B-169556, NOV 4, 1976

B-169556: Nov 4, 1976

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MEDICAL OFFICER WHOSE ACTIVE DUTY WITH THE ARMY WAS DEFERRED DURING HIS INTERNSHIP AND RESIDENCY UNDER THE BERRY PLAN WHICH PERMITTED SUCH DEFERRALS FOR INDIVIDUALS SUBJECT TO INDUCTION UNDER THE MILITARY SELECTIVE SERVICE ACT. BY VIRTUE OF THE FACT THAT HE WAS EXEMPT FROM INDUCTION UNDER THE MILITARY SELECTIVE SERVICE ACT. BY VIRTUE OF THE FACT THAT HE WAS EXEMPT FROM INDUCTION UNDER SECTION 6(O) OF THAT ACT. SHOULD NOT BE CONSIDERED TO HAVE DISQUALIFYING ACTIVE DUTY OBLIGATION FOR PURPOSES OF VARIABLE INCENTIVE PAY TO PHYSICIANS PURSUANT TO 37 U.S.C. 313. DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 526 - VIP TO BERRY PLAN PHYSICIAN: THIS ACTION IS IN RESPONSE TO A REQUEST FOR A DECISION FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE CONCERNING A MEMBER BEING CONSIDERED TO HAVE DISQUALIFYING ACTIVE DUTY OBLIGATION FOR VARIABLE INCENTIVE PAY PURPOSES UPON COMPLETION OF A BERRY PLAN DEFERMENT UNDER THE CIRCUMSTANCES DISCUSSED IN THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 526.

B-169556, NOV 4, 1976

MEDICAL OFFICER WHOSE ACTIVE DUTY WITH THE ARMY WAS DEFERRED DURING HIS INTERNSHIP AND RESIDENCY UNDER THE BERRY PLAN WHICH PERMITTED SUCH DEFERRALS FOR INDIVIDUALS SUBJECT TO INDUCTION UNDER THE MILITARY SELECTIVE SERVICE ACT, BY VIRTUE OF THE FACT THAT HE WAS EXEMPT FROM INDUCTION UNDER THE MILITARY SELECTIVE SERVICE ACT, BY VIRTUE OF THE FACT THAT HE WAS EXEMPT FROM INDUCTION UNDER SECTION 6(O) OF THAT ACT, 50 U.S.C. APP. 456(O), SHOULD NOT BE CONSIDERED TO HAVE DISQUALIFYING ACTIVE DUTY OBLIGATION FOR PURPOSES OF VARIABLE INCENTIVE PAY TO PHYSICIANS PURSUANT TO 37 U.S.C. 313.

DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 526 - VIP TO BERRY PLAN PHYSICIAN:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR A DECISION FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE CONCERNING A MEMBER BEING CONSIDERED TO HAVE DISQUALIFYING ACTIVE DUTY OBLIGATION FOR VARIABLE INCENTIVE PAY PURPOSES UPON COMPLETION OF A BERRY PLAN DEFERMENT UNDER THE CIRCUMSTANCES DISCUSSED IN THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 526, WHICH WAS ENCLOSED WITH THE REQUEST.

IN ESSENCE THE QUESTION PRESENTED IN THE COMMITTEE ACTION IS WHETHER A MEMBER IS CONSIDERED TO HAVE A DISQUALIFYING ACTIVE DUTY OBLIGATION FOR VARIABLE INCENTIVE PAY (VIP) PURPOSES UPON COMPLETION OF A BERRY PLAN DEFERMENT WHERE THE MEMBER WAS IN FACT EXEMPT FROM THE DRAFT BECAUSE HIS BROTHER HAD BEEN KILLED IN ACTION ON MAY 11, 1969, WHILE SERVING IN THE ARMED FORCES. IN OTHER WORDS WOULD THE FACT THAT THE MEMBER APPLIED FOR PARTICIPATION IN THE BERRY PLAN ON NOVEMBER 6, 1971, AND ENTERED ON ACTIVE DUTY IN JULY 1975, PURSUANT TO HIS PARTICIPATION IN THAT PLAN PREVENT PAYMENT OF VIP EVEN THOUGH HE COULD HAVE CLAIMED EXEMPTION FROM THE DRAFT?

THE DISCUSSION IN THE COMMITTEE ACTION STATES THAT IN VIEW OF THE ENUMERATED CIRCUMSTANCES, ENTITLEMENT TO VIP HAS NOT BEEN DETERMINED.

