
SUFFIX
RECON
DATE BOARDED	20020611
TYPE OF DISCHARGE	0
DATE OF DISCHARGE	0
DISCHARGE AUTHORITY	0
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.16
2.
3.
4.
5.
6.