PROCEEDINGS

	IN THE CASE OF:           

	BOARD DATE:                22 March 2000
	DOCKET NUMBER:       AR1999030704

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Arthur A. Omartian		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 20 June 1996 through 19 June 2000 at the Fiscal Year 1996 rate of $14,000 per year based on his medical specialty in Orthopedics.  He also requests that his last Medical Additional Special Pay (MASP) agreement be renegotiated to coincide with the expiration of his term of service (ETS) on 21 June 2000.

3.  The applicant states that his Reserve Officers Training Corps (ROTC) obligation should be “subtracted” so that he becomes eligible to exercise a 4-year MSP contract.  He contends that he did not know that he was eligible for MSP in 1996.  The applicant further states that he attended Virginia Military Institute on a 4-year ROTC Scholarship and attended the University of Virginia acquiring a 
4-year graduate medical education, thereby incurring 8 years of obligation.  The applicant contends that he began paying back his 8-year obligation in 1988 by serving two years with the 1st Battalion, 75th Rangers and then attended a military residency.  Further, he explains that he “extinguished” his graduate medical education obligation in 1996, but still had 4 more years of obligated service based on his ROTC Scholarship.  He contends that he was eligible in 1996 to “put in “ for the 4-year MSP, but did not realize that until now.  

4.  In a separate letter, dated 13 August 1999, the applicant states that he is unable to receive Incentive Special Pay (ISP) or MASP because his ETS, does not allow him to execute a 12 month agreement and he cannot extend his ETS for the additional days enabling him to complete 12 months of service.  He states that the reason for denial of his special pay is based on a decision by him and his family to forego integration into the Regular Army.  The applicant states that, as a result of his decision, the Army Medical Department (AMEDD) Special Pay Branch could not support his request for a short term extension on active duty to qualify for the special pays or a request for payment of these special pays.

5.  The applicant’s military records are not available to the Board.  However, information available indicates that he is currently serving on active duty in the rank of lieutenant colonel as an Orthopedist in a medical facility in Germany.

6.  In the processing of this case, an advisory opinion was obtained from the AMEDD Special Pay Branch.  The opinion noted that there is an MSP policy interpretation by the AMEDD that was first documented in a similar case considered by the Army Board for Correction of Military Records (ABCMR) in 1996.  This interpretation provided that MSP obligations are additive only to Graduate Medical Education (GME) active duty obligations, not to ROTC active duty obligations, such as in the applicant’s case.  

7.  The opinion further addressed the issue of active duty obligations by pointing out that Department of Defense Directive 6000.13, Medical Manpower and Personnel, dated 30 June 1997, precluded concurrently serving certain active duty obligations and specifically required that active duty obligations for education and training and previous MSP agreements will be served before serving the active duty obligation for MSP because Congressional intent and Department of Defense Health Affairs policy, with regard to MSP, was intended to extend a physician beyond his current active duty obligation, not to provide for concurrent obligation.  The issue of concurrent versus additive active duty obligations has been addressed by the AMEDD, and, effective 1 January 1999, all 2, 3, or 4-year MSP agreements will be additive to all active duty obligations currently held by an officer upon the effective date of the MSP.  

8.  The advisory opinion concluded, however, the applicant could have executed a 4-year MSP contract effective 20 June 1996 with an active duty obligation through 19 June 2000 at the Fiscal Year 1996 rate of $14,000 per year based on the 1996 interpretation regarding active duty obligations.  Thus, the AMEDD Special Pay Branch recommended that the applicant’s military pay account be corrected to show a 4-year MSP contract for this period at this amount and that his Incentive Special Pay effective 1 October 1995 for $36,000 be “annotated” now as a Multiyear Incentive Special Pay (MISP) and adjusted to overlay the MSP dates of 20 June 1996 through 19 June 2000. The applicant was offered an opportunity to comment on the advisory opinion by the AMEDD Special Pay Branch, and he concurred in that opinion.  The advisory opinion did not address the issue of renegotiating the applicant’s last MASP.

