IN THE CASE OF:	  

		BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130010868 


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 retroactive payment of his Medical Additional Special Pay (MASP) for physicians in the years 2007 and 2008.

2.  The applicant states his Army finance records and personal bank statements show that he did not receive the MASP military physician bonus during the years 2007 and 2008.  He did not realize he was not receiving the MASP bonus until 2010 when he was reviewing his finances.  He spent months dealing with finance trying to document that he was not paid and to identify the reason for nonpayment.  He thought that the Walter Reed Army Medical Center (WRAMC) finance office in Washington D.C. could deal with the problem; however, the WRAMC finance office was dissolved with the base realignment and closure (BRAC) and moved to the Bethesda, MD campus.  After resolving the issue with Army finance office in Bethesda, MD, he was told that he had to apply to the Army Board of Correction of Military Record (ABCMR).  He was honestly just too busy as the Integrated Chief of Gastroenterology at that point to complete the application.  He tried going on line but was unable to scan and email his documents.  As noted in the "Letter of Lateness" he was on a "retiree recall" status because his mandatory removal date (MRD) was 31 July 2004.  This was part of the reason he did not receive his MASP.  Most of the active duty officers were contacted to sign the MASP but since his status was "retiree recall" he was not called to sign this bonus and he believes the number of administrators and finance individuals had been cut severely.  He also noted that he will reach his expiration of term of service on 31 July 2013.


3.  The applicant provides:

* Master Military Pay Account (MMPA) history report
* Email, dated 29 September 2010
* DA Form 2142 (Pay Inquiry), dated 31 May 2013
* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code (USC), Section 1552), dated 31 May 2013
* four checking account statements
* Letter of lateness for MASP
* Curriculum vitae

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 was appointed as a reserve commissioned officer in the Medical Corps on 3 April 1972.  He entered active duty on 22 July 1974 and held the area of concentration (AOC) 60G (Gastroenterologist).  He served in a variety of stateside or overseas assignments.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired in the grade of colonel (COL) on 31 July 2004.

3.  Orders 59-3-A-1411, issued by the U.S. Army Human Resources Command (HRC) on 28 July 2004 recalled him to active duty from retired status and ordered him to report to the WRAMC, Washington D.C. on 1 August 2004. 

4.  His record contains three MASP contracts which show:

* on 20 June 2010, he signed an MASP contract covering the period 1 July 2009 to 1 July 2010 for the lump sum of $15,000.00
* on 15 April 2011, he signed an MASP contract covering the period 1 July 2011 to 1 July 2012 for the lump sum of $15,000.00
* on 21 March 2012, he signed an MASP contract covering the period 1 July 2012 to 1 July 2013 for the lump sum of $15,000.00

5.  He was honorably retired (released from active duty) on 31 July 2013.  His DD Form 214 shows he completed 9 years of net active service during this period of active duty.

6.  An advisory opinion was obtained on 1 August 2013 from the Special Pay Branch of the Office of the Surgeon General (OTSG) in the processing of this case.  The advisory official stated:  

	a.  The applicant requested retroactive payment of MASP contracts at $15,000.00 per year effective 1 July 2007 and 1 July 2008.  The applicant indicated he had numerous problems regarding his active duty status and because of these issues the requested contracts were never executed.

	b.  A review of special pay and finance records indicated the applicant had a 4-year multi-year special pay (MSP) contract at $33,000.00 per year with a linked 4-year multi-year incentive special pay (MISP) contract at $29,000.00 per year effective 1 August 2005-31 July 2009, and a 4-year MSP contract at $50,000.00 per year with a 4-year MISP contract at $29,000.00 per year effective 1 August 2009-31 July 2013.  There is no record of annual MASP contracts at $15,000.00 per year effective 1 July 2007 and 1 July 2008 being requested during the same period these multi-year contracts were being signed.

	c.  Officers must bear responsibility for their part of the contract preparation, to include their inquiry as to eligibility, requesting the contract to be initiated, and executing the contract by signature up to 90 days in advance or within 30 days after the effective date; otherwise, the effective date must be established as the date of the signature.  All contracts executed outside of the policy for signature date or received outside the funded fiscal year are returned without action.

	d.  Although the applicant was eligible for the 1-year MASP contracts at $15,000.00 per year for the periods 1 July 2007-30 June 2008 and 1 July 2008-30 June 2009, they are not automatic and require the officer to request and execute their contracts by signature.  Since the multi-year contracts were processed during the same time period which the applicant stated problems prevented execution of the MASPs, support for retroactive payment of the MASP contracts cannot be substantiated.


