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Board for Correction Case No. 129-91

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Board for Correction Case No. 129-91

192.00 Pay and Allowances (Includes Allotments of Pay / Allowances / Basic Pay) - Retroactive special pay

Board Recommendation on Request of: xxxxxxxx, Case No.129-91

Xxxxxxxx filed an application with the Board for Correction of PHS Commissioned Corps Records dated March 18, 1991.

Relief requested:

He asked the Board to grant him an additional $8,000 he would have received had he signed a two-year Incentive special Pay­ Hardship (ISP-H) contract (requires the Board to authorize a two-year ISP-H contract).

Digest

  1. Background: Xxxxxxxx request resulted from having been recruited before but not entering on active duty until after the Commissioned Corps lost its authority to approve multi-year ISP-H contracts.

    Xxxxxxxx is a xxxxx xxxxx. A two-year ISP-H contract would have been $16,000 per year (Category A assignment).
  2. Xxxxxxxx view: Xxxxxxxx has alleged that his recruitment and commissioning occurred in xxxxx 1990 before the xxxxx 1990, cutoff in corps authority to approve multi-year ISP-H contracts. He has contended his decision to accept xxxxxx as his duty station was contingent upon receiving a multi-year ISP-H contract at $16,000 per year. He also has contended he was not notified that his ISP-H contract would be limited (to one year at $8,000 per year) prior to agreeing to Retention Special Pay, Variable special Pay and his Loan Repayment arrangement. 

    Xxxxxxxx has contended that his original Call to Active Duty (CAD) date was changed from xxxxxxx 1990, to xxxxx 1990, without his knowledge or agreement. He also contended that he signed a one-year ISP-H contract on xxxxxx 1990, for $8,000 which was received and would like the Board for Correction to grant him an additional $8,000. 
  3. Commissioned corps view: Xxxxxxxx and all other officers were informed that the income they would receive would not be guaranteed and would be subject to change. He was called to active duty xxxxx 1990. He could not have executed a two-year ISP-H contract as of Xxxxxx 1990, because the authority for multi-year contracts had expired. Almost every year for the past 10 years, substantial changes have been made by Congress in the pay of commissioned officers and particularly medical officer special pays. DCP cannot be placed in the position of paying officers under the pay scales that existed at the time they were recruited, if Congress subsequently changes the pay. If the above disclaimer used by the recruiters is not enough, then DCP will have this problem every year.

    Most years the special pays have gone up and, therefore, officers have not had reason to complain. Other than provide no information to officers on what their pay might be, there has to be some warning that will suffice to keep us from having to back-date their orders to the time period when they would have been eligible for the pay, if they come on active duty after the pay change took effect. In the present case, this may only be for a short period of time but there will be instances where officers are brought in several months after a change in pay. If their records are changed, this will result in their receiving large amounts of unearned pay for periods when they were not on active duty.

    The issue asks whether the Board should change Xxxxxxxx ISP-H contract from one to two years effective Xxxxxx 1990. Xxxxxxxx was called to active duty after the authority to permit multi-year ISP-H contracts had expired, therefore, no multi-year ISP-H contract can be authorized with an effective date of Xxxxxx 1990. In addition, DCP records indicate that Personnel Orders were issued on xxxxxxx 1990, awarding him an ISP-H contract effective Xxxxxx 1990. There is no reference to an Xxxxxx 1990, date with respect to Xxxxxxxx.

    Because Xxxxxxxx was not on active duty before the change in contracting authority, he was not eligible and DCP cannot recommend any change in his record. 
  4. Issue: Should the Board authorize DCP to change Xxxxxxxx ISP-H contract from one-year to two-years effective xxxxxx 1990, and grant him the additional $8,000?

Board Action on Xxxxxxxx Request:

Board Staff:

Ellen Wormser
Executive Director

Thomas E. White, Ph.D.
Executive Secretary

Members of the Board:

Raymond E. Bahor, Ph.D.
Chairperson
Associate Chief for Review Division of Research Grants Referral and Review Branch, NIH

Findings:

The Board found that:

  1. his isolated site location qualified him for ISP-H; 
  2. his CAD was Xxxxxx 1990, one-day after DCP lost its authority to approve multi-year ISP-H contracts;
  3. a one-year ISP-H contract was approved for him effective Xxxxxx 1990; and
  4. DCP did not have the authority to approve a two-year ISP-H contract for him effective Xxxxxx 1990 as he requested.

Conclusion:

The Board concluded that Xxxxxxxx had been promised a multi-year ISP-H contract before his CAD and before DCP lost its authority to approve multi-year contracts. The critical element affecting his ability to obtain a two-year ISP-H contract was the fact that his CAD, which was an arbitrary date that came one day before the date DCP lost its contracting authority, could have been changed had the financial impact the date would have on Xxxxxxxx been recognized.

Recommendation:

The Board recommended that Xxxxxxxx request be upheld. Approval of this recommendation requires that his record be corrected to show he had notarized and approved a two-year ISP­H contract effective Xxxxxx 1990. This recommendation requires that he receive one additional day pay and allowances, that he be paid an additional $8,000 for the first year of his contract and $16,000 for the second year, and that his current contract and service credit be changed accordingly.

We certify that this recommendation reflects the views and actions taken by the Board on Xxxxxxxx request and that it has been concurred in by the Board members.

We certify that the Case Record contains all of the information received on his request and that, in addition to applicable statutes, regulations and policies, it was considered by the Board in arriving at the recommendation.

Finally, we certify that a quorum of Board members was present when Xxxxxxxx request was considered.

If you approve, please sign below.

Raymond E. Bahor, Ph.D.
Associate Chief for Review
Division of Research Grants Referral and Review Branch, NIH

Reviewed and Approved:

I hereby approve the recommendation of the Board members on the request of Xxxxxxxx received and considered in accordance with the authority of section 221a(a) (12) of the Public Health Service Act (P.L. 96-76, as amended) and 42 U.S.C. 213a(a) (12) and authorize the Director, Division of Commissioned Personnel (DCP), Office of the Surgeon General/PHS, to correct his record as stipulated and issue Personnel Orders changing the effective date of his ISP-H contract as approved.

Wilford J. Forbush
Director
Office of Management

Attachment: Case Record


Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.