B-192338.OM, L/M, MAR 3, 1980

B-192338.OM: Mar 3, 1980

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PRECIS-UNAVAILABLE COMPTROLLER GENERAL: WE ARE FORWARDING THE CLAIM OF DR. A MEDICAL DOCTOR WHO IS A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE. THE MATTER IS SUBMITTED FOR CONSIDERATION UNDER B-192338. CLAIMS DIVISION RETURNED IS YOUR FILE Z-2808566. ROSE WAS NOT INFORMED OF THE EXPIRATION OF HIS OLD AGREEMENT AND NEED TO EXECUTE A NEW AGREEMENT UNTIL NOVEMBER 1978. AS A RESULT HE IS OBLIGATED TO SERVE UNTIL NOVEMBER 27. WE ARE BEING ASKED WHETHER HE IS ENTITLED TO VARIABLE INCENTIVE PAY FROM SEPTEMBER 1978. THE DATE HE WOULD HAVE EXECUTED THE NEW CONTRACT HAD HE BEEN AWARE OF SUCH NECESSITY. VARIABLE INCENTIVE PAY FOR MEDICAL DOCTORS OF THE UNIFORMED SERVICES IS AUTHORIZED BY 37 U.S.C. 313 (1976).

B-192338.OM, L/M, MAR 3, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF DR. LAWRENCE R. ROSE, A MEDICAL DOCTOR WHO IS A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE, FOR RETROACTIVE CHANGE OF THE EFFECTIVE DATE OF HIS VARIABLE INCENTIVE PAY CONTRACT. THE MATTER IS SUBMITTED FOR CONSIDERATION UNDER B-192338, SEPTEMBER 19, 1978, AND B-194462, JUNE 14, 1979.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED IS YOUR FILE Z-2808566. DR. LAWRENCE R. ROSE EXECUTED A 4 YEAR VARIABLE INCENTIVE PAY (VIP) CONTRACT WHICH BEGAN SEPTEMBER 18, 1974, AND EXPIRED ON SEPTEMBER 17, 1978. HE THEN BECAME ELIGIBLE TO EXECUTE A NEW VIP AGREEMENT. PUBLIC HEALTH SERVICE PROCEDURES PROVIDE FOR NOTIFYING ELIGIBLE DOCTORS OF THE EXPIRATION OF THEIR AGREEMENTS AND ELIGIBILITY TO ENTER INTO NEW AGREEMENTS. HOWEVER, AS A RESULT OF TRANSFERS TO VARIOUS ORGANIZATIONS WITHIN THE SERVICE, DR. ROSE WAS NOT INFORMED OF THE EXPIRATION OF HIS OLD AGREEMENT AND NEED TO EXECUTE A NEW AGREEMENT UNTIL NOVEMBER 1978. ON NOVEMBER 28, 1978 HE EXECUTED A 1-YEAR VIP AGREEMENT. AS A RESULT HE IS OBLIGATED TO SERVE UNTIL NOVEMBER 27, 1979.

WE ARE BEING ASKED WHETHER HE IS ENTITLED TO VARIABLE INCENTIVE PAY FROM SEPTEMBER 1978, AND IF THE DATES OF HIS AGREEMENT SIGNED ON NOVEMBER 28, 1978, MAY BE ADJUSTED TO SEPTEMBER 18, 1978, THE DATE HE WOULD HAVE EXECUTED THE NEW CONTRACT HAD HE BEEN AWARE OF SUCH NECESSITY.

VARIABLE INCENTIVE PAY FOR MEDICAL DOCTORS OF THE UNIFORMED SERVICES IS AUTHORIZED BY 37 U.S.C. 313 (1976). THIS STATUTE REQUIRES AS A CONDITION PRECEDENT TO ELIGIBILITY FOR VIP THE EXECUTION OF A WRITTEN AGREEMENT BY THE MEDICAL OFFICER AND ITS ACCEPTANCE BY THE SECRETARY CONCERNED OR HIS DESIGNEE. UNDER THAT AGREEMENT THE MEDICAL OFFICER WOULD RECEIVE INCENTIVE PAY FOR COMPLETING A SPECIFIC NUMBER OF YEARS OF CONTINUOUS ACTIVE DUTY SUBSEQUENT TO EXECUTING SUCH AN AGREEMENT. THUS UNDER THE APPLICABLE LAW A MEMBER IS NOT ENTITLED TO A VIP FOR ANY PERIOD PRIOR TO THE EXECUTION OF AN APPROPRIATE AGREEMENT.

WE HAVE CONCLUDED THAT UNDER CERTAIN CIRCUMSTANCES PAYMENT OF VIP COULD BE AUTHORIZED FOR A PERIOD OF TIME PRIOR TO THE EXECUTION OF A WRITTEN AGREEMENT. THIS VIEW IS BASED ON THE DEMONSTRATION THAT THERE WAS EITHER AN EXPRESS OR IMPLIED INTENT ON THE PART OF AN INDIVIDUAL TO EXECUTE THE AGREEMENT IN A TIMELY FASHION, THE INDIVIDUAL WAS OTHERWISE QUALIFIED AND THE INDIVIDUAL SUBSTANTIALLY COMPLIED WITH ALL THE OTHER REQUIREMENTS. SEE B-192338, SEPTEMBER 19, 1978.

THE FACTS IN THIS CASE ARE SIMILAR TO THOSE CASES CONSIDERED IN B-192338, SUPRA. ACCORDINGLY, IF DR. ROSE HAS BEEN RELEASED FROM ACTIVE DUTY PRIOR TO NOVEMBER 27, 1979, BUT AFTER SEPTEMBER 17, 1979, COLLECTION ACTION NEED NOT BE TAKEN FOR VARIABLE INCENTIVE PAY ALREADY PAID UNDER THE NOVEMBER 28, 1978 AGREEMENT. IF HE IS STILL ON ACTIVE DUTY ANY SUBSEQUENT VIP AGREEMENTS MAY BE ADJUSTED USING SEPTEMBER 18, 1978, AS THE DATE HE ENTERED THE AGREEMENT IN QUESTION AND SEPTEMBER 17, 1979, MAY BE USED AS THE CONTROLLING DATE FOR ANY SUBSEQUENT VIP AGREEMENTS.