MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            27 March 2001                  
	DOCKET NUMBER:   AR2000045413

	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	
	Ms. Rosa M. Chandler 		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able 		Chairperson	
	Mr. Allen L. Raub 		Member	
	Ms. Gail J. Wire 		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, that her military records be corrected  to show that she executed a 4-year multiyear special pay (MSP) contract for the period between 1997 and 2001. 

APPLICANT STATES:  In effect, that she was a 4 year Reserve Officers' Training Corps (ROTC) scholarship recipient.  In addition, she was awarded a 3 1/2-year Health Professions Scholarship Program (HPSP) scholarship for medical school. As of 20 June 1997, she had 8 years of creditable service and was eligible to sign a 4-year MSP contract.  She claims that she was erroneously told that the
4-years MSP service would be added to her existing service commitment.  Her 
4-year MSP service commitment and her 4-year ROTC commitment should be served concurrently from 1997 through 2001.  She requests that the Board back date her current MSP contract to show an effective date of 1 July 1997.  She submits an approved contract requesting MSP, for the period 1July 1997-1July 2001, Orders 145-1, from Headquarters, US Army ROTC Region, Fort Knox, Kentucky, dated 6 August 1985, and a statement written in her own behalf in support of her case.

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

That at the time this application was submitted, she was a lieutenant colonel serving on active duty in the Medical Corps (MC) with a specialty as a Dermatologist.

In connection with this application, an advisory opinion was obtained from the Chief, Army Medical Department (AMEDD), Office of the Surgeon General, Special Pay Branch who stated, in essence, that the AMEDD supported the applicant's request, based upon the AMEDD's interpretation of MSP policies and procedures that were first documented in a 1996 case presented before this Board.  That interpretation provided that MSP obligations were additive only to Graduate Medical Education active duty obligations (ADOs), not for ROTC training ADOs. 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 ADOs.  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 ADOs for MSP.  The OTSG adds that it appears that the applicant declined the MSP because she did not want the additional ADO, and provides a matrix of the money the applicant has received to date from her Incentive Special Pay (ISP) and the amount she would be owed if the Board were to grant her request.  The OTSG stated that it supported the applicant’s request for MSP based upon a concurrent obligation. 

The above advisory opinion was referred to the applicant for comment or rebuttal, but she failed to respond.

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.

Reference an internal document OTSG, DASG-PTM, 8 September 1994, subject: Policy Issue Regarding ROTC Obligations and MSP Eligibility that stated 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 ADOs 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(s), it is concluded:

1.  There is no evidence that the applicant chose to execute an MSP contract in 1997.  Had she executed an MSP ADSO, she would not have been entitled to serve it concurrently with 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 those ADOs concurrently with other ADOs.

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

4.  Even under the Army’s earlier payment policy, the applicant would have been ineligible for MSP until 1 July 1997, 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

__rwa___  __alr____  __gjw____  DENY APPLICATION

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

INDEX

CASE ID	AR2000045413	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010327	
TYPE OF DISCHARGE	(N/A)	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	102.000	
2.		
3.		
4.		
5.		
6.