IN THE CASE OF:	

		BOARD DATE:	23 July 2009    

		DOCKET NUMBER:  AR20090003751 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests payment of a Multi-year Special Pay (MSP) and linked Multi-year Incentive Special Pay (MISP) Bonus with an active duty service obligation (ADSO) that runs concurrently with his existing Graduate Medical Education (GME) obligation.

2.  The applicant states, in effect, he completed an Army-sponsored pediatric orthopaedic fellowship in 2002.  He alleges that at the time he signed the contract for this GME training, he was not informed of the opportunity to execute an MSP/MISP.  The applicant also states that had he received the information about the obligation running concurrently, as stated in the Fiscal Year 2008 Army Medical Corps Special Pay Policy, paragraph 13c2, he would have contracted for the bonus.  This would maintain his active duty service obligation date as 18 May 2011, as his additional GME obligation and MSP obligation would run concurrently.  The applicant continues that he was told that if he desires to sign for an MSP/MISP now, the obligation for such a bonus would begin after the expiration of the ADSO he incurred for the GME training.  The applicant concludes that he would simply like the opportunity to accept the MSP/MISP bonus retroactively and have the ADSO run concurrently with the existing obligation he incurred for fellowship training.

3.  The applicant provides an extract from the Army Pay Chart for calendar year 2000, a memorandum from the Department of the Army's U.S. Total Army Personnel Command, and a memorandum from the Department of the Army's Office of the Surgeon General (OTSG) as documentary evidence in support of this application.
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military records show he attended Brigham Young University, was awarded a Bachelor of Science degree in Pre-Medicine, and was commissioned as a second lieutenant in the U.S. Army Reserve on 16 April 1987.

3.  The applicant was ordered to active duty effective 19 July 1988 for the purpose of attaining a degree in medicine from the Uniformed Services University of Health Sciences.

4.  The applicant earned his degree in general medicine in 1992.

5.  The applicant was commissioned in the U.S. Army Reserve in the Medical Corps and entered active duty in the rank of captain with prior commissioned service.  The applicant was subsequently promoted to the rank of major and ultimately promoted to the rank of lieutenant colonel and is currently serving on active duty as a Medical Corps officer.

6.  The applicant provides a Department of the Army, OTSG, Falls Church, Virginia, memorandum which shows that he accepted the terms of agreement for participation in the Army GME training program.  This agreement committed the applicant to participate in Army-sponsored civilian training under the partially-funded GME program in children's orthopaedics at a civilian institution beginning on or about 1 August 2001 with a scheduled completion date of 31 July 2002.

7.  The applicant provides a Department of the Army, U.S. Total Army Personnel Command, Alexandria, Virginia, memorandum which shows the Chief of the Health Services Division congratulated him on his selection for Army GME fellowship training in children's orthopaedics at a civilian institution.  The Chief of Health Services also informed the applicant that participation in this program incurred an ADSO and that upon completion of the scheduled training his new ADSO would end on 18 May 2011.  The applicant acknowledged his acceptance of the ADSO and authenticated the memorandum with his signature.

8.  The applicant successfully completed a fellowship in pediatric orthopedics at the University of Utah School of Medicine on 31 July 2002.

9.  In the processing of this case, an advisory opinion was requested from the OTSG.  On 4 May 2009, the Chief of the Army Medical Department (AMEDD) Special Pay Branch provided an advisory opinion to the Board.

10.  The Chief, AMEDD Special Pay Branch, notes that the applicant is petitioning for an opportunity to execute retroactive MSP and linked MISP agreements effective prior to entering his fellowship training, which would have allowed for receipt of payments with concurrent obligations.

11.  The Chief, AMEDD Special Pay Branch, points out that the applicant completed his initial residency training program and executed the annual Incentive Special Pay (ISP) agreement for $36,000 per year effective 1 October 2001, and at the same time policy in fiscal year 2001 would have enabled the applicant to execute a 2, 3, or 4-year MSP agreement as of 1 July 2001.  Therefore, the applicant would have had to execute the MSP agreement prior to entering into the new fellowship training program on 1 August 2001.  The 2, 3, or 4-year MSP agreement obligation would have been served consecutively to the residency training obligation which ended on 17 May 2009, but concurrently with the fellowship training obligation which ends on 18 May 2011.

12.  The Chief, AMEDD Special Pay Branch, summarized and opined that the applicant met eligibility criteria as outlined above and:

	a.  in order to complete his petition, the applicant must choose an MSP agreement effective date between 1 July 2001 and 31 July 2007, as well as the length of obligation to run consecutive to his residency training ADSO of 17 May 2009 from below:

		(1)  2-year MSP at $9,000 per year,

		(2)  3-year MSP at $10,000 per year, or

		(3)  4-year MSP at $14,000 per year;

	b.  procedures and policy do not allow the applicant to retroactively execute and receive payment for the MSP for the period requested even based on what appears to be extenuating circumstances.  If approved, the Defense Finance and Accounting Service (DFAS) must complete the action.

13.  The Chief, AMEDD Special Pay Branch, also notes that the applicant has already been paid linked MISP as an annual ISP at the constant rate of $36,000 per year.  Therefore, this portion of his request will not be discussed further in this Record of Proceedings.

14.  The favorable staff opinion from the OTSG was forwarded to the applicant for his acknowledgment and/or rebuttal.  The applicant concurred with the advisory opinion on 13 May 2009 and states, in effect, that had he been afforded the opportunity, he would have signed a 2-year MSP bonus agreement that would have resulted in an obligation until 18 May 2011 which would be served concurrently with his fellowship obligation.  The applicant concludes that he would like to re-negotiate his contract at this time and sign a 2-year MSP agreement with the understanding that this action will not change his current ADSO.

DISCUSSION AND CONCLUSIONS:

1.  It appears from the available evidence that the applicant was not properly advised of his eligibility and the procedural requirements to execute an MSP contract.

2.  The applicant was not paid the $9,000 per year for a total of $18,000 that he would have been entitled to had he been properly advised of his eligibility and the procedural requirements to receive the MSP.

3.  The applicant now requests that he be allowed to retroactively execute a 
2-year MSP contract to be effective on a date prior to the time that he incurred the additional 2-year GME obligation for his current fellowship, which would allow the two obligations to be served concurrently.

4.  The Chief, AMEDD Special Pay Branch, has opined that the applicant is eligible to execute a 2-year MSP on any start date between 1 July 2001 and 31 July 2007 and that the resulting ADSO would be served during the period from 18 May 2009 through 18 May 2011.

5.  Since the period of arrears exceeds the authority as granted the OTSG by DFAS, authority to execute a retroactive contract for MSP must be approved by this Board and DFAS directed to make the disbursement.

6.  In view of the facts and equity considerations in this case, the applicant is entitled to execute a retroactive 2-year MSP contract for MSP and payment in arrears of $18,000 MSP for any period of 2 years between 1 July 2001 and 31 July 2007.

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

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 by:

	a.  authorizing the applicant to execute a 2-year MSP contract for the period of 1 August 2005 through 31 July 2007; and

	b.  processing the approved contract through the AMEDD Special Pay Branch, OTSG, to DFAS for payment of the $18,000 due the applicant in arrears as a result of these Proceedings.




      _____________X____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20090003751



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ABCMR Record of Proceedings (cont)                                         AR20090003751



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