7.  He responded to the advisory opinion on 17 October 2013 and stated:

	a.  If the Army regulations concerning this matter state that it was his responsibility as an officer to track the MASP contracts in question, then he is at fault because he did not recognize the lack of MASP payment until a few years later when he was going over his financial records.  However, he believes the following mitigating circumstances led to the failure to sign the MASP contracts in the years 2007 and 2008:

		(1)  Prior to this oversight, he had never had this problem in his 33 years of active duty.  Normally, an individual from the Department of Medicine would send out a message concerning the need to have all medical officers sign their bonuses.  A specific location would be chosen and multiple dates would be set aside for this important event.  The individual in charge would have a spread sheet to check off that the officer signed his or her bonus.

		(2)  After this oversight occurred he spoke with personnel in the Department of Medicine who were assigned the task of contacting medical officers to sign their bonus contracts.  The personnel in this office mentioned the fact that he was a "retiree recall" and stated that may have been a reason for his MASP not being available.  There were no other Army physicians in the WRAMC Department of Medicine who were "retiree recalled" at the time and, therefore, his paperwork may have been processed differently.

		(3)  He was probably not given the letter to "request and execute" the MASP with his signature for the years 2007-2008.  Those letters were usually prepared for the officer to sign.

		(4)  During the years 2007-2008, the Army finance office at WRAMC was being dismantled/was dismantled so inquiries had to be sent to other locations These oversights may have been due to insufficient staffing.

		(5)  During this period he had multiple responsibilities as the Chief of gastroenterology (GI) at WRAMC and was extremely busy:

* he supervised a gastroenterology service that included over 60 physicians and support staff
* he provided oversight to the largest Gl training program in the military
* he and his staff saw the sickest, most complex GI problems of Soldiers and retirees
* he was in charge of BRAC planning which included –

* helping to design the new Fort Belvoir, VA GI Service 
* the assignments/combining of WRAMC and National Naval Medical Center personnel which encompassed over 140 personnel

* he had numerous academic commitments (writing articles concerning his research, mentoring fellows in research) which required significant time and energy

	b.  He feels the ABCMR should also consider that:

		(1)  He has served as an academician and raised the visibility of Army GI – specifically at WRAMC – to international recognition.  During his tenure as a physician in the military, he published over 250 peer-reviewed articles, chapters, reviews, and abstracts.  He also directed 10 Walter Reed GI symposiums which were nationally acclaimed for their high quality.

		(2)  He was recently awarded "Master Fellow" of the American College of Gastroenterology for outstanding contributions to the College and Gastroenterology.

		(3)  His service to the military without thought of financial gain:

* he could have retired 19 years ago at 20 years and received 50% of his base pay for 10 years, he would have received at least $500,000 retirement pay
* he could have retired 9 years ago and received 75% of his base pay for 9 years and this would amount to at least $600,000 in retirement pay
* he saved the U.S. Government over $1.1 million because he did not retire at 20 years of service
* the U.S. Government only pays him his bonus because, at present with the new congressional ruling, he receives over 100% of his base pay as a retiree (46 years for pay purposes)
* finally, when Army-trained Gastroenterologists leave the military and take civilian positions most salaries are $400,000.00 per year

	c.  In summary, he recognizes that by the Army regulations he did not meet the standards for obtaining his MASP.  However, he strongly feels that there were probably circumstances at WRAMC which may have led to his failure to obtain the letter of request and, ultimately, his failure to sign the MASP contracts. He sincerely asks the ABCMR to consider his contributions to Army Gastroenterology and the military personnel that he served.

8.  He provided an MMPA history report that shows he did not receive the MASP bonus during the years 2007 and 2008.

9.  He provided a DA Form 2142, dated 31 May 2013, wherein he stated he had not been paid MASP for the periods 1 July 2008-30 June 2008 and 1 July 2008-30 June 2009.  He attached the following supporting documentation:

	a.  He provided a DD Form 149, dated 31 May 2013, wherein he stated he did not receive his MASP payments for the periods 1 July 2007-30 June 2008 and 1 July 2008-30 June 2009.  This resulted in the loss of $30,000.00 in MASP bonus payments.  Previously at WRAMC someone went over all contracts with physicians.  This stopped in 2007 because he was in a recall status.  

