MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 August 2003
         DOCKET NUMBER: AR2002082500

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Robert Duecaster		Member
Ms. Marla J. Troup		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 he be allowed to request a 4-year Multiyear Special Pay (MSP) contract effective 1 July 1999.

APPLICANT STATES: That, according to the Army Medical Department (AMEDD) Special Pay Branch, a window opened in fiscal year 1999 (FY99) to allow physicians to enter into such agreements and not incur an additional active duty obligation (ADO). He had incurred a 4-year ADO from a 4-year Reserve Officers' Training Program (ROTC) scholarship. He graduated from the Uniformed Services University of Health Sciences (USUHS) on 19 May 1990 with an additional 7-year ADO and entered active duty with a total of 11 years of obligated time. After completing 8 years of active duty in May 1998 he was eligible for an MSP contract. At that time he was selected to attend fellowship training in Thoracic Surgery in Salt Lake City, UT while assigned to the AMEDD Student Detachment at Fort Sam Houston, TX. Due to his remote location, he had difficulty in obtaining other special pay contracts and he was never informed nor was he aware that during FY99 there was a window to sign an MSP contract whereby his ROTC contract would be waived (in effect, not incurring an additional obligation for an MSP). If he had known about the window of opportunity, he would have signed the MSP agreement for the maximum time of non-medical obligation.

As supporting evidence, the applicant provides a letter of support from the Special Pay Technician at Tripler Army Medical Center, HI. That technician states that he has been in the Special Pay business since 1984 and considers himself to be an expert in his field. He became aware of the "window" as early as July 1998. He had received clarification from Mr. E___, at AMEDD Special Pay Branch by phone. As a result he processed one MSP agreement effective 30 September 1999 for Major C___, who, rather than wait for an increase in special pay rates for FY2000, took advantage of having his ROTC obligation run concurrently with the 4-year MSP ADO.

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

That, after completing ROTC, he attended USUHS. He was appointed a captain in the Medical Corps and, according to AMEDD Special Pay Branch, entered active on 1 July 1990.

In the processing of this case, an advisory opinion was obtained from the Office of The Surgeon General (OTSG), AMEDD Special Pay Branch. That office noted that, on 1 July 1999, the applicant had a recorded ADO of 20 May 2007 and a Health Professions Pay Entry Date (HPPED) of 1 July 1990. Based on the eligibility criteria, the earliest he would be eligible to execute an MSP retention contract would be 1 July 1998 (at that same time as he entered his fellowship and incurred an additional ADO through 20 May 2011). AMEDD Special Pay Branch opined that based on HPPED eligibility, the applicant met the criteria for the 4-year MSP retention bonus with requested effective dates of 1 July 1999 through 30 June 2003. The obligation for the 4-year MSP retention bonus would be effective 21 May 2007 through 20 May 2011. That office further noted that Department of Defense Directive (DODD) 6000.13 (Medical Manpower and Personnel) dated 30 June 1997 and Assistant Secretary of Defense for Health Affairs policy precludes concurrent obligation of this retention bonus with any initial training obligation.

AMEDD Special Pay Branch went on to note that the requested FY99 MSP rate for a General Surgeon is $14,000 per year and the linked Incentive Special Pay (ISP) rate is $25,000 per year for the duration. The applicant has already received payments for ISP. If his request is approved and paid for the MSP requested, there would have to be an adjustment for the overpaid difference.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He stated that his request should be viewed primarily as an equity matter. Although DODD 6000.13 is now interpreted as precluding concurrent payback of ROTC and MSP obligations, that was not the interpretation during the window in FY99 that others in his year group were able to take advantage of. It is his understanding that OTSG did not arrive at an advisory opinion of the DODD 6000.13 until 12 December 2001. His initial application pre-dated this on 17 October 2001. The "precedent" case cited in his letter of support is not different from his own case. He can provide additional cases in order to arrive at a positive advisory opinion.

A previous case (AC98-11575, date of application 3 September 1998, date of OTSG advisory opinion dated 18 November 1998, and considered by the Board on 18 February 1999) considered the same relief requested by the current applicant under similar circumstances. That case noted in part that OTSG opined, "…Department of Defense Directive 6000.13…precludes this concurrent obligation scenario. It is also Congressional intent and Health Affairs policy that MSP was meant to extend a physician beyond his current active duty obligation and not provide a concurrent obligation. This issue will be addressed and, effective 1 January 1999, all 2, 3, or 4-year MSP agreements will be additive to all active duty obligations currently held by the officer upon the effective date of the MSP…"

In a 21 August 2003 conversation between Mr. E___ at AMEDD Special Pay Branch and a member of the staff of the Board, Mr. E___ stated that he did not remember telling anyone about a "window" in FY99 in which an officer could sign an MSP agreement without a consecutive ADO. He remembers such discussions being held in 1998 but not in 1999. He did not particularly remember talking about this with the Tripler Army Medical Center Special Pay Technician but he did not rule such a 1998 conversation out.

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. 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 on unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The Board is not aware of any authorized "window" during FY99 that allowed an officer to sign an MSP agreement with the MSP ADO to run concurrently with an ROTC obligation. The applicant has not provided any evidence to show such a "window" was authorized. Notwithstanding his contention that OTSG did not arrive at its current opinion regarding the MSP and concurrent/consecutive ADOs until December 2001, the Board is aware that as of November 1998 OTSG determined that MSP agreements would be additive to ADOs currently held by the officer upon the effective date of the MSP. Effective 1 January 1999, OTSG would follow that policy. In the case that contained that advisory opinion, the applicant had submitted his application before 1 January 1999. The current applicant submitted his initial application almost 3 years after that date.

3. The Board evaluates each case on its own merits. While past actions (i.e., the granting or denying of relief), may be considered, the Board does not acknowledge “precedent” cases as such. In addition, the fact that relief was erroneously granted in the past is insufficient justification to perpetuate that error in the future.

4. 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

__rjw___ __rd____ _mjt____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082500
SUFFIX
RECON
DATE BOARDED	20030826
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	128.21
2.
3.
4.
5.
6.