B-195622.OM, L/M, MAR 4, 1980

B-195622.OM, L/M, MAR 4, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIMS OF DR. KENNETH P. BENUSIS AND DR. EDWARD J. LEONARD, WHO ARE COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE. DR. BENUSIS REQUESTS RETROACTIVE PAYMENT OF CONTINUATION PAY WHILE DR. LEONARD'S CLAIM IS FOR RETROACTIVE PAYMENT OF VARIABLE INCENTIVE PAY.

PURSUANT TO AN INFORMAL MEETING WITH MESSERS. MITCHELL AND ENGSTROM OF YOUR OFFICE, THE CLAIMS ARE SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED ARE YOUR FILES Z-2812304 (DR. KENNETH P. BENUSIS) AND Z 2812705 (DR. EDWARD J. LEONARD).

DR. BENUSIS' CLAIM FOR CONTINUATION PAY UNDER 37 U.S.C. 311 (1976) ARISES UNDER THE FOLLOWING CIRCUMSTANCES. DR. BENUSIS WAS CALLED TO ACTIVE DUTY WITH THE PUBLIC HEALTH SERVICE AS A COMMISSIONED OFFICER ON JULY 1, 1971. HE WAS RELEASED FROM ACTIVE DUTY ON JUNE 30, 1973. SUBSEQUENTLY, HE RECEIVED 2 YEARS OF SPECIALTY TRAINING OUTSIDE THE SERVICE. ON APRIL 9, 1976, ORDERS WERE ISSUED CALLING DR. BENUSIS TO ACTIVE DUTY EFFECTIVE SEPTEMBER 1, 1976. DR. BENUSIS APPARENTLY IS STILL ON ACTIVE DUTY.

REGULATIONS PROMULGATED BY THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE PURSUANT TO 37 U.S.C. 311, WHICH AUTHORIZE CONTINUATION PAY FOR MEDICAL DOCTORS AND DENTISTS, REQUIRE THAT A COMMISSIONED OFFICER WHO IS A DENTIST HAVE EITHER 4 YEARS OF ACTIVE SERVICE AND 1 YEAR OF SPECIALTY TRAINING OR 3 YEARS' ACTIVE SERVICE AND 2 YEARS' SPECIALTY TRAINING IN ORDER TO BE ELIGIBLE FOR CONTINUATION PAY. DR. BENUSIS MET THIS CRITERIA ON SEPTEMBER 1, 1977. HE DID NOT, HOWEVER, EXECUTE AN AGREEMENT TO REMAIN ON ACTIVE DUTY FOR 1 YEAR UNTIL APRIL 25, 1978.

IN ITS ADMINISTRATIVE REPORT THE PUBLIC HEALTH SERVICE STATES THAT DR. BENUSIS DID NOT EXECUTE THE REQUIRED AGREEMENT ON SEPTEMBER 1, 1977, BECAUSE OF ADMINISTRATIVE ERROR. NO EXPLANATION IS PROVIDED CONCERNING THE NATURE OF THE ERROR. DR. BENUSIS DOES NOT PROVIDE AN EXPLANATION EITHER, OTHER THAN THAT AN ADMINISTRATIVE ERROR OCCURRED. THE PUBLIC HEALTH SERVICE DOES RECOMMEND FAVORABLE CONSIDERATION ON THE BASIS OF EQUITY AND THE FACT THAT AN ADMINISTRATIVE ERROR OCCURRED.

FROM THE RECORD PROVIDED BY THE PUBLIC HEALTH SERVICE, IT APPEARS THAT DR. BENUSIS WAS ELIGIBLE AND QUALIFIED FOR CONTINUATION PAY. IT ALSO APPEARS THAT HAD ADMINISTRATIVE PROCEDURES SET FORTH IN THE REGULATION BEEN FOLLOWED BY PUBLIC HEALTH SERVICE PERSONNEL, DR. BENUSIS WOULD HAVE EXECUTED A TIMELY AGREEMENT WHICH WOULD HAVE BEEN APPROVED IN SEPTEMBER 1977.

