BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20160012416 BOARD VOTE: ___x______ __x_____ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20160012416 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing he requested payment of Medical Special Pay in the amount of $25,000 per year for 1 July 2009 and 1 July 2010 (total period from 1 July 2009 through 30 June 2011) and b. showing he requested payment of Multi-year Incentive Special Pay in the amount of $50,000/year for 1 July 2009 and 1 July 2010 (total period 1 July 2009 through 30 June 2011), minus the amounts for payments already disbursed for Incentive Special Pay contracts at $29,000/year effective 1 October 2008, 1 October 2009, and 1 October 2010. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20160012416 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests retroactive award of Medical Special Pay (MSP) and linked Multi-year Incentive Special Pay (MISP). 2. The applicant states he was eligible to enter into a 2-year MSP linked to MISP to run concurrently with his fellowship training obligation. a. He started his fellowship training in July of 2009. b. Prior to starting his fellowship in April 2009, he spoke with his contracting office and was told he was not eligible for an MSP/MISP contract and that he could not renegotiate his contract since he still had an active duty obligation. Although this is contrary to the Military Personnel message, he accepted that statement and proceeded into his fellowship training. Upon completion of his fellowship in June 2011, he was reassigned. c. At his new duty location, the contracting officer told him he was allowed to sign an MSP/MISP contract with 9 months remaining on his service obligation. He was advised that as long as he had a Health Professions Pay Entry Date (HPPED) of more than 8 years, he was eligible to sign a contract but the contract could not be renegotiated when requested in June 2014. d. He was also informed that he could not retroactively change his situation or renegotiate the MSP/MISP contracts because the All Army Activities (ALARACT) guidance had changed. However, upon transferring to a new installation, he discussed his situation with a fellow peer who was able to retroactively enter into a renegotiated contract prior to his fellowship and was compensated appropriately. He was advised to seek relief from the Army Review Boards Agency. e. He was incorrectly advised that he did not meet the criteria necessary to enter into a 2-year MSP/MISP contract when he requested it prior to beginning his fellowship in July 2009. The guidance he received was contrary to the Fiscal Year (FY) 2008 Medical ALARACT as follows: (1) Paragraph 13C.2 states any medical education/training active duty obligation that is incurred at a date later that the MSP agreement execution date will not extend, but will run concurrently with such agreement. However, it might affect future MSP agreements/active duty obligations periods. (2) Paragraph 17C states an officer with an existing Incentive Special Pay (ISP), or MISP and MSP agreement who wants to renegotiate these agreements to receive a higher ISP, or combined MISP and MSP rate must have the ongoing ISP, or MISP and MSP agreements terminated prior to the effective date of the future ISP, or MISP and MSP agreements. (3) The new agreements must have an equal or longer obligation duration than the terminated ISP, or MISP and MSP agreements. f. His calculated HPPED was 16 June 2000, which means he had 9 years at the time of his fellowship and should have been allowed to enter into the MSP/MISP contract as he had previously requested. g. He requests retroactive award of a 2-year MSP/MISP contract for July 2009 for MISP plus MSP in the amount of $34,000 plus $25,000 minus the ISP already paid to him in the amount of $29,000. He calculates he was eligible to receive $30,000 each year he was in fellowship training. Subsequent contracts will also need to be reviewed and updated for appropriate entry and termination dates. 3. The applicant provides: * ALARCT 204/2007 (FY 08) subject: FY 08 Army Medical Corps Officer Special Pay Policy, Plan and Rates * Information Paper FY 08, subject: Army Medical Department (AMEDD) Special Pay Program for Medical Corps Officers (Physicians) FY 08 CONSIDERATION OF EVIDENCE: 1. The applicant was commissioned in the U.S. Army Reserve (USAR) on 31 March 1996 with entry into the Armed Forces Health Professions Scholarship Program. 2. With the completion of his medical training, the applicant was appointed as a Medical Corps captain and ordered to active duty effective 9 June 2000. 3. The first documentation of award of ISP contained in the applicant's official record is dated 29 September 2009. 4. In the development of this case, an advisory opinion was obtained from the Chief, AMEDD Special Pay Branch, Office of the Surgeon General. The AMEDD Special Pay Branch Chief states: a. Requests for the contractual discretionary MSP (Title 37, U.S. Code, section 301d) and MISP (Title 37, U.S. Code, section 302(b)) should be initiated by the officer through their command's supporting Human Resource Office. It appears the Human Resource Office failed to process the executed contracts through the command for approval. Officers bear responsibility for their part of the contract preparation, to include their inquiry as to eligibility, requesting contract to be initiated, and executing the contract by signature up to 90 days in advance or within 30 days after the effective date; otherwise, effective date must be reestablished as date of signature. All contracts executed