B-199613.OM, JAN 8, 1981

B-199613.OM: Jan 8, 1981

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PRECIS-UNAVAILABLE COMPTROLLER GENERAL: WE ARE FORWARDING THE CLAIMS OF DR. WHO ARE COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE. ALL ARE REQUESTING RETROACTIVELY EFFECTIVE DATES FOR THEIR VARIABLE INCENTIVE PAY CONTRACTS. THESE CLAIMS ARE FORWARDED IN COMPLIANCE WITH B-192338. WILLARD WAS CALLED TO ACTIVE DUTY AS A PRIMARY CARE PHYSICIAN WITH THE PUBLIC HEALTH SERVICE (PHS) ON JULY 17. SHE CAME ON DUTY AND WAS ELIGIBLE FOR VARIABLE INCENTIVE PAY (VIP) AS OF THAT DATE. PHS POLICY PROVIDES THAT EACH OFFICER IS TO BE NOTIFIED BY HIS/HER PROGRAM OF THE NEED TO SIGN A NEW AGREEMENT SEVERAL MONTHS IN ADVANCE OF THE EXPIRATION OF HIS/HER CURRENT AGREEMENT. MOSER NOR ROBBINS WERE ADVISED OF THE NEED TO SIGN ANOTHER AGREEMENT.

B-199613.OM, JAN 8, 1981

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIMS OF DR. MARY WILLARD, DR. JOHN B. ROBBINS, AND DR. MICHAEL MOSER, WHO ARE COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE. ALL ARE REQUESTING RETROACTIVELY EFFECTIVE DATES FOR THEIR VARIABLE INCENTIVE PAY CONTRACTS. THESE CLAIMS ARE FORWARDED IN COMPLIANCE WITH B-192338, SEPTEMBER 19, 1978.

THE DEPARTMENT OF HEALTH & HUMAN SERVICES' OFFICE OF GENERAL COUNSEL, BY LETTER DATED JUNE 17, 1980, HAS REQUESTED ADVICE CONCERNING WHETHER OR NOT THEY SHOULD CONTINUE TO FORWARD ALL QUESTIONS INVOLVING THIS TYPE OF CLAIM TO THIS OFFICE.

WE REQUEST YOUR DETERMINATION ON THESE CASES AND AN APPROPRIATE RESPONSE TO THE REQUEST OF THE OFFICE OF GENERAL COUNSEL, DEPARTMENT OF HEALTH & HUMAN SERVICES.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. DR. WILLARD WAS CALLED TO ACTIVE DUTY AS A PRIMARY CARE PHYSICIAN WITH THE PUBLIC HEALTH SERVICE (PHS) ON JULY 17, 1978. SHE CAME ON DUTY AND WAS ELIGIBLE FOR VARIABLE INCENTIVE PAY (VIP) AS OF THAT DATE. DUE TO ADMINISTRATIVE ERROR AT THE SERVICE UNIT, DR. WILLARD DID NOT EXECUTE A VIP AGREEMENT UNTIL AUGUST 8, 1978. SHE REQUESTS THAT HER AGREEMENT BE BACK DATED TO JULY 17, 1978, TO ALLOW HER TO SEPARATE FROM PHS ON JULY 16, 1980, WITHOUT PENALTY.

DRS. MOSER AND ROBBINS HAD PREVIOUSLY SIGNED VIP AGREEMENTS. PHS POLICY PROVIDES THAT EACH OFFICER IS TO BE NOTIFIED BY HIS/HER PROGRAM OF THE NEED TO SIGN A NEW AGREEMENT SEVERAL MONTHS IN ADVANCE OF THE EXPIRATION OF HIS/HER CURRENT AGREEMENT. NEITHER DRS. MOSER NOR ROBBINS WERE ADVISED OF THE NEED TO SIGN ANOTHER AGREEMENT. WHEN DR. MOSER DID NOT RECEIVE HIS VIP PAYMENT HE INQUIRED OF HIS AREA OFFICE AS TO WHEN HIS BONUS MONEY WOULD BE RECEIVED. HIS AREA OFFICE QUESTIONED THE COMMISSIONED PERSONNEL OPERATIONS DIVISION (CPOD) AND WAS INFORMED THAT NO AGREEMENT HAD BEEN RECEIVED FROM DR. MOSER. WHEN DR. ROBBINS DID NOT RECEIVE HIS VIP PAYMENT HE CALLED CPOD DIRECTLY. HE WAS TOLD HE WOULD NEED TO SIGN A NEW AGREEMENT. BOTH DRS. MOSER AND ROBBINS EXECUTED NEW AGREEMENTS BUT THEIR PREVIOUS AGREEMENTS HAD ALREADY EXPIRED. THEY EACH REQUEST THAT THEIR NEW AGREEMENTS BE BACK DATED TO THE DATE THEIR PREVIOUS AGREEMENTS EXPIRED.