DR. EDWARD J. LEONARD'S CLAIM ARISES UNDER SIMILAR CIRCUMSTANCES. EXECUTED AN AGREEMENT TO REMAIN IN THE PUBLIC HEALTH SERVICE COMMISSIONED CORPS FOR 4 YEARS ON SEPTEMBER 24, 1974. AS A RESULT HE BECAME ENTITLED TO VARIABLE INCENTIVE PAY (VIP) UNDER 37 U.S.C. 313 (1976) AND REGULATIONS PROMULGATED PURSUANT THERETO IN THE AMOUNT OF $11,000 FOR EACH YEAR OF THE AGREEMENT. THIS AGREEMENT EXPIRED IN SEPTEMBER 1978 AND A NEW AGREEMENT WAS NOT EXECUTED UNTIL MARCH 1979. AS A RESULT HE IS CLAIMING VIP FROM THE PERIOD COMMENCING SEPTEMBER 1978. HE INDICATES THAT HE WAS NOT SURE WHEN HIS CONTRACT EXPIRED AND THAT THE PUBLIC HEALTH SERVICE DID NOT SEND HIM A NEW AGREEMENT ON THE EXPIRATION DATE OF THE EARLIER AGREEMENT. INDICATES THAT HE HAD NO INTENTION OF LEAVING THE COMMISSIONED CORPS.

THE PUBLIC HEALTH SERVICE ADMINISTRATIVE REPORT ON HIS CLAIM INDICATES THAT FAVORABLE CONSIDERATION SHOULD BE GIVEN AS A MATTER OF EQUITY AND BECAUSE OF THE ADMINISTRATIVE ERROR WHICH OCCURRED IN NOT PROVIDING HIM WITH A NEW VIP CONTRACT.

VARIABLE INCENTIVE PAY FOR MEDICAL DOCTORS OF THE UNIFORMED SERVICES IS AUTHORIZED BY 37 U.S.C. 313. CONTINUATION PAY IS AUTHORIZED UNDER 37 U.S.C. 311. THESE STATUTES REQUIRE AS A CONDITION PRECEDENT TO ELIGIBILITY FOR VIP AND CONTINUATION PAY THE EXECUTION OF A WRITTEN AGREEMENT BY THE MEDICAL OFFICER OR DENTAL 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 LAWS A MEMBER IS NOT ENTITLED TO THESE BENEFITS FOR ANY PERIOD PRIOR TO THE EXECUTION OF AN APPROPRIATE AGREEMENT.

AS WE HAVE NOTED IN THE PAST, THE PURPOSE OF THE VIP AND CONTINUATION PAY LAWS IS TO PROVIDE AN INCENTIVE FOR OFFICERS TO REMAIN ON ACTIVE DUTY FOR A SPECIFIC PERIOD. THE EXECUTION OF A WRITTEN AGREEMENT IS A REQUIRED CONDITION UNDER THESE LAWS WHICH EVIDENCES THE OFFICER'S INTENT TO SERVE FOR A SPECIFIC PERIOD. APPARENT ELIGIBILITY UNDER THE LAWS AND PERFORMANCE OF THE DUTY ALONE ORDINARILY WILL NOT SUFFICE TO AUTHORIZE PAYMENT UNDER THESE LAWS. HOWEVER, WHEN IT IS CLEAR THAT THERE WAS INTENT TO MEET THE REQUIREMENTS OF THE STATUTES OR REGULATIONS AND SUBSTANTIAL PERFORMANCE OF THE REQUIREMENTS IS ACCOMPLISHED, WE HAVE CONCLUDED THAT ENTITLEMENT TO THE AUTHORIZED BENEFITS IS NOT NECESSARILY PRECLUDED. SEE B-192338, SEPTEMBER 19, 1978, B-186925, NOVEMBER 4, 1976, B-185894-O.M., JULY 29, 1976.

WHILE ORDINARILY A MORE SPECIFIC STATEMENT AS TO WHAT TRANSPIRED TO GIVE RISE TO THE ADMINISTRATIVE ERROR SHOULD BE REQUIRED, IT SEEMS CLEAR 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 BUT FOR THE ADMINISTRATIVE ERROR AND A LACK OF UNDERSTANDING OF THE STATUTORY AND REGULATORY REQUIREMENTS.

ACCORDINGLY, PAYMENT OF THE CLAIMS IS AUTHORIZED IF OTHERWISE CORRECT.

IN THIS REGARD THE PUBLIC HEALTH SERVICE SHOULD BE ADVISED THAT IF THESE CLAIMANTS ARE RELEASED FROM ACTIVE DUTY ON ANY DATE WHICH IS PRIOR TO THE PERIOD OF SERVICE FOR WHICH THEY RECEIVED THE PAYMENT, RECOUPMENT ACTION SHOULD BE TAKEN.