PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           27 September 2001
	DOCKET NUMBER:   AR2001054607

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

	Mr. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O’Shaughnessy		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect Medical Additional Special Pay (MASP) for the periods beginning 7 April 1999 and 7 April 2000.

3.  The applicant states, in effect, that he was diagnosed as having neuropathy, which forced him to resign from the general surgery residency training on 6 April 1999, while he was assigned to Tripler Army Medical Center, Hawaii.  He states that based on this condition he was referred to a Medical Evaluation Board (MEB), which could have recommended that he be separated from the Army and felt during this processing that because he was subject to separation he was not entitled to MASP.  However, the MEB instead approved his continuance on active duty until 14 May 2001, which was more than 2 years beyond his initial MASP period of 7 April 1999. 

4.  The applicant’s military records show that he was a graduate of the Uniformed Services University of the Health Sciences and that the highest rank he has attained while serving on active duty in the Medical Corps (MC) was major.

5.  Orders 016-0009, dated 7 March 2001, issued by Headquarters, Tripler Army Medical Center, Hawaii, confirm the applicant was placed on the Retired List on 
15 May 2001, with a 70 percent disability rating.  The MEB and Physical Evaluation Board (PEB) findings and recommendations were not on file in the records available to this Board.  

6.  In connection with the processing of this case an advisory opinion was requested of and received from the Chief, Army Medical Department (AMEDD) Special Pay Branch, Office of The Surgeon General (OTSG).  This OTSG official stated that the applicant was eligible to execute a one year obligatory MASP contract for $15,000.00/year upon withdrawal from his residency program, effective 7 April 1999 through 6 April 2000 and again at the anniversary renewal, effective 7 April 2000 through to 6 April 2001.  He further comments that the applicant acknowledges that he did not execute these contracts because he thought his release from active duty for medical reasons was imminent and the contracts may only be signed if the officer has tenure to complete the contract period; therefore, the applicant’s decision was correct at the time.  However, he was medically held beyond the his anticipated release, and would have been eligible to receive the MASP for this continued period of active duty.  

7.  The Chief, AMEDD Special Pay Branch, finally opined that the applicant was eligible to execute a one-year MASP contract for $15,000.00/year, effective 7 April 1999 through 6 April 2000 and 7 April 2000 through 6 April 2001 and recommends these contracts be authorized and the applicant be provided MASP accordingly.  On 30 May 2001, the applicant was forwarded a copy of this advisory opinion in order to have the opportunity to respond and to date, he has failed to reply.
CONCLUSIONS:

1.  The Board noted the applicant’s contention that he is entitled to MASP for the contract periods beginning on 7 April 1999 and 7 April 2000 and finds this claim has merit. 

2.  The evidence of record and OTSG officials confirm that the applicant correctly failed to enter into the requested MASP contracts based on his understanding that the contract could only be signed if the officer has sufficient tenure to complete the contracted period.  

3.  However, it appears that because the applicant was medically held beyond his anticipated release and the MEB ultimately decided to retain him on active duty he remained eligible to receive MASP, given he continued to perform in the medical specialty for which MSAP was authorized. 

4.  The Board takes special note of the advisory opinion rendered by the OTSG, the agency responsible for administering AMEDD Special Pay Programs to include MASP, in which it is confirmed that the applicant was eligible to execute a one-year MASP contract for 15,000.00/year, effective 7 April 1999 through 6 April 2000 and 7 April 2000 through 6 April 2001, and that further recommended that these contracts be authorized and the applicant be provided MASP accordingly. 

5.  The applicant served in an authorized medical specialty position that authorized MASP for the periods indicated and in the opinion of the Board, to deny him MASP solely based on his failure to execute a formal contract, which he believed he could not complete would be inequitable and unjust.  Given the confirmation of his eligibility by the administering agency, the Board finds it would be appropriate to grant the requested relief. 

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned entered into MASP contracts at $15,000.00/year for the periods 7 April 1999 through 6 April 2000 and 7 April 2000 through 6 April 2001 and by providing him MASP accordingly at this time, as recommended in the enclosed OTSG advisory opinion.  

BOARD VOTE:  

__RVO___  __ENA__  __TEO__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2001054607	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/27	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	128.1600	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.