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 VIP FOR ANY PERIOD PRIOR TO THE EXECUTION OF AN APPROPRIATE AGREEMENT.

AS WE HAVE NOTED IN THE PAST, UNDER CERTAIN CIRCUMSTANCES PAYMENT OF VIP MAY BE AUTHORIZED FOR A PERIOD OF TIME PRIOR TO THE EXECUTION OF A WRITTEN AGREEMENT. WHEN IT COULD BE ESTABLISHED THAT THERE WAS EITHER AN EXPRESS OR IMPLIED INTENT ON THE PART OF THE INDIVIDUAL TO EXECUTE THE AGREEMENT IN A TIMELY FASHION, THE INDIVIDUAL WAS OTHERWISE QUALIFIED, AND THE INDIVIDUAL SUBSTANTIALLY COMPLIED WITH ALL THE OTHER REQUIREMENTS, WE DID NOT OBJECT TO PAYMENT OF VIP FOR THE PERIOD OF ACTIVE DUTY PRIOR TO THE EXECUTION OF THE CONTRACT. WE CAUTIONED, HOWEVER, THAT WHERE AN INDIVIDUAL IS FULLY AWARE OF THE REQUIREMENT FOR A WRITTEN AGREEMENT BUT DOES NOT EXECUTE IT, THUS LEAVING OPEN HIS OPTIONS AND THEREBY CAUSING THE GOVERNMENT TO BE UNSURE OF HIS FUTURE SERVICES IN A CRITICALLY NEEDED SKILL, HE SHOULD NOT BE PERMITTED AT A LATER TIME TO CLAIM RETROACTIVE PAYMENTS. SEE B-192338, SEPTEMBER 19, 1978; B-195622-O.M., MARCH 4, 1980; AND B-194462-O.M., JUNE 14, 1979.

IT IS APPARENT THAT THE CLAIMANTS IN THESE CASES ARE IN A SIMILAR POSITION TO THOSE IN THE DECISIONS REFERRED TO ABOVE AND WOULD HAVE EXECUTED THE AGREEMENTS IN A TIMELY FASHION IF NOT FOR THE ADMINISTRATIVE ERRORS. SINCE THE RECORD REFLECTS THAT DR. WILLARD HAS ALREADY SERVED THE PERIOD OF DUTY REQUIRED BY HER CALL TO ACTIVE DUTY ORDERS NO COLLECTION ACTION NEED BE TAKEN REGARDING HER VIP. PAYMENT OF VIP IS AUTHORIZED FOR DRS. MOSER AND ROBBINS AND APPROPRIATE ADJUSTMENTS MADE IN THEIR CONTRACTS FROM THE DATE THEIR PREVIOUS CONTRACTS EXPIRED. HOWEVER, IF EITHER OF THESE OFFICERS IS RELEASED FROM ACTIVE DUTY ON ANY DATE PRIOR TO THE PERIOD OF SERVICE FOR WHICH THEY RECEIVED VIP, RECOUPMENT ACTION SHOULD BE TAKEN.

YOUR COMMUNICATIONS WITH PHS SHOULD REITERATE THAT IT HAS BEEN OVER 2 YEARS SINCE WE ADVISED PHS TO TAKE STEPS TO INSURE THAT THE OFFICERS WHO ARE ELIGIBLE FOR VIP ARE INFORMED IN A TIMELY AND DIRECT MANNER TO PRECLUDE SIMILAR CASES FROM ARISING IN THE FUTURE. SEE B-192338, SEPTEMBER 19, 1978.

IN ADDITION, YOU MAY ADVISE THE OFFICE OF GENERAL COUNSEL, DEPARTMENT OF HEALTH AND HUMAN SERVICES, THAT SIMILAR CLAIMS MEETING THE CRITERIA ESTABLISHED BY PREVIOUS CASES NEED NOT BE FORWARDED TO THIS OFFICE. DOUBTFUL CASES SHOULD CONTINUE TO BE SENT TO THIS OFFICE WITH A COMPLETE ADMINISTRATIVE REPORT FOR A DETERMINATION ON THE BASIS OF THE FACTS IN EACH INDIVIDUAL CASE.

DIGEST

WHERE IT IS CLEARLY SHOWN THAT COMMISSIONED OFFICERS WOULD HAVE EXECUTED THEIR VARIABLE INCENTIVE PAY (VIP) AGREEMENTS, IN ACCORDANCE WITH 37 U.S.C. 313, IN A TIMELY FASHION BUT FOR THE FACT THAT THE AGREEMENT WAS NOT PROVIDED IN A TIMELY FASHION, THE OFFICERS ARE OTHERWISE QUALIFIED AND HAVE SUBSTANTIALLY COMPLIED WITH ALL OTHER REQUIREMENTS, PAYMENT OF VIP FOR THE PERIOD OF ACTIVE DUTY PRIOR TO THE EXECUTION OF THE CONTRACT IS AUTHORIZED.