9.  The opinion also provided a schedule for the applicant’s 4-year MSP at the Fiscal Year 1996 rate of $14,000 and an adjusted MISP at the Fiscal Year 1996 rate of $36,000 per year for the 4-year duration of the MSP.  The AMEDD Special Pay Branch calculated the payments which should be made and amounts owed to him if the applicant’s request is accepted based on a 4-year MSP contact (at $14,000 per year) from 20 June 1996 through 19 June 2000 and a linked MISP contract (at $36,00 per year) for the same period as follows:

Eligible Date for MSP			MSP Payment Status

20 June 1996  (1st Installment)		Not Paid ($14,000)
20 June 1997  (2nd Installment)		Not Paid ($14,000)
20 June 1998  (3rd Installment)		Not Paid ($14,000)
	20 June 1999  (4th Installment)		Not Paid ($14,000)

Current ISP Dates/Payment Status	MISP linked to MSP/Payment Status  

1 October 1995 Paid $36,000		20 June 1996   (No Change)
1 October 1996 Paid $35,000		20 June 1997   (Due $1,000)
1 October 1997 Paid $35,000		20 June 1998   (Due $1,000)
1 October 1998 Paid $35,000		20 June 1999   (Due $1,000)

10.  In summary, the advisory opinion states that if the applicant’s request is approved, then he is due $59,000 for past MSP and partial ISP payments, prior to tax adjustment. 

11.  The applicant provided a copy of a 1 July 1999 memorandum from the Chief of the AMEDD Special Pay Branch which returned the applicant’s MASP contract.  This memorandum indicates that the applicant was seeking approval of a MASP contract in the amount of $15,000 for the period 1 July 1999 to 30 June 2000.  However, approval of the contract was denied because the applicant “has a mandatory release date (MRD) of 20000621” [21 June 2000].  The memorandum also states that the Medical Corps Branch of the Total Army Personnel Command (PERSCOM) could not support the active duty extension required for this contract.  Finally, the memorandum states that the "officer will not be eligible to execute an Incentive Special Pay (ISP) contract upon expiration of his current ISP contract on 19990930” [30 September 1999].

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) Medical Additional Special Pay (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) Incentive Special Pay (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) Multiyear Special Pay (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 Medical Additional Special Pay and Incentive Special Pay.

13.  Multiyear 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 in an annual message, subject:  Army Medical Corps Officer Special Pay Policy, Plan and Rates.  This message establishes, among many requirements, the specialties eligible for 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.  

14.  The Fiscal Year 2000 Army Medical Corps Officer Special Pay Policy, Plan and Rates message (date/time group-181101Z AUG 99) was effective 1 October 1999 and stated in pertinent part that the active duty obligation resulting from MSP cannot be served concurrently with the active duty obligation resulting from education and training.  However, prior to 1 October 1999, the AMEDD, supported by a 1996 ABCMR decision, determined that MSP obligations are additive only to active duty obligation for Graduate Medical Education (GME) and other medical financial assistance programs, not to ROTC or U.S. Military Academy active duty obligations.  Essentially, this allowed MSP contracts with 2, 3, or 4-year active duty obligations to be executed concurrently with existing ROTC or U.S. Military Academy active duty obligations or in certain cases where 8 years has elapsed from the HPPED or existing active duty obligations for medical education and training or a previous MSP had been otherwise been satisfied.

15.  The Fiscal Year 2000 Army Medical Corps Officer Special Pay Policy, Plan and Rates message (date/time group-181101Z AUG 99) was effective 1 October 1999 and stated in pertinent part that the Assistant Secretary of Defense (Health Affairs) authorized execution of Multiyear Incentive Special Pay (MISP) agreements in conjunction with Multiyear Special Pay agreements.  As a result, this message requires that any Medical Corps Officer who is renegotiating or executing a new MSP agreement will also execute a MISP agreement for the same effective date and duration as his or her MSP agreement.

16.  The Fiscal Year 2000 Army Medical Corps Officer Special Pay Policy, Plan and Rates message (date/time group-181101Z AUG 99) was effective 1 October 1999 and stated in pertinent part that the Assistant Secretary of Defense (Health Affairs) authorized renegotiation of Medical Additional Special Pay (MASP) agreements in cases where a Medical Corps Officer does not have sufficient retainability to execute a 12-month MASP agreement which is specified in law. However, the authority to terminate an ongoing MASP agreement in time to execute a new final 12-month Medical Additional Special Pay agreement was restricted to only those agreements preceding mandatory retirement of Medical Corps Officers and, effective 1 October 1998, to only those agreements where the Medical Corps Officer is voluntarily retiring after completion of at least 20 years of active service.

