MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           8 June 2000                  
	DOCKET NUMBER:   AR1999026485

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

	Mr. Kenneth H. Aucock 		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell 		Chairperson	
	Ms. Lana E. McGlynn 		Member	
	Mr. Arthur A. Omartian		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, the applicant requests that he be separated from the Army on 13 May 2000 in lieu of 3 April 2001, his scheduled separation date.   

APPLICANT STATES:  That the Total Army Personnel Command (PERSCOM) has stated that his active duty service obligation (ADSO) would be completed in April 2001, apparently based on a payback period of 7 years of service after attending the Uniformed Services Health Sciences (USUHS) (not including internship and residency), followed by almost 11 months of “leftover” obligation from ROTC.  He states that the remaining ROTC commitment caused the current situation, and that after reading the applicable statutes and regulations, and after a legal review by his counsel, he contends that his remaining ROTC commitment was either paid back during internship/residency or concurrently with his USUHS obligation.     

The applicant states that he entered on active duty in 1982 with a 4 year ROTC obligation, remained on active duty for just over 3 years before resigning his Regular Army (RA) commission, accepted a Reserve commission in order to attend USUHS, and after graduating from USUHS in 1988, served as an intern at Walter Reed Army Medical Center (WRAMC) for 1 year, followed by 2 years in the field as a general medical officer.  From 1991 – 1995 he completed a 4 year orthopaedic residency at WRAMC, and since that time continued to serve on active duty without additional training or breaks in service.

The applicant states that although the statute that governs ROTC states that upon completion of college a member who received an RA commission must serve on active duty for 4 years, it does not state that active duty does not encompass periods of active duty for training, including internship and residency. Although the statute governing USUHS does state that a service member would incur an ADSO of 7 years, and that internship and residency could not be used to fulfill that commitment, it is silent on whether internship and residency time could be used to fulfill other ADSO.  He went on to state that while the USUHS student contract states that no prior existing ADSO could be fulfilled while either at USUHS or while fulfilling the USUHS service obligation, only the first assertion appeared to be supported by statute or regulation.  Army Regulation 350-100 states that multiple ADSO could be paid back concurrently with other previously incurred ADSO.  Specifically, it stated that the ROTC ADSO is served concurrently with all ADSO except those incurred by civilian schooling. 

COUNSEL CONTENDS:  See counsel’s rebuttal (ATTACHED), paraphrased below, to the PERSCOM advisory opinion.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant attended the Chemical Officer Basic Course from 17 June 1981 through 8 October 1981.  His officer evaluation reports show that he was assigned to Fort Hood, Texas after his training, and that he was released from active duty  in July 1984.  Academic evaluation reports show that he was a medical student at the USUHS from 13 August 1984 until completion of his studies on 14 May 1988.  

The applicant provides a copy of his contract that he executed on 10 July 1984 prior to entering the USUHS (Tab 4).  Pertinent portions:

•	Service agreement is used as the contract between the US Army and students selected to enter USUHS Program which offers medical education in return for an active duty service obligation.
•	A signed and witnessed Service Agreement, which includes the student’s SSN, must be submitted by selectees to enter the program.  Student certifies to specific eligibility statements and that he/she agrees to and/or understands requirements and active duty obligation.
•	Statement that he understood that his ROTC or USMA active duty obligation, if any, would be added to the service commitment incurred as a result of participation in the USUHS Program.
•	Statement that he would apply for the next Army first year GME (internship) program scheduled to commence after receipt of such degree and participate if selected.  Following completion of the Army FYGME program, he understood that he would be required to perform professional duties, as determined by The Surgeon General, unless he was selected for further residency training.
•	Statement that, if he desired residency training, he would apply for an Army residency program.  Program members would not be released from active duty for a minimum period of two years following completion of any period of GPE (residency) except in the best interest of the government.
•	Statement that he understood that he would incur an ADSO of 21 months for each year or portion thereof during the first four years spent in training, except that in no case would the obligation be less than 27 months.  Under no condition would he be released from active duty until he had served a minimum of 2 years following completion of any period of graduate professional education, except when his release was determined by the Army to be in the best interest of the Government.
•	Statement that he understood that time spent in graduate professional education (FYGME/internships; residencies or fellowships) would not be creditable toward satisfying his USUHS program obligation.
•	Statement that he understood that an obligation incurred as a program member is in addition to any obligation incurred as a result of participation in any other military program.  He could not serve all or any part of the ADO incurred by participation in this program concurrently with any other military obligation. 
•	Statement that he understood that time spent on active duty or active duty for training while a member of the program prior to completion of professional degree requirements would not be credited toward fulfillment of any active duty obligation.
•	Statement that he understood and agreed that he could not be relieved of his active duty obligation arising from participation in the program solely because of willingness and ability to refund all payments made by the United States Government pursuant to this agreement.
•	Statement that he understood that his remaining service obligation of 0 years, 10 months, and 21 days would be added to any obligation incurred as a participant in the USUHS program.

