PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           18 June 2002                  
	DOCKET NUMBER:   AR2001060351

	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. David E. Weightman		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		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 that his records be corrected to show a Multi-year Special Pay (MSP) retention bonus for the period 1 October 1995 to 
30 September 1999, based on having a United States Military Academy training service commitment of 5-years removed from the calculation of his combined MSP and remaining medical training obligation (Health Professions Scholarship Program, 4-years; residency, 2-years, and fellowship, 1-year).

3.  The applicant states that in the Fall of 1995 he was told by his personnel office that he was not eligible for a multi-year special pay contract and that he accepted what he was told without question, as this was the office responsible for administering contracts.  He has since reviewed this error with the Medical Corps Special Pay authorities that confirmed that his denial in 1995 was in error.  

4.  He submits a statement stating he only found out of his entitlement to the MSP for this period from a colleague, he has information concerning another officer who received relief from this Board, that other USMA classmates received the MSP, that he was misled by Personnel Office officials, that he relied on these officials and was deployed to Kuwait during this period of time, and that the Special Pay Branch stated his eligibility actually began in 1993.

5.  He also submits a copy of a letter from his commander in support of his application.  The letter is dated 20 May 2002, and is signed by a major general, commander of the North Atlantic Regional Medical Command, Washington, DC.  The general stated he understood the applicant received improper advice concerning his eligibility for a multi-year contract in 1995, and that special pay contracts can be somewhat confusing, and that he should be given the highest consideration for relief.  He states the applicant has been in the Army since 1977 when he entered West Point, and he has every reason to trust the information given to him, and if that information was in error, he is entitled to correction of the error.  He states that the special pay office has validated the applicant’s claim of eligibility.  He further states the applicant is an exemplary officer, has served his time in good faith, and he hopes the Board will confirm the applicant’s confidence in our system of correcting errors, and provide relief.

6.  The applicant’s military records show that he received Medical Additional Special Pay (MASP), in the amount of $15,000.00 per year, with effective dates of 1 July 1996, 1997, 1998, 1999, 2000, and 2001.  He received Incentive Special Pay (ISP), in the amount of $6,000.00 effective 1 October 1995; $8,000.00 effective 1 October 1996; $11,000.00 effective 1 October 1997; and $12,000.00 effective 1 October 1998.  All of the foregoing has been paid.  

7.  On 13 November 2001, the Chief of the Army Medical Department (AMEDD) Special Pay Branch stated that the applicant met the eligibility criteria for the MSP retention bonus for the requested period of 1 October 1995 to 
30 September 1999, at the rate of $14,000.00 per year, and that the period requested has already been served.  He also stated that the linked ISP rate was $6,000.00 per year for that same period.  He further stated that since the applicant already received ISP linked to MASP for this period totaling $37,000.00, and that there would have to be an offset for the difference of $13,000.00 if his request is approved.

8.  The applicant concurred with the opinion on 21 November 2001.

9.  Department of the Army policy guidance concerning Medical Corps Officer Special and Incentive Pay Policy, Plan and Rates, indicates that the “Agreement Effective Date – In order to retain the effective date indicated on the Medical Occupational Data System (MODS) Eligibility Roster, the officer must sign the agreement not later than 30 days following the entitlement date indicated on the roster, or not later than 30 days following the date of the roster, whichever is later.  Agreements signed after that date will be effective upon the date of signature.”  The “no earlier than 90 days” comment is not written, but equates to the MODS Eligibility Roster Program which will not have the eligible population or a contract posted until 90 days prior to the effective date; therefore, the contract is not signed any earlier than 90 days prior to the effective date.  

10.  The case to which the applicant has referred is based on a similar issue.  It was also based on other issues, such as medical specialty, the number of years contested, and the time period between the contested year and the date of application, and a further service obligation.

11.  Retention bonuses and special pays for medical officers, as authorized under selected provisions of Title 37, United States Code and the Assistant Secretary of Defense (Health Affairs) Medical Officer Special Pay Plan, are implemented by the Surgeon General of the Army.  This implementation establishes, among many requirements, the eligible specialties and rates for special pays, active duty obligation requirements, and the Department of the Army policies governing the five special pays for active duty Medical Corps Officers.

12.  Title 37, United States Code, Sections 301d, 302, 302f, and 303a provide for multiyear retention bonuses and special pays for medical officers and health professionals of the armed forces.  For Army Medical Corps Officers 

(Physicians), these special pays are: 1) Variable Special Pay (VSP) which is paid to all Medical Corps Officers monthly upon entry on active duty; 2) Board Certification Pay (BCP) which is paid monthly to all board certified Medical Corps Officers based upon their date of board certification and their creditable service used to establish the Health Professional Pay Entry Date (HPPED); 3) MASP which is paid to all Medical Corps Officers upon completion of internship (not during initial residency) at the current rate of $15,000 (less taxes) for a one year active duty obligation that can be served concurrently with all other obligations; 4) ISP which is paid based on a variable rate to selected Medical Corps Officers who hold the specialties eligible to receive this pay for a one year active duty obligation that may be served concurrently with all other obligations; and 5) MSP which is paid based on execution of a contract for 2, 3, or 4 years of active duty to selected Medical Corps Officers based on their specialty.  This pay is authorized concurrently with MASP and ISP.  The basic intent of MASP, ISP and MSP is to retain physicians beyond their current obligations.

CONCLUSIONS:

1.  In view of all of the circumstances in this case, the applicant is entitled to corrected of his records to show an MSP retention bonus for the period of 
1 October 1995 to 30 September 1999 under the FY96 rate of $14,000.00 per year for a total of $56,000.00, with linked ISP for the same period at the rate of $6,000.00 per year for the same duration for a total of $24,000.00.  This also includes an offset of $13,000.00 based on a now considered overpayment of a previous ISP of $37,000.00 for the same period.

2.  The Board recognizes the multi faceted retention bonus program may be and has been confusing to newly appointed doctors, and to personnel officials as well.  The applicant was eligible and entitled to the contested MSP and needed only to sign a single contract for the payments, but through confusion and misinformation, he did not receive the available pay.  He served the time he would have committed to had he received the MSP.  The Board does not hold the applicant accountable for error in this case.  It is concluded he is due relief based on injustice and equity.  He could have and should have received the MSP but did not, and other doctors did receive the MSP simply by receiving the proper guidance and signing the appropriate contract at the time.

3.  The Board also concludes that based on the evidence, it would be unconscionable not to pay the requested MSP to the applicant.  He has earned it.

4.  The foregoing is supported by the evidence and by the statement provided by the Chief of the Army Medical Department (AMEDD) Special Pay Branch.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by showing the applicant was contracted for MSP on 1 October 1995 for the period from 1 October 1995 to 30 September 1999, under FY96 rates of $14,000.00 per year for a total of $56,000.00, with linked ISP at the rate of $6,000.00 per year for the same duration for a total of $24,000.00; and

	b. by offsetting the foregoing by $13,000.00 based on overpayment of a previous ISP of $37,000.00 for the same period.

BOARD VOTE:  

_kak____  _alr____  _mhm____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Karol A. Kennedy
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001060351	
SUFFIX		
RECON		
DATE BOARDED	20020618	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	128	
2.		
3.		
4.		
5.		
6.