B-214118, JUN 1, 1984

B-214118, JUN 1, 1984

DIGEST: AN AIR FORCE MEDICAL OFFICER SEEKS RETROACTIVE PAYMENT OF ADDITIONAL SPECIAL PAY COVERING A PERIOD OF 1 YEAR, BUT HE DID NOT EXECUTE THE REQUIRED WRITTEN AGREEMENT TO REMAIN ON ACTIVE DUTY FOR THAT PERIOD OF TIME. ALTHOUGH HE DID REMAIN ON ACTIVE DUTY FOR ANOTHER YEAR, AT THE TIME HE SHOULD HAVE EXECUTED THE AGREEMENT, HE DECLINED TO DO SO BECAUSE HE WAS PLANNING TO RETIRE WITHIN LESS THAN A YEAR. IN THE ABSENCE OF ADMINISTRATIVE ERROR AND THE INTENT ON HIS PART TO REMAIN IN THE SERVICE FOR ANOTHER YEAR, HE IS NOT ENTITLED TO PAYMENT AS CLAIMED.

LIEUTENANT GENERAL PAUL W. MYERS, USAF, RETIRED:

THIS ACTION RESPONDS TO A REQUEST FOR AN ADVANCE DECISION AS TO THE ENTITLEMENT OF AN AIR FORCE MEDICAL OFFICER TO A RETROACTIVE PAYMENT OF ADDITIONAL SPECIAL PAY. FN1 WE CONCLUDE THAT EVEN THOUGH THE OFFICER WAS ELIGIBLE TO RECEIVE ADDITIONAL SPECIAL PAY AND, FOLLOWING THE COMMENCEMENT DATE OF THE PERIOD FOR WHICH HE CLAIMS THE PAYMENT HE REMAINED ON ACTIVE DUTY FOR MORE THAN 1 YEAR, HE IS NOT ENTITLED TO THE RETROACTIVE PAYMENT CLAIMED BECAUSE WHEN HE SHOULD HAVE EXECUTED THE SERVICE AGREEMENT, HE LACKED THE REQUISITE INTENT TO CONTINUE FOR 1 YEAR ON ACTIVE DUTY AS A MEDICAL OFFICER.

LIEUTENANT GENERAL PAUL W. MYERS, USAF, RETIRED, IS CLAIMING ADDITIONAL SPECIAL PAY FOR THE PERIOD JULY 1, 1982, THROUGH JUNE 30, 1983. PRIOR TO JULY 1, 1982, GENERAL MYERS DECLINED TO EXECUTE AN AGREEMENT TO CONTINUE ON ACTIVE DUTY FOR ANOTHER YEAR BECAUSE HE WAS PLANNING TO RETIRE FROM MILITARY SERVICE ON AUGUST 1, 1982. HOWEVER, HE DID NOT RETIRE ON THAT DATE AS PLANNED, BUT FOLLOWING THE COMPLETION OF HIS TOUR AS SURGEON GENERAL OF THE AIR FORCE WITH THE GRADE OF LIEUTENANT GENERAL, HE CONTINUED ON ACTIVE DUTY BEYOND JUNE 30, 1983. AFTER COMPLETING THE YEAR FROM JULY 1, 1982, THROUGH JUNE 30, 1983, ON ACTIVE DUTY AS A PHYSICIAN, HE REQUESTED RETROACTIVE PAYMENT OF ADDITIONAL SPECIAL PAY FOR PHYSICIANS SINCE HAD HE KNOWN THAT, INSTEAD OF RETIRING AT THE TIME HE ORIGINALLY PLANNED, HE WOULD BE ON ACTIVE DUTY FOR AN ADDITIONAL YEAR, HE WOULD HAVE EXECUTED THE REQUIRED AGREEMENT. THIS OCCURRED BECAUSE UNDER THE PROVISIONS OF 10 U.S.C. 8962, A COMMISSIONED OFFICER WHO HAS SERVED AS SURGEON GENERAL OF THE AIR FORCE IN THE GRADE OF LIEUTENANT GENERAL MAY BE RETIRED, IN THE DISCRETION OF THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE IN THE HIGHEST GRADE IN WHICH HE SERVED ON ACTIVE DUTY. THE CONFIRMATION PROCESS IN GENERAL MYERS' CASE WAS DELAYED AND HE DID NOT RETIRE UNTIL DECEMBER 1, 1983. AS A RESULT HE WAS CONTINUED ON ACTIVE DUTY IN THE GRADE OF MAJOR GENERAL FOLLOWING THE EXPIRATION OF HIS TERM AS SURGEON GENERAL OF THE AIR FORCE, UNTIL HIS RETIREMENT.