On 30 June 1987 the applicant made application for the first year graduate medical education FYGME 1988 program.  In his application, he stated that he understood and agreed that if he was accepted into the program he would serve on active duty for a minimum of three years, and that the commitment commences with his date of entry on active duty.  He stated that he understood and agreed that if he currently had an obligation to serve on active duty in the Army, his participation in the Army FYGME program would not provide for any reduction of unfulfilled active duty obligation existing prior to his entry into the FYGME program.  He served an internship at WRAMC for 1 year as evidenced by his OER for the period 13 May 1988 through 12 May 1989.  

He served as a flight surgeon from 13 May 1989 through 10 March 1991, and had a four year orthopaedic residency at WRAMC thereafter.  

He made application for the residency on 21 August 1990.  In so applying, he stated that he understood that his service obligation following schooling would be computed in accordance with Army Regulation 351-3.  He stated that he further understood that the obligated service which he would incur as a result of participation in any other school program sponsored by the Army would generally be in addition to the service required as a result of his application, and that determination of the total amount of service required to be performed subsequent to completion of schooling would be determined by the Army.

On 27 January 1991, having been notified of his selection for graduate professional education (GPE) training in orthopaedics at Walter Reed, he entered into a training agreement, in which he stated that he understood that no portion of an existing active duty obligation (ADO) could be satisfied during participation in the GPE program except as specifically provided by his earlier agreement executed upon entry into the AFHPSP, or the Army Regulation 601-112 program.

He further stated that he understood that notwithstanding any provision that might appear in Army regulations, under the current DOD Directive 6000.2, dated 8 April 1988, as a participant in GPE in a military facility, he would incur an ADO  as specified in his AFHPSP contract, if entered into prior to 8 April 1988 and such contract specified an ADO for GPE in a military facility.  He understood that the obligation for training in a military facility could be paid back concurrently with any other obligation that he might already have, except another GPE obligation.

He stated that he understood that his current ADO expired on 21 May 1997, and that by acceptance of this GPE training, he agreed that his ADO, upon successful completion of the GPE training, would terminate on 4 April 2001.  He stated that he understood that the new ADO expiration date was based on successful completion of the GPE training on the scheduled date of                   30 June 1995.  He stated that he understood that the GPE training constituted a voluntary retention program and that unless a waiver was obtained, he would not be released from active duty before satisfying all his active duty service obligations, even if those obligations extended beyond 20 years active federal service.  He stated that he understood that he would not be released from active duty prior to his ADO incurred (as indicated above), except in the best interest of the U.S. government. 

His evaluation reports thereafter show that he served in Korea, completed the AMEDD officer advanced course, and was assigned to Fort Meade, Maryland, his current duty station.

On 8 March 1999 the applicant appealed to both the PERSCOM and the Assistant Secretary of Defense for Health Affairs, requesting calculation of his military service obligation, making the same arguments to those agencies that he is to this board, that his remaining ROTC commitment was either paid back during internship/residency or concurrently with his USUHS obligation.

On 22 April 1999 the applicant submitted his unqualified resignation, requesting that he be separated on 13 March 2000 or as soon thereafter as practicable.  The PERSCOM disapproved his request on 9 June 1999, informing him that he had an ADSO through 3 April 2001 as a result of his participation in the Graduate Medical Education (GME) program.

