MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 August 2000                  
	DOCKET NUMBER:    AR1999034681

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Joe R. Schroeder		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 he be given Medical Additional Special Pay (MASP).  In a second application he also requests Incentive Special Pay (ISP), Temporary Duty (TDY), examination opportunities, skill retraining, and the removal of a written reprimand from his military records.

APPLICANT STATES:  That he previously received MASP and there is no legitimate reason it should have been discontinued.

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

The applicant was commissioned as a captain, Medical Corps, and entered on active duty on 30 June 1996.  His orders clearly indicate that he was not licensed or board certified on the date the orders were issued.

On 6 April 1999 the applicant was given a memorandum of reprimand for “a marked lack of judgment . . . [which] . . . placed you, and by extension this command, in a potentially compromising situation.”  This was based on the applicant’s arrest by military police for larceny at the post exchange.  The applicant responded to the MOR, stating that the investigation by the military police failed to substantiate the charge against him.  He charges that he was being held accountable for the actions by his accusers.  The MOR was filed in the performance portion of his official military personnel file after his rebuttal was considered.

In the processing of this case an advisory opinion was obtained from the Office of The Surgeon General (OTSG).  The OTSG stated that Assistant Secretary of Defense (Health Affairs) Policy 99-007, Subject:  DoD Policy on Physician Licensure, dated 29 January 1999, and Assistant Secretary of Defense (Health Affairs) memorandum, Subject:  Clarification of DoD Policy on Licensure Requirements for Physicians in Administrative Positions, dated 9 July 1999, clarified Department of Defense policy on licensure requirements for physicians.  This policy memorandum stated in pertinent part that “Lack of a valid medical license will necessitate termination of incentive pays, including ASP, MSP and ISP as well as jeopardize continued designation as a medical corps officer.”  The OTSG continued that there are no provisions to give a medical corps officer special pay without a state medical license.  The OTSG also informed the Board that the applicant, a major on active duty, was currently pending elimination from the Army.

The applicant was furnished a copy of this advisory opinion and submitted a rebuttal.  In that rebuttal he stated that it is difficult to understand the OTSG basing its recommendation to deny his case on Army policy when Army regulations were violated in his being ordered to active duty without being licensed.  He states that he had informed Army authorities that he was not licensed prior to being ordered to active duty and his active duty orders duly reflected that he was not board certified.  He charges, therefore, that his order to active duty was premature and unfair.  He adds that he had gone “to great lengths to delay [his] entry [to active duty] by seeking the help of both elected and appointed officials in the Government.”  He adds that the OTSG advisory opinion is misleading when it said that he no longer had a license to practice medicine.  He never had a license.  The applicant then addresses the DoD policy and the DoD memorandum cited by the OTSG.  He states that the DoD policy is not applicable to him since he never had a license to practice medicine.  As for the DoD memorandum, he asks for an exception to policy to receive the special pay without licensure since he has performed all of the duties of a physician, including surgery.  He states that since he performed the required duties, he should receive the special pay that accompanies those duties.  He continues that the argument that he should never have worked in the capacity of a physician is “a dangerous argument, because then one might deduce that all of the individuals that I took care of were unduly and negligently exposed to danger by being placed in the hands of a non-licensed (non-paid) surgeon with the full knowledge of the medical command (starting from the hospital commander to the ophthalmology consultant through to the surgeon general of the Army).  This cannot bode well in the face of criticism by the general community, and less well under the scrutiny of the patients that were involved in surgical procedures.”  The applicant asks several questions concerning how the policy to only give medical specialty pays to those physicians who are licensed is applied to other officers and asks that if the only reason for him not being given MASP and ISP is the DoD policy and memorandum, he requests those pays prior to their effective dates.  As for the applicant’s other requests, he states that his career has suffered tremendously because he has been disallowed TDY for all ophthalmologic educational activities, and no effort what so ever has been made to allow him to integrate back into the medical field despite the fact that he passed “the exam” more than 6 months ago and the fact that his application for licensure is now being considered by three states.

Title 37 U.S.C. §301d, Multiyear retention bonus: medical officers of the armed forces, states that a medical officer who executes a written agreement to remain on active duty for two, three, or four years after completion of any other active-duty service commitment may, upon acceptance of the written agreement by the Secretary of the military department concerned, be paid a retention bonus as provided in this section.  The amount of a retention bonus may not exceed $14,000 for each year covered by a four-year agreement.  The maximum yearly retention bonus for two-year and three-year agreements shall be reduced to reflect the shorter service commitment.  This section applies to an officer of the armed forces who is designated as a medical officer, is in a pay grade below pay grade O-7, has at least eight years of creditable service or has completed any active-duty service commitment incurred for medical education and training, and has completed initial residency training (or will complete such training before September 30 of the fiscal year in which the officer enters into an multiyear retention bonus agreement. 

Title 37 U.S.C. §302(b), Incentive Special Pay, states that an officer who is entitled to variable special pay may be paid incentive special pay for any twelve-month period during which the officer is not undergoing medical internship or initial residency training. 

In the processing of cases of this nature the OTSG has advised the staff of the Board that officers who have completed medical school under health professional scholarships are immediately ordered to active duty.  As a general rule none of these physicians are licensed or board certified.  The physician then enters into a provisional status where he/she is operating under a licensed physician.  If the physician opts not to specialize, to remain a general physician, he or she may immediately apply for state licensure.  If the physician desires to specialize, he or she then enters into residency and cannot become licensed or board certified in that specialty until completion of that residency.  If the physician does not become licensed in a reasonable period of time, action is initiated to remove the officer from the Medical Corps.  If the officer has an active duty obligation (ADO) as a result of a scholarship, the Army will generally rebranch the officer and retain him or her on active duty.

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 was never entitled to any health professions special pay.  He has never completed his residency and has not been board certified or licensed.  The effective date of the DoD directive and memorandum does not in any way entitle the applicant to medical specialty pay prior to that time.  Title 37 U.S.C. governs military physicians’ entitlement to health professions special pays. 

2.  The Army’s policy to order physicians who have received their medical schooling and training from Army scholarships to active duty immediately after completion of medical school and prior to their licensure is viewed by the Board as both reasonable and generous.  These officers have incurred an ADO as a result of their medical scholarship or training and are earning their full military pay as a captain while performing their residency and working on their licensure.

3.  The applicant’s contention that it was improper to have him practice in his medical field without his being board certified or licensed is not accepted by the Board.  By his own admission he was operating under a licensed physician.  If the applicant did in fact receive minimum supervision by the licensed physician he was assigned to, it speaks well of his skills and abilities.  A physician with lesser skills would have received more extensive supervision.
4.  As for the remainder of the applicant’s requests, the applicant has not submitted any evidence or argument which would warrant their favorable consideration. 

5.  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

__sac ___  ___bje __  ____jrs__  DENY APPLICATION

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

INDEX

CASE ID	AR1999034681	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000831	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.06	
2.		
3.		
4.		
5.		
6.