MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 06 NOVEMBER 2001
         DOCKET NUMBER: AR2001056294

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Deborah Jacobs		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Donald P. Hupman, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That the provisions of his contract with the Army be enforced as a legally binding contract, and that he receive the benefits of that contract. In effect, he is requesting entitlement to the benefits of the Health Professions Loan Repayment Program (HPLRP), in addition to the benefits of the Dental Officer Accession Bonus which he has received, and that his active duty service obligation (ADSO) remain at four years.

APPLICANT STATES: The applicant provides a three page memorandum with exhibits. He states that he signed a request for a Dental Officer Accession Bonus with the understanding that his ADSO would be for four years. His recruiter confirms his understanding of the request. He was appointed a Reserve officer, and on 8 June 1998 his recruiter verified that he was eligible for the HPLRP. He signed a contract which promised him participation in the HPLRP and authorized him to receive the accession bonus in return for a four year ADSO. He received orders for active duty showing an eight year ADSO; however, on 21 September 1998 the orders were amended to four years, because he allegedly declined the accession bonus. He informed St. Louis that he never declined any portion of his contract and was sent paperwork so stating. He was advised on the phone to ignore the amended order and to wait until he arrived at his unit to dispute the contract.

On 5 October 1998 he again signed a HPLRP contract. On 14 October 1998 he allegedly declined the accession bonus; however, the 21 September 1998 order had already indicated that he had declined the bonus – which statement was false.

He received his $30,000.00 accession bonus in January 1999. In April 2000 he obtained the advice of an attorney who wrote the Total Army Personnel Command at St. Louis on his behalf. There was no response.

A commander’s inquiry looked into his contract issue. The investigating officer confirmed that the recruiter admitted that he [the applicant] was the first officer recruited under the new program and had told him [the applicant] that his total commitment would be four years. During the inquiry, it was discovered that he still had an eight year obligation. He received a memorandum of reprimand on 1 November 2000 for accepting the accession bonus. However, on 17 January 2001 he received amended orders indicating that he was eligible for the accession bonus, but not the HPLRP.

In conclusion, he states that he signed a contract for a 4 year ADSO in exchange for an accession bonus and a loan repayment, and the Army altered that agreement without his knowledge. He states that the recruiter might have erred concerning his ADSO; however, he should not suffer because of the mistake. The Army should honor his contract.

EVIDENCE OF RECORD: The applicant's military records show:

On 29 April 1998 the applicant completed a USAREC Form 1139-E-R requesting a dental officer accession bonus, and stating that he understood that he had to remain on active duty for a period of 48 months. That form shows that in consideration of entering into the agreement, and his acceptance of an appointment and commission as an officer in the Army Dental Corps, the Army agreed to pay him a $