BOARD DATE:	  21 May 2015

		DOCKET NUMBER:  AR20150001886 


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 military records to show he renegotiated his expired 4-year Multi-Year Special Pay (MSP) at $60,000 per year and linked 4-year Multi-Year Incentive Special Pay (MISP) at $46,000 per year to new contracts effective 1 July 2011 to 30 June 2015.

2.  The applicant states:

	a.  He signed a multi-year retention bonus for 4 years in 2010.  He received this bonus incentive pay in 2010, 2011, 2012, and 2013.  However, no education was ever provided to him as to the ability and opportunity to renegotiate this multi-year retention bonus 1 year later in 2011 prior to 2013 when the ability to renegotiate was taken away.  He was not informed that renegotiation was even possible and, as such, he ignorantly and erroneously thought he was required to finish his 4-year contract before he could sign another contract.  As a result, he lost out on an extra year of multi-year retention specialty pay (a substantial amount) which he would have renegotiated without question, as the extra year incurred would have taken him to his projected retirement from the Army.  The injustice is the lack of education.  The correction he is seeking is for the ability to renegotiate the extra year of his 4-year multi-year retention bonus at the 4-year rate which he would have renegotiated in 2011 had he known he could have renegotiated in 2011.  The injustice was due to an Army system failure to educate appropriately.

	b.  He is an active duty Army physician at Brooke Army Medical Center and a former enlisted Marine.  He is currently serving as the Program Director for the largest radiology residency training program in the Department of Defense (DOD).  Prior to this, he was the Diagnostic Imaging Service Chief over 250 active duty and civilian personnel and $65 million in equipment.  This was after completing a 5-year radiology residency and a 1-year pediatric radiology fellowship and subsequently standing up the busiest pediatric radiology service in the DOD in keeping with the Base Realignment and Closure Act, absorbing and performing 30,000 pediatric imaging procedures annually in order to provide optimal care for the children of our men and women in uniform, allowing them to concentrate on their missions at hand and sleep peacefully at night, confident that their families are receiving the best medical care possible.  He received the Meritorious Service Medal for this critical endeavor.

	c.  He decided early in his military medical training that he would make Army medicine a career, that he would seek out leadership opportunities where he could make an impact for good, and give at least 20 years of his life to serving our country, our Soldiers, and their families, foregoing a lucrative career in the private sector.  As such, at his earliest opportunity, he signed a 4-year retention bonus.  No education was ever provided as to the ability and opportunity to renegotiate the multi-year retention bonus prior to the end of the contract and prior to rescinding this ability to renegotiate in 2013.  He was never informed that renegotiation was even possible and, as such, he ignorantly, erroneously, and unfortunately thought he was required to finish his 4-year contract before he could negotiate and sign another contract.  As a result, he lost out on an extra year of a multi-year retention special pay (a substantial amount) which he would have renegotiated without question had he known and which would have taken him to his projected retirement.  In other words, he would have renegotiated his 4-year multi-year retention bonus in 2011 after just 1 year, had he known he could have done so.

	d.  The ability and opportunity for renegotiation was never explained to him when he signed his 4-year multi-year retention bonus in 2010.  It was also not explained to him at annual signings in 2011 or 2012.  There were multiple opportunities for his financial officer or career planner to explain this to him before the ability to renegotiate was taken away without warning in 2013.  He could not know what he needed to know, or have learned what he needed to learn, or even know to ask, because there was not an effective system for this type of career planning education in place.

	e.  To clarify his situation, he initially incurred a 7-year commitment by attending medical school at the Uniformed Services University of the Health Sciences.  By doing a 1-year fellowship after a 5-year residency – and to satisfy the needs of the Army, he incurred 2 extra years of commitment.  By signing a 
4-year retention bonus in 2010 and with his prior service, his "expiration term of service" takes him to 8 May 2020.  If he is promoted in the zone as planned, he will have only 2 years of time in grade as an O-6 in May 2020 when he can separate from the Army.  Knowing that he needs an extra year to take him to 2021 for both retirement with 20 years and for 3 years of time in grade as an 
O-6 in order to retire in the rank of O-6, he planned to stay in the Army for an extra year beyond his current service obligation and then weigh his options as to whether to stay in the Army longer or retire as an O-6 at that time.  Knowing his projected timeline, he did not want to sign for 4 more years at the end of his initial multi-year contract in 2014 as it would have taken him to 2024.  The injustice is that, had he known he could have renegotiated his original 2010 multi-year contract in 2011 for 4 more years as had been the practice prior to 2013, he would have done so and the renegotiated contract would have added the extra year he needs to take him to 2021 and retire as an O-6 with 3 years of time in grade.

