MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            7 June 2000                  
	DOCKET NUMBER:   AR2000035715

	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. Carl W. S. Chun
Mr. David E. Weightman		Director
Senior Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Stueve		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:  Correction of his military records to show his active duty service obligation (ADSO) date as 1 October 2000.

APPLICANT STATES:  In effect, his ADSO has been calculated incorrectly, without regard to law and contract.  His fundamental issue is “Specifically, whether the five year obligation incurred from attending The United States Military Academy [USMA] was discharged during medical school at the Uniformed Services University of the Health Sciences (USUHS) and first year post graduate medical education.”  He contested the ADSO in a letter to The Surgeon General’s office, dated 2 January 1988, but received no response or relief.  He submits a copy of two of his education contracts for residency and fellowship training, including a declination of fellowship training, a memorandum from The Surgeon General concerning review of his ADSO, his own statements showing, among other things, copies of pertinent statutes and a summary of prior legal opinions pertinent to his case, copies of his oaths of office, a statement of service, a copy of his request for resignation, and other documentation in support of his request.

COUNSEL CONTENDS: In effect, the applicant’s ADSO is wrong due to an erroneous computation of the obligate service times, by basing numbers on then non-existing contracts.  No official is reading the contracts correctly, taking care to compare the words in the contract signed by the applicant with the words contained in the contracts signed by others in ensuing years.  Army officials are not honoring the terms to which they agreed to when the applicant entered the USUHS.  Counsel requests a formal hearing in order to make sure the Board understands the facts, the argument, and both the legal and equitable bases upon which the applicant relies.  She asks the Board to expedite the case of the applicant who has carried out his obligations, who has paid his debts, and who now warrants careful attention and corrective determination.  The Army needs to play fair and someone needs to right this egregious wrong.

Counsel also submits a copy of a letter to The Surgeon General, dated 
20 January 2000, in which she asserts, among other things, that according to all applicable statutes, regulations, contracts and other documents, the applicant should be released from active duty on October 1, 2000.

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

While attending the USMA, the applicant requested placement in the School of Medicine in the USUHS, a 4-year program of medical studies.  He was accepted.

The applicant was appointed in the Regular Army effective 25 May 1983, as a second lieutenant, Corps of Engineers, based upon his graduation from the USMA.  He incurred a 5-year ADSO, to 25 May 1988.

He was separated from the Regular Army and entered the Reserve for participation in USUHS training.

On 11 July 1983 he was appointed in the Reserve for USUHS training attendance and he entered active duty in this status effective 13 July 1983.  He stated he understood his current unfulfilled ADSO based on USMA graduation will be served consecutively with the ADSO incurred by his participation in the USUHS, a 7 year ADSO; that this program ADSO will be served in addition to internship and residency training; and that this USUHS ADSO will extend the USMA ADSO.

He was given USMA ADSO payback credit from his USMA graduation/appointment date to his entry date into the USUHS, of approximately 
1 month and 17 days.

Upon completion of the USUHS in 1987, his USMA and USUHS ADSO’s combined totaled 12 years, minus the short period of payback credit.

He was appointed as a captain in the Regular Army, Medical Corps, effective 
16 May 1987, upon execution of his oath of office.

He served his internship from 1987 to 1988 and did not increase or satisfy his ADSO during this time.

He served in a duty status between training, from 17 May to 30 June 1987, and July 1988 to June 1989.  This service satisfied an equal amount of his USMA ADSO.

On 3 January 1989 he acknowledged his selection for Graduate Professional Education (GPE) training in orthopedics for 4 years in a military facility, beginning on 1 July 1989.  He stated he understood, among other things, that no portion of an existing ADSO may be satisfied during this schooling; that his ADSO upon completion of the GPE would increase by 4 years; and that this obligation may be paid back concurrently with any other incurred ADSO.

Also on 3 January 1989, he sent a memorandum for record to the Office of Graduate Medical Education, stating his disagreement with his ADSO for his acceptance of an Orthopedic Surgery Residency at Brooke Army Medical Center.  He maintained his 5-year USMA ADSO is not GME related and that he served his USMA ADSO while in USUHS and the 1 year of duty status, that he should not incur additional ADSO for residency, and that upon completion of his residency in 1993 his ADSO should be 29 April 1999.  He further stated he was advised by an official of that office that he must sign the agreement to receive the training and no other contract would be offered, and that he was signing the agreement since he had no other recourse at the time. There is no record of response.

He entered a duty status on 1 July 1993.

On 27 January 1994 he declined selection for additional government sponsored GPE in total joint/reconstructive surgery in a civilian facility for 1 year starting on or about 1 July 1995.  Acceptance of this training would incur an additional ADSO of 2 years, and that it could not be paid back concurrently with other ADSO’s he incurred as a result of government funded education and training.

