B-201685.OM, JAN 6, 1981

B-201685.OM: Jan 6, 1981

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PRECIS-UNAVAILABLE COMPTROLLER GENERAL: WE ARE FORWARDING THE FILE ON THE MATTER INVOLVING DR. TRAMBERT IS REQUESTING RETROACTIVE MODIFICATION OF THE EFFECTIVE DATE OF HIS VARIABLE INCENTIVE PAY (VIP) AGREEMENT. TRAMBERT STATES THAT HE ASSUMED THE VIP CONTRACT WAS INCLUDED WITH THE PAPERS HE SIGNED ON OR BEFORE JULY 1. HE WAS NOTIFIED THAT HE HAD NOT COMPLETED HIS TWO YEAR CONTRACT AND THEREFORE. WAS INDEBTED TO THE DEPARTMENT FOR $16. TRAMBERT IS REQUESTING RETROACTIVE MODIFICATION OF THE EFFECTIVE DATE OF HIS VIP CONTRACT. WE ARE FORWARDING THE MATTER FOR YOUR CONSIDERATION. MCKINNEY IS INTERESTED IN THIS MATTER. TRAMBERT STATES THAT HE ASSUMED THE VIP CONTRACT WAS INCLUDED WITH THE PAPERS HE SIGNED ON OR BEFORE JULY 1.

B-201685.OM, JAN 6, 1981

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE ON THE MATTER INVOLVING DR. JONATHAN J. TRAMBERT. DR. TRAMBERT IS REQUESTING RETROACTIVE MODIFICATION OF THE EFFECTIVE DATE OF HIS VARIABLE INCENTIVE PAY (VIP) AGREEMENT.

ALTHOUGH DR. TRAMBERT BEGAN ACTIVE DUTY WITH THE PUBLIC HEALTH SERVICE (PHS) ON JULY 1, 1978, HE DID NOT SIGN A VIP CONTRACT UNTIL SEPTEMBER 1978. DR. TRAMBERT STATES THAT HE ASSUMED THE VIP CONTRACT WAS INCLUDED WITH THE PAPERS HE SIGNED ON OR BEFORE JULY 1, 1978. IN SEPTEMBER 1978, DR. TRAMBERT DISCOVERED THAT HE HAD NOT EXECUTED A VIP CONTRACT. CONSEQUENTLY, DR. TRAMBERT RECEIVED HIS FIRST CHECK IN NOVEMBER 1978. AFTER SEPARATING FROM THE PHS ON JUNE 30, 1980, HE WAS NOTIFIED THAT HE HAD NOT COMPLETED HIS TWO YEAR CONTRACT AND THEREFORE, WAS INDEBTED TO THE DEPARTMENT FOR $16,250.00.

SINCE DR. TRAMBERT IS REQUESTING RETROACTIVE MODIFICATION OF THE EFFECTIVE DATE OF HIS VIP CONTRACT, WE ARE FORWARDING THE MATTER FOR YOUR CONSIDERATION.

CONGRESSMAN STEWART B. MCKINNEY IS INTERESTED IN THIS MATTER.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. DR. JONATHAN J. TRAMBERT BEGAN ACTIVE DUTY WITH THE PUBLIC HEALTH SERVICE (PHS) ON JULY 1, 1978, FOR A 2-YEAR PERIOD. HE DID NOT SIGN A VARIABLE INCENTIVE PAY (VIP) CONTRACT UNTIL SEPTEMBER 1978. DR. TRAMBERT STATES THAT HE ASSUMED THE VIP CONTRACT WAS INCLUDED WITH THE PAPERS HE SIGNED ON OR BEFORE JULY 1, 1978. IN SEPTEMBER 1978, DR. TRAMBERT WAS INFORMED THAT HE HAD NOT EXECUTED A VIP CONTRACT AND THEREUPON SIGNED A VIP AGREEMENT FOR 2 YEARS AND WAS SUBSEQUENTLY PAID VIP. AT THE TIME OF HIS SEPARATION FROM THE PHS ON JUNE 30, 1980, HE WAS NOTIFIED THAT SINCE HE HAD NOT COMPLETED THE 2 YEARS OF HIS VIP CONTRACT, SEPTEMBER 1, 1978, THROUGH AUGUST 31, 1980, HE WAS INDEBTED TO THE GOVERNMENT FOR $16,250. DR. TRAMBERT THEREUPON REQUESTED A RETROACTIVE MODIFICATION OF HIS VIP CONTRACT TO REFLECT THAT IT HAD BEEN EXECUTED AT THE BEGINNING OF HIS ACTIVE DUTY WITH PHS, JULY 1, 1978.

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 IN WHICH THERE HAS BEEN NO EXECUTION OF AN APPROPRIATE AGREEMENT. THE LAW ALSO PROVIDES THAT AN OFFICER WHO HAS RECEIVED PAYMENT AND WHO FAILS EITHER VOLUNTARILY OR AS THE RESULT OF MISCONDUCT TO COMPLETE THE NUMBER OF YEARS OF SERVICE TO WHICH HE AGREED, WILL BE REQUIRED TO REFUND AN AMOUNT PRESCRIBED BY THE SECRETARY CONCERNED.

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. TRAMBERT BEEN PRESENTED WITH A VIP AGREEMENT IN A TIMELY FASHION HE WOULD HAVE EXECUTED THE AGREEMENT. THUS, HE HAS SUBSTANTIALLY COMPLIED WITH THE REQUIREMENTS OF 37 U.S.C. 313 SINCE HE HAD SERVED THE PERIOD OF DUTY IN ACCORDANCE WITH WHAT WOULD HAVE BEEN REQUIRED IN THE VIP CONTRACT AND HIS ACTIVE DUTY ORDERS. DR. TRAMBERT'S VIP AGREEMENT MAY BE DATED JULY 1, 1978, THE DATE HIS AGREEMENT WOULD HAVE BEEN EFFECTIVE HAD IT BEEN PROPERLY PRESENTED.

ACCORDINGLY, THE PHS DOES NOT NEED TO MAKE COLLECTION OF THE VIP PAYMENT ORDINARILY REQUIRED SINCE DR. TRAMBERT SERVED THE TOUR OF DUTY REQUIRED BY HIS ORIGINAL ACTIVE DUTY ORDERS.

CONGRESSMAN STEWART B. MCKINNEY HAS NOT BEEN ADVISED OF THE INSTRUCTION ISSUED HEREIN.

DIGEST

A DOCTOR WHO IS A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE EXECUTED A VARIABLE INCENTIVE PAY (VIP) CONTRACT AT A LATER DATE THAN THE DATE OF REPORTING FOR ACTIVE DUTY, BECAUSE OF A LACK OF INFORMATION, MISINFORMATION, OR LACK OF FORMS. HE MAY BE RELEASED FROM ACTIVE DUTY PRIOR TO DATES OF EXPIRATION IN VIP CONTRACT, AND THIS OFFICE WILL NOT OBJECT IF PUBLIC HEALTH SERVICE DOES NOT MAKE COLLECTION FROM VIP PAYMENT ORDINARILY REQUIRED SINCE THE DOCTOR SERVED THE TOUR OF DUTY REQUIRED BY HIS ORIGINAL ACTIVE DUTY ORDERS.