B-195458.OM, L/M, MAR 12, 1980

B-195458.OM, L/M, MAR 12, 1980

SUBJECT: DR. RONALD LIEBERMAN'S CLAIM FOR VARIABLE INCENTIVE PAY - Z-2791079 B-195458-O.M.

DIRECTOR, CLAIMS DIVISION:

RETURNED IS YOUR FILE Z-2791079 CONCERNING THE CLAIM OF DR. RONALD LIEBERMAN, A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE. DR. LIEBERMAN'S CLAIM WAS DENIED BY CLAIMS DIVISION SETTLEMENT OF FEBRUARY 6, 1979. DR. LIEBERMAN, IN EFFECT, REQUESTS A CHANGE IN THE EFFECTIVE DATE OF HIS VARIABLE INCENTIVE PAY (VIP) AGREEMENT. THIS WAS DENIED ON THE BASIS THAT THERE WERE NO EXTENUATING CIRCUMSTANCES IN HIS CASE.

THE PUBLIC HEALTH SERVICE IN ITS REPORT ON THE CLAIM STATES THAT DR. LIEBERMAN WAS CALLED TO ACTIVE DUTY AT THE NATIONAL INSTITUTE OF HEALTH ON JUNE 30, 1977. HE WAS ELIGIBLE FOR VIP UNDER 37 U.S.C. 313 (1976) AT THIS TIME. HOWEVER, HE DID NOT EXECUTE A VIP AGREEMENT REQUIRED BY THE LAW AND REGULATIONS UNTIL OCTOBER 18, 1977. THE AGREEMENT COMMITTED HIM TO 2 YEARS' ACTIVE DUTY.

THE PUBLIC HEALTH SERVICE RECOMMENDS THAT DR. LIEBERMAN'S CLAIM BE DENIED. THEY STATE THAT WHILE HE MAY NOT HAVE BEEN ADVISED OF HIS ELIGIBILITY FOR VIP IN TIME TO EXECUTE A VIP AGREEMENT IN WHICH THE VIP EFFECTIVE DATE CORRESPONDED TO HIS INITIAL ELIGIBILITY, HE WAS FURNISHED COPIES OF THE VIP AGREEMENT IN HIS CALL TO ACTIVE DUTY PACKET IN MAY 1977, AND THEREFORE HAD SUFFICIENT TIME TO EXECUTE A VIP AGREEMENT PRIOR TO HIS INITIAL ELIGIBILITY DATE.

DR. LIEBERMAN INDICATES THAT HE WAS NOT AWARE OF HIS ELIGIBILITY FOR THE VIP PROGRAM AND THAT HE RECEIVED NO INFORMATION CONCERNING IT UNTIL OCTOBER 1977. IN SUPPORT OF THIS, A STATEMENT BY THE HEAD, COMMISSIONED OFFICERS' PERSONNEL, NATIONAL INSTITUTE OF HEALTH IS ENCLOSED WITH HIS CLAIM. HE STATES THAT DR. LIEBERMAN WAS MAILED A COPY OF THE COMMISSIONED OFFICERS' HANDBOOK WITH HIS PERSONNEL ORDERS. HOWEVER, THE HANDBOOK CONTAINED NO REFERENCE TO VIP. THIS HAS BEEN REMEDIED IN PRESENT PUBLICATIONS. HE ALSO NOTES THAT AS A MATTER OF ROUTINE, VIP CONTRACTS AND INFORMATION WERE MAILED TO EACH OFFICER AT THE ISSUANCE OF CALL TO ACTIVE DUTY ORDERS, BUT NOT TO OFFICERS IDENTIFIED AS INELIGIBLE BECAUSE OF INTERNSHIP OR RESIDENCY TRAINING. ALTHOUGH DR. LIEBERMAN WAS SCHEDULED FOR RESIDENCY TRAINING IN PATHOLOGY BEGINNING JULY 1, 1977, HE REMAINED ELIGIBLE FOR VIP BY VIRTUE OF HIS ADMISSION TO TAKE THE EXAMINATION FOR CERTIFICATION IN INTERNAL MEDICINE. HE THEN NOTES THAT PRESUMABLY THIS WAS THE REASON DR. LIEBERMAN DID NOT RECEIVE A VIP CONTRACT PRIOR TO JULY 1, 1977. HE ALSO STATES THAT AT THE TIME DR. LIEBERMAN ENTERED ON ACTIVE DUTY AND BEGAN ORIENTATION IT WAS ASSUMED THAT ELIGIBLE OFFICERS WOULD HAVE RECEIVED AND SUBMITTED VIP CONTRACTS. SINCE JULY 1978, DETAILS OF THE VIP PROGRAM ARE INCLUDED IN THE INDUCTION PROCESSING AS A REMINDER TO ELIGIBLE OFFICERS. IT SEEMS CLEAR THAT DR. LIEBERMAN WAS NOT ADVISED PRIOR TO HIS ENTRY ON ACTIVE DUTY THAT HE WAS ELIGIBLE FOR VIP.