ADDITIONAL SPECIAL PAY FOR CERTAIN MEDICAL OFFICERS IN THE ARMED FORCES WHO SERVE ON ACTIVE DUTY FOR 12 CONSECUTIVE MONTHS IS AUTHORIZED BY 37 U.S.C. SEC. 302. THIS STATUTE IS IMPLEMENTED BY DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM), PARAGRAPHS 10541- 10547. AS A CONDITION PRECEDENT TO ENTITLEMENT TO ADDITIONAL SPECIAL PAY, THE STATUTE REQUIRES THAT THE OFFICER FIRST EXECUTE A WRITTEN AGREEMENT "TO REMAIN ON ACTIVE DUTY FOR A PERIOD OF NOT LESS THAN ONE YEAR BEGINNING ON THE DATE THE OFFICER ACCEPTS THE AWARD OF SUCH SPECIAL PAY." 37 U.S.C. SEC. 302(C)(1). A SIMILAR PROVISION IS CONTAINED IN DODPM, PARAGRAPH 10543B.

THE PURPOSE OF THE LEGISLATION AUTHORIZING ADDITIONAL SPECIAL PAY WAS TO INCREASE THE RETENTION ON ACTIVE DUTY OF MEDICAL OFFICERS OF THE ARMED FORCES. THE EXECUTION OF THE REQUIRED WRITTEN AGREEMENT EVIDENCES THE OFFICER'S INTENT TO REMAIN ON ACTIVE DUTY FOR A GIVEN PERIOD OF TIME. THE ABSENCE OF AN EXECUTED WRITTEN AGREEMENT, THE FACT THAT AN OFFICER IS QUALIFIED TO RECEIVE ADDITIONAL SPECIAL PAY AND SERVES ON ACTIVE DUTY FOR THE REQUIRED PERIOD OF TIME IS NOT SUFFICIENT TO ENTITLE HIM TO THIS INCENTIVE PAY.

IN SOME CASES IN WHICH AN EXECUTED WRITTEN AGREEMENT WAS REQUIRED FOR ENTITLEMENT TO SPECIAL PAY OR ALLOWANCE, WE HAVE ALLOWED PAYMENT FOR A PERIOD OF TIME PRIOR TO THE EXECUTION OF THE AGREEMENT. IN THOSE CASES, HOWEVER, THE INDIVIDUALS HAD PERFORMED THE DUTIES THAT WOULD HAVE BEEN REQUIRED UNDER THE AGREEMENT, WERE OTHERWISE ELIGIBLE FOR THE PAY, AND THEY ALSO DEMONSTRATED AN INTENT TO HAVE EXECUTED THE REQUIRED AGREEMENT AT THE APPROPRIATE TIME. FAILURE TO EXECUTE THE AGREEMENT INVOLVED AN ELEMENT OF ADMINISTRATIVE ERROR, NOT A LACK OF INTENT TO SERVE. SEE VARIABLE INCENTIVE PAY CONTRACTS, B-192338, SEPT. 19, 1978, AND DR. NORMAN L. CLARK, USPHS, B-186925, NOV. 4, 1976.

THAT LINE OF DECISIONS IS NOT APPLICABLE IN GENERAL MYERS' CASE. IT IS EVIDENT THAT HE HAD NO INTENTION OF REMAINING ON ACTIVE DUTY SINCE AT THE TIME HE BECAME ELIGIBLE TO EXECUTE THE AGREEMENT, HE PLANNED TO RETIRE IN THE NEAR FUTURE, AND HE DID NOT EXECUTE AN AGREEMENT FOR THAT REASON. THE FACT THAT, NOTWITHSTANDING HIS PLANNED RETIREMENT, HE PERFORMED ANOTHER YEAR OF ACTIVE DUTY DOES NOT ENTITLE HIM TO RETROACTIVE PAYMENT OF THE INCENTIVE PAY.

WE CONCLUDE, THEREFORE, THAT UNDER THE PROVISIONS OF 37 U.S.C. SEC. 302, GENERAL MYERS IS NOT ENTITLED TO RETROACTIVE PAYMENT OF ADDITIONAL SPECIAL PAY AS CLAIMED.

FN1 THE REQUEST FOR ADVANCE DECISION WAS SUBMITTED BY ROGER FLORES, CHIEF, CLAIMS DIVISION, DIRECTORATE OF SETTLEMENT AND ADJUDICATION, AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO.