RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00657
		INDEX NUMBER:  
	XXXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No 

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APPLICANT REQUESTS THAT:

His eligibility date for Medical Continuation Pay be changed from 1 Dec 01 to 1 Oct 01.

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APPLICANT CONTENDS THAT:

He was miscounseled by the Medical Special Pays Branch at AFPC that because he was doing an interservice transfer on 2 Aug 02, he was not eligible for his bonus on 1 Oct 01.  He later learned that he was in fact eligible because of his transfer being delayed due to stop-loss.

He was paid the bonus with an eligibility date of 1 Dec 01, resulting in a greater debt to the Air Force when he transferred to the U.S. Public Health Service on 2 Aug 02.

The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The relevant facts pertaining to this case are contained in the evaluation prepared by the appropriate office of the Air Force found at Exhibit C.

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AIR FORCE EVALUATION:

AFPC/DPAMF1 recommends denial of the applicant’s request.

The applicant contacted their office stating his intention to separate from the Air Force to become a member of the Public Health Service on 2 Aug 02.  He was advised that he would be ineligible for the 1 Oct 01 Medical Continuation Pay because according to Title 37, Chapter 5, Section 302, paragraph c, “an officer is not eligible for incentive special pay for any twelve-month period unless the officer first executes a written agreement under which the officer agrees to remain on active duty for a period of not less than one year beginning on the date the officer accepts the award of such pay.”

The applicant was approved for an interservice transfer, but separation was delayed due to Stop-Loss.  Title 37, Chapter 5, Section 302f authorizes involuntarily retained officers medical special pays on a monthly basis.  However, on 2 Nov 01, HQ USAF/SG implemented policy to pay involuntarily retained officers medical special pays on an annual basis with the understanding the member would repay the government the unearned portion of any payment received.  This policy, as well as HQ AFPC/DPA MPFM 01-32 (instructions for completing and submitting all medical special pay agreements) were posted on the HQ AFPC Medical Special Pays web page on 6 Nov 01.  The posted instructions included guidance that for agreements to be effective 1 Oct 01, they must be received by AFPC/DPAMF1 not later than 30 Nov 01.  Agreements received after this date would be effective the date they were signed.  Late submissions could be excused when a member’s medical group commander documented on the request that the member had been unavailable to sign in a timely manner due to deployment, extended hours, etc.

The applicant’s faxed request for Stop-Loss exemption was received on 31 Jan 02.  His signature is dated 28 Jan 02.  His medical group commander’s signature is dated 31 Jan 02.  There was no reason indicated for the late submission.  The applicant indicated his effective date as 30 Nov 02 (not 30 Nov 01) and, following the published guidance and directives, his effective date was established as 1 Dec 01.

In accordance with the pay agreement he signed, the applicant received $28,000 for the twelve-month period of 1 Dec through 30 Nov 02.  When he was discharged from the Air Force on 2 Aug 02, he was required to repay the unearned portion for the period 3 Aug 02 through 30 Nov 02.

The complete evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, applicant states that he was not aware of the information posted on the Medical Special Pays web site.  He was also not advised of this site when he contacted the Medical Special Pays Branch by phone.  He accepted the information that he was given, that he was not eligible for the bonus, and did not try to receive the bonus.

It was late in Jan 02 when he found out through a colleague that the “Stop-Loss Specific Pay Agreements” option should apply to him.  When he contacted the Medical Special Pays Branch, he was advised that he had been given the wrong information and that his agreement could not be backdated.  He was not informed that his medical group commander could get this waived by indicating he was unavailable to sign.  However, this option is irrelevant since he was available to sign, but was given the wrong information.

The applicant’s complete response is at Exhibit E.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  While it appears that the applicant may have been given correct information about his eligibility for incentive special pay at the time he contacted the Medical Special Pays Branch, the Board is not convinced that the dissemination of information about the newly implemented Stop-Loss Incentive Special Pay (ISP) program via a web page was sufficient to make the applicant aware of the requirements for him to receive the Stop-Loss ISP and to get his effective date established as 1 Oct 01.  The Board finds it reasonable to conclude that the applicant was not aware of the Stop-Loss ISP requirements since failure to meet the established deadlines could result in a large monetary loss, such as the applicant’s.  The Board believes that the doubt that exists should be resolved in the applicant’s favor.  Therefore, the Board recommends that the applicant’s records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that competent authority determined that, due to circumstances beyond his control, he was not available on or before 30 Nov 01, to sign the Single-Year Incentive Special Pay (ISP) Agreement, signed on 28 Jan 02 and endorsed on 31 Jan 02, and that his Stop-Loss Incentive Special Pay effective date is 1 Oct 01.

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The following members of the Board considered Docket Number BC-2003-00657 in Executive Session on 21 May 2003, under the provisions of AFI 36-2603:

Panel Chair
Member
Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 19 Feb 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPAMF1, dated 17 Mar 03.
     Exhibit D.  Letter, SAF/MRBR, dated 21 Mar 03.
     Exhibit E.  Letter, Applicant, dated 25 Mar 03.

                                   
                                   Panel Chair

AFBCMR BC-2003-00657

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXXXXXX, XXX-XX-XXXX, be corrected to show that, due to circumstances beyond his control, he was not available on or before 30 Nov 01, to sign the Single-Year Incentive Special Pay (ISP) Agreement, signed on 28 Jan 02 and endorsed on 31 Jan 02, and that his Stop-Loss Incentive Special Pay effective date is 1 Oct 01.

		
		Director
		Air Force Review Boards Agency