17.  Paragraph 18A of the Fiscal Year 2000 Army Medical Corps Officer Special Pay Policy, Plan and Rates message (date/time group-181101Z AUG 99) specifically prohibits renegotiation of special pay agreements solely for the purpose of changing the anniversary date to coincide with another special pay agreement date or a resignation/release date from active duty. 
CONCLUSIONS:

1.  Based on the opinion by the AMEDD Special Pay Branch, the applicant was eligible to execute a 4-year MSP contract effective 20 June 1996 at the Fiscal Year 1996 rate of $14,000 per year.  However, the applicant did not do so because he contends that did not realize that he was eligible until now.

2.  The applicant was paid ISP in the amount of $36,000 on 1 October 1995 and $35,000 on 1 October 1996, 1 October 1997, and 1 October 1998.  

3.  If the 4-year MSP contract is approved effective 20 June 1996, then the applicant is owed $14,000 per year for the 4 years.  If the 4-year MSP contract is approved, then the applicant’s ISP should be converted to a 4-year MISP at the $36,000 rate with an effective date of 20 June 1996.  As a result, the applicant is owed $1,000 effective 20 June 1997, $1,000 effective 20 June 1998, and $1,000 effective 20 June 1999 for a total of $3,000. 

4.  Evidence of record shows the applicant’s ETS makes him ineligible for MASP because he is 10 days short of the 12 months required by law for execution of a MASP contract.  There is no indication in the governing law, the Department of Defense Fiscal Year 2000 Medical Officer Special Pay Plan or the Fiscal Year 2000 Army Medical Corps Officer Special Pay Policy, Plan and Rates message that there is an exception to the 12 month duration of a MASP contracts. 

5.  Based on the foregoing, the applicant is entitled to 4-year MSP contract effective 20 June 1996 with obligation through 19 June 2000 and is entitled to MISP effective 20 June 1996 and “locked in” at the rate of $36,000 per year for the 4-year duration of the MSP.

6.  The Board noted that the applicant is 10 days short of the qualifying service necessary for execution of a MASP contract.  However, the 12 month duration of the MASP contract is statutory and there is no apparent exception.  The Board also noted that the applicant made the decision not to accept integration into the Regular Army and that the Surgeon General of the Army has prohibited all Medical Corps Officers from renegotiating special pay agreements to coincide with resignation or release from active duty.  It is also noted that the applicant’s case does not fall under the exceptions (mandatory retirement or voluntary retirement after completing 20 years of active service) authorized for renegotiation of MASP agreements.  Therefore, there is no basis to reverse PERSCOM’s denial of the applicant’s request for extension or to renegotiate his previous MASP agreement.

7.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

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

	a.  by issuing to the individual concerned a Multiyear Special Pay contract for 4 years effective 20 June 1996 with an obligation through 19 June 2000 at the Fiscal Year 1996 rate of $14,000 per year in Orthopedics;

	b.  by adjusting his Incentive Special Pay which was effective 1 October 1995 to a new Multiyear Incentive Special Pay effective 20 June 1996, locked in at the Fiscal Year 1996 rate of $36,000 per year, for the 4-year duration of the Multiyear Special Pay executed in paragraph 1a, above; 

	c.  by paying him any monies due, if appropriate, based on execution of the new Multiyear Special Pay contract for 4 years effective 20 June 1996 at the Fiscal Year 1996 rate of $14,000 per year in Orthopedics;

	d.  by recouping any funds, if appropriate, based on the adjustment of his Incentive Special Pay (effective 1 October 1995 through 30 September 1996), to Incentive Special Pay (effective 1 October 1995 through 19 June 1996); and

	e.  by paying him any monies due, if appropriate, based on his new Multiyear Incentive Special Pay at the $36,000 per year rate effective 20 June 1996, 20 June 1997, 20 June 1998, and 20 June 1999.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

____JA__  ___TK___  ___AO__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		James M. Alward____
		        CHAIRPERSON

INDEX

CASE ID	AR1999030704	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000322	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	NA-ACTIVE DUTY	
DISCHARGE AUTHORITY	NA . . . . .  	
DISCHARGE REASON	NA	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	128.2100.0000	
2.		
3.		
4.		
5.		
6.