outside of the policy for signature date, or approved contracts received outside the funded fiscal year, are returned without action. b. A review of the applicant’s special pay and finance records indicates he completed his initial general surgery residency obligation on 30 June 2009 and entered fellowship training on 1 July 2009. If the applicant had executed the 2-year MSP and linked MISP effective 1 July 2009, the contractual obligation would be served during the fellowship training. Additionally, the applicant received the following pertinent specialty contracts and payments: (1) 1-year ISP contracts at $29,000/year, effective 1 October 2008, 1 October 2009, 1 October 2010, and $36,000/year effective 1 November 2011. (2) 2-year MSP at $23,000/year and linked MISP at $57,000/year, effective from 1 October 2012 through 30 September 2014 (MISP replaces annual ISP). (3) 4-year MSP at $55,000/year and linked MISP at $57,000/year, effective from 1 October 2014 through 30 September 2018. c. Records verify the applicant met the criteria for the requested a 2-year MSP contract at $25,000/year and linked MISP contract at $50,000/year effective from 1 July 2009 through 30 June 2011 (rates corrected to FY 09 authorities). In turn, the contractual obligation was served while in fellowship training. d. A full correction to the record would provide the applicant with payment of the 2-year MSP at $25,000/year retroactively effective to 1 July 2009 and 1 July 2010 (total due $50,000). Additionally, the applicant would receive a prorated payment of the 2-year MISP at $50,000/year retroactively effective to 1 July 2009 and 1 July 2010, minus the amounts for payments already disbursed for ISP contracts at $29,000/year, effective 1 October 2008, 1 October 2009, and 1 October 2010 (approximate total due $42,000). e. There are no other contracts or payments affected. 5. On 30 September 2016, the applicant was sent a copy of the advisory opinion for his review. 6. On 4 October 2016, the applicant responded stating he had reviewed the advisory opinion and found it fair, unbiased, and an accurate representation of the facts. REFERENCES: 1. Title 37, U.S. Code, section 301d (Multiyear Retention Bonus: Medical Officers of the Armed Forces), provides that: a. A medical officer who executes a written agreement to remain on active duty for 2, 3, or 4 years after completion of any other active duty service commitment may, upon acceptance of the written agreement by the Secretary of the military department concerned, be paid a retention bonus as provided in this section. The amount of a retention bonus may not exceed $75,000 for each year covered by a 4-year agreement. The maximum yearly retention bonus for 2-year and 3-year agreements shall be reduced to reflect the shorter service commitment. b. Eligible officers are officers of the Armed Forces who: (1) are officers of the Medical Corps of the Army or the Navy or an officer of the Air Force designated as a medical officer; (2) are in a pay grade below pay grade O-7; (3) have at least 8 years of creditable service (computed as described in section 302(g) of this title) or have completed any active duty service commitment incurred for medical education and training; and (4) have completed initial residency training (or will complete such training before September 30 of the FY in which the officer enters into an agreement under subsection (a)). 2. Title 37, U.S. Code, section 302 (Special Pay: Medical Officers of the Armed Forces), provides that subject to subsection (c) and paragraph (2) and under regulations prescribed under section 303a(a) of this title, an officer who is entitled to variable special pay under subsection (a)(2) may be paid incentive special pay for any 12-month period during which the officer is not undergoing medical internship or initial residency training. The amount of incentive special pay paid to an officer under this subsection may not exceed $75,000 for any 12-month period. 3. Department of Defense Financial Management Regulation, Volume 7A, chapter 5, section 050301, states that to be eligible for ISP a medical officer must be below the grade of O-7; have a current, valid, unrestricted license or approved waiver; have completed specialty qualification before 1 October 2008; and execute a written agreement to remain on active duty for a period of not less than 1 year beginning on the date the officer accepts the award of ISP. 4. Army Regulation 37-104-4 (Military Pay and Allowances Policy), 8 June 2005, Chapter 20 (Settlement Actions Resulting from Correction of Records by the Army Board for Correction of Military Records (ABCMR)) states only the Director, Defense Finance and Accounting Service-Indianapolis may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the ABCMR per provisions of Army Regulation 15-185 (ABCMR). DISCUSSION: 1. As set forth in the advisory opinion, the applicant meets the criteria for the 2-year MSP at $25,000/year retroactive for the period from 1 July 2009 through 30 June 2011. 2. Additionally, the applicant is eligible for a prorated payment of the 2-year MISP at $50,000/year for anniversary years 1 July 2009 and 1 July 2010, minus the amounts of payments already disbursed for ISP contracts effective 1 October 2008, 1 October 2009, and 1 October 2010. 3. Taking into consideration the aforementioned recommendations, the AMEDD advisory opinion estimates the total due (before taxes) is $42,000. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012416 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012416 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2