	f.  He could not have known this was available without being informed.  It was not until he was appointed to go to the Joint Military Graduate Medical Education Selection Board at the Defense Health Agency in December 2014 as the acting Radiology Consultant to the Army Surgeon General that he learned for the first time that, not only was renegotiation of retention incentive special pay contracts no longer possible as of 2013, but it had actually been both possible and common practice prior to 2013.  He only learned this at that time because there was a dedicated lecture on incentive special pay and renegotiation or lack thereof given to the Army medical specialty consultants.  He was surprised and amazed when he found out he could have renegotiated in 2011 for the extra year he needed had he known.

	g.  The real injustice is that it took 17 years of his Army medical career to learn this critical information because the system never provided it to him.  When he was finally informed of what he needed to know, it was too late.  All benefits should be transparent and as a valued leader and field grade Army officer, he should have been taught this critical information before or during his Command and General Staff Course and long before a meeting in 2014 as a lieutenant colonel, among a select few.  His patriotism, loyalty, and commitment to the United States and her Army are unquestioned and without blemish as evidenced by his recent induction into the Order of Military Medical Merit on 11 December 2014.

	h.  The injustice occurred nearly 4 years ago, but he was made aware of it only recently when appointed to go to the Joint Military Graduate Medical Education Selection Board at the Defense Health Agency in December 2014 as the acting Radiology Consultant to the Army Surgeon General.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the Regular Army in the rank of lieutenant colonel.  His medical specialty is radiology (diagnostic).

2.  His records contain:

	a.  A 4-year MSP contract at $60,000 per year and linked 4-year MISP contract at $42,000 per year effective for payment from 1 July 2010 to 30 June 2014.  The contract references All Army Activities (ALARACT) 303/2009 and states, "In accordance with the referenced messages which I have read, and the DA [Department of the Army] selection roster, I have been selected for or authorized continued entitlement to ISP and MSP."  His MSP obligation is consecutive and will be served from 20 May 2016 to 19 May 2020.

	b.  A 1-year Incentive Special Pay (ISP) contract at $36,000 per year effective 1 July 2014.

3.  A memorandum from the Assistant Secretary for Manpower and Reserve Affairs, dated 4 March 2013, subject:  rescission of Army Policy Regarding Renegotiation of Army Medical Department (AMEDD) Officer Special Pay Contractual Agreements, states the Army policy regarding the renegotiation of all AMEDD officer special pay contractual agreements is rescinded effective immediately.

4.  In the processing of this case an advisory opinion was obtained from the Chief, AMEDD Special Pay Branch, Office of the Surgeon General, dated 3 March 2015, which states:

	a.  Effective 4 March 2013, the Assistant Secretary of the Army for Manpower and Reserve Affairs announced that Army policy regarding the renegotiation of all AMEDD officer special pay contractual agreements is rescinded.  This action returned all renegotiated contractual agreements pending payment without action effective immediately.

	b.  The applicant's 4-year MSP at $60,000 per year and linked 4-year MISP at $46,000 per year were effective for payment from 1 July 2010 to 30 June 2014; however, due to an outstanding training obligation that expires on 19 May 2016, the MSP obligation is consecutive and will be served from 20 May 2016 to 19 May 2020.  The applicant executed a 1-year ISP at $36,000 per year effective 1 July 2014 to 30 June 2015 which can be executed annually during the remaining MSP obligation period and beyond.

	c.  The applicant's MSP and MISP contracts mention that he has read the referenced message, ALARACT 303/2009, dated 26 October 2009, subject:  Fiscal Year 2010 Army Medical Corps Officer Special Pay Policy, Plan, and Rates.  In turn, the indexed message provides details on the policies, plan, and rates, to include limitations of contract renegotiations in paragraph 17.

	d.  Although the applicant may not have received counseling regarding the ability to renegotiate his MSP and MISP contracts, the request to renegotiate the contracts cannot be authorized based on authority rescission and policy limitations.

