MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 19 August 2003
         DOCKET NUMBER: AR2003084131


         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. John T. Meixell		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)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by adjusting his Active Duty Service Obligation (ADSO) from 9 April 2004 to 31 December 2000.

APPLICANT STATES: Through counsel, in effect, that the Board did not consider an issue he raised in the beginning of his initial submission to the Board, a contention he believes so important that he highlighted that portion of his brief. That contention is that the Army is obligated to comply with the terms of the applicant’s 1992 Multiyear Special Pay (MSP) contract as written. He contends that the Fiscal Year (FY) 1993 guidance on MSP stated that the entry into a new MSP agreement was conditioned on terminating an existing MSP agreement. Thus, when the applicant executed the 1992 MSP contract, the 1991 MSP contract ceased to have any legal effect.

If the 1992 MSP contract is accepted as the standalone document it is, then by contract law the obligation incurred by the applicant for the MSP was two years starting on 22 May 2000, which gave him an ADSO of 21 May 2002. The later computation of the applicant’s ADSO by the Army Medical Department (AMEDD) was not agreed to by the applicant and, therefore, had no force in law.

Counsel again expresses concern over the meeting held between the staff of the Board and AMEDD personnel to discuss his case. Counsel contends that he was notified of the meeting only a “couple of days” ahead of time, and had existing appointments for the time the meeting was to be held. His absence precluded a proper analysis of the case, an analysis which resulted in the staff of the Board concluding that there was no error or injustice in the applicant’s ADSO. Since the Board must out of necessity rely on the recommendation of the staff of the Board, this sequence of events prevented his client from having an impartial hearing by the Board.

Counsel then contends that the AMEDD “achieved much of its position” in this case by its non-responsiveness to the applicant’s earlier requests. The applicant initially requested recalculation of his ADSO in February 2000, and did not receive a response until July 2000, and that response was made after the intervention of the Inspector General. The uncertainty caused by that delay resulted in the applicant contracting for the Incentive Special Pay (ISP) and the Medical Additional Special Pay, which further extended his ADSO.

Counsel adds that by the acceptance of an ISP and MSP in 1992, the applicant was locked into that amount, an amount that would soon be equal to what an orthopedic physician would receive for ISP alone. Counsel says the applicant is grateful for the education provided by the Army, and depicts him as a physician who provides faithful, extremely competent service to his patients and the Army. Counsel contends the applicant is not a “chronic complainer or manipulator of the system” as the AMEDD has portrayed him to be.
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2000048719) on 26 March 2002.

The applicant’s counsel’s contentions are new argument that requires Board consideration.

On 14 February 1991, the applicant signed an MSP contract. In that contract it was stated that “My current active duty service obligation for medical education/training expires on 22 May 2000. The four years of continuous active duty that I agree to serve will be effective on 23 May 2000.

On 26 February 1991, the Office of The Surgeon General (OTSG) transmitted a message which stated, in pertinent part, “8b. Obligation for MSP begins after the obligations incurred for medical education and training and/or previous multi-year pay agreements such as MORB current at the time of agreement execution expire.”

On 11 December 1992, the applicant executed a new MSP. In that contract it was stated that “My current active duty service obligation for medical education/training expires on 22 May 2000. The 2 years of continuous active duty that I agree to serve will be effective on 22 May 2000 (enter effective date which is either the effective date of the agreement if no current medical education/training obligation exists or the day after any current service obligation for medical education/training expires).”

The Comptroller General of the United States has ruled in similar cases that although a service member may have been misinformed about his entitlements, the Government is not liable for erroneous actions of its officers, agents, or employees in the performance of their official duties.

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

1. The applicant executed a legally binding MSP contract on 14 February 1991. Since he properly executed this contract and received monetary benefits from it, he was obligated to the terms of that contract. The terms of that contract were that he would incur a 4-year ADSO in exchange for the special pay.

2. In accordance with the OTSG message, a message that was transmitted well prior to the applicant’s 11 December 1992 MSP contract, execution of an obligation for MSP began after the obligations incurred for medical education and training and/or previous multi-year pay agreements current at the time of agreement execution expire. As such, the 4-year ADSO incurred in the 1991 MSP remained binding.

3. The sole issue in this case is the entry on the applicant’s 1992 MSP contract that he would begin his 2-year ADSO current active duty service obligation when his medical education/training ADSO obligation expired on 22 May 2000. This was in error. The contract should have reflected a date which prorated the remaining amount of ADSO he incurred as a result of his 1991 MSP contract.

4. At the very worse, this was an oversight by the official completing the 1992 MSP addendum. However, the applicant had the education and intelligence to realize that the Army would not give him a year and a half of MSP without his incurring an additional ADSO.

5. Since the Comptroller General has ruled that although a service member may have been misinformed about his entitlements, the Government is not liable for erroneous actions of its officers, agents, or employees in the performance of their official duties, there is no legal necessity to change the applicant’s ADSO.

6. As for counsel’s other concerns, his objection to the meeting between the staff of the Board and the AMEDD is noted. However, counsel merely cites how this meeting could have influenced the outcome of the Board’s consideration. Counsel does not offer any law, regulation or precedent to support his objection because none exists. The meeting was held in accordance with applicable regulations.

7. The counsel’s allegation that the AMEDD’s undue delay in the processing of his client’s request for ADSO recalculation caused him to incur additional ADSO is not accepted by the Board. The applicant waited around 8 years after he signed his 1992 MSP contract to request a recalculation. He then submitted a very complex scenario which had to be staffed to insure a proper response. A five month response time for such a request does not appear all that excessive given the circumstances, and would not have been an issue if the applicant had submitted his request in a more timely manner.

8. Whether or not ISP and MSP rates changed after the applicant executed his MSP agreement is not germane to this case.

9. The Board is sure that the applicant is grateful for the education provided by the Army, and provides faithful, extremely competent service to his patients and the Army. The Board has not stated otherwise.

10. The Board must reduce this case to its lowest common denominator. Is there an administrative error? Yes. But that error did not mislead the applicant when he executed that contract since he already knew he incurred an ADSO with his 1991 MSP contract. Is the applicant being asked to serve more years on active duty than what his schooling and additional pay warranted? The answer is no. As such, there is no injustice to correct.

11. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

12. 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___ ___mvt__ ____jtm__ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2003084131
SUFFIX
RECON
DATE BOARDED	20030819
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	128.06
2.
3.
4.
5.
6.