DEPARTMENT OF DEFENSE (DOD) DIRECTIVE 1340.11 DATED SEPTEMBER 12, 1974, ESTABLISHED DOD'S POLICIES GOVERNING THE PAYMENT OF VIP TO MEDICAL OFFICERS IN ACCORDANCE WITH 37 U.S.C. 313. THE PURPOSE OF VIP WAS TO INCREASE THE PAY DIFFERENTIAL PROVIDED TO MEDICAL OFFICERS IN THE UNIFORMED SERVICES IN AN ATTEMPT TO PROVIDE AN INCENTIVE FOR THOSE PROFESSIONALS TO REMAIN VOLUNTARILY IN THE UNIFORMED SERVICES IN VIEW OF THE DISPARITY IN PAY BETWEEN PHYSICIANS IN THE IN THE PRIVATE SECTOR AND THE PAY AND ALLOWANCE OTHERWISE ALLOWABLE TO MEMBERS OF THE UNIFORMED SERVICES. H.R. REP. NO. 93-883, 93D CONG., 2D SESS. 7 (1974). TO EFFECT THIS PURPOSE OF ATTRACTING PHYSICIANS WHO WOULD OTHERWISE REMAIN IN THE PRIVATE SECTOR, DOD DIRECTIVE 1340.11, PARAGRAPH III B, PROVIDES THE CRITERIA FOR VIP ELIGIBILITY, AMONG THEM BEING THAT THE MEDICAL OFFICER HAVE NO "DISQUALIFYING ACTIVE DUTY OBLIGATION." THE DIRECTIVE DEFINES "DISQUALIFYING ACTIVE DUTY OBLIGATION" IN PARAGRAPH III C(2) TO INCLUDE AN OBLIGATION TO ENTER OR REMAIN ON ACTIVE DUTY INCURRED BY "AN AGREEMENT ENTERED INTO BY AN OFFICER IN A RESERVE COMPONENT TO ENTER ACTIVE DUTY AFTER COMPLETION OF A PERIOD OF PROFESSIONAL EDUCATION AND TRAINING." THE BERRY PLAN, IMPLEMENTED PURSUANT TO SECTION 4(J) OF THE MILITARY SELECTIVE SERVICE ACT OF 1967, ORIGINALLY ENACTED JUNE 24, 1948, CH. 625, 62 STAT. 604, AS AMENDED, 50 U.S.C. APP. 454(J), INCORPORATED SUCH AN AGREEMENT WHEREBY THE PARTICIPANTS AGREED TO SERVE FOR 2 YEARS OF ACTIVE DUTY AS RESERVE COMMISSIONED OFFICERS OF THE ARMY IN RETURN FOR A DEFERMENT FROM ACTIVE DUTY TO COMPLETE THEIR MEDICAL TRAINING. ARMY REGULATIONS IN THAT REGARD ARE CONTAINED IN AR 135-50, FEBRUARY 24, 1970.

THE ISSUE AS TO WHETHER THE MEMBER SHOULD BE CONSIDERED DISQUALIFIED FROM RECEIVING VIP FOLLOWING HIS COMPLETION OF A BERRY PLAN DEFERMENT IS RAISED HERE BECAUSE AT THE TIME OF HIS ELECTION OF THE BERRY PLAN, THE MEMBER COULD NOT HAVE BEEN INVOLUNTARILY INDUCTED INTO THE ARMED SERVICES. THE COMMITTEE ACTION POINTS OUT, SECTION 101(A)(22) OF PUBLIC LAW NO. 92-129, SEPTEMBER 28, 1971, 85 STAT. 351, AMENDED SECTION 6(O), TO EXEMPT FROM INDUCTION FOR TRAINING AND SERVICE A PERSON WHOSE FATHER, BROTHER OR SISTER WAS KILLED IN ACTION OR DIED IN THE LINE OF DUTY WHILE SERVING IN THE ARMED FORCES AFTER DECEMBER 31, 1959, UNLESS HE VOLUNTEERED FOR INDUCTION. THIS AMENDMENT, ENACTED ONLY 7 WEEKS BEFORE THE MEMBER ELECTED TO PARTICIPATE IN THE BERRY PLAN, GREATLY EXPANDED THE PREVIOUS EXEMPTION. UNDER FORMER SECTION 6(O) THE EXEMPTION WAS AVAILABLE ONLY TO A SOLE-SURVIVING SON. THE AMENDMENT BROADENED THE EXEMPTION TO INCLUDE ALL MEMBERS OF A FAMILY IF A FATHER, BROTHER OR SISTER HAD BEEN KILLED IN THE LINE OF DUTY SUBSEQUENT TO DECEMBER 31, 1959, WHILE RETAINING THE THEN EXISTING SOLE SURVIVING SON EXEMPTION FOR THOSE REGISTRANTS WHO QUALIFIED ON THE BASIS OF A LOSS OF A MEMBER PRIOR TO DECEMBER 31, 1959. H.R. REP. NO. 92-433, 92D CONG., 1ST SESS. 25 (1971).