Also on 27 January 1994, he wrote a memorandum for record with a courtesy copy for a Graduate Medical Education official, declining selection for the fellowship training.  He stated the USMA ADSO problem still was not resolved and his ADSO remained inaccurate, and the fellowship should only extend his ADSO by 1 year to 29 March 2001.  He states in this memorandum he was advised by phone that the fellowship agreement was the only one to be offered and if he did not sign he will not obtain the training.

He served in a duty status from 1 July 1993 to 30 June 1995.  This duty status, coupled with his earlier 1 year and 3 months of duty status, satisfied 3 years and 3 months of his USMA 5-year ADSO.

He subsequently signed an agreement for the fellowship training (25 March 1995), government sponsored at a civilian facility.  It was for 1 year starting 
1 July 1995.  This training increased his ADSO by 2 years.  He did not satisfy any of his ADSO during this training.

He commenced his normal duty status in July 1996.

He satisfied the remaining 1 year and 9 months of his USMA ADSO on 1 April 1998.

On 28 April 1999, an official in the office of The Judge Advocate General, in response to a request for legal opinion from an official of The Surgeon General’s office, concerning the applicant’s ADSO date, stated, among other things, that on 1 April 1998 the applicant satisfied his USMA 5-year ADSO, and “As of 1 June 1999, [applicant] will have an 8-year ADSO.  If [applicant] enters into a contract for MSP [Multiyear Retention Bonus], however, the resulting obligation will be added to the 8-year outstanding ADSO.” The opinion also showed that while his USMA ADSO should have expired 5 years from his entry onto active duty, when he executed his contract for USUHS he agreed that his USMA obligation would be served consecutively with his USUHS obligation, thereby modifying the terms of the USMA Cadet Service Agreement.  The two agreements, taken together, provide for the ADSO’s to be served consecutively.  The applicant’s position that an MSP ADSO will be served after any other existing medical education and training has been completed, and concurrent satisfaction of an MSP obligation with other non-medical ADSO’s is authorized, cannot be inferred for medical training ADSO’s.

On 5 May 1999 the applicant requested unqualified resignation to be effective 
1 October 1999, or as soon as practicable thereafter.  It was not approved.

He was promoted to lieutenant colonel effective 16 May 1999.

On 14 October 1999 the applicant was advised by memorandum from The Surgeon General that in response to his request to The Judge Advocate General to reconsider the applicant’s request for release from active duty, The Judge Advocate General opined “that as of 30 August 1999, your remaining ADSO is 
7 years, 7 months.”  This equates to an ADSO of 30 March 2007.

On 20 January 2000 applicant’s counsel advised The Surgeon General by letter that “According to all applicable statutes, regulations, contracts and other documents, …….[the applicant] should be released [from active duty] on October 1, 2000.”  She also advised him that the ADSO determination was wrong, members of his staff have refused to properly assess the amount of time each officer must serve before eligibility for discharge is released, and the data base on which the ADSO was determined is faulty and in disarray.  She also stated the applicant’s request to the Correction Board inexplicably disappeared from the Board’s files, and another copy she will present should be expedited.  She requested a responsible member of his staff investigate fully the Army’s data base, and the Army’s efforts to correct its errors.

The applicant requested and was given constructive service credit for pay purposes only while attending the Uniformed Services University of the Health Services at Bethesda, Maryland, 15 August 1983 to 16 May 1987.  This credit was directed through action by this Board on 23 September 1999, and approved by the Deputy Assistant Secretary (Army Review Boards) on 7 October 1999.

The advisory opinions provided by the applicant in support of his contention that the USMA ADSO may be paid back during USUHS/GPE participation shows USMA ADSO payback will commence immediately following the date of graduation.  They also show the effect of multiyear special pay and retention bonuses on ADSO’s.

On 25 October 1989 the Federal District Court for the District of Columbia ruled against similar cases concerning payback of ADSO of USMA graduates while attending USUHS/GPE (Schaefer v. Cheney, 725 F. Supp. 40 (1989)).  In this case, 15 Army doctors contested the calculated payback of their ADSO’s.  The court ruled the Army correctly calculated the ADSO’s.  These doctors were then permitted to apply to this Board based on misrepresentation of Army officials concerning payback of their respective ADSO’s.  The Board found no misrepresentation at the time to give the relief requested, and separately considered and denied their requests on 23 May 1990.

Army Regulation 601-141, effective 1 March 1980 and currently in effect, updates provisions of the US Army Health Professions Scholarship Program.  This program is different from the USUHS, but indicates the ADSO policy for this program as similar to the USUHS program.  This regulation establishes the Army portion of the Armed Forces Health Professions Scholarship Program (10 U.S.C. chap. 105).  Scholarships are available for students in courses at accredited institutions leading to a graduate degree in medicine, osteopathy, veterinary medicine, optometry, psychology (Ph.D. level), or other disciplines designated by The Surgeon General.  This regulation specifies “An obligation incurred as a program member is in addition to and cannot be served concurrently with an obligation incurred from any other military program.  Obligations from other military programs (e.g., ROTC, USMA) will be discharged during periods of military GPE beyond the first year.”

