IN THE CASE OF: BOARD DATE: 23 January 2018 DOCKET NUMBER: AR20170005733 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. IN THE CASE OF: BOARD DATE: 23 January 2018 DOCKET NUMBER: AR20170005733 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING ::x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 23 January 2018 DOCKET NUMBER: AR20170005733 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 an exception to policy to execute a 4-year Multi-year Special Pay (MSP) Agreement, effective 7 June 2017, under the Legacy Special Pay Agreement. 2. The applicant states: a. He is currently a staff general surgeon at Tripler Army Medical Center (TAMC). He graduated from the U.S. Military Academy (USMA) in 2005, completed the Health Professions Scholarship Program (HPSP) at Northwestern University in 2009, and completed his general surgery residency at TAMC in 2015. He was scheduled to do an additional minimally invasive surgery fellowship at Emory University in August 2017. b. The new Army Active Component Health Professions Officer (HPO) Special and Incentive Pay Plan became effective 1 January 2017. According to this new plan, one of the requirements to sign a 2, 3, or 4-year HPO retention bonus (RB) requires that the individual first complete their initial active duty obligation (ADO) (any active duty service commitment incurred for participating in a pre-commissioning and/or commissioning program). He contacted the Army Medical Department (AMEDD) Special Pay Branch, who stated that his commitment for pre-commissioning (USMA/HPSP) would make him ineligible to sign for this HPO RB until 7 April 2018. c. He exhausted all other resources regarding this matter. However, he believes that due to the clauses within the Army Active Component HPO Special and Incentive Pay Plan, he is still eligible (as of 7 June 2017) to sign a 4-year extension bonus (previously referred to as Multi-Year Special Pay or (MSP)) under the old policy via a Legacy Special Pay Agreement. d. A memorandum entitled Memorandum for Assistant Secretary of the Army, dated 15 December 2016, provides that "This plan supersedes all previously published Army Active Component, Army Medical Department special pay plans." This memorandum uses Department of Defense Instruction (DoDI) 6000.13 (Accession and Retention Policies, Programs, and Incentives for Military HPOs) as the reference for this special pay plan. e. DoDI 6000.13 states in paragraph 9: 9. Legacy Special Pays, a. officers who entered into a written agreement for receipt of a special pay in accordance with sections 301d, 301e, 302, 302a, 302b, 302c, 302c-1, 302d through 3021, 303, and 303a of Reference (c) (referred to in this instruction as legacy special pays) before the date referred to in paragraph 9c of this enclosure will continue to receive payments until the completion date of the written agreement. After that date, all new agreements for special pays for HPOs will be administered in accordance with the consolidated special pays (CSP0 authorities in section 335 of Reference (c). b. Legacy special pays will be administered in accordance with Reference (I). c. Effective 28 January 2018, all health professions legacy special pay authorities will be discontinued, and any new agreements will be in accordance with the CSP authorities in section 10 of this enclosure. d. Subject to acceptance by the Secretary concerned, an officer who entered into a written agreement in accordance with the legacy special pay authorities may request termination of that agreement to enter into a new agreement with an equal or longer obligation at the annual rate in effect at the time of execution of the new agreement. The new obligated period will not retroactively cover any portion or period that was executed under the old agreements. This option to terminate and enter into a new agreement is not available to officers who received lump sum payments. Reference (c) is Title 37, United States Code which defines 301d as Multiyear retention bonus: medical officers of the armed forces. f. Reference (I) is DoDI 7000.14-R, Volume 7A, (Department of Defense Financial Management Regulation: Military Pay Policy: Active Duty and Reserve Pay) current edition. On page 5-8, regarding MSP eligibility, this document states: to be eligible for MSP under section 0503 a medical officer must: A. be below the grade of 0-7; B. have a current, valid, unrestricted license or approved waiver; C. have completed all ADSO incurred for medical education and training or have at least 8 years of creditable service; D. have completed initial residency training or is scheduled to complete initial residency training before October 1 of the fiscal year in which the officer enters into an agreement; and E. execute a written agreement to remain on active duty given that legacy special pays include MSP (301d) and will be administered in accordance with Reference (I). g. He deduced that he will be eligible to sign a 4-year MSP under the prior policy as he will have met all requirements, particularly "Have completed all ADSO incurred for medical education and training or have at least 8 years of creditable service." Although he will not have completed all ADSO incurred for medical education and training, he will have 8 years of creditable service on 7 June 2017. As 7 June 2017 is before the effective date 28 January 2018, he believes that this legacy special pay agreement can be administered on 7 June 2017. 