IN THE CASE OF:	  

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130020721 


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 correction of his records to show he executed a Medical Corps (MC) Incentive Special Pay (ISP) contract effective 1 July 2009 through 30 June 2010 vice 1 October 2009 through 30 September 2010.

2.  The applicant states:

   a.  He is an active duty medical officer, specialty trained in the area of concentration (AOC) 60S (Ophthalmology) with a sub-specialty in Retinal Surgery.  He completed his sub-specialty training on 30 June 2009, which qualified him for a new, higher ISP rate.
   
   b.  All Army Activities (ALARACT) Message 303/2009, subject: Fiscal Year 2010 (FY10) Army MC Officer Special Pay Policy, Plan and Rates, paragraphs 7B(1) and 7G(3), stated completion of sub-specialty training which results in increased specialty pay rates allows an MC officer to renegotiate the anniversary date of the new ISP contract.  
   
   c.  Upon reporting to Brooke Army Medical Center (BAMC), Fort Sam Houston, TX, following his fellowship, he specifically requested to renegotiate his contract with an effective date of 1 July 2009.  The Army Medical Department (AMEDD) Specialty Pay Administrator, Mr. AH, told him he was not eligible to renegotiate it and stated a change in AOC was needed in order to be eligible to renegotiate.  As Mr. AH was the subject-matter expert charged with the responsibility of executing all AMEDD special pay contracts at the post, he accepted his expert opinion as fact and signed his ISP with an effective date of 1 October 2009.
   
   d.  Upon arriving at his current duty station at Madigan Army Medical Center (MAMC), Tacoma, WA, and reporting to the AMEDD Specialty Pay Administrator, Ms. JN, to sign his yearly ISP contract, she asked why he had not renegotiated his ISP contract anniversary date upon finishing his fellowship.  She informed him Mr. AH was wrong, but since the renegotiation was only permitted when an officer’s ISP rate changed, the one-time opportunity was lost. 
   
   e.  To address the issue, he contacted Mr. LE, AMEDD Special Pay Branch, Office of The Surgeon General (OTSG).  Mr. LE confirmed he had been eligible to renegotiate his contract with an effective date of 1 July 2009.  Mr. LE agreed an injustice occurred due to Mr. AH's incorrect understanding of the applicable policy, but informed him a correction could only occur via petition to the Army Board for Correction of Military Records (ABCMR).

   f.  The error by Mr. AH will result in a significant hardship for him and his family if not corrected.  He currently has an active duty service obligation (ADSO) that ends 30 June 2016.  All ISP contracts incur 1 year of ADSO starting on the effective date of the contract.  If he had been allowed to renegotiate his ISP contract in 2009 effective 1 July 2009, he would be able to sign his ISP contract in his last year of service without a change to his ADSO. 
   
   g.  As it stands, his ISP anniversary date of 1 October will force him to either accept 3 more months of ADSO in his last year of service or forego ISP entirely, with $36,000 of lost entitlement.  It is unjust that he should face a choice of accepting an additional 3 months of obligation versus a significant loss of pay due to an error that occurred through no fault of his own.  This error will be propagated throughout the rest of his career even if he chooses to continue his service beyond his obligation to retirement.  
   
   h.  The decision to accept ISP in his last year of service is much more significant than an additional 3 months of service implies.  It would drastically reduce his post-military employment options by effectively removing him from the summer hiring cycle that is pervasive in medicine due to the June graduation of medical school, residency, and fellowship.  He requests this error be corrected to reflect his ISP anniversary date as 1 July as permitted by special pay policy.

3.  The applicant provides an email, an ALARACT message, a memorandum, and one page titled Medical Operational Data Sheet (MODS) Active Duty (AD) Obligation Worksheet (OBS).

CONSIDERATION OF EVIDENCE:

1.  The applicant is an active duty MC officer and he holds AOC 60S.  He was promoted to the rank/grade of lieutenant colonel (LTC)/O-5 on 3 June 2012.  He currently serves as the Chief, Vitreoretinal Surgery, MAMC, Tacoma, WA.

2.  His records contain an MCISP contract, dated 21 October 2008, wherein he agreed to serve 1 year of continuous active duty for the ISP of $28,000 for the period 1 October 2008 to 30 September 2009.

3.  He attended and successfully completed the Vitreoretinal Surgery fellowship conducted from 1 July 2008 to 20 June 2009 at the University of Alabama, Birmingham, AL. 

4.  He was subsequently assigned to BAMC, Fort Sam Houston.  His records contain an MCISP contract, dated 28 October 2009, wherein he agreed to serve 1 year of continuous active duty for the ISP of $36,000 for the period 1 October 2009 to 30 September 2010.

5.  His records also contain MCISP contracts wherein he agreed to serve 1 year of continuous active duty for the ISP of $36,000 for the following periods:

* 1 October 2010 to 30 September 2011
* 1 October 2011 to 30 September 2012
* 1 October 2012 to 30 September 2013
* 1 October 2013 to 30 September 2014

6.  The applicant provides an email, dated 8 August 2013, to Mr. AH from Mr LE, OTSG, wherein Mr. LE stated the applicant completed his fellowship as of 30 June 2009 and would have been eligible to renegotiate his ISP with the effective date of 1 July 2009 at the higher rate of $36,000.  However, his ISP was processed with the effective date of 1 October 2009.  He should have been allowed to execute his ISP for $36,000 with the effective date of 1 July 2009 to 30 June 2010.  

7.  ALARACT Message 303/2009, dated 26 October 2009, announced the FY10 authorized ISP rates for MC officers.  It shows officers in AOC 60S with a subspecialty were authorized $36,000 annually.  It stated an annual ISP agreement must be executed for payment.  ISPs could not be renegotiated unless specialty rate increased.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he executed an MCISP contract beginning 1 July 2009 has been carefully considered and found to have merit.

2.  OTSG, the agency responsible for administering AMEDD Special Pay Programs to include ISP contracts, confirms the applicant was eligible to renegotiate his MCISP contract for the higher rate of $36,000 beginning 1 July 2009 based on his June 2009 completion of a Vitreoretinal Surgery fellowship.  

3.  However, through no fault of his own he was not allowed to do so and his MCISP contract was processed incorrectly by the Special Pay Administrator at Fort Sam Houston, TX, and was executed for the period 1 October 2009 through 30 September 2010.  

4.  In view of the foregoing and as a matter of equity, his records should be corrected as indicated 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:

* showing he renegotiated his MCISP contract in July 2009 for $36,000 for the period 1 July 2009 to 30 June 2010





* adjusting his MCISP contracts for 2010, 2011, 2012, and 2013 to show the period began 1 July of each year and ended 30 June the following year
* paying him any pay and allowances due as a result of this correction




      ____________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)                                         AR20130020721





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ABCMR Record of Proceedings (cont)                                         AR20130020721



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