In response to a request for a legal opinion from the Office of The Surgeon General, the Office of The Judge Advocate General opined (COPY ATTACHED) that the applicant’s ROTC ADSO was neither discharged during his participation in the USUHS program nor served concurrently with his USUHS ADSO.  That office stated that both his application for first year graduate medical education (GME) and the training agreement for Army graduate professional education (GPE) in a military facility would not satisfy any existing ADSO; and his ROTC ADSO was not discharged during his participation in those programs.  
In response to a request for an advisory opinion, the PERSCOM provided a copy of the legal opinion from the Office of The Judge Advocate General, and recommended disapproval of the applicant’s request, stating that his ADSO was through 3 April 2001.

On 19 July 1999 the applicant’s counsel provided a rebuttal (COPY ATTACHED) to the advisory opinion.  Counsel stated that the advisory opinion was erroneous, because the contractual language upon which the legal opinion is predicated was a recitation, erroneous in content, as to what the applicant was told, not to what he agreed to.  He stated that the applicable DOD directive precludes the attempt by The Surgeon General to add more onerous terms to the applicant’s service obligation.  He stated that the applicable Army Regulation, which specifies that those obligations would be served concurrently, is controlling.  Counsel contends:

•	That it is questionable whether the information provided to the Office of The Judge Advocate General reflected the application submitted by the applicant. The advisory opinion does not indicate that the application was provided or  what information was relied upon that was provided by the Office of The Surgeon General.
•	That there is no statutory preclusion of the satisfaction of the applicant’s ROTC service obligation during residency or internship nor any statutory preclusion from the satisfaction of such obligation concurrent with the satisfaction of any other obligation.  Therefore, the obligation is purely a matter of contract between the applicant and the Army, the legality of such contract, and its interpretation. 
•	That the applicant, in executing the contract, stated that he understood certain provisions with respect to his service obligation, but did not necessarily agree to those terms, and that there were provisions in paragraph 12 of the contract to which he did not agree.  The applicant believed at that time that the obligations in the contract were requirements of law, when in fact, that was not so.  The contract included statutory requirements and treated other terms as if they were statutory.  He states that the advisory opinions would attempt to have this Board believe that obligations arising from statues and obligations arising from contract are indistinguishable as long as the applicant understood what he was being told.
•	That the GPE contract executed on 27 January 1991 violated the provisions of Army Regulation 350-100, and The Surgeon General, relying upon       DOD Directive 6000.2 in defining the applicant’s service obligation, knew so.  The agreement was inapplicable to the prior service obligation (USUHS and ROTC), but pertained to officers who had prior obligations under the Health Professions Scholarship Program (HPSP), and was another example of the implications of the word “understand.”
•	That the DOD Directive 6000.12 for the USUHS obligation precludes embellishment by contract.  The Secretary of Defense has limited the discretion of subordinates in embellishing the USUHS service obligation, and any contract which purports to alter the USUHS obligation is void and in violation of the DOD directive.  Paragraph 12b of the USUHS agreement purports to preclude concurrent satisfaction of the USUHS obligation and any other obligation, words not derived from statute but concocted by The Surgeon General, in violation of the Army Regulation, which applied to all officers, to include the applicant.  
•	That the applicant, in his application for first year GME executed on               30 July 1987, understood and agreed that his participation in the GME program would not reduce an unfulfilled obligation, but did not state that the time spent in the program would not be credited toward the satisfaction of an obligation.
•	That Army Regulation 350-100 states that ADSO resulting from military schooling would be served at the same time as those resulting from precommissioning.  That GPE in a military facility would result in an ADO which is satisfied concurrently with other ADO or with obligations incurred for DOD subsidized professional (undergraduate) education or training.  The applicant’s ROTC obligation could be paid back concurrently with any other obligation that he might have.  
•	That the effort to weave and bob between the service agreements, Army Regulations, DOD directive, and contract terms, was undignified.  The applicant’s active duty obligation ends on 13 May 2000.

In the processing of this case, a legal opinion (COPY ATTACHED) was obtained from the legal advisor to the Army Review Boards Agency.  That officer concluded that the applicant’s ROTC ADSO could not have been satisfied concurrently with his USHUS ADSO, and that his ROTC ADSO was also not satisfied during periods of internship/residency.  NOTE:  The opinion originally offered by the legal officer stated that his ROTC ADSO was satisfied during periods of internship/residency; and that opinion was forwarded to the applicant on 24 April 2000.  An opinion in which the legal officer corrected that statement  was forwarded to the applicant on 2 May 2000.  

