MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            22 March 2001
	DOCKET NUMBER:   AR2000043556

	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		Director	
	Mr. Michael L. Engle .		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell 		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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:  That his military records be corrected to show he executed a 4-year multiyear special pay (MSP) contract for the period 21 June 1998 to 20 June 2000.

APPLICANT STATES:  That at the time of his eligibility, he was completing an intensive 2-year Army sponsored civilian Pediatric Radiology Fellowship.  Since his military personnel and pay technician were located at Fort Sam Houston, Texas, he had no direct contact with them to review and discuss pay.  “They” sent him the usual pay contracts by mail, and he signed and returned them.  At no time did they send information or contracts for the MSP.  At no time was he informed or notified that he was eligible for such pay.  Had he been given the opportunity, he would have definitely elected to sign a 4-year MSP contract to run concurrently with his Reserve Officer Training Corps (ROTC) active duty obligation (ADO).

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

At the time the applicant submitted his application, he was serving on active duty in the rank of lieutenant colonel, Medical Corps.

During the processing of this case an advisory opinion was obtained from the Office of The Surgeon General (OTSG), Chief, Army Medical Department (AMEDD) Special Pay Branch, who stated that the AMEDD supported the applicant’s request, with changes based upon policies and procedures discussed in the opinion.  The opinion referred to a MSP obligation policy interpretation by the AMEDD that was first documented in a 1996 case presented before this Board.  That interpretation provided that MSP obligations were additive only to Graduate Medical Education ADO’s, not for ROTC training ADO’s.  The Office of the Assistant Secretary of Defense (Health Affairs) and the sister Services questioned this policy interpretation and found disparity in interpretation and implementation of this policy.  The OTSG stated that the Department of Defense published Department of Defense Instruction (DODI 6000.13) on 30 June 1997 which precluded concurrent ADO’s.  The DODI further stated that the Congressional intent and Health Affairs policy regarding MSP was to extend a physician beyond their current ADO, and not provide a concurrent obligation.  The OTSG continued that on 1 October 1999 the Assistant Secretary of Defense (Health Affairs) directed that all the services establish additional ADO’s for MSP. The OTSG adds that it appears that the applicant declined the MSP because he did not want the additional ADO, and provides a matrix of the money the applicant has received to date from his Incentive Special Pay (ISP) and the amount he would be owed if the Board were to grant his request.  The OTSG stated that it supported the applicant’s request for MSP based upon a concurrent obligation.  The applicant was furnished a copy of this advisory opinion and concurred with the OTSG’s recommendation.

The MSP program constitutes a voluntary retention program for Medical Corps officers wherein they agree to continue on active duty in their specialties for incremental periods of 2, 3, or 4-years.  In return, the Army agrees to pay them MSP on the anniversary date of each year of their agreement.

An internal OTSG document dated 8 September 1994 discussed the policy regarding ROTC and MSP eligibility.  It stated that MSP eligibility required 
8 years of creditable service or the recipient must be unobligated for medical education and training.  The incurred MSP obligation must be added to any existing medical training obligation.  In case no medical education obligation exists the MSP obligation is served concurrently with the MSP contract period.  It therefore concluded that ADO’s for ROTC and MSP obligations would run concurrently.

The 1996 case referred to in the OTSG advisory opinion involved a 4 year MSP contract dated 1994 and was processed using the guidance then in effect.

DODI 6000.13 dated 30 June 1997, paragraph 6.62.3, states “No portion of an ADO may be satisfied…concurrently with any other ADO…”

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, it is concluded:

1.  The applicant apparently declined to execute an MSP contract because he could not serve the resultant ADO concurrently with his other ADO’s.

2.  The OTSG, in an advisory opinion, recommended granting the applicant’s request because that office had made erroneous interpretations in past cases and certain individuals were able to execute MSP’s and serve the ADO’s concurrently with other ADO’s.

3.  Notwithstanding the OTSG advisory opinion, the Board finds that the applicant was properly advised that he could not serve an MSP ADO concurrent with his other training ADO’s.  Based upon that advice, he chose not to execute the MSP.

4.  Even under the Army’s earlier payment policy, the applicant would have been ineligible for MSP until 21 June 1998, after the effective date of the DODI that clearly invalidated the Army’s erroneous payment policy.  It is not in the interest of justice to provide the applicant with retroactive MSP under this fact situation, merely because other health professionals may have erroneously received MSP before or after promulgation of the DODI.  An erroneous payment to one health professional does not justify a similar erroneous payment to another.  This is especially true when the applicant has not detrimentally relied upon the Army’s error.

5.  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___  __JPI___  __RKS___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043556	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010313	
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.	128.06	
2.		
3.		
4.		
5.		
6.