MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 March 2001
	DOCKET NUMBER:   AR2000044607

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able 		Chairperson	
	Ms. Barbara J. Lutz 		Member	
	Mr. William D. Powers  		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 records be corrected to show that he retroactively executed a Multiyear Special Pay (MSP) contract effective 1 October 1998.

APPLICANT STATES:  That he did not execute an MSP contract on 1 October 1998 because he was told that the 4-year active duty obligation (ADO) that he would incur could not be served concurrently with his existing ADOs for attendance at the United States Military Academy or the Uniformed Services University of Health Science.  He adds that in July 2000, he discovered that he could have served his ADOs concurrently.

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

He is a medical doctor serving on active duty in the rank of major.  On 1 October 1998, he executed an Incentive Special Pay (ISP) contract, but did not execute a 4-year MSP contract because he was told that he would be required to serve his 4-year ADO consecutively to his other training ADOs.

In the processing of this case, a staff advisory opinion was provided by the Office of The Surgeon General (OTSG) who advised that, in the past, that office provided erroneous interpretations of law and regulations which permitted certain officers to enter into MSPs and serve their MSP ADOs concurrent with other training ADOs.  The opinion continues by pointing out that the other Services questions the OTSG policy interpretation and Department of Defense Instruction (DoDI) 6000.13, Medical Manpower and Personnel, dated 30 June 1997, prohibits serving these ADOs concurrently.  The opinion recommends that because of previous erroneous interpretations of the policy, the applicant's request be approved.  The applicant was provided a copy of the OTSG advisory opinion for rebuttal, but he did not choose to respond.

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 apparently declined to execute an MSP contract because he could not serve the resultant ADO concurrent with his other ADOs.

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 MSPs and serve the ADOs concurrent with other ADOs.

3.  Notwithstanding the OTSG advisory opinion, the Board finds that the applicant was properly advised that he could not service an MSP ADO concurrent with his other training ADOs.  Based on that advice, he chose not to execute the MSP.  That others have been permitted to do so in violation of law and regulation, is of no consequence in this case.

4.  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.

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

__rwa___  __bjl____  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044607	
SUFFIX		
RECON		
DATE BOARDED	20010308	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	128.1400	
2.		
3.		
4.		
5.		
6.