The legal advisor reviewed the applicant’s USUHS program contract, stated that the applicant applied for and was admitted into the FYGME on 30 July 1987, and on 27 January 1991, participated in the Graduate Professional Education in a Military Facility (GPE) program – and that both applications clearly stated that participation in those programs would not satisfy any existing ADSO.  He stated that the applicant understood and agreed to those conditions as a prerequisite for his admission to those programs.  The legal advisor reviewed the applicant’s contentions, stated that he concurred with applicant’s counsel that the applicant’s ADSO calculation was purely a matter of contract between the applicant and the government.  He concurred with the applicant’s counsel that the interpretation of the contracts could not be contrary to the applicable statutes and should be consistent with implementing DOD directives.  
He stated that upon signing his USUHS program service agreement the applicant acknowledged that he had a remaining ROTC ADSO of 10 months and 21 days, and that he understood that his ROTC ADSO would be added to the service commitment incurred as a result of participation in the USUHS program; time spent in graduate professional education (FYGME/internships; residencies or fellowships) would not be creditable toward satisfying the USUHS obligation; his USUHS obligation would be in addition to any obligation incurred as a result of participation in any other military program; he would not be able to serve all or any part of the ADO incurred by participation in this program concurrently with any other military obligation; and that the document he signed was the entire contract between himself and the Army.

The legal advisor refuted the contention of the applicant and his counsel that his understanding of certain conditions was not synonymous with agreeing to those conditions, and stated that the “understandings” in the service agreement benefited both the applicant and the government, that the applicant entered freely into the contract, with full knowledge of his obligations, and that the language of the service agreement was plain and unambiguous.  Once the applicant entered into the USUHS program and received its benefits, he was required to fulfill all of his responsibilities (ROTC and USUHS service agreements).

The legal advisor disagrees with the allegations that the USUHS service agreement was not enforceable because it was contrary to law, DOD directives, or Army regulations. He stated that Congress under the provisions of                 UP 10 USC 2005(a) empowered the Secretary concerned to require a person receiving advance education assistance to serve on active duty for a period specified in a service agreement.  He stated that the Secretary of Defense and the Secretary of Health and Human Services were granted authority, under law, to promulgate directives and regulations mandated by law, that those delegations of authority were consistent with basic administrative law principles, and that agencies have broad discretion to implement the programs. 

The legal advisor went on to say that DOD Directive 6000.2 governed minimum terms of service for health service officers and active duty obligations incurred in long-term health and health related education, and stated in effect, that no portion of a prior obligation could be satisfied during any period of long-term health or health related education and that no portion of an ADO could be satisfied concurrently with any other ADO or with any obligation incurred for DOD-subsidized undergraduate education or training, or prior long term health education or training.  He stated that a comparison of the disputed service agreement sections and the DOD Directive provisions shows that they are almost identical, and that the service agreement clearly implemented the policy and guidance provided by the Secretary of Defense to the military departments.  The USUHS service agreement is legal and enforceable. 
The legal advisor states that Army Regulation 350-100, which allows obligations to be served concurrently, is not applicable to the applicant’s case, in that the regulation itself states that specific policies for AMEDD officers are in Army Regulation 351-3.  He states that while the applicant’s GPE contract was administratively incorrect, it did not invalidate the contract or the efficacy of the ADSO incurred, the applicant received no adverse impact due to the administrative mistake, and that he benefited by participating in the GPE. 

He states that both the FYGME and the GPE training agreement clearly stated that no portion of an existing ADO would be satisfied during participation in those programs; thus, neither the remaining ROTC obligation, nor the USUHS obligation could be satisfied while participating in the programs; however, although those obligations must be satisfied consecutively, either obligation could be satisfied concurrently with the FYGME and GPE obligations.  The legal advisor provided an estimate of the applicant’s ADSO as March 2001, based on his rough calculations.   

