B-201122.OM, DEC 24, 1980

B-201122.OM, DEC 24, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

HERE IS THE CLAIM OF DR. LINDA LONDBORG, A PUBLIC HEALTH SERVICE PHYSICIAN. DR. LONDBORG IS REQUESTING RETROACTIVE CHANGE OF THE EFFECTIVE DATE OF HER VARIABLE INCENTIVE PAY CONTRACT.

DR. LONDBORG EXECUTED A VARIABLE INCENTIVE PAY CONTRACT EFFECTIVE JUNE 11, 1980. RENEGOTIATION OF THE CONTRACT WAS DUE NOVEMBER 1, 1979. DR. LONDBORG CONTENDS THAT SHE MADE AN ATTEMPT TO RENEW HER CONTRACT ON TIME.

AN ATTORNEY OF THE U. S. DEPARTMENT OF HEALTH AND HUMAN SERVICES IS OF THE OPINION THAT DR. LONDBORG'S CASE IS SIMILAR TO COMPTROLLER GENERAL'S DECISIONS B-192338, SEPTEMBER 19, 1978, AND B-194462-O.M., JUNE 14, 1979.

SINCE THE REGULATIONS PROVIDE THAT VARIABLE INCENTIVE PAY CONTRACTS ARE BINDING ON BOTH PARTIES, AND SUBJECT TO MODIFICATION ONLY BY THE COMPTROLLER GENERAL AND THE COURTS, THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION.

SENATORS WARREN G. MAGNUSON AND TED STEVENS ARE INTERESTED IN THIS MATTER.

INDORSEMENT

ASSOCIATE DIRECTOR, AMFD - CLAIMS GROUP (ROOM 5858)

RETURNED. DR. LINDA LONDBORG, A PUBLIC HEALTH SERVICE PHYSICIAN, WAS CALLED TO ACTIVE DUTY IN THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE ON NOVEMBER 1, 1977. DR. LONDBORG MET THE ELIGIBILITY REQUIREMENTS FOR VARIABLE INCENTIVE PAY (VIP) ON THE DATE OF HER CALL TO ACTIVE DUTY AND SIGNED A VIP VOLUNTARY SERVICE AGREEMENT TO REMAIN ON ACTIVE DUTY FOR 2 YEARS. THE VIP BONUS WAS PAID EFFECTIVE NOVEMBER 1 OF EACH YEAR OF THE AGREEMENT. IN ACCORDANCE WITH PUBLIC HEALTH SERVICE POLICY, DR. LONDBORG SHOULD HAVE BEEN NOTIFIED BY HER PROGRAM HEAD OF THE NEED TO SIGN A NEW AGREEMENT SEVERAL MONTHS IN ADVANCE OF EXPIRATION OF HER CURRENT AGREEMENT. NOTIFICATION BY PROGRAM HEADS IS INITIATED BY A COMPUTER LISTING SENT TO THEM FROM THE COMMISSIONED PERSONNEL OPERATIONS DIVISION (CPOD).

CPOD REQUESTED A COMPUTER LISTING IN JULY 1979 OF ALL MEDICAL OFFICERS WHO HAVE VIP AGREEMENT RENEWAL DATES BETWEEN OCTOBER 1, 1979, AND JANUARY 31, 1980. DR. LONDBORG'S NAME WAS NOT LISTED ON THE COMPUTER PRINTOUT. THEREFORE, THERE WAS NO WAY FOR THE PROGRAM HEAD TO IDENTIFY THAT SHE SHOULD SIGN A NEW AGREEMENT TO BE EFFECTIVE NOVEMBER 1, 1979. IT WAS NOT UNTIL MARCH 1, 1980, THAT DR. LONDBORG NOTARIZED AN AGREEMENT. ACCORDING TO COMMISSIONED CORPS PERSONNEL MANUAL (CCPM) CC22.2, INSTRUCTION 3, SECTION F.4, THE EFFECTIVE DATE OF AN OFFICER'S SECOND AND SUCCEEDING VIP VOLUNTARY SERVICE AGREEMENTS WILL BE: (1) THE DATE FOLLOWING THE DATE THE PRECEDING AGREEMENT EXPIRES, PROVIDED THE EXECUTED AGREEMENT IS RECEIVED IN CPOD WITHIN 30 DAYS AFTER THE DATE OF EXPIRATION OF THE OLD AGREEMENT AND BEARS A NOTARIZED SIGNATURE ON OR BEFORE THE DATE FOLLOWING THE DATE THE PRECEDING AGREEMENT EXPIRED, OR (2) A SUBSEQUENT DATE DESIGNATED BY THE OFFICER. SINCE THE NEW AGREEMENT WAS NOT RECEIVED BY CPOD UNTIL JUNE 11, 1980, THE EFFECTIVE DATE FOR DR. LONDBORG'S RENEWAL VIP AGREEMENT WAS SET BY CPOD AS JUNE 11, 1980.

DR. LONDBORG IS REQUESTING THAT HER VIP AGREEMENT BE BACK DATED TO NOVEMBER 1, 1979, THE DATE HER AGREEMENT WOULD HAVE BEEN EFFECTIVE IF IT HAD BEEN PROPERLY RECEIVED. SHE FEELS THAT THE ISOLATION OF HER STATION AND THE RESULTING POOR MAIL SERVICE CONTRIBUTED SIGNIFICANTLY TO HER FAILURE TO SIGN THE AGREEMENT IN A TIMELY FASHION. DURING THE TIME IN QUESTION DR. LONDBORG WAS ASSIGNED AS A NATIONAL HEALTH SERVICE CORPS PHYSICIAN FOR THE NORTON SOUND HEALTH CORPORATION IN NOME, ALASKA.

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 IN WHICH THERE HAS BEEN NO 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, IN THAT HAD DR. LONDBORG BEEN PRESENTED WITH A NEW AGREEMENT IN A TIMELY FASHION SHE WOULD HAVE EXECUTED THE AGREEMENT. THUS, SHE HAS SUBSTANTIALLY COMPLIED WITH THE REQUIREMENTS OF 37 U.S.C. 313 SINCE SHE HAS SERVED THE PERIOD OF DUTY IN ACCORDANCE WITH WHAT WOULD HAVE BEEN REQUIRED IN THE NEW CONTRACT. ACCORDINGLY, DR. LONDBORG'S VIP AGREEMENT MAY BE DATED NOVEMBER 1, 1979, THE DATE HER AGREEMENT WOULD HAVE BEEN EFFECTIVE HAD IT BEEN PROPERLY RECEIVED.

SENATORS MAGNUSON AND STEVENS HAVE NOT BEEN ADVISED OF THE INSTRUCTION ISSUED HEREIN.