RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            7 December 2004
      DOCKET NUMBER:   AR2004105821


      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. Mark D. Manning               |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Mr. James B. Gunlicks             |     |Member               |

      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 a prorated payment of Incentive Special Pay
(ISP).  (The Army Medical Department (AMEDD) Special Pay Branch, U. S. Army
Human Resources Command (USAHRC) informed the Board analyst on           23
November 2004 that the applicant renegotiated his Medical Additional
Special Pay (MASP) contract effective 1 September 2003 through 31 August
2004.)

2.  The applicant states that he was denied ISP because his last tour of
active duty was only 11 months.  Prior to the spring of 2003, his local
personnel folks had told him he would be entitled to ISP for his last year
of service, 1 October 2003 through 31 August 2004, before his mandatory
release date (MRD) of      31 August 2004.  However, he was thereafter told
he would not be able to receive it because he would not be serving for 12
months.  Based on that information, he tried to get his MRD extended to 1
December 2004.  His request was disapproved.  Next, he submitted a request
for curtailment [from his overseas assignment] so he could accept a
civilian position.  That request was denied, which cost him an opportunity
for a $250,000 per year job.  He submitted another request, for a 1-month
extension of his MRD, but that request was also denied.

3.  The applicant provides a 2-page email dates of communication 17 and
    18 March 2003; a memorandum from the applicant dated 11 April 2003; a
memorandum from Headquarters, U. S Army Europe Regional Medical Command
dated 25 August 2003; a DA Form 4187 (Personnel Action) dated    18 August
2003; a memorandum from the U. S. Army Medical Department Activity,
Wuerzburg dated 18 August 2003; and two 2-page emails last date of
communication 15 September 2003.

4.  The applicant also provides a DA Form 1559 (Inspector General Action
Request) dated 1 December 2003 and the response of the Office of the
Inspector General, Headquarters, U. S. Army Europe Regional Medical Command
dated    9 January 2003 (sic); a memorandum from the applicant dated 23
January 2004; a 1-page email last date of communication 12 January 2004; a
1-page email date of communication 12 February 2004; an extract from
USAHRC's website which includes a Medical Corps Special Pay Information
Paper for fiscal year 2004 (FY04), a Medical Corps Special Pay Message,
Medical Special Pay Rates for FY04; and Variable Special Pay rates for
FY04; and his Officer Record Brief (ORB).

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 7 August 1941.  He accepted appointment in
the U. S. Army Reserve as a Medical Corps Major on 6 October 1983.  He was
promoted to Lieutenant Colonel on 3 October 1990.  He entered active duty
on 26 October 1991.

2.  By message dated April 2001, authority to retain the applicant on
active duty from 1 September 2003 until 31 August 2004 was granted for the
purpose of accepting an assignment to Germany where there were critical
shortages of urologists.

3.  The applicant's date of arrival in Germany cannot be determined.  His
ORB shows his DEROS (date of expected return from overseas) as 27 May 2004.

4.  By email dated 18 March 2003, the AMEDD Special Pay Branch informed the
applicant that if he wanted ISP, which would be effective 1 October 2003
through 30 September 2004, he would need an extension [of his MRD] to 30
September 2004.

5.  On 11 April 2003, the applicant requested an extension of his MRD from
      1 September 2004 to 1 December 2004 so he could complete his ISP and
MASP contract.  His request was denied.

6.  On 18 August 2003, the applicant requested curtailment of his overseas
tour from 27 May 2004 to 1 January 2004 so he could accept a job
opportunity.  His request was denied.

7.  On 24 January 2004, the applicant requested an extension of his MRD to
   30 September 2004 to qualify him to receive ISP.  His request was
denied.

8.  Military Compensation Background Papers, fifth edition dated September
1996, states that the legislative authority for special pay for physicians
(medical officers of the Armed Forces) is Title 37, U. S. Code, sections
301d, 302, 303a, and 303b.  As background, it states that despite the
piecemeal additions of pays and different categories of personnel to the
health professionals special pay program, there is, and has always been, a
single unifying theme underlying the program – namely, the need to attract
and retain a sufficient number of qualified health professionals to meet
the health care demands of the armed forces.

9.  Incentive Special Pay is paid to specific Medical Corps officers
possessing a current, unrestricted license based on board
eligible/certified specialty and execution of a contract.  The contract is
for a one-year active duty obligation.  If the officer has less than 12
months remaining on active duty, the contract initiates a request for an
extension on active duty.  The Medical Corps Branch, USAHRC must approve
the officer's request to remain on active duty for the special pay contract
to be paid.

10.  Office of The Surgeon General message date time group 091126Z
September 2003, subject:  FY04 Army Medical Corps Officer Special Pay
Policy, Plan and Rates, prescribed Army policy governing five special pays
(including ISP) for active duty Medical Corps officers.  Paragraph 14A of
the message noted that participation in the ISP program constituted a
voluntary retention program of officers with a separation date that would
not allow time to complete the proposed active duty obligation period.
Paragraph 14B of the message noted that an agreement could not extend
beyond a legislated mandatory separation or retirement date for age or
service unless the subject officer's separation or retirement was deferred
in advance.  Paragraph 17 noted that renegotiation of special pay
agreements solely for the purpose of changing the anniversary date to
coincide with a release from active duty date was not authorized except for
MASP.  Officers facing mandatory retirement could renegotiate an MASP
agreement to permit execution of a new final 12-months MASP agreement.

11.  Army Regulation 614-30 (Overseas Service), paragraph 5-1 states that,
to enhance stability and reduce costs of overseas assignments, Soldiers
must serve the prescribed tour lengths (36 months for a with dependents
tour in Germany) for the area to which they are assigned.  Curtailments
will be minimized and granted on a case-by-case basis only when early
return from overseas is the last recourse available to resolve the
situations that require immediate aid or action.  Paragraph 5-2 gives
examples of exceptional curtailment cases – potential defection or
desertion of investigative or intelligence personnel; extreme personal
hardship; when in the best interests of the Army; threat to life; or when
children become victims of physical or sexual abuse.

12.  Army Regulation 614-30 also states that a Regular Army officer nearing
mandatory retirement and who has less than 12 months service remaining at
DEROS will be involuntarily extended to allow return to the States with
only enough time remaining for travel and separation processing.

DISCUSSION AND CONCLUSIONS:

1.  The rules for providing ISP are governed by statute.  Statute requires
a full-12-month retainability period before an ISP contract can be
executed.

2.  The applicant did not have 12 months remaining after the expiration of
his previous ISP contract.  He may have been informed prior to the spring
of 2003 that he would be entitled to ISP for his last 11 months of service;
however, it is not clear what he could have done had he not been
misinformed.  It appears he would not have been eligible for a curtailment
at any time during his overseas tour.  He could have requested voluntary
retirement coincidental with his normal DEROS which, combined with
transition leave, may have permitted him to accept a civilian position;
however, that would have required a recoupment of any other special pays he
was receiving.  The Board will not substitute its judgment for that of the
commanders, to include those at USAHRC, who disapproved his requests for
extension of his MRD.

3.  Regrettably, the applicant did not meet the statutory requirement for
executing an ISP contract for his last 11 months of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __jed___  __jbg___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            __Mark D. Manning_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105821                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041207                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.17                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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