	b.  he provided an email from the Medical Special Pay Coordinator at WRAMC, dated 29 September 2010, wherein the official stated that his MASP had not been signed since the 1 July 2006-30 June 2007 period and indicated that he was missing contracts for the periods 1 July 2007-30 June 2008 and 1 July 2008-30 June 2009.  She advised that he should check his Army Knowledge Online (AKO) account for his contracts.  She further stated that her office completed his contracts for the periods 1 July 2009-30 June 2010 and 1 July 2010-30 June 2012. 

	c.  He provided four checking account statements for the periods 9 June 2007-10 July 2007, 11 July 2007-8 August 2007, 10 June 2008-9 July 2008, and 10 July 2008-8 August 2008.  These statements do not show any deposits for MASP in the amount of $15,000.00.

	d.  He provided an undated letter of lateness for MASP, wherein he stated that he had been unable to receive MASP because he had not receive a DD Form 214 at the time of his MRD (31 July 2004).  

		(1)  He was recalled to active duty from 1 August 2004 to 31 July 2006.  He later requested an extension and his orders were subsequently extended from 1 August 2006 to 31 July 2008.  After his extension he submitted a packet for a 4-year recall; however, the All Army Activities (ALARACT) Message in effect at the time was mistakenly interpreted to mean that he could only receive a 
1-year recall.  This interpretation was later found to be incorrect, as the Medical Corps was excluded from the ruling and he was informed that since he had been chosen to serve as the Integrated Chief of GI, a 4-year recall was reasonable.

		(2)  He was told he could resubmit the paperwork for a 3-year recall and that he would still be able to receive the 4-year bonus.  Unfortunately, because he was never issued a DD Form 214 at the time of his MRD his packet could not be submitted for the recall.  As a result, he was unable to get the recall because he was not officially retired.  This issue was rectified in early 2009.  

		(3)  His special pay was never activated because of the issues with his DD Form 214; however, he did receive an extension.

10.  Title 37, U.S. Code, Sections 301d, 302, 302f, and 303a, provide for multi-year retention bonuses and special pays for medical officers and health professionals of the armed forces.  For Army Medical Corps officers (Physicians), these special pays include MASP, which is paid to all Medical Corps officers upon completion of internship (not during initial residency) at the current rate of $15,000 (less taxes) for a one-year active duty obligation that can be served concurrently with all other obligations.

11.  The Department of Defense Military Pay and Entitlements Manual provides that medical officers on active duty are entitled to MASP provided they are not undergoing initial residency training.  In order to qualify for MASP, an agreement must be signed to remain on active duty for at least 1 additional year from the effective date of the agreement.  The MASP is paid annually in a lump sum effective the date of the agreement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive retroactive payment of MASP for the periods 1 July 2007-30 June 2008 and 1 July 2008-30 June 2009.  He stated he did not realize he was not receiving the MASP until 2010 when he was reviewing his finances.  

2.  The advisory opinion from OTSG indicated that OTSG conducted a review of his special pay and finance record.  This review found he signed two MSP and MISP contracts effective 1 August 2005-31 July 2009 and 1 August 2009-31 July 2013.  This time frame covers the period of the missing MASP contracts which should have been requested/signed during the same period these MSP and MISP contracts were being signed.

3.  He did not notice he did not receive MASP bonus payments until 2010, well after the fiscal year for the bonuses in question had expired.  Further, the issues he was having and his busy schedule did not prevent him from requesting and acquiring the other bonuses to which he was entitled. 

4.  He served for 30 years as a medical officer and during this time he would have signed numerous MASP bonuses.  He should have been experienced enough to know that the MASP was not included.  Officers are responsible for ensuring they request and execute their annual bonus contracts, such as the MASP.  These contracts are not automatic; they require the requesting officer's signature.  

5.  Additionally, his arguments only speculate that an error occurred in the system at finance, or at WRAMC, but he has not submitted any evidence to show that he did not receive his MASP because of an error on the part of the Government or a Government agent.

6.  Based on the evidence and the arguments he presented, it appears that he did not receive the MASP bonus because he did not exercise due diligence with regard to the MASP bonus and was too busy to properly/timely follow up on the action.  This does not constitute an error on the part of the government, nor is it an injustice.  This appears to be a simple matter of complacency on the part of the applicant.

7.  Based on the foregoing, there is an insufficient evidentiary basis with which to grant the requested relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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



      ___________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)                                         AR20130010868





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ABCMR Record of Proceedings (cont)                                         AR20130010868



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