IN THE CASE OF: BOARD DATE: 3 August 2020 DOCKET NUMBER: AR20180010977 APPLICANT REQUESTS: * Health Professions Officer Board Certification Pay (HPOBCP) for fiscal year 2017 * Incentive Special Pay (HPOISP) for fiscal year 2017 * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Email correspondence * Memorandum, Subject: Request for Inter-Service Transfer (IST) to the U.S. Air Force (USAF), dated 23 January 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 June 2018 * Army Active Component HPO Special and Incentive Pay Plan * HPO special pay program slides FACTS: 1. The applicant states: a. He was deemed "not retainable" by the U.S. Army Medical Command (MEDCOM) when he applied for an IST to the USAF in January 2017. As such, MEDCOM refused to allow him to sign renewal contracts for two medical special pays which a physician with his credentials is qualified. However, as the Army then failed to process his applications for transfer in a timely fashion (it took almost 13 months after submission before a denial was given for errors the Army committed, the usual time is 4-6 months), he was in fact retained by the Army. As such, he should be entitled to the special pays for which he is qualified and was denied by MEDCOM. b. This request for review is based on the argument that he was not allowed to sign renewal contracts regarding special pays for which he is completely qualified because MEDCOM felt he was "not retainable" due to him applying for an IST to the USAF. He was simply attempting to utilize a program the Army already had in place, not creating a special circumstance for himself. Further, no decision had been rendered by the Army on that IST before MEDCOM refused to renew his contracts. It was just arbitrarily decided he was "not retainable'' by virtue of his application. Not an approval of the package, just the application itself. c. However, even though the U.S. Army Human Resources Command (HRC) website for IST's clearly stated the application process for IST's commonly took between 4-6 months including cutting orders, it took the Army more than 13 months from his package submission date to finally respond and tell him that there had been an error on the Army's part in processing his package. Further, the Acting Undersecretary of the Army for Manpower and Reserve Affairs, even went so far as to admonish those Army sections processing his package and stated they need to "come to a consensus" before forwarding his package to him again. Apparently, various sections had differing points of view on approving his package. This was not his fault. d. The problem with resubmitting the package at that late date was that his Active Duty Service Obligation (ADSO) was then a mere 4 months away. In a de facto fashion, the Army's slow processing of his package was so delayed that they in fact had retained him for the timeframe he had wanted to sign renewal special pay contracts on. So, the MEDCOM HRC argument that he was "not retainable" does not follow logically as he was not only not permitted to transfer, he was most certainly retained until his ADSO date of 30 June 2018. e. Said another way, the Army cannot cut off special pays to which he would be entitled by claiming he was "not retainable" and then retain him by not processing his application in a timely fashion. Further, what if the final decision rendered by the Army had been no? Was he still to be considered "not retainable" when the Army clearly had intentions to retain him by refusing his application package? The Army cannot have it both ways. f. He is only asking for that which he is qualified and have been wrongly denied. He supplied the same excellent leadership services and medical expertise as when he enjoyed the special pays. But through what he can only imagine is retaliation for his application for an IST that had not even been adjudicated yet, his special pays were not made available to him. MEDCOM refused to even allow him to sign contracts for them. 2. A review of the applicant's official records shows the following: a. On 30 April 2004, the applicant was appointed as a Reserve commissioned officer and executed an oath of office. b. On 5 May 2008, Orders Number A-05-808446, ordered the applicant to active duty to fulfill his active duty requirement. c. On 14 June 2008, the Doctor of Medicine degree was conferred upon the applicant. d. On 30 June 2011, the applicant completed his emergency medicine residency. e. On 13 June 2013, the American Board of Emergency Medicine certified the applicant as a board certified emergency medicine physician. f. On 20 April 2016, the applicant requested and was approved for HPO medical additional special pay for a one-year period beginning on 1 July 2016, in a lump sum payment of $15,000.00. g. On 3 August 2016, the applicant requested and was approved for HPOISP for a one-year period beginning on 1 October 2016, in a lump sum payment of $26,000.00. h. On 12 April 2018, by memorandum, HRC approved the applicant's unqualified resignation, effective on 30 June 2018. i. On 30 June 2018, the applicant was honorably discharged from active duty. j. The applicant's records are void of any other HPO special pay requests beyond his 2016 approvals. 3. The applicant provides: a. Email correspondence between the applicant and a unit official pertaining to his IST packet, disapproval of his IST by Health Services Division and Office of the Surgeon General. Additionally, he inquires about bonus pays he did not get because of the delay in processing his IST package. b. Memorandum, Subject: Request for IST to the USAF showing the applicant's IST transfer to the USAF was disapproved by a senior official performing the duties of the Assistant Secretary of the Army. c. Army Active Component HPO Special and Incentive Pay Plan showing the pay plans that apply to U.S. Army Medical Department HPO's. d. HPO special pay program slides also providing information on the various HPO special pay and incentive programs. 4. See applicable references below. BOARD DISCUSSION: a personal hearing before the Board After reviewing the application and all supporting documents, the Board found that relief was not warranted as there is insufficient evidence of error or injustice. 1. Regarding the applicant’s requests for Health Professions Officer Board Certification Pay (HPOBCP) for fiscal year 2017 and Incentive Special Pay (HPOISP) for fiscal year 2017, per Title 37, United States Code, section 302(c)(1) 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. The applicant was ineligible to execute a written agreement to remain in the Army for one year because he was applying to transfer to the Air Force. Therefore, there is no basis on which to grant the applicant’s request. 2. The Board carefully considered the applicant's request for a personal appearance. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ? REFERENCES: 1. Title 37, United States Code: a. Section 302 (a)(1) states an officer who is an officer of the Medical Corps of the Army designated as a medical officer and who is on active duty under a call or order to active duty for a period of not less than one year is entitled to special pay in accordance with this subsection. b. Section 302 (5) states an officer who is board certified is entitled to additional special pay at a rate of 5,000.00 per year, if the officer has at least 14 but less than 18 years of creditable service. c. Section 302 (b)(1) states subject to subsection (c) and paragraph (2) and under regulations prescribed under section 303a(a) of this title, 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. The amount of incentive special pay paid to an officer under this subsection may not exceed $75,000.00 for any 12-month period. d. Section 302(c)(1) states 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010977 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1