MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             22 March 2000
	DOCKET NUMBER:    AR1999033441

	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. 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 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:  In effect, establishment of a 4-year Multiyear Special Pay (MSP) contract for the period 1 July 1996 through 30 June 2000 at the Fiscal Year 1996 rate of $14,000 per year based on his medical specialty in Internal Medicine.

APPLICANT STATES:  That he should be granted a 4-year MSP back-dated to 1 July 1996 and that he should receive all back pay of MSP due from that date.  He contends that he is due this MSP contract because he only has a Reserve Officers Training Corps (ROTC) active duty obligation and does not have an active duty obligation for general medical education (GME).  The applicant also contends that he was not offered a 4-year MSP when he became eligible.  In support of his application, he submitted a request for MSP, an information paper on Army Medical Department  (AMEDD) special pay, commissioning documents, orders for educational delay to attend medical school, a memorandum regarding promotion to first lieutenant, a memorandum and oath for promotion to captain, active duty orders, orders for assignment to Medical Activity at Fort Knox, Kentucky, and a copy of his Officer Record Brief. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant completed his residency in Internal Medicine on 30 June 1996.  He was assigned to Brooke Army Medical Center and then to the Medical Activity at Fort Knox, Kentucky.  He is currently serving at Fort Knox in the rank of captain in Internal Medicine.

In the processing of this case, an advisory opinion (COPY ATTACHED) 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.

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.  
The advisory opinion stated that the applicant graduated from his Internal Medicine residency on 30 June 1996 and entered into an ISP agreement in that specialty on 1 October 1996.  The advisory opinion also concluded that the applicant could have executed a 4-year MSP contract effective 1 July 1996 with an active duty obligation through 30 June 2000 at the Fiscal Year 1996 rate of $14,000 per year in Internal Medicine based on the 1996 interpretation regarding active duty obligations.  The advisory opinion also stated that the applicant’s Multiyear Incentive Special Pay (MISP) would be effective from 1 October 1996 through 30 September 2000 at a rate of $13,000 per year for four years.  

The advisory opinion by the AMEDD Special Pay Branch also discussed the special pay policy set forth by the Assistant Secretary of Defense (Health Affairs). which precludes payment of Incentive Special Pay (ISP) during the same fiscal year in the which the qualifying residency training is completed. 

The advisory opinion concludes that the applicant is not eligible for MISP because he could not complete a 4-year MISP agreement with a beginning date of 1 October 1996 since his approved release date from active duty is 30 June 2000.  Additionally, the Chief of the AMEDD Special Pay Branch has opined that the applicant is not eligible for MSP without sufficient time to complete a 4-year MISP obligation since MSP and MISP must be linked under AMEDD regulation.

On 2 December 1999, the applicant was provided a copy of the AMEDD Special Pay Branch advisory opinion and offered an opportunity to submit a rebuttal prior to consideration of his case.  He was advised to submit his rebuttal within 30 days; however, the applicant has not responded in over 90 days.

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.

The Assistant Secretary of Defense (Health Affairs) signed the Fiscal year 2000 Medical Officer Special Pay Plan on 8 August 1999.  This document promulgated the pay rates and policy for the Fiscal Year 2000 medical officer special pay program.  Paragraph E of the Fiscal year 2000 Medical Officer Special Pay Plan prescribed the policies and requirements for Incentive Special Pay (ISP).  Paragraph E 7 stated:  “ISP shall not be paid during the same fiscal year in which the qualifying residency training is completed.  However, if the qualifying training is completed out of cycle (at a time prior to the end of June) and it is not the fault of the medical officer, the Surgeons General are delegated authority to waive the Department of Defense policy and grant ISP during the same fiscal year in which the qualifying residency is completed.  The effective date for ISP shall be calculated from the completion of the qualifying training plus three months.  This keeps all medical officers eligible for ISP consistent in how their eligibility date is calculated.”

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.  

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.

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.  Paragraph 1B of the message specifically states that execution of a new or renegotiated MSP agreement requires the termination of any existing ISP or MISP agreement and execution of a new MISP agreement in conjunction with the MSP with the same effective dates and specialty.

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

1.  The applicant completed his residency on 30 June 1996.  Based on this date of graduation, he could not execute an ISP agreement until the next fiscal year (1 October 1996 in this case).  

2.  The applicant is also restricted from executing a 4-year MISP contract with an effective date prior to 1 October 1996 based on the same Department of Defense policy which states that ISP shall not be paid during the same fiscal year in which the qualifying residency training is completed.

3.  The applicant is three months short of the 4 years required by law to execute a 4-year MISP contract linked with a 4-year MSP contract based on an effective date of 1 October 1996 and his approved separation date of 30 June 2000.

4.  Although the applicant could complete a 4 year MSP contract based on an effective date of 1 July 1996 with obligation through 30 June 2000, the MSP contract must be linked with a MSIP contract also effective on 1 July 1996.  The MSIP contract cannot be effective on 1 July 1996 (or prior to 1 October 1996) based on the Department of Defense policy which prohibits payment of ISP or MISP during the same fiscal year in which the qualifying residency training is completed.

5.  Based on the foregoing, the applicant is not eligible to execute a 4-year MSP contract effective 1 July 1996 with obligation through 30 June 2000 as requested. 

6.  The Board noted that Assistant Secretary of Defense (Health Affairs) delegated the authority to the Surgeon Generals of the respective Military Departments to waive Department of Defense Policy and grant ISP during the same fiscal year in which the qualifying residency is completed.  However, this authority is not applicable in this case because the applicant completed his residency at the end of June 1996 and was not considered “out of cycle”.
7.  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 the aforementioned requirement.

8.  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

___JM___  ___TK___  ___AO__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033441	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000322	
TYPE OF DISCHARGE	N/A ACTIVE DUTY CASE	
DATE OF DISCHARGE	N/A ACTIVE DUTY CASE	
DISCHARGE AUTHORITY	N/A ACTIVE DUTY CASE	
DISCHARGE REASON	N/A ACTIVE DUTY CASE	
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	128.2100.0000	
2.		
3.		
4.		
5.		
6.