On 8 May 2000 the applicant’s counsel responded to the legal opinion (COPY ATTACHED) that was forwarded to the applicant on 24 April 2000, agreeing with the statement in that opinion [which the legal advisor had afterward corrected] that the applicant’s ROTC ADSO was satisfied during periods of internship/residency; and therefore, the applicant had satisfied all of his service obligations and was eligible for immediate release from active duty.  Counsel repeated his arguments concerning the wording of the USUHS contract, in that while the applicant stated that he understood certain provisions of the contract, he did not necessarily agree to those provisions; and, that the contract combined the non-statutory provisions with the correct statement of the law, in an attempt to give the appearance that those provisions were derived from the law.  Counsel stated that the Army refuses to apply a rudimentary concept of contract law, in that when a dispute arises under the term of the contract, the contract is construed against the drafting party.  Counsel stated that the advisory opinion conceded that the GPE contract was administratively incorrect; however, in fact, it is the wrong contract, created for a different program, under a difference statutory scheme, with a different set of obligations, and materially misleading to the applicant.  Counsel stated that the language of the USUHS contract was drafted by the Office of The Surgeon General, and not created by statute, and that Army Regulation 350-100 plainly states that in the event of a conflict between that regulation (350-100) and other publications, the policies in 350-100 take precedent.  Counsel stated that The Surgeon General was not authorized to promulgate contractual obligations that violated that regulation.  Counsel quoted paragraph 3a of DOD Directive 6000.2, “GPE in a military facility will result in an ADO which is satisfied concurrently with other ADO’s or with ADO’s incurred for DOD-subsidized professional (undergraduate) education or training or prior long-term health or health-related education or training.”  He stated that that language did not exclude ROTC obligations, and it was clear that the applicant was allowed, under that directive, to satisfy his ROTC obligation concurrently with his GPE obligations as well as other health-related education or training.  

On 16 May 2000 the applicant’s counsel responded to the legal opinion that was forward to the applicant on 2 May 2000 (COPY ATTACHED), in which the legal advisor corrected his previous statement by saying that the applicant’s ROTC ADSO was not satisfied during periods of internship/residency.  Counsel stated that the inconsistency (between the opinion forwarded on 24 April and the one forwarded on 2 May) did not result from the omission or deletion of a word, but was a complete change of the legal opinion, with no explanation for the change offered.  He stated that the first advisory opinion was accurate; that the categorical reversal of a legal opinion was questionable, and the repudiation of the first opinion suggested that there was a considerable disagreement as to the correct interpretation of the applicable law and regulations.  Counsel stated that this Board should then realize that the contracts and regulations in question are ambiguous at best and should be construed against the United States inasmuch as the United States drafted the contracts.  That notion is supported further by the acknowledgement in both of the legal opinions that the wrong contract was provided to the applicant.  Counsel went on to reiterate that Army          Regulation 350-100 applies to all active duty commissioned officers, and the qualification that specific policies on service obligations are in Army       Regulation 351-3 for medical officers did not limit that application; and if it was the intent of the Secretary of the Army to make Army Regulation 350-100 not applicable to medical officers, that could have been stated in the regulation.  He stated that paragraph 10-2a of Army Regulation 351-3 also provided that nothing in that chapter would be used to change an active duty obligation entered into in writing by an AMEDD officer before the date of implementation of the regulation, and that particular paragraph had been applicable since at least 1984; and under the terms and rules of the ROTC relationship between the applicant and the Army, there was no preclusion of concurrent satisfaction of the ROTC obligation during periods of internship or residency.  Counsel stated that the applicant’s pre-existing service obligation would have been entered into at the time he entered into the ROTC program and there was no regulatory authority which would allow for a modification of that agreement.    

10 U.S.C. section 2005. Advanced education assistance: active duty agreement; reimbursement requirements – states in pertinent part that the Secretary concerned, may require, as a condition to the Secretary providing advanced education assistance to any person, that such person enter into a written agreement with the Secretary concerned under the terms of which such person shall agree to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement, and shall agree to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States.

10 U.S.C. section 2107 (financial assistance program for specially selected members), which the applicant provides with his application at Tab 2, states in pertinent part that the Secretary of the military department concerned may appoint a cadet as a second lieutenant in the Army, and that in order to be eligible for appointment the cadet must agree in writing that, at the discretion of the Secretary of the military department concerned accept an appointment, if offered, as a commissioned officer in the Army, and that, if commissioned as a regular officer and his regular commission is terminated before the sixth anniversary of his date of rank, accept an appointment, in the reserve component; and serve on active duty for 4 or more years.

