PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            10 June 1999
	DOCKET NUMBER:   AR1999015769

	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. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Elzey J. Arledge, Jr.		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 that his eligibility for Medical Corps Multi-Year Special Pay (MSP) be backdated to 22 May 1994 with a subsequent payment of $33,000.00 in unpaid bonus compensation.

3.  The applicant states that he completed his Graduate Medical Education (GME) obligation on 21 May 1994 and that he has an additional 5 years of service obligation incurred through his attendance at the Military Academy at West Point.  He further states that he completed his Physical Medicine and Rehabilitation residency in 1990 and was board certified in 1991.  He also states that he was eligible for MSP in Physical Medicine since 1994 and should have received it at the $8,000 per year rate until 1998 when he renegotiated it to $10,000 per year.

4.  The applicant’s military records show that the applicant was commissioned as a Regular Army second lieutenant upon graduation from West Point on 6 June 1979.  On 16 July 1979 he was discharged for the purpose of accepting a USAR commission and attendance at the Uniformed Services University of the Health Sciences (Medical School).  He graduated from medical school on 21 May 1983 and was commissioned as a Regular Army Captain in the Medical Corps.  He was promoted to the rank of lieutenant colonel on 21 May 1995.

5.  In the processing of this case a staff advisory opinion was obtained from the special pay branch of the Office of the Surgeon General (OTSG).  It opined, in effect, that based on policies that were in effect at the time and subsequent policy interpretations, the earliest the applicant would have been eligible for the 4-year MSP is 1 October 1995 to 30 September 1999.  This would have been in line with his active duty service obligation (ADSO).  The OTSG also noted that while the applicant met MSP eligibility criteria on 22 May 1994, he declined the contract.  It also opined that the applicant should receive MSP payments of $8,000 per year for the years 1995, 1996, and 1997, and $10,000 for the year 1999 in which he renegotiated his contract.  Accordingly, because he had been overpaid $2,000 in Incentive Special Pay (ISP), he was entitled to be paid $22,000 prior to taxes.  

6.  The opinion was referred to the applicant and he responded with a rebuttal to OTSG opinion to the effect, that his entitlement to the additional MSP is clearly established, especially since he could have renegotiated his contract in 1997 and would have received more money had he chosen to do so.  He goes on to state that since he decided to remain in the Army and had the opportunity to get more money and did not do so, coupled with the fact that he inquired in 1994 into the possibility of getting a higher bonus payment and was informed that it was not possible, his credibility is also clearly established.  Furthermore, the lack of evidence of policy being in place in 1994 does not mean that there was no policy or that he was not eligible to receive MSP in 1994 when he became eligible.
CONCLUSIONS:

1.  The applicant was eligible to enter into an MSP contract on 22 May 1994; however, he declined to do so at the time.  Subsequent to that date policy interpretations were made which indicate that the applicant was eligible to receive MSP without incurring additional obligations. 

2.  Given the circumstances in this case and the applicant’s recent comments indicating that he has now decided to remain in the Army, the Board is inclined to believe that the applicant had not decided in 1994 to remain in the Army and elected not to enter into an MSP contract.

3.  Therefore, the Board concurs with the opinion of the OTSG that under the current policy interpretations, and presuming that the applicant was willing to enter into an MSP agreement that was in line with his ADSO, the earliest he would have been eligible for a 4-year MSP contract is 1 October 1995. 

4.  Accordingly, it would be in the interest of justice to grant the applicant past MSP payments in the amount of $24,000 ($8,000 on 1 October 1995, $8,000 on 1 October 1996, and $8,000 on 1 October 1997) minus the $2,000 overpayment of ISP on 1 October 1997.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected in the interest of justice by authorizing the individual concerned $24,000 in past MSP payments ($8,000 on 1 October 1995, 1996, and 1997), minus the $2,000 overpayment of ISP he received on 1 October 1997.

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

BOARD VOTE:  

__slp____  __eja ___  ___sac__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Samuel A. Crumpler____
		        CHAIRPERSON

INDEX

CASE ID	AR1999015769	
SUFFIX		
RECON		
DATE BOARDED	1999/06/10	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  299 	128.1600/MSP	
2.		
3.		
4.		
5.		
6.