MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  24 October 2000
	DOCKET NUMBER:  AR1999031776

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Lee Tinsley		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret Patterson		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Edwin S. Castle		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his records be corrected to allow a change in his military obligation so that he may execute a Multiyear Special Pay (MSP) contract backdated to 1 July 1996.

APPLICANT STATES:  In effect, that he is serving a four year commitment incurred for a Reserve Officer Training Corps (ROTC) scholarship and a four year commitment for a Health Professional Scholarship Program (HPSP) scholarship.  He states that he was told he was eligible to sign for a MSP in July 1996 without changing his 30 June 2000 ETS (Expiration of Term of Service).  Furthermore, he wants to renegotiate his Incentive Special Pay (ISP) to start 1 July 1999 with the MSP contract.  He submits copies of other documents provided to medical personnel who were approved for similar requests in support of his application.

EVIDENCE OF RECORD:  The applicant’s available records show that at the time of submission of his application, he was serving on active duty in the pay grade of O-5.  The applicant has since separated from active duty.  His ISP contract began on 1 July 1996 and ended on 30 June 2000, the date of his separation.

In the processing of this case an advisory opinion was obtained from the Office of The Surgeon General (OTSG), Special Pay Branch.  The OTSG opinion states that they do recommend this Board provide the requested relief with a start date of 
1 July 1996.  The OTSG also provides a revised payment schedule based on the new contract totaling $35,000 prior to taxes.  The applicant disagreed with the advisory opinion concerning the amount of money he is to receive.  He believes that his total entitlement prior to taxes is $61,500.

Title 37, U.S. Code, section 302 (b), states in effect, an officer who is entitled to variable special pay under subsection (a)(2) may be paid incentive special pay for any twelve-month period during which the officer is not undergoing medical internship or initial residency training.  Furthermore, an officer may not be paid additional special pay under subsection (a)(4) or incentive special pay under subsection (b) for any twelve-month period unless the officer first executes a written agreement under which the officer agrees to remain on active duty for a period of not less than one year beginning on the date the officer accepts the award of such special pay.

A legal sufficiency review performed by this agency determined that The Office of the Surgeon General (OTSG) appears to have supported the application based on their incorrect implementation of the MSP contracts in 1996 that allowed the service obligations to run concurrently with existing obligations.  Congressional intent and DoD Health Affairs (DoDI 6000.13) directed the use of MSP to extend a physician beyond any current service obligation.

The applicant submits documents from a previous case, done for a different applicant, in which this applicant states the circumstances are similar and that the Board should grant his request based on these documents.  One of the documents is an advisory opinion from OTSG in which they state that MSP obligations are additive only to Graduate Medical Education (GME) active duty obligations (ADO) and not ROTC or non-GME training ADOs.  The previous applicant met the eligibility requirement of eight-years of creditable service or completion of GME ADOs.  This applicant was serving a four-year commitment incurred for a ROTC scholarship, which does not qualify.  Therefore, this applicant did not meet the eight-year requirement of creditable service for MSP consideration.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law, regulations, and advisory opinion, it is concluded:

1.  The inherent nature of the applicant’s equity argument is that other physicians benefited from the windfall occasioned by the OTSG’s misinterpretation and misapplication of the program; therefore, so should he.  As a matter of equity, this Board does not believe the applicant is entitled to relief.  The applicant was correctly advised in 1996 of the legal consequences of his signing a MSP contract.  He did not detrimentally rely upon that advice.

2.  The purpose of the MSP program was to encourage physicians to extend their service obligation, not to provide them an additional bonus for a current service commitment.  The Army gains no benefit by granting relief and the applicant is not entitled to any relief.  The applicant has completed his service obligation and has been justly compensated for his service.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__mp____  __jm___  __ec______  DENY APPLICATION

Carl W. S. Chun
Director, Army Board for Correction
of Military Records

INDEX

CASE ID	AR1999031776	
SUFFIX		
RECON		
DATE BOARDED	20001024	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  128.21	MSP	
2.		
3.		
4.		
5.		
6.