5.  The advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 17 March 2015, he responded and stated:

	a.  ALARACT 303/2009, paragraph 17, does not apply to his situation.  If , paragraph 17c of ALARACT 303/2009 is the basis for the advisory opinion, then he did not interpret the paragraph as the Army intended and his finance officer and the system failed to clarify and adequately explain his options.  Specifically, he had no desire to receive a new higher ISP or combined MISP and MSP rate during his existing MISP because a higher MISP rate was not possible for his specialty.  As such, he did not know or think renegotiation of his 4-year MIS/MSP for the same rate was possible.

	b.  Had he known he could renegotiate the 4-year MISP and MSP for the same rate, he would have done so in 2011 because it would have aligned his service obligation with this desired retirement as stated in the advisory opinion.  ALARACT 303/2009, paragraph 17, does not say that renegotiation of an existing contract for the same rate is possible.

	c.  As stated in the advisory opinion, renegotiation authorization is based on current authority rescission and policy limitations.  However, renegotiation was not rescinded until 2013 and current policy should not apply to 2011 when he would have renegotiated his contract for the same rate had he known it was possible.

	d.  An information paper for Medical Corps officers also does not discuss renegotiation of MISP contracts for the same rate, but only for a higher rate and his MISP and/or MSP rate did not increase.

	e.  The bottom line is that he believed he could not renegotiate or re-execute a new contract for the same rate until his initial 4-year contract was up.  The information is not clear in the enclosures and there was no class or education/counseling given on MISP and/or MSP renegotiation.  This information should be easy to find and interpret and it is not.

6.  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 are:

	a.  Variable Special Pay which is paid to all Medical Corps officers monthly upon entry on active duty;

	b.  Board Certification Pay which is paid monthly to all board-certified Medical Corps officers based upon their date of board certification and their creditable service used to establish the Health Professional Pay Entry Date;

	c.  Medical Additional Special Pay (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 1-year active duty obligation that can be served concurrently with all other obligations;

	d.  ISP which is paid based on a variable rate to selected Medical Corps officers who hold the specialties eligible to receive this pay for a 1-year active duty obligation that may be served concurrently with all other obligations; and

	e.  MSP which is paid based on execution of a contract for 2, 3, or 4 years of active duty to selected Medical Corps officers based on their specialty.  This pay is authorized concurrently with MASP and ISP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his military records to show he renegotiated his expired 4-year MSP at $60,000 per year and linked 4-year MISP at $46,000 per year to new like contracts effective 1 July 2011 to 30 June 2015 because he did not receive counseling regarding the opportunity to renegotiate these contracts.

2.  The evidence of record shows the applicant's 4-year MSP at $60,000 per year and linked 4-year MISP at $46,000 per year were effective for payment from 1 July 2010 to 30 June 2014.  However, due to an outstanding training obligation that expires on 19 May 2016, the MSP obligation is consecutive and will be served from 20 May 2016 to 19 May 2020.

3.  His MSP and MISP contracts reference ALARACT 303/2009 and he indicated he read the message in both contracts at the time of execution.  If ALARACT 303/2009 was unclear, he should have addressed his concerns when he signed the contracts.

4.  The Assistant Secretary of the Army for Manpower and Reserve Affairs announced that Army policy regarding renegotiation of all AMEDD officers special pay contractual agreements is rescinded effective 4 March 2013.

5.  It appears he failed to exercise due diligence as a career commissioned officer to explore his incentive pay options.  By his own admission, he withheld his decision to commit to further obligated service pending selection for promotion to colonel/O-6 projected for May 2018.

6.  In view of the aforementioned evidence, he is not entitled to 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)                                         AR20150001886



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ABCMR Record of Proceedings (cont)                                         AR20150001886



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