PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            20 January 2000                  
	DOCKET NUMBER:   AR1999030699

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Gary F. Geraets		Member	
	Ms. Barbara J. Ellis 		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, establishment of a 4-year Multiyear Special Pay (MSP) contract for the period 1 July 1997 through 30 June 2001, at the Fiscal Year (FY) 1997 rate of $10,000 per year based on his medical specialty.  

3.  The applicant states, in effect, that he was not offered an MSP agreement in 1997.  He understands that he was eligible for such a contract.  He submits a new 4-year MSP contract effective 1 July 1997.

4.  The applicant’s military records are not available to the Board.  However, information available indicates that he is currently serving on active duty, with the rank of major, and serving as a General Surgeon.  He has an MSP contract effective 30 September 1999, at the rate of $4,000 per year.  He received two prior Incentive Special Pay (ISP) payments of $26,000 on 1 October 1997 and $25,000 on 1 October 1998, which were linked to his MSP’s.  He then entered into a Multiyear ISP (MISP) on 30 September 1999 for 4 years.  

5.  In connection with this case, the Special Pay Branch of the Office of the Surgeon General (OTSG), has provided a detailed advisory opinion to the Board upon which a the Board may reach a fair and equitable decision.  This opinion is based on the intent of Federal law and Department of Defense interpretation/
guidance to the Service Secretaries.  

6.  Essentially, the opinion states that the applicant was entitled to a MSP agreement under the 1996 active duty criteria.  Additionally, while the applicant did not submit such a request, he is entitled to an adjustment on his Incentive Special Pay (ISP) contract which must be aligned with the MSP contract.  Therefore, he is entitled to a locked-in ISP, at the FY97 rate of $26,000 per year beginning on 1 October of each year.  The locked-in ISP payment and the obligation period, in conjunction with the MSP, is effective from 1 October 1997 through 30 September 2001.  The OTSG notes that an annual ISP contract for $26,000 per year must be submitted on 1 October 2000 for payment during the final year of the contract.

7.  The OTSG provided a summary of payments which should be made and amounts owed if the applicant’s request is accepted based on a 4-year MSP contact (at $10,000 per year) from 1 July 1997 through 30 June 2001 and a linked ISP contract (at $26,00 per year) from 1 October 1997 through 30 September 2001 as follows:

Eligible Date for MSP			MSP Payment Status

1 July 1997 (1st Installment)		Not Paid ($10,000)
1 July 1998  (2nd Installment)		Not Paid ($10,000)
1 July 1999  (3rd Installment)		Not Paid ($10,000)
	1 July 2000 (4th Installment)		Installment Pending ($10,000)
Current ISP Dates/Payment Status	ISP linked to MSP/Payment Status  

1 October 1997 Paid $26,000		1 October 1997 (No Change)
1 October 1998  Paid $25,000		1 October 1998 (Due $1,000)
30 September 1999 Paid $25,000		Change date to 1 October 1999 (Due $1,000)
						New Contract due 1 October 2000 ($26,000).

8.  In essence, if the applicant’s request is approved, his current 4-year MSP contract effective 30 September 1999 for $4, 000 must be terminated with full recoupment of any payments received.  The MISP ISP effective 30 September 1999, for $25,000 per year must changed to an annual ISP effective 1 October 1999.  Then applicant would be due total payments of $32,000 for past due MSP and partial ISP payments.  However, all payments are subject to tax adjustment. 

9.  The OTSG opinion was provided to the applicant for comment, but he did not respond.  

CONCLUSIONS:

1.  Based upon interpretation of law and other Department of Defense guidance, the applicant is entitled to a MSP contract at the annual rate of $10,000 per year from 1 July 1997 through 30 June 2000 at an annual rate of $10,000 per year.

2.  Additionally, his MSP and MISP contracts of 30 September 1999 should be voided and any payments received need to be recouped.  

3.  Since his previous linked ISP effective 1 October 1997 was paid at the correct $26,000 rate, no change in that contract is required.  The linked ISP contract which began on 1 October 1998 is correct except for the payment level.  As stated it calls for $25,000, but should call for $26,000. 

4.  Further, a new ISP contract linked to his new MSP of 1 July 1997 should be issued effective 1 October 1999, at the annual rate of $26,000 per year.  

5  A second linked ISP contract, dated 1 October 2000, should also be initiated at the appropriate time this year.  This contract would also be at the $26,000 per annum rate.  

6.  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 by:

	a.  voiding his MSP contract dated 30 September 1999 which was effective for 4 years; 

b.  recoupment of any monies paid under this contract; 

c.  issuance of a new MSP contract for 4 years effective 1 July 
1997 through 30 June 2001; 

d.  changing his linked ISP contract dated 1 October 1998 to show entitlement to $26,000 per year vice $25,000 per year; 

e.  voiding his 4-year MISP, dated 30 September 1999, at the annual rate of $25,000; and 

f.  issuing to him an annual linked ISP contract, effective 1 October 1999, with an entitlement to a payment of $26,000. 

2.  That upon submission of a proper request for an annual linked ISP contract effective 1 October 2000, that he be paid at the $26,000 per annum rate.  

BOARD VOTE:  

__RGH__  ___GFG_  __BJE___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_ROBERT G. HINKLE__
		        CHAIRPERSON

INDEX

CASE ID	AR1999030699	
SUFFIX		
RECON		
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	128.21	
2.		
3.		
4.		
5.		
6.