which provided for an additional two-year ADSO. He participated in this residency program from July 1, 1980 to June 30, 1984. On January 24, 1985 Plaintiff signed an agreement for a civil fellowship in urodynamics in which he incurred an additional one-year ADSO. He participated in this program from July 1, 1986 to June 30, 1987.
In early 1986 Plaintiff asked then Major Linkous what his ADSO would be if he accepted a fellowship. Major Linkous replied that the obligation could be calculated to expire in either 1991 or 1993 depending upon which calculation formula was used. On September 14, 1988, Plaintiff spoke with Captain Shehan who informed Plaintiff that she had to recalculate all of Plaintiff's obligations because they had all been done differently and that there were a lot of questions. On September 20, 1988, Plaintiff again spoke with Captain Shehan who told Plaintiff that his five-year USMA obligation had merged with his medical school obligation into a single seven-year ADSO pursuant to a table contained in AR 601-112. On September 21, 1988, Plaintiff spoke with Colonel Fauver, chief of graduate medical education in the Army, who stated he had some knowledge of the problem in calculating ADSOs and that Captain Shehan probably needed some help from higher within the Army to resolve these problems.
Plaintiff Zeidman contends that his ADSO will be complete on June 30, 1990. The Defendants have calculated Plaintiff's ADSO to expire on March 8, 1997 but represent to Plaintiff and this Court that they will release him on May 30, 1993.
H. Major Scott D. Gillogly
Plaintiff Gillogly is stationed at Fitzsimmons Army Medical Center in Aurora, Colorado. He graduated from USMA on June 2, 1976 and entered medical school on August 27, 1976. He graduated from medical school on May 11, 1980 and did his internship from July 1, 1980 to June 30, 1981. On December 8, 1980 he signed a residency agreement for training in orthopedics in which he incurred an additional two-year ADSO.
While attending high school Plaintiff was aware that he wanted to go to medical school. Plaintiff, who had already been offered scholarships at other colleges, was told by William Roden, a football coach at USMA, about the AR 601-112 program. Roden sent Plaintiff a letter that stated Plaintiff would incur a four year obligation for medical school that would be paid back after internship and during residency. Other USMA football coaches subsequently told Plaintiff that his total ADSO would be seven years and that payback of the obligation would begin after internship.
Plaintiff Gillogly claims that his ADSO will be fulfilled on May 12, 1990. The Defendants have calculated Plaintiff's ADSO to expire on February 12, 1996 but represent to Plaintiff and this Court that they will release him on May 12, 1992.
I. Lieutenant Colonel Donald A. Hollsten
Plaintiff Hollsten is stationed at Brooke Army Medical Center, Fort Sam Houston, Texas. He graduated from USMA on June 6, 1973 and entered medical school in September 1973. He graduated from medical school on June 3, 1977. He did his internship from July 1, 1977 to June 30, 1978. On November 29, 1979 he signed a residency agreement for training in ophthalmology in which he incurred an additional two-year ADSO. He participated in this residency program from July 1, 1980 to June 30, 1983. On December 10, 1984 Plaintiff signed an agreement for a civil fellowship in oculoplastics which provided for an additional one-year ADSO with no payback for his prior ADSOs during the time of this program. He participated in this program from July 1, 1986 to June 30, 1987.
In February 1973 he had an interview in the Dean's office regarding the AR 601-112 program. One of the counselors told Plaintiff that under the program he would incur a seven-year ADSO to run after his internship. Furthermore, he signed an agreement expressly adopting the seven-year merged obligation.
Plaintiff Hollsten contends that his ADSO was complete on June 30, 1989. The Defendants have calculated Plaintiff's ADSO to expire on June 3, 1992 but represent to Plaintiff and this Court that they will release him on June 3, 1990.
J. Relief Sought
The relief which the Plaintiffs seek varies. Two of the Plaintiffs, Schaefer and Greenman, contend that their ADSOs have expired and seek release from their Regular Army commissions. Six of the Plaintiffs, Zeidman, Bosses, Cuthbertson, Zieske, Gillogly, and Burgess, do not contend that their ADSOs have expired or desire to be discharged but are attempting to establish their eligibility for a Medical Officer Retention Bonus (MORB) authorized by Congress for military doctors who will complete their ADSOs prior to October 1, 1991. See National Defense Authorization Act, Pub.L. No. 100-456, § 612. The MORB authorizes the military services to pay a substantial retention bonus, up to $ 20,000 per year, to eligible military doctors who execute written agreements by September 30, 1989, to extend their ADSOs for at least two additional years. Finally, Plaintiff Hollsten is eligible for the 1989 MORB but will not get full credit if he retires at twenty years, resulting in a discrepancy of $ 48,000.00.
II. Army Regulation 601-112
The Plaintiffs raise two arguments under the regulation. First, they contend that under AR 601-112 their total ADSO is only seven years. Second, they contend that their residency service should apply to fulfill their ADSOs. As discussed below, different results occur depending upon whether the 1972, 1974 or 1976 regulation applies.
All of the Plaintiffs contend that based on AR 601-112 their total ADSOs are seven years. The Defendants contend that only Plaintiff Hollsten is entitled to a seven-year ADSO because at the time the other eight Plaintiffs had commenced their medical school studies AR 601-112 had been amended to require a twelve-year ADSO.
In 1972 AR 601-112 (July 28, 1972) provided:
Officers participating in this program contract for an additional active duty commitment. This service commitment is in addition to any other service commitment the officer may have incurred or may incur, either prior to or subsequent to entry into this program and will be fulfilled consecutively, rather than concurrently, with any other commitment, except as specified in table 1-1.
A graduate of USMA generally incurs a five-year ADSO. 10 U.S.C. § 4348(a)(2)(B). Although AR 601-112 provides that this prior obligation must be fulfilled consecutively to the "additional active duty commitment" that the officer incurs under the AR 601-112 program, the regulation expressly specifies an exception to consecutive obligations pursuant to table 1-1.
Under table 1-1, as both Plaintiffs and Defendants agree, the USMA and medical school obligations of an officer merge into a total seven-year obligation.
On March 20, 1974 AR 601-112 was amended. Plaintiffs contend that the amended regulation did not purport to repeal table 1-1 and that the merger rule continues in effect. The Defendants contend that although the 1974 amendments did not expressly state that the merger table was repealed, the amendments nonetheless clearly establish that the merger rules were replaced with a new formula for calculating ADSOs under the AR 601-112 program.
The 1974 amendments to AR 601-112 provide in pertinent part:
Participating officers incur an active duty commitment of seven years regardless of time spent in this program. This service commitment is in addition to any other service commitment the officer may have incurred prior to entry into this program and will be fulfilled consecutively, rather than concurrently, with any other commitment.