Title 10, U.S.C. section 2114, which the applicant provides with his application at Tab 3, pertains to the selection, status, and obligation of students at the USUHS, and states in pertinent part that medical students who graduate shall be required, to serve thereafter on active duty under such regulations as the Secretary of Defense or the Secretary of Health and Human Services, as appropriate, may prescribe for not less than 7 years, unless sooner released.  A period of time spent in military intern or residency training shall not be creditable in satisfying a commissioned service obligation imposed by this section. 
      
Army Regulation 350-100, which the applicant provides at Tab 5 pertains to officer ADSO.  The applicant has highlighted various portions of that regulation, specifically, paragraph 2-2 which states in effect that ADSOs will vary according to the program under which the officer was commissioned.  ROTC scholarship graduates selected for active duty incur a four-year ADSO.  He highlights paragraph 3-3 concerning consecutive obligations, which states that ADSOs resulting from more than one civilian education program are served consecutively; and paragraph 3-4 concerning concurrent obligations, which states that the contractual agreement under which an officer enters a civilian education program may specify the order in which concurrent ADSOs are satisfied.  The applicant highlights a portion of Table 3-1 which states that an ROTC scholarship officer incurs a 4 year ADSO, and highlights notes which indicate that ADSO is effective from the date of entry on active duty, and ADSO is served concurrently with all ADSOs except for civilian schooling.  

Paragraph 1-7 Army Regulation 350-100 states that if there is a conflict between that regulation and other Army publications, the policies in that regulation        (Army Regulation 350-100) take precedence.  It also states that the regulation applies to all commissioned and warrant officers on the active duty list.  However, it also states that specific policies on service obligations for Army Medical Department officers are in Army Regulation 351-3.

Army Regulation 351-3 governs the formal education and professional training of AMEDD personnel.  It states, in pertinent part, that for non-AMEDD programs, active duty service obligation (ADSO) determination for officers may be found in Army Regulation 350-100.  Chapter 10 prescribes policies governing ADO incurred for taking part in long-term health and health-related education and training programs.  It defines military internships as the first postgraduate year of accredited training, and states that military internships are established as the First Year of Graduate Medical Education (FYGME) in designated hospitals as directed by TSG.  It defines military residencies as the second and subsequent postgraduate years of accredited training leading to eligibility for certification by an American specialty board.  It goes on to say that no portion of an ADO (under chapter 10) may be satisfied by prior military service, during any period of long-term health or health-related education or training, or concurrently with any other ADO or with an obligation incurred for DOD subsidized preprofessional (undergraduate) education or training or prior long-term health or health-related education or training. 

DOD Directive 6000.2 provides for the minimum terms of service and active duty obligations for health service officers, applicable to all military departments.  Paragraph F1, which concerns payback of a prior obligation,  states that no portion of a prior obligation arising out of the expenditure of government funds for education or training purposes may be satisfied during any period of long-term health or health-related education or training.  Paragraph F2, which concerns payback of an ADO incurred under the provisions of the cited directive, states, in pertinent part, that no portion of an ADO may be satisfied during any period of long-term or health-related education or training; or concurrently with any other ADO or with an obligation incurred for DOD-subsidized preprofessional (undergraduate) education or training, or prior long-term health or health-related education or training. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant incurred a four year ADSO by virtue of his ROTC contract, fulfilling all but 10 months and 21 days of that contract prior to accepting a Reserve commission, and executed and signed a USUHS contract in 1984, entailing an additional statutory obligation of 7 years.  He stated in that contract that he had a remaining service obligation of 10 months and 21 days that would be added to any obligation incurred as a participant in the USUHS.  Prior to his graduation from the USUHS he applied and was accepted for FYGME, agreeing to serve on active duty for 3 years.  He served a one year internship at Walter Reed, and was a flight surgeon for two years thereafter.   He then applied and was accepted into the Army GPE program, agreeing to another 2 year service obligation.  In that agreement, he stated that upon successful completion of his GPE training on 30 June 1995, his ADO would terminate on 4 April 2001.

2.  The applicant stated that he understood that time spent in graduate professional education (FYGME/internships; residencies or fellowships) would not be creditable toward satisfying his USUHS program obligation; and that an obligation incurred as a program member was in addition to any obligation incurred as a result of participation in any other military program, nor could he serve all or any portion of the ADO incurred by participation in that program concurrently with any other military obligation.  He also stated that he understood that his ROTC ADO would be added to the service commitment incurred as a result of participation in the USUHS program.