The Army Review Boards Agency Assistant Legal Advisor provided a comprehensive memorandum in this case which is incorporated by reference herein.  He concurred with the proposed conclusions and determination provided.  He disagreed with the applicant’s contention that he will discharge all his ADSO’s during the year 2000.  He stated the applicant failed to submit evidence to establish the existence of legal error or injustice.  He specified that the 

respective statutes provide that the Secretary of Defense/Army will implement the USMA and USUHS programs and may prescribe ADSO’s, as in this case, for educational assistance.  He concluded the applicant will not satisfy his ADSO until the year 2007.  The memorandum is provided and need not be further reiterated here.

On 15 May 2000, counsel submitted a letter to the Deputy Assistant Secretary, Army Review Boards Agency, which is incorporated by reference herein, concerning the opinion rendered in this case by the Assistant Legal Advisor.  She states the advisor is in error.  Her requests for copies of his opinion were rejected and her comments are made without the benefit of knowing how the advisor reached his conclusion.  The controlling statutes here are 10 USC sections 4348 and 2114.  Section 4348 specifies payback of USMA obligations start on the date of appointment as an officer in the military service, without conditions.  She states “Statutes trump regulations.  No Army regulation, contract or other type directive can override or undermine a legislated act.”  Section 2114, labeled “Uniformed Services University of the Health Sciences”, has no effect on an obligation incurred through the USMA.  The advisor relies on “the intent of congress”, an ungrounded assertion and a fabrication that other congressional intent challenges the congressional intent of this section.  The advisor’s reliance on the Schaefer case is shaky, at best, because of the different dates, facts and applicable statutes.  Counsel poses two questions to the Board concerning payback of the applicant’s USMA obligation and the Army’s refusal to grant the applicant’s request resulting in injustice or inequity or unfairness.  Counsel’s comprehensive argument in support of the applicant’s request is provided and need not be further reiterated here.

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.  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 this requirement.

2.  The applicant is not entitled to a correction of his military records to show his ADSO date as 1 October 2000, or to show that his ADSO is otherwise incorrect.

3.  The applicant’s contentions, and those of counsel, have been considered by the Board, however, they do not show error, injustice, or inequity in his case.  He has not requested a change or correction to his records based on compassion.  

The Board also considered all of the evidence submitted by the applicant as he requested, including his previous memorandums of contentions, dated 3 January 1989 and 27 January 1994, concerning his ADSO’s.  The memorandums did not lead to a change or reduction of his ADSO’s and he accepted the training in spite of his contentions.  He has not shown he accepted the agreements under duress, ignorance, compulsion or misrepresentation.  His protests that his USMA ADSO was paid off during the first 5 years following his USMA graduation, notwithstanding entrance into the USUHS, was not acceptable by Departmental officials in his case, and not by the court in earlier but similar cases.  While there is no record of a response to his protests, his ADSO’s were not changed.  It is also noted he accepted/signed the pertinent contracts accepting the training and applicable ADSO increases.

4.  Upon acceptance of his USUHS training attendance service agreement, he also accepted the understanding that his current unfulfilled ADSO based on USMA graduation will be served consecutively with the ADSO incurred by his participation in the USUHS, and that the 7 year USUHS ADSO will be served in addition to internship and residency training, and that the USUHS ADSO will extend the USMA ADSO.  In this case it is clear the intentions of Departmental officials was to preclude payback of the USMA ADSO while attending USUHS and other further government sponsored medical education, and that the applicant agreed to and accepted each ADSO requirement.  Denials of his requests and claims for a reduction of the ADSO, including his request for resignation for 1 October 1999, do not show error, injustice or inequity in his case.

5.  It is noted that the applicant’s USMA ADSO was otherwise immediately paid off commencing with his graduation and entering a duty status, albeit for a short period of time, up until he commenced his USUHS training.

6.  The Board further notes that the applicant’s ADSO appears to have been properly calculated in accordance with the respective statute, and the applicant has not shown otherwise.  The applicant has not shown Departmental misinterpretation of the statute, or that it was not properly applied in his case.

7.  Notwithstanding his contentions of ADSO error, the Board concludes the applicant knew or should have known the provisions of his agreements at the time, and the ADSO’s accompanying the agreements, while continuing to pursue the training programs over the years.

8.  Counsel’s latest contentions have been noted.  It is clear to the Board, however, that the applicant made agreements with the Army, in writing, to receive an appropriate ADSO for the extraordinary medical education he received.  The Army appears to have been up front with the applicant concerning his obligations, and the applicant, without coercion, accepted and signed the agreements accordingly.  The applicant should not now be permitted to withdraw the 1983, 1989 and 1995 agreements based on his interpretations of statutes.

9.  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

__mkp__  __esc____  __jps ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000035715	
SUFFIX		
RECON		
DATE BOARDED	20000607	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.		
3.		
4.		
5.		
6.