RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          29 July 2004
      DOCKET NUMBER:  AR2004099910


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Mr. Thomas O'Shaughnessy          |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be allowed to execute a new
Dental Additional Special Pay (DASP) contract effective from, in effect, 1
August 2002 through 31 July 2003 and that he be paid DASP for this period.

2.  The applicant states that he has not received his DASP payment.

3.  The applicant provides a letter from a legal assistance attorney, his
DASP contract, e-mails and a copy of Department of the Army (DA) Message
R091206Z Sep 02, Subject: FY03 Army Dental Corps Officer Special Pay
Policy, Plan and Rates.

CONSIDERATION OF EVIDENCE:

1.  The applicant's complete personnel records are not available.  However,
his Officer Record Brief (ORB) shows his basic date of appointment as 12
May 1975 as a Dental Corps officer.  His ORB shows he was promoted to
lieutenant colonel on 22 January 1986.

2.  On 2 May 2003, the Mannheim Transition Center issued orders retiring
the applicant from active duty to be effective 31 July 2003 and placing him
on the retired list on the date following.  These orders show, at the time
of his retirement, he will have completed 32 years, 1 month and 23 days of
service for retired pay purposes.

3.  In an 11 June 2003 memorandum, a legal assistance attorney made a
written request to adjust the applicant's DASP agreement.  The legal
assistance attorney based his request on paragraph 14b of the Fiscal Year
2003 (FY03) dental special pay message (date time group R091206Z Sep
02/DA/DASG-PTZ) which authorized the renegotiation of DASP agreements for
officers facing mandatory retirement and permitted such officers to receive
DASP during their last months of active duty.  The legal assistance
attorney stated that the applicant received retirement orders dated 2 May
2003 which set his mandatory retirement date at 31 July 2003.  He stated
that the applicant's last agreement ran from the period 20 February 2002
through 19 February 2003, which, if not adjusted, would deprive the
applicant of over five months of DASP.  Because the applicant did not have
twelve months of "retainability" at the time his most recent DASP agreement
expired, he could not execute another DASP to cover his remaining months on
active duty.

4.  On 30 June 2003, the applicant executed a one-year continuous active
duty service agreement and authorization for DASP.  The contract states
that it was to be effective 30 July 2002 and, upon the effective date, he
had completed
27 years of creditable service.  The contract stated that, "In
consideration of my entering into the foregoing agreement, the U.S. Army
agrees to pay me DASP, subject to the availability of funds payable in a
one time lump sum, in the amount of $15,000.00."

5.  The FY03 Army Dental Corps officer special pay policy, plan and rates
were provided in a September 2002 message.  Paragraph 14b states that
Dental Corps officers facing mandatory retirement often cannot receive DASP
during their last months on active duty because they do not have the
retainability to execute a twelve month DASP agreement as required by law.
Therefore, the Assistant Secretary of Defense (Health Affairs) approved
that preceding mandatory retirement only, Dental Corps officers ongoing
DASP agreements may be terminated in time to permit execution of a new
final twelve-month DASP agreement.  Unearned DASP from the terminated
agreement period must be recouped on a pro rata basis.

6.  Paragraph 14b of the FY03 Army Dental Corps Officer Special Pay Policy,
Plan And Rates September 2002 message also states that ongoing DASP
agreements may be terminated in time to permit execution of a new final
twelve-month DASP agreement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant executed a one-year contract active duty service
agreement and authorization for DASP to be effective 20 February 2002.
However, during the execution of this contract, he received retirement
orders with a mandatory retirement date of 31 July 2003.

2.  Although the applicant had executed an active duty service agreement
and authorization for DASP on 30 June 2003 to be effective 30 July 2002,
that contract was invalid as it could not have been executed prior to his
retirement.  However, he performed his duties as a dental officer and he
should now be allowed to renegotiate his current contract and execute a new
contract to receive payment of DASP through his mandatory retirement date.

3.  It is determined that it would be in the interest of justice to allow
the applicant to process a new DASP contract effective 1 August 2002
through 31 July 2003 and that he be paid the DASP amount authorized.

BOARD VOTE:

JS______  RD______  TO______  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected:

      a.  by showing he renegotiated his DASP contract effective 1 August
2002;

      b.  by issuing him a DASP contract effective 1 August 2002 with an
obligation through 31 July 2003; and

      c.  by paying him any monies due, if appropriate, based on the
execution of the new contract.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
executing a new DASP contract effective 31 July 2002 through 31 July 2003.





            John Slone____________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004099910                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040729                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |128.1900                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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