PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:          17 June 1999
	DOCKET NUMBER:  AR1998014194

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater 		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. Lutz Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, recalculation of his active duty service obligation to expire 30 June 2000.  In a subsequent application, he requests eligibility for multiyear specialty pay (MSP) retroactive to July 1996.

3.  The applicant states that he completed 5 total years of residency training in military institutions; that his ROTC contract stipulates a one-half year per year of training payback credit; and that this should then be a total of 2.5 years of payback credit during this training period.  He believes that his active duty service obligation expiration date was calculated without taking this into account.

4.  The applicant also states that he believes that current interpretations of policy concerning MSP, graduate medical education (GME) and non-GME obligations would have enabled him to sign into a 4-year MSP contract beginning 1 July 1996.  That due to then incorrect interpretations of this policy, he was unable to sign into this contract.

5.  The applicant’s records show that as an ROTC graduate, he was appointed a Reserve commissioned officer, second lieutenant, in May 1981, incurring a 
4-year active duty service obligation.  He then went on to attend medical school, which he completed in 1985, thus incurring an additional 4-year obligation, for a total of 8 years active duty service obligation.

6.  In June 1987 the applicant was ordered to active duty for general surgery residency, and served at Tripler Army Medical Center, Hawaii, until June 1990.  His training agreement provided for the payback of his ROTC obligation at the rate of 6 months per each year of residency, for a total of 1.5 years payback credit for his 3 years in residency.

7.  After completion of his residency, the applicant was reassigned to Germany, where he served for 3 years.  Upon completion of his overseas tour, he was reassigned to Fort Benning, Georgia, and served 1 year.  For these two assignments, he was credited with 4 years toward his active duty service obligation.

8.  In July 1994 the applicant was assigned to Brooke Army Medical Center, Texas, for a 2-year fellowship in cardiothoracic surgery.  His contract specified that no portion of previously incurred obligations could be satisfied during participation in this program.  Accordingly, he received no credit toward his active duty service obligation during these 2 years.  After his fellowship training, the applicant remained at Brooke Army Medical Center for another year and received credit for that year toward his active duty service obligation.

9.  In July 1997 the applicant served a 1-year pediatric cardiac surgery fellowship at the Children’s Hospital, Philadelphia, Pennsylvania, where he incurred an additional year active duty service obligation, for a total of 9 years active duty service obligation:  4 years for his ROTC scholarship, 4 years Health Professions Scholarship Program, and 1 year fellowship at a civilian institution.

10.  The applicant has been serving on active duty at Walter Reed Army Medical Center, Washington, DC, since completing his fellowship in June 1998.

11.  In the processing of this case, an advisory opinion was obtained from the Total Army Personnel Command (PERSCOM).  The Board was advised that, contrary to the applicant’s contention that he completed 5 years of residency training in military institutions, he only completed 3 years of residency training which was conducted at Tripler Army Medical Center from 1987 to 1990.  His Health Professions Scholarship Program contract stipulates that obligations resulting from other military programs (ROTC) will be discharged during periods of military graduate professional education (GPE) beyond the first year, at the rate of one-half year of an active duty obligation for each year of military GPE beyond the first year.  Consequently, he should have received credit for only 
1 year of payback for his residency training.  The applicant’s subsequent training for thoracic surgery was a fellowship, not a residency.

12.  The Board was also advised by the Office of The Surgeon General (OTSG) that a 1996 policy interpretation by the Army Medical Department allowing medical officers to enter MSP contract obligations concurrent with their ROTC/service academy obligations was overturned by Department of Defense Directive (DoDD) 6000.13, Medical Manpower and Personnel, 30 June 1997.  The directive precluded this concurrent obligation scenario, stating that Congressional intent and Health Affairs policy regarding MSP was to extend physicians beyond their current active duty obligations and not allowing concurrent obligations.  When the applicant met MSP eligibility criteria of 8 years creditable service, he declined a contract on the premise that the obligation would be added to his previously incurred active duty obligations.  In keeping with the DoDD 600.13, the applicant could have executed a 4-year MSP contract effective 31 December 1996, with an $8,000.00 payment for each year.  It was recommended that the applicant’s military pay account be corrected to show a 
4-year MSP contract for the period 31 December 1996 through 30 December 2000, at the rate of $8,000.00 per year.

13.  On 4 January 1999 the applicant was furnished a copy of the foregoing advisory opinions for comment and/or rebuttal.  In his rebuttal to the PERSCOM advisory opinion, the applicant contends, in effect, that he should be given payback credit for his 2 years as a cardiothoracic fellow at Fort Sam Houston; that his Health Professions Scholarship Program contract defines fellowships as graduate professional education; and that his training agreement for the fellowship program allows for the payback credit.

CONCLUSIONS:

1.  The applicant has incurred a total of 9 years active duty service obligation to the Army based on his ROTC scholarship (4 years), medical school scholarship (4 years), and the Army-sponsored pediatric cardiac surgery fellowship at a civilian institution (1 year).

2.  Notwithstanding the advisory opinion from PERSCOM, the applicant should be credited with 1.5 years active service for his 3-year residency at Tripler Army Medical Center based on his training agreement, which discharges his ROTC obligation at the rate of 6 months per each year of residency in a military facility.

3.  The applicant is thus credited with 6.5 years active service through 30 June 1998 (completion of pediatric cardiac surgery fellowship).  With 2.5 years remaining on his total obligation, his active duty service obligation will expire on 31 December 2000.

4.  The applicant’s rebuttal that he should be credited with 2 years active service payback for his cardiothoracic fellowship is rejected by the Board.  His contract clearly states that no portion of previously incurred obligations could be satisfied during participation in this program.

5.  The Board also rejects the applicant’s assertion that his Health Professions Scholarship Program contract defines fellowships as graduate professional education and thus allows for payback credit.  The portion of the contract to which he makes reference clearly states that time spent in GPE will not be creditable toward satisfying his program obligation.

6.  The applicant declined an MSP contract when he was eligible because he believed that the obligation would be added to his previously incurred active duty obligations.  However, based on policy in place at the time, he could have executed a 4-year MSP contract effective 31 December 1996.  

7.  The preceding is supported by the OTSG advisory opinion.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  showing that the individual concerned was eligible to execute a 4-year MSP contract beginning 31 December 1996 and ending 30 December 2000 at the rate of $8,000.00 per year.

     b.  awarding him three installments of MSP in the amount of $8,000.00 annually for the period 31 December 1996 through 30 December 1998, with the fourth installment due 31 December 1999.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998014194	
SUFFIX		
RECON		
DATE BOARDED	19990617	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	113.04	
2.	128.06	
3.		
4.		
5.		
6.