PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:                 22 March 2000
	DOCKET NUMBER:        AR1999030709
				        AR1999031992

	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 2 July 1998 through 1 July 2002 at the Fiscal Year 1998 rate of $10,000 per year based on his medical specialty in Critical Care Medicine.  He also requests, in effect, that his Incentive Special Pay (ISP) be linked to his MSP.

3.  The applicant states in his application to the Board, dated 17 June 1999, that personnel at Brooke Army Medical Center advised he did not qualify for MSP.  He states that he has not been paid MSP; however, he subsequently discovered that he was eligible for MSP because he does not have a Graduate Medical Education (GME) active duty obligation, only a Reserve Officers Training Corps (ROTC) active duty obligation.

4.  The applicant states in his second application to the Board, dated 23 September 1999, that personnel at Brooke Army Medical Center advised him that he should have been paid his ISP bonus in July of each year instead of October of each year.  He contends that he is eligible for ISP based on his subspecialty of Neonatology/Critical Care.  He also states that he completed his fellowship training in June 1998 prior to his entry on active duty on 1 July 1998.

5.  The applicant’s military records show that at the time in question he was assigned to Brooke Army Medical Center in the rank of major in Critical Care Medicine.

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.

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 2 July 1998 with an active duty obligation through 1 July 2002 at the Fiscal Year 1998 rate of $10,000 per year in Critical Care Medicine 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 1998 for $23,000 be “annotated” now as a Multiyear Incentive Special Pay (MISP) with the Fiscal Year 1998 rate of $21,000 per year and adjusted to overlay the MSP dates of 2 July 1998 through 1 July 2002.  

9.  The AMEDD Special Pay Branch also provided an advisory opinion on the 23 September 1999 application regarding the applicant’s ISP.  This opinion stated the applicant was eligible to enter into a one-year ISP agreement upon graduation from his second residency/fellowship effective 1 July 1998.  The advisory opinion pointed out that he did not have to wait 90 days before executing his ISP agreement and was improperly counseled regarding renegotiation of his ISP contract.  The advisory opinion recommended no action on this request because it would be resolved based on the initial advisory opinion which already links MSP and MISP.  The applicant concurred in the initial advisory opinion by the AMEDD Special Pay Branch, but did not respond when offered the opportunity to comment on the second advisory opinion.

10.  The opinion also provided a schedule for the applicant’s 4-year MSP at the Fiscal Year 1998 rate of $10,000 and an adjusted MISP at the Fiscal Year 1998 rate of $21,000 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 $10,000 per year) from 2 July 1998 through 1 July 2002 and a linked MISP contract (at $21,000 per year) for the same period as follows:

Eligible Date for MSP			MSP Payment Status

2 July 1998 	   (1st Installment)		Not Paid ($10,000)
2 July 1999	   (2nd Installment)		Not Paid ($10,000)
2 July 2000	   (3rd Installment)		Pending  ($10,000)
	2 July 2001	   (4th Installment)		Pending  ($10,000)

Current ISP Dates/Payment Status	MISP Payment Status  

1 October 1998 Paid $23,000		Recoup $2,000
1 October 1999 Paid $23,000		Recoup $2000
2 July 2000       (3rd Installment)		Pending ($21,000)
2 July 2001       (4th Installment)		Pending ($21,000)
11.  In summary, the advisory opinion states that if the applicant’s request is approved, then he is due $16,000 for past MSP payments and partial ISP recoupment, prior to tax adjustment. 

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.

CONCLUSIONS:

1.  The applicant did not have a GME active duty obligation, but did have a ROTC active duty obligation, at the time he entered active duty as a Medical Corps Officer.  As a result, he did not have to complete a GME active duty obligation prior to executing a MSP contract and could serve his ROTC active duty obligation concurrently with a MSP contract.  Therefore, based on the opinion by the AMEDD Special Pay Branch, the applicant was eligible to execute a 4-year MSP contract effective 2 July 1998 at the Fiscal Year 1998 rate of $10,000 per year. 

2.  The applicant was paid ISP in the amount of $23,000 on 1 October 1998 and in the amount of $23,000 on 1 October 1999.  He is eligible to receive the third installment of MISP in the amount of $21,000 on 2 July 2000 and the fourth installment of MISP in the amount of $21,000 on 2 July 2001.

3.  If the 4-year MSP contract is approved effective 2 July 1998, then the applicant is owed $10,000 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 $21,000 rate with an effective date of 2 July 1998.  As a result, the applicant owes the Government $2,000 of the $23,000 ISP paid on 1 October 1998 and $2,000 of $23,000 ISP paid on 1 October 1999.  The applicant will receive $21,000 of MISP on 2 July 2000 and $21,000 of MISP on 2 July 2001. 

4.  Based on the foregoing, the applicant is entitled to 4-year MSP contract effective 2 July 1998 with obligation through 1 July 2002 and is entitled to MISP effective 2 July 1998 and “locked in” at the rate of $21,000 per year for the 4-year duration of the MSP.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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 2 July 1998 with an obligation through 1 July 2002 at the Fiscal Year 1998 rate of $10,000 per year in Critical Care Medicine;

	b.  by adjusting his Incentive Special Pay which was effective 1 October 1998 to a new Multiyear Incentive Special Pay effective 2 July 1998, locked in at the Fiscal Year 1998 rate of $21,000 per year, for the 4-year duration of the Multiyear Special Pay contract 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 2 July 1998 at the Fiscal Year 1998 rate of $10,000 per year in Critical Care Medicine;

	d.  by paying him based on his new Multiyear Incentive Special Pay at the $21,000 per year rate effective 2 July 1998, 2 July 1999, 2 July 2000 and 2 July 2001; and 

	e.  by recouping any funds, if appropriate, based on the adjustment of his Incentive Special Pay (which was paid on 1 October 1998 and his Incentive Special Pay which was paid 1 October 1999) to a new Multiyear Incentive Special Pay which became effective for the periods 2 July 1998 through 1 July 1999 and 2 July 1999 through 1 July 2000).

BOARD VOTE:  

___JA__  __TK____  ___AO___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		James M. Alward____
		        CHAIRPERSON

INDEX

CASE ID	AR1999030709/AR1999031992	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000322	
TYPE OF DISCHARGE	NA ACTIVE DUTY CASE	
DATE OF DISCHARGE	NA ACTIVE DUTY CASE	
DISCHARGE AUTHORITY	NA ACTIVE DUTY CASE	
DISCHARGE REASON	NA ACTIVE DUTY CASE	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	128.1700.0000	
2.		
3.		
4.		
5.		
6.