B-199256.OM, DEC 31, 1980

B-199256.OM, DEC 31, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIMS OF DR. ALMA G. LISING, DR. A. YVONNE RUSSELL, AND DR. KENNETH J. MILLER, WHO ARE COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE. THESE CLAIMS ALL INVOLVE A REQUEST FOR A RETROACTIVE CHANGE OF THE EFFECTIVE DATE OF VARIABLE INCENTIVE PAY CONTRACTS.

COMPTROLLER GENERAL DECISION B-192338, SEPTEMBER 19, 1978, PROVIDED THAT A RETROACTIVELY EFFECTIVE DATE WOULD BE PERMITTED IN SITUATIONS WHERE "FAILURE TO EXECUTE WAS DUE TO LACK OF INFORMATION OR MISINFORMATION AND IT CAN BE SHOWN THAT HAD THE AGREEMENT BEEN TIMELY PRESENTED TO THE MEMBER HE WOULD HAVE EXECUTED IT." THIS DECISION FURTHER STATES THAT "ANY CASES WHICH INVOLVE SIMILAR CIRCUMSTANCE SHOULD BE FORWARDED TO THIS OFFICE WITH A COMPLETE ADMINISTRATIVE REPORT FOR DETERMINATION ON THE BASIS OF THE FACTS OF EACH INDIVIDUAL CASE." THE CLAIMS ARE SUBMITTED ACCORDINGLY.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. ALL OF THE DOCTORS INVOLVED WERE CALLED TO ACTIVE DUTY AS PRIMARY CARE PHYSICIANS IN THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE (PHS).

THE PHS REPORT ON DR. MILLER'S CLAIM STATES THAT HE WAS CALLED TO ACTIVE DUTY (CAD) ON JULY 4, 1977 (APPARENTLY THIS WAS A TYPOGRAPHICAL ERROR AND SHOULD BE 1979) AND WAS ELIGIBLE FOR VIP AT THIS TIME. HOWEVER, HE DID NOT EXECUTE A VIP AGREEMENT UNTIL JULY 9, 1979. THE AGREEMENT COMMITTED HIM TO 2 YEARS ACTIVE DUTY. DR. MILLER'S UNDISPUTED CONTENTIONS ARE THAT HE DID NOT RECEIVE THE VIP AGREEMENT FORM IN HIS CALL TO ACTIVE DUTY PACKET. IN ADDITION, WHILE THE CALL TO ACTIVE DUTY WAS FOR JULY 4, 1979, HE WAS GRANTED 3 DAYS TRAVEL TIME. HOWEVER, SINCE JULY 7, 1979, WAS A SATURDAY AND THE CLINIC TO WHICH HE HAD TO REPORT WAS NOT OPENED ON WEEKENDS, HE DID NOT REPORT UNTIL JULY 9, 1979. AT THAT TIME HE WAS INFORMED FOR THE FIRST TIME OF THE NEED FOR A VIP AGREEMENT, AND HE SIGNED AND HAD IT NOTARIZED IMMEDIATELY. HE SEEKS TO HAVE THE EFFECTIVE DATE OF HIS VIP AGREEMENT BACK DATED TO HIS CAD DATE OF JULY 4, 1979.

THE PHS REPORT ON DR. RUSSELL STATES THAT SHE WAS CALLED TO ACTIVE DUTY ON AUGUST 15, 1979, AND WAS ELIGIBLE FOR VIP AT THIS TIME. HOWEVER, SHE DID NOT EXECUTE A VIP AGREEMENT UNTIL AUGUST 30, 1979. THE AGREEMENT COMMITTED HER TO 2 YEARS ACTIVE DUTY. DR. RUSSELL'S UNDISPUTED CONTENTIONS ARE THAT SHE WAS CALLED TO ACTIVE DUTY VIA TELEPHONE ORDERS EFFECTIVE AUGUST 15, 1979. HOWEVER, SHE DID NOT ACTUALLY RECEIVE HER WRITTEN ORDERS, INCLUDING THE CAD PACKET AND THE VIP AGREEMENT FORM UNTIL AUGUST 30, 1979, THE DATE SHE SIGNED HER VIP AGREEMENT AND HAD IT NOTARIZED. SHE SEEKS TO HAVE THE EFFECTIVE DATE OF HER VIP AGREEMENT BACK DATED TO HER CAD DATE OF AUGUST 15, 1979.

THE PHS REPORT ON DR. LISING'S CLAIM STATES THAT SHE WAS CALLED TO ACTIVE DUTY ON AUGUST 1, 1979, AND WAS ELIGIBLE FOR VIP AT THIS TIME. SHE DID NOT EXECUTE A VIP AGREEMENT UNTIL SEPTEMBER 28, 1979. HOWEVER, SINCE HER VIP AGREEMENT WAS NOT EXECUTED ON OR BEFORE THE CAD DATE AND WAS NOT RECEIVED BY THE APPROPRIATE OFFICE WITHIN 45 DAYS OF THE CAD DATE, ITS EFFECTIVE DATE IS OCTOBER 5, 1979, THE DATE OF ITS RECEIPT. COMMISSIONED PERSONNEL MANUAL CC 22.2, INSTRUCTION 3, SECTION F.4. THE AGREEMENT COMMITTED HER TO 2 YEARS ACTIVE DUTY.

DR. LISING CONTENDS THAT SHE EXECUTED ALL FORMS SENT TO HER; HOWEVER, UPON REPORTING FOR DUTY, SHE LEARNED AFTER A SEARCH WAS MADE THAT NO RECORD OF A VIP AGREEMENT COULD BE FOUND. AS A RESULT, SHE DID NOT EXECUTE A VIP AGREEMENT UNTIL SEPTEMBER 28, 1979.

THE STATUTE WHICH AUTHORIZES VIP FOR MEDICAL DOCTORS OF THE UNIFORMED SERVICES, 37 U.S.C. 313 (1976) 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, HOWEVER, THAT UNDER CERTAIN CIRCUMSTANCES PAYMENT OF VIP COULD BE AUTHORIZED FOR A PERIOD OF TIME PRIOR TO THE EXECUTION OF A WRITTEN AGREEMENT. THE FAILURE TO EXECUTE A WRITTEN AGREEMENT WILL NOT PRECLUDE PAYMENT OF VIP IF THE PARTY CONCERNED IS OTHERWISE QUALIFIED, HAS SUBSTANTIALLY COMPLIED WITH ALL OTHER REQUIREMENTS, AND SHOWS AN INTENT EITHER EXPRESS OR IMPLIED TO HAVE TIMELY EXECUTED SUCH AN AGREEMENT. B-192338, SEPTEMBER 19, 1978.

THE FACTS IN EACH OF THESE CASES INDICATE PROBABLE ADMINISTRATIVE ERROR ON THE PART OF THE AGENCY. ALSO, IT APPEARS THAT EACH OF THE INDIVIDUALS INVOLVED WOULD HAVE TIMELY ENTERED INTO AN AGREEMENT HAD HE OR SHE BEEN FULLY ADVISED OF THE SITUATION. THUS, IT IS OUR VIEW THAT EACH FALLS WITHIN THE GUIDELINES SET FORTH IN B-192338, SUPRA.

ACCORDINGLY, THESE OFFICERS MAY HAVE THE EFFECTIVE DATES OF EXECUTION OF THEIR VIP AGREEMENTS ADJUSTED TO REFLECT THEIR RESPECTIVE CAD DATES.