PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 29 May 2003
         DOCKET NUMBER: AR2002079614


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Lester Echols		Member
Mr. Frank C. Jones		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 that his records be corrected to show he executed a Dental Officer Multi-year Retention Bonus (DOMRB) on 13 August 1999 (in lieu of the Dental Officer Accession Bonus (DOAB) he did execute); that he be allowed to use the renegotiation feature of the DOMRB, to be effective 13 August 2002; and to show he executed a Critical Skill Retention Bonus (CSRB) in September 2002.

3. The applicant states that, in August 1999, he reentered the Army Dental Corps as an Orthodontist after a 21-year break in service from the Dental Corps. At the time, he executed a $30,000 DOAB in exchange for a 4-year active duty obligation (ADO). He was not advised at the time that he was eligible for a $56,000 DOMRB for the same 4-year ADO. The DOMRB was a new program and the local Army Medical Department (AMEDD) recruiting office was not aware of its existence. Also, his circumstances were unusual. Most new accessions are General Dentists and not eligible for the DOMRB. He was already a specialist who had previously completed his military education and training ADOs and thus met the eligibility criteria for the DOMRB.

4. The applicant further states that, effective 1 October 2002, a new bonus, the CSRB, was implemented. The CSRB incurs an obligation that can be served concurrently with the DOMRB obligation if the DOMRB is in place at the time of execution of the CSRB.

5. The applicant states that he understands the DOAB would be recouped if relief concerning the DOMRB were granted.

6. The applicant’s military records show that he completed his degree in Dentistry in 1975 and entered active duty in 1975 in the Dental Corps. He apparently completed 3 years of active duty. He received a Masters of Science degree in Orthodontia in 1980 and was board certified in Orthodontics in 1988. He reentered active duty on 3 August 1999 and was assigned as the Chief, Orthodontics Service in Heidelberg, Germany on 13 August 1999.

7. In the processing of this case, an advisory opinion was obtained from the AMEDD Special Pay Branch, Office of The Surgeon General. That office noted that the actual pre-accession counseling regarding the applicant's eligibility for the DOAB and DOMRB would need to be addressed by the U. S. Army Recruiting Command. AMEDD Special Pay Branch office noted that the applicant would be eligible for both the DOAB and the DOMRB; however, the ADOs would run consecutively. (AMEDD Special Pay Branch acknowledged to the Board analyst that there is an error in this portion of their advisory opinion. The advisory opinion indicates that his DOAB ADO would have been effective 3 August 1999 and run through 2 August 2002 and his DOMRB ADO would have been effective 3 August 2002 and run through 2 August 2006. These dates are short by one year. A 4-year DOAB ADO would have been effective 3 August 1999 and run through 2 August 2003; his DOMRB ADO would then have been effective 3 August 2003 and run through 2 August 2007.)

8. AMEDD Special Pay Branch opined that they could not support the applicant's request for the CSRB because he did not submit a CSRB contract within the proper time frame.

9. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. The applicant responded by providing a statement from the individual who was the Health Care Recruiter at the recruiting office which processed the applicant's re-accession. That individual attested that the applicant did not receive any pre-accession counseling regarding the DOMRB from him or any other Health Care Recruiting Officer assigned to the office at the time. That individual noted that nearly all professional dental recruits are new graduates who would not have had the credentials to be eligible for the DOMRB. As that particular bonus is normally used for retention, not recruitment, Health Care Recruiters do not have knowledge of retention bonuses. The applicant was an unusual recruiting case as he was returning to the Army with 19 years of private practice experience as a board certified specialist and with previous active duty Dental Corps experience.

10. The applicant also rebutted that, if one were offered a DOAB of $30,000 for a 4-year ADO or a DOMRB of $56,000 for the same 4-year ADO, it should be no stretch for a prudent person to know which bonus they would accept. He also acknowledged that the AMEDD Special Pay Branch is correct in stating that he did not submit a CSRB contract prior to 30 September 2002. However, if the DOMRB had been in place the CSRB contract could have been executed. He submitted his application to the Board on 16 September 2002, within the August through 30 September 2002 window for submitting a CSRB contract. To his knowledge, it was not possible for him to execute a CSRB contract pending the outcome of the Board application to replace his DOAB with the DOMRB. Had he executed the CSRB contract with the DOAB in place, he would have had to serve the CSRB ADO consecutively with the DOAB obligation. If the DOMRB alone had been in place, the CSRB ADO would be served concurrently with the DOMRB ADO.

11. Assistant Secretary of Defense, Health Affairs, letter dated 30 December 1997, subject: Implementation Policy for the Dental Officer Multiyear Retention Bonus (DOMRB), implemented the DOMRB with an earliest date of eligibility of 18 November 1997. A Dental Corps officer below the grade of O-7 who has completed any active duty service commitment incurred for dental education and training; has completed initial residency training before 30 September of the fiscal year in which the officer enters into the DOMRB written service agreement; and who has a dental specialty in oral and maxillofacial surgery is eligible for the bonus. The letter provided that the tri-Service board could include in the annual DOMRB pay plan a recommendation to extend the bonus authority to dental officers other than oral and maxillofacial surgeons based on demonstrated need. When there is no dental education and training ADO in existence at the time of a DOMRB agreement execution, the ADO for a DOMRB is served concurrently with the DOMRB agreement period.