3. The applicant provides: * USMA transcript * Doctor of Medicine Diploma * U.S. Army Medical Department Certificate for General Surgery Residency * list of published works * The American Board of Surgery examination results * Army Graduate Medical Education (GME) selection notice * Training Agreement for GME * article Early Specialization in Surgery: The New Frontier * applicants for fellowship matching process information * Army Active Component HPO Special and Incentive Pay Plan * article Changing Demographics of Residents Choosing Fellowships: Long-term Data from the American Board of Surgery CONSIDERATION OF EVIDENCE: 1. The applicant executed an oath of office on 8 June 2009 and was appointed as a Regular Army commissioned officer in the Medical Corps. He is currently serving on active duty in the rank of major. 2. The applicant provides: a. his Doctor of Medicine Diploma from Northwestern University, dated 14 May 2009. b. U.S. Army Medical Department Diploma that shows he successfully completed General Surgery residency at TAMC from 1 July 2010 through 30 June 2015. c. a notification, dated 6 March 2016, from the Office of the Surgeon General (OTSG) informing the applicant he was selected for GME training in Minimally Invasive Surgery. d. training agreement for Army GME, dated 6 March 2016. The applicant selected an Army sponsored civilian training under the partially-funded GME program in Minimally Invasive Surgery at a Civilian Sponsored beginning on or about 1 August 2017 and scheduled to be completed on 31 July 2018. By signing he understood that no tuition is paid for partially-funded civilian GME. 3. In the processing of this case, an advisory opinion was obtained on 12 July 2017 from the Chief, AMEDD Special Pay Branch, OTSG. This official stated: a. Officer is requesting to execute a 4-year MSP at $60,000/year effective 8 June 2017 under the legacy special pay policies, which were superseded by the Army Active Component HPO Special and Incentive Pay Plan effective 1 January 2017. Officer outlines their reasoning and impact of the policy change in the application, but they petition that the DoDI 6000.13 provides the ability to execute legacy special pay agreements until 28 January 2018. Officer is requesting an exception to policy to continue under that legacy special pay program to execute the 4-year MSP agreement. b. Officer's request to execute the 4-year MSP under the legacy special pay policies is primarily based on the relationship between how the special pay and the future fellowship training obligations are served. (1) Under the legacy special pay policies, officer has an initial active duty obligation of 8-years and 10-months from their Entry on Active Duty (EAD) of 7 June 2009; expiring 7 April 2018. However, officer would be eligible to execute the 4-year MSP agreement upon having 8 years of creditable service from the Health Professions Pay Entry Date (HPPED) of 7 June 2009. Therefore, officer would be eligible for the 4-year MSP at $60,000/year effective for payment 8 June 2017 through 7 June 2021, and the 4-year MSP obligation would be added to only the current (pre-fellowship start) medical training obligation of 30 April 2024; expiring 29 April 2028. The special pay obligation would be served concurrently with the 3-year obligation upon fellowship start August 2017. (2) Under the new Army Pay Plan policies, officer's initial obligation expires 7 April 2018. Any Active Duty service commitment incurred for participating in a pre-commissioning and/or commissioning program must be completed before being eligible for the 4-year HPO Retention Bonus (RB); the HP PED 8-years creditable service no longer applies. Therefore, officer would be eligible for the 4-year HPO RB at $60,000/year effective for payment 8 April 2018 through 7 April 2022, and the 4-year HPO RB obligation would now be added to the current (post-fellowship start) medical training obligation of 30 April 2027; expiring 29 April 2031. The special pay obligation would now be served consecutive to the 3-year fellowship obligation. c. The Army's position is that although DoDI 6000.13 allows continued payment of legacy special pays through 28 January 2018, the aforementioned Army Pay Plan no longer allows legacy special pay agreements to be executed if remaining on active duty beyond 28 January 2018, only release of existing scheduled payments. No waivers or exceptions to policy are being accepted regarding the Army Pay Plan. The Board would have to grant the officer an exception to the Army Pay Plan policy to allow for execution of a 4-year MSP at $60,000/year effective for payment 8 June 2017 through 7 June 2021, with a corresponding total obligation expiring 29 April 2028. 4. A copy of the advisory opinion was provided to the applicant on 14 July 2017 for comment and/or rebuttal. On 8 August 2017, he responded with the following: a. An exception to policy memo to sign a new MSP/RB backdated to 7 June 2017 should be granted in accordance with DoDI 7000.14R via Legacy Special Pay within DoDI 6000.13 as discussed in his initial petition, which runs concurrent with his GME ADSO (overall ADSO should be 29 April 2028 with both 4 year MSP/RB and 3 year GME). b. From a calendar perspective, there was no legal recourse to alter his career path once the new policy was announced. c. He signed a GME fellowship and ADSO agreement on 8 March 2016. On 4 June 2016, he was matched via The Fellowship Council to Emory University, to start training on 1 August 2017. According to the Fellowship Council regarding matching, "The listing of an applicant by a program on its certified rank order list or of a program by an applicant on the applicant's certified rank order list establishes a binding commitment to offer or to accept an appointment if a match results." Thus, there was a signed contract with both Army GME and a binding legal agreement with Emory University and The Fellowship Council pre-dating the announcement of the policy change. Furthermore, the