Docket No 2435-20 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) Title 10 U.S.C. § 1552 (b) OPNAVINST 7220.17 dtd 28 Dec 05 (c) Medical Department Special Pays Information 2019 Encl: (1) DD Form 149 (2) DD Form 4 of 20 Feb 98 (3) DD Form 214 eff 31 Aug 03 (4) NAVCRUIT 1131/131 of 4 Aug 08 (5) NAVPERS 1000/4 of 4 Aug 08 (6) NAVPERS 1000/4 of 29 May 12 (7) Fitness Report and Counseling Record(s) from 11 Jun 16 to 2 Jul 18 (8) History of Assignments (9) (Navy) ltr 1426 Ser 00/809 of 29 Aug 18 (10) BUMED ltr 7220 Ser M1/20UM10031 of 29 May 20 (11), ltr of 3 Nov 20 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to receive SAVE pay for more than 2. The Board reviewed Petitioner’s allegations of error and injustice on 4 May 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of enclosures (1) through (9), relevant portions of Petitioner’s naval records, and applicable statutes, regulations and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. In accordance with reference (b), to be eligible for a higher ISP rate at the announcement of each fiscal year's pay plan, medical officers with an existing MSP contract may be afforded the opportunity to terminate that contract to enter into a new ISP contract that would give them an equal or longer active duty obligation as the existing MSP obligation. Any unearned portion of the ISP contract is recouped on a pro rata basis. The earliest contract effective date is 1 October of the fiscal year for which the pay plan is announced. Appendix 2-K provides the proper format to request and endorse the termination and renegotiation of an ISP request. COs must provide a detailed and specific explanation of the delay on all ISP requests not endorsed within 30 days of the requested effective date. BUMED-M1C1 may approve retroactive ISP agreements when the reason for delay in initiating the ISP agreement is clearly justifiable. Appendix 2-L provides the format to request and endorse retroactive ISP request. ISP will be paid in lump sum not earlier than the eligibility date of each year of the agreed period of active duty. ISP will be paid at the annual rate as published in the Fiscal Year NAVADMIN for Medical Corps special pay rates. c. On 20 February 1998, Petitioner enlisted for 8 years in the U.S. Naval Reserve. See enclosure (2). d. Petitioner was issued a DD Form 214 (Certificate of release or discharge from active duty) for the period of 1 April 1998 to 31 August 2003. Petitioner was honorably released from active duty and transferred to the Navy Reserve. See enclosure (3). e. On 4 August 2008, Petitioner signed a NAVCRUIT 1131/131 (Armed Forces Health Professions Scholarship Program (AFHPSP) Medical Students, Dental Students, Optometry Students, and Physician Assistants Students (1975X, 1985X, and 1995X)) Service Agreement. See enclosure (4). f. On 4 August 2008, Petitioner signed a NAVPERS 1000/4 (officer appointment acceptance and oath of office) in the inactive U.S. Naval Reserve as an Ensign with a designator code of 1975. See enclosure (5). g. On 29 May 2012, Petitioner signed a NAVPERS 1000/4 (Officer appointment acceptance and oath of office) in the active U.S. Navy as a Lieutenant with a designator code of 2100. See enclosure (6). h. From 23 June 2016 to 2 July 2018, Petitioner was stationed a for duty. While there, Petitioner served as Internal Medicine Junior resident and Senior Internal Medicine resident, and graduated from internal medicine residency training and detachment for fellowship training. See enclosure (7). i. On 3 July 2018, Petitioner arrived to for duty. See enclosure (8). j. On 1 September 2018, Petitioner was permanently appointed to Lieutenant Commander. See enclosure (9). k. In accordance with reference (c) [2019], a Retroactive request is required anytime the request and/or the CO endorsement is dated more than 30 days after the effective date. Retroactive payment of special pays is not authorized, except in unusual circumstances where the reason for delay was unavoidable on the part of the service member. The justification must also be explained in detail and be specific. Admin error can only be used when the justification clearly explains how the admin error was not on the part of the member. For example, the member contacted the command coordinator on time, but the coordinator failed to properly process the request on time, is an example of admin error that would be sufficient, but would need to be explained in similar manner. Another example of justification would be member was misinformed by the command coordinator. Command Admin/HRD/Special Pays should be advising members when they report to the command on submission policies of the command, and checking the member’s MMPA record to see if member is receiving correct special pays. l. On 29 May 2020, the Chief of Bureau of Medicine and Surgery provided an advisory opinion concluding that the evidence proffered by Petitioner is insufficient to support the requested record change. The advisory opinion stated the following: has not provided justification which meets the “clearly unavoidable” requirement. His request for back pay of HPO IP at the annual rate of for the period of 1 October 2018 through 31 July 2019, is not validated.” See enclosure (10). m. On 3 November 2020, Petitioner’s counsel provided the following rebuttal: “The Advisory Opinion failed to fully inform this Board of the many ways an officer may be eligible to receive retroactive special pay. It improperly misled the Board in its assertion that justification was not adequate when was clearly justified in his delayed request. The Advisory Opinion failed to inform this Board that administrative error may be used as justification. It further failed to explain to the Board that administrative error should rarely be accepted because the expectation is the Command Special Pays Coordinator is properly performing his/her duties. However, in circumstances the Command Special Pays Coordinator failed in her responsibilities inhibiting ability to request for an increase in special pays. The facts and circumstances surrounded request for special pay support receiving retroactive special pay. He made an inquiry for HPO IP in September 2018 and had the Special Pays Coordinator informed him of the procedure then, his request would have been timely per OPNA VINST 7220.17 and would have been receiving the special pay since October 2018. Instead, he was misinformed that he would receive HPO IP in October 2018, never provided periodic updates on command special pay procedures, and never received updates on pay guidance. The administrative errors were beyond control. The delay was through no fault of his own. is clearly justified in receiving retroactive special pay.” See enclosure (11). CONCLUSION Upon review and consideration of all the evidence of record, and notwithstanding the opinion expressed in enclosure (10), the Board finds the existence of an error/injustice warranting corrective action. The Board concluded that Petitioner’s command failed to inform Petitioner of the proper procedure to request for HPO IP once he arrived to the command. In accordance with reference (c), Command Admin/HRD/Special pays should be advising members when they report to the command on submission policies of the command, and checking the member’s MMPA record to see if member is receiving correct special pays. It is reasonable to assume that because Petitioner became eligible for the higher pay within months of reporting to his command, if Petitioner had been informed by his command upon checking in that he had to submit a request for the higher rate when he became eligible, he would have acted in a timely manner. The Board concluded that Petitioner’s reason for retroactive ISP meets the “clearly unavoidable” requirement, as it is not the fault of Petitioner, but due to administrative error. RECOMMENDATION That Petitioner’s naval record be corrected, where appropriate, to show that: Petitioner submitted a request for ISP, via the CO, to BUMED-M1C1 in a timely manner and it was approved by cognizant authority with an effective date of 1 October 2018. Note: This change will entitle the member to a HPO IP at an annual rate of for the period of 1 October 2018 to 31 July 2019. A copy of this Report of Proceedings will be filed in Petitioner’s naval record. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 5. The foregoing action of the Board is submitted for your review and action. 6/14/2021 Executive Director Assistant General Counsel (Manpower and Reserve Affairs) Reviewed and Approved Board Recommendation (Grant Relief) Reviewed and Approved Advisory Opinion Recommendation (Deny Relief) 7/14/2021 Assistant General Counsel (M&RA)