3.  The foregoing indicates that the applicant had a statutory obligation of            7 years, 10 months, and 21 days subsequent to his completion of the USUHS program, and that any time spent in internships or residencies would not count toward satisfying either the remaining ROTC obligation or the USUHS program obligation.  The language of the USUHS contract is clear and unambiguous, containing nothing that would be construed as an attempt to mislead or confuse the applicant.   Whether or not the applicant understood at that time that certain provisions of the contract were statutory and certain regulatory, matters not.  There was nothing improper in this agreement, nor did The Surgeon General exceed his authority in executing this agreement, nor did he embellish the USUHS contract in violation of DOD directive.  In fact, the DOD directive states, in effect, that an ADO could not be satisfied during internship or residency.  The applicant signed a contract agreeing to certain, specific active duty obligations in return for free education and training provided by the government.       

4.  The GPE agreement, as noted by the applicant’s counsel and by the advisory opinion, is erroneous in that the words used concern an AFHPSP contract instead of a USUHS contract.  However, this error did not change the fact that the applicant accepted GPE training and completed 4 years of GPE training in June of 1995, for which he incurred another 2 year obligation.  Nor does it negate the statement in that agreement, to the effect that he understood that as a participant in the GPE in a military facility he would incur an ADO in accordance with his 1984 AFHPSP (read USUHS) contract.  The Board agrees with the advisory opinion that the applicant gained much in this agreement, and should repay the government in kind. 

5.  Notwithstanding counsel’s arguments, the Board believes that the provisions of Army Regulation 350-100, which purports to show that GPE in a military facility would result in an ADO which is satisfied concurrent with other ADO, is not germane to medical officers, as indicated in that regulation.  It would appear, from the wording of that regulation, “If there is a conflict between this regulation and other Army publications, the policies in this regulation take precedence,” conflicts with the wording directly below, “Specific polices on service obligations for Army Medical Department (AMEDD) officers are in Army Regulation 351-3.  Policies on service obligations for JAGC officers taking part in The Judge Advocate General’s Funded Legal Education Program are contained in Army Regulation 27-1, chapter 14.”  Army Regulation 351-3 itself refers to Army Regulation 350-100 for ADSO for non-AMEDD programs; and Army      Regulation 351-3 also states in effect, that no portion of an ADO may be satisfied during any period of internship or residency, or concurrently with any other ADO or with any other obligation incurred for DOD subsidized preprofessional (undergraduate) education or training or prior long-term health or health-related education or training.

6.  Although the applicant’s ROTC obligation and USUHS obligation must be satisfied consecutively, the obligation could be satisfied concurrently with the FYGME obligations and GPE obligations.  Applicant’s counsel appears to say as much when he paraphrases the DOD directive which states that the GPE ADSO may be satisfied concurrently with other ADO’s  or with obligations incurred for DOD-subsidized professional (undergraduate) education or training or prior long-term health or health-related education or training.  Counsel went on to state:  “The advisory opinion also concedes that although the ROTC and USUHS obligations must be satisfied consecutively, the ROTC obligation may be served concurrently with either the FYGME or the GPE obligation and the USUHS obligation may be served concurrently with FYGME or the GPE obligation.”   

7.  The applicant had an ROTC obligation and a USUHS obligation, which had to be satisfied consecutively, but could be satisfied concurrently with the FYGME  (internship) or the GPE (residency) obligation – however, neither of those obligations could be satisfied during internship or residency.  Consequently, the applicant satisfied his ROTC obligation, and a portion of his USUHS obligation during the two year period from 1989-1991 when he was a flight surgeon.  He then had some 5 years and 10 months left on his ADSO, after completion of his residency.  The applicant himself agreed, as shown in his GPE agreement in which he stated that he understood that his ADSO after his residency terminated on 4 April 2001.   

8.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

10.   In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___slp___  ___aao__  ___lem__  DENY APPLICATION

                                                      Carl W. S. Chun
Director, Army Board for Correction 
                                                    of Military Records

INDEX

CASE ID	AR1999026485	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000608	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  237	113.04	
2.		
3.		
4.		
5.		
6.