12. Assistant Secretary of Defense, Health Affairs, letter dated 9 August 2002, subject: Fiscal Year 2002 Health Professions Critical Skills Retention Bonus Plan Announcement, provided implementation guidance for the CSRB Pay Plan. Dentists (all specialties) were approved for a $12,000 bonus effective 1 October 2002. An attachment to the letter stated that special pay ADOs, other than Medical Special Pay ADOs or new DOMRB ADOs, would be served concurrently with the CSRB ADO. (AMEDD Special Pay Branch explained to the Board analyst that a "new" DOMRB is one that was not in effect at the time the CSRB was granted.) Unexpired accession bonus ADOs would be served before serving the CSRB ADO.

13. Information regarding renegotiation of the DOMRB was issued in worldwide Department of the Army message 211017Z September 1999, Subject: Fiscal Year 2000 Army Dental Corps Officer Multiyear Retention Bonus (DOMRB) Pay Policy, Plan and Rates. The wording was “Subject to acceptance by the Secretary of the Military Department concerned (or designee), a dental officer with an existing DOMRB service agreement may terminate that agreement to enter into a new DOMRB service agreement at the annual rate in effect at the time of execution of the new agreement. The length of the new DOMRB agreement period must be equal or longer than the original obligation period specified in the DOMRB agreement being terminated. Any unearned portion of the terminated agreement shall be recouped.”

CONCLUSIONS:

1. The Board notes that the applicant could have applied for the CSRB even without changing his DOAB to a DOMRB; however, by having a DOAB ADO, he would have been required to serve the additional CSRB ADO consecutively with the new ADO. It is clear to the Board the applicant does not desire to have that additional obligation.

2. The Board also acknowledges AMEDD Special Pay Branch's opinion that the applicant would have been eligible for both the DOAB and the DOMRB at the time he re-accessed into the Army in August 1999. However, had he been offered that opportunity and had he taken it, the two ADOs would have run consecutively and his ADO would have ended in August 2007. The Board does not believe he would have taken both bonuses had he been offered them. The Board concludes that he would have taken one or the other and it is reasonable to believe he would have taken the more generous DOMRB.
3. The Board concludes that the applicant has presented a logical reason, with supporting evidence, to explain why he accepted only the DOAB.

4. One of the applicant's Health Care Recruiters had provided a statement attesting that the applicant was not counseled regarding the DOMRB. His reason was that recruiters primarily see recent dental school graduates who are eligible for accession bonuses but are not eligible for retention bonuses. Therefore, notwithstanding the fact the recruiters may have received information on retention bonuses, they are not that familiar with processing retention bonuses.

5. The applicant also rebutted that, if one were offered a DOAB of $30,000 for a 4-year ADO or a DOMRB of $56,000 for the same 4-year ADO, it should be no stretch for a prudent person to know which bonus they would accept.

6. One of the applicant's requests is that his records be corrected to show he renegotiated his DOMRB (provided the Board grants this relief) in August 2002 (the effective date would be 3, not 2, August 2002). Such renegotiation would extend his DOMRB ADO to 2 August 2006. This request also leads the Board to believe that, if he is not willing now to extend his ADO to 2 August 2007, he would not have been willing to extend his ADO out to 2 August 2007 by accepting the DOAB and the DOMRB when he re-accessed in 1999, either.

7. Since it appears to the Board the applicant never wanted more than a 4-year ADO, given the options of accepting either the DOAB or the DOMRB or both, the Board accepts the applicant's contention that he would have accepted only the DOMRB when he re-accessed in 1999 had he been offered it.

8. The Board notes AMEDD Special Pay Branch's explanation for not supporting the applicant's request for the CSRB. However, the Board has the authority to correct the applicant's records to show he in fact executed a CSRB contract prior to 30 September 2002. Since the Board accepts the applicant's arguments why his records should be corrected to show he accepted a DOMRB in place of a DOAB, the Board concludes it would be reasonable to presume that, had his DOMRB been in place in August 2002, he would have applied for and received the CSRB. It would be equitable to correct his records to reflect that fact.

9. The applicant requests that his records be corrected to show he renegotiated his DOMRB contract in August 2002. Although there might be some hindsight involved in this request, the Board concludes that there is no compelling argument to justify not granting this request. His records should be corrected to show he renegotiated his DOMRB contract to be effective 3 August 2002, for 4 years, changing his ADO to 2 August 2006.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a. showing that the applicant accepted a DOMRB in the amount of $56,000 in lieu of a DOAB in the amount of $30,000 when he re-accessed into the Army on 3 August 1999 and that any required recoupment be made;

b. showing that the applicant renegotiated his DOMRB contract effective 3 August 2002 for a 4-year period, that this contract was accepted at the annual rate in effect at that time, and that any required recoupment be made; and

c. showing that the applicant executed a CSRB contract on 16 September 2002.

BOARD VOTE:

__lls___ __le____ _fcj ____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Luther L. Santiful__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002079614
SUFFIX
RECON
DATE BOARDED	20030529
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	128.00
2.
3.
4.
5.
6.