prior pay policy was still in effect, last updated for August 2016 (DOD 7000.14R page 5-8), which is after both the GME contract and binding fellowship agreement went into effect. d. His initial education ADSO from USMA and HPSP was 8 years and 10 months, expiring on 7 April 2018. He completed his general surgery training at TAMC in June 2015. The vast majority (77% since 2005, see article attached entitled JAC Surgical specialization) of graduating general surgeons are seeking immediate fellowship training. In addition, some programs report a 95% pursuance of immediate general surgery training upon graduation from residency (see article attached entitled "Early Specialization in Surgery"). Furthermore, this data is over 10 years old and likely underestimates the ever increasing trend of early surgical sub-specialization. e. His credentials are excellent as an applicant for fellowship in general surgery sub-specialties. He graduated from USMA, a top 20 medical school (Northwestern University), published 6 scholarly articles in peer-reviewed journals during residency, and averaged the 83rd percentile on the annual American Board of Surgery In-Service Training Examination from 2010-2015. He waited 2 full years before first applying for additional fellowship training in Minimally Invasive Surgery. In doing so, he completed 8 creditable years of service (6 years of residency, 2 years as an attending surgeon). f. Under the then Army finance policy (DOD 7000.14R), he was eligible to sign the general surgery MSP on 7 June 2017, prior to his start date of fellowship on 1 August 2017. This would have allowed the ADSOs of both the fellowship training and the MSP to run concurrently and not consecutively. The Army policy was an important factor when deciding when he should pursue additional surgical training. g. Had he known he would not be eligible to sign for the MSP/RB until 7 April 2018, he would have delayed applying for fellowship an additional year. Given these arguments, surrounding circumstances, and supporting documents, he believes there is enough evidence to grant such an exception to policy memorandum. REFERENCES: 1. Medical Corps special pay is authorized by Congress in Title 37, U.S. Code. MSP is paid to specific Medical Corps officers possessing a current unrestricted license (or approved waiver) based on specialty and execution of contract. A 2, 3, or 4-year active duty obligation is incurred based upon the executed contract. 2. DoDI 6000.13 provides that: a. Officers who entered into a written agreement for receipt of a special pay in accordance with sections 301d, 301e, 302, 302a, 302b, 302c, 302c-1, 302d through 302l, 303, and 303a of Reference (c) (referred to in this instruction as “legacy special pays”) before the date referred to in paragraph 9c of this enclosure will continue to receive payments until the completion date of the written agreement. After that date, all new agreements for special pays for HPOs will be administered in accordance with the CSP authorities in section 335 of Reference (c). b. Legacy special pays will be administered in accordance with Reference (l). c. Effective January 28, 2018, all health professions legacy special pay authorities will be discontinued, and any new agreements will be in accordance with the CSP authorities in section 10 of this enclosure. d. Subject to acceptance by the Secretary concerned, an officer who entered into a written agreement in accordance with the legacy special pay authorities may request termination of that agreement to enter into a new agreement with an equal or longer obligation at the annual rate in effect at the time of execution of the new agreement. The new obligated period will not retroactively cover any portion or period that was executed under the old agreements. This option to terminate and enter into a new agreement is not available to officers who received lump sum payments. 3. DoDI 7000.14-R provides that subject to acceptance by the Secretary of the Military Department concerned, a medical officer with an existing MSP contract may terminate that contract to enter into a new MSP contract with an equal or longer obligation at the MSP annual rate in effect at the time of execution of the new MSP contract. Any unearned portion of the terminated contract will be recouped. Based on service-unique requirements, the Secretary concerned may decline to offer MSP to any specialty that is otherwise eligible or restrict the length of an MSP contract for a specialty to less than 4 years. There is no stipulation on granting exceptions to this policy. DISCUSSION: 1. The applicant requests an exception to policy to execute a 4-year MSP effective 7 June 2017, under the legacy special pay agreement. He contends had he known he would not be eligible to sign for the MSP/RB until 7 April 2018, he would have delayed applying for fellowship an additional year. 2. The applicant is currently under the Army Pay Plan policy with an obligation that expires on 7 April 2018. He is not eligible for the new 4-year HPO RB until 8 April 2018. 3. Effective 28 January 2018, all health professions legacy special pay authorities will be discontinued. 4. The AMEDD Special Pay Branch noted continued payment of legacy special pays will go through 28 January 2018. The Army Pay Plan no longer allows legacy special pay agreements to be executed if remaining on active duty beyond 28 January 2018, only release of existing scheduled payments. No waivers or exceptions to policy are being accepted regarding the Army Pay Plan. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170005733 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170005733 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2