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.

THE PURPOSE OF THIS LAW IS TO PROVIDE AN INCENTIVE FOR OFFICERS TO REMAIN ON ACTIVE DUTY FOR A SPECIFIED PERIOD OF TIME AND THE CONDITION REQUIRED IS THE EXECUTION OF A WRITTEN AGREEMENT WHICH EVIDENCES THE OFFICER'S INTENT TO SERVE FOR A SPECIFIED PERIOD. WE CANNOT ADOPT THE VIEW THAT APPARENT ELIGIBILITY UNDER THE STATUTE AND PERFORMANCE OF THE DUTY ALONE WILL SUFFICE TO AUTHORIZE PAYMENT. THUS, IN THE ABSENCE OF AN EXECUTED WRITTEN AGREEMENT, PAYMENT OF VIP WILL NOT ORDINARILY BE AUTHORIZED. HOWEVER, THE VIEW HAS BEEN EXPRESSED THAT WHERE IT IS CLEAR THAT THERE WAS INTENT TO MEET THE REQUIREMENTS OF A STATUTE OR REGULATION AND SUBSTANTIAL PERFORMANCE OF THE REQUIREMENTS IS ACCOMPLISHED, THE OMISSION OF A REQUIREMENT, SUCH AS THE FILING OF AN EXEMPTION, WOULD NOT NECESSARILY PRECLUDE ENTITLEMENT TO AUTHORIZED BENEFITS. SEE METHODIST HOME AND HOTEL CORP. V. UNITED STATES, 291 F. SUPP. 595 (S.D. TEX. 1968).

THE FACTS IN DR. LIEBERMAN'S CASE SHOW THAT HE WAS NOT AWARE OF HIS ELIGIBILITY FOR THE VIP. THEREFORE, IT CANNOT BE SAID THAT CLEAR INTENT WAS PRESENT. HOWEVER, WE VIEW THE CIRCUMSTANCES HERE AS NOT UNLIKE THOSE IN B-185894-O.M., JULY 29, 1976. IN THAT CASE WE ALLOWED A CLAIM FOR VIP WHERE ERRONEOUS INFORMATION PROVIDED TO AN OFFICER INFLUENCED HIS JUDGMENT WITH REGARD TO PARTICIPATION IN THE PROGRAM.

ACCORDINGLY, IF DR. LIEBERMAN IS SEPARATED FROM ACTIVE DUTY PRIOR TO THE EXPIRATION DATE OF THE EXECUTED AGREEMENT BUT SUBSEQUENT TO JULY 1, 1979, COLLECTION ACTION TO RECOUP THE VIP PAYMENT WHICH HAS BEEN MADE, NEED NOT BE TAKEN. IF HE REMAINS ON ACTIVE DUTY, SUBSEQUENT AGREEMENTS MAY BE DATED JULY 1.