IT IS INDICATED IN THE COMMITTEE ACTION, WHILE NOT STATED DIRECTLY, THAT THE MEMBER IN QUESTION BECAME EXEMPT BY VIRTUE OF THE AMENDMENT IN PUBLIC LAW 92-129, I.E., HE WAS NOT THE SOLE-SURVIVING SON BUT HIS BROTHER HAD BEEN KILLED IN ACTION. WHILE WE DO NOT FEEL THAT SUCH FACT IS DETERMINATIVE IN THIS SITUATION SINCE HE WOULD HAVE BEEN IN A DRAFT EXEMPT STATUS UPON ENTERING THE BERRY PLAN IN EITHER CASE, IT WOULD EXPLAIN WHY SUCH AN INDIVIDUAL MIGHT NOT HAVE BEEN AWARE OF SUCH STATUS WHEN HE COMMITTED HIMSELF TO THE BERRY PLAN. IT IS CLEAR THAT THE MEMBER WAS NOT SUBJECT TO SERVICE AT THE TIME HE ENTERED THE BERRY PLAN. THUS, THE PROPRIETY OF THE MEMBER'S INCLUSION UNDER THE BERRY PLAN SEEMS QUESTIONABLE INASMUCH AS HE DID NOT MEET THE GENERAL ELIGIBILITY REQUIREMENT FOR PARTICIPATION SET FORTH IN AR 135-50, PARAGRAPH 2(A), THAT APPLICANTS BE "LIABLE FOR MILITARY SERVICE UNDER THE MILITARY SELECTIVE SERVICE ACT." IN VIEW OF THE ABOVE, WHILE WE WOULD NOT QUESTION THE STATUS OF THE MEMBER IN THE MILITARY SERVICE AT THIS TIME BECAUSE OF HIS QUESTIONABLE ELIGIBILITY FOR INCLUSION IN THE BERRY PLAN, WE DO NOT BELIEVE THAT HIS SERVICE CAN BE CHARACTERIZED AS OBLIGATED SERVICE FOR PURPOSES OF HIS ENTITLEMENT TO VIP. UNDER THESE CIRCUMSTANCES THE MEMBER SHOULD NOT BE CONSIDERED TO HAVE A DISQUALIFYING ACTIVE DUTY OBLIGATION FOR VIP PURPOSES.

REGARDING THE EFFECT OF THE TERMINATION OF REGISTRATION FOR THE DRAFT UNDER THE MILITARY SELECTIVE SERVICE ACT OF 1967 HAD THE MEMBER IN QUESTION NOT BEEN OTHERWISE ELIGIBLE FOR VIP, THE DEPARTMENT OF DEFENSE HAS TAKEN THE POSITION THAT BERRY PLAN PARTICIPANTS, ALL OF WHOM MUST BE MEMBERS OF THE RESERVE, ARE SUBJECT TO BEING CALLED TO ACTIVE DUTY UNDER THE PROVISIONS OF 10 U.S.C. 672(A), 673(A) OR 673A AS APPROPRIATE. FURTHER, SERVICE UNDER THOSE CONDITIONS IS CONSIDERED BY THE DEPARTMENT AS OBLIGATED SERVICE FOR PURPOSES OF VIP. WE ARE NOT AWARE THAT THE DEPARTMENT'S POSITION IN THAT REGARD HAS BEEN QUESTIONED.

FOR THE REASONS STATED, THE MEMBER IN QUESTION IS NOT CONSIDERED TO HAVE A DISQUALIFYING ACTIVE DUTY OBLIGATION FOR VIP PURPOSES BY VIRTUE OF HIS DRAFT EXEMPT STATUS UNDER SECTION 6(O) OF THE MILITARY SELECTIVE SERVICE ACT AT THE TIME HE BECAME A RESERVE IN THE ARMY IN NOVEMBER 1971. HOWVER, BUT FOR SUCH EXEMPT STATUS HE WOULD BE CONSIDERED AS HAVING A DISQUALIFYING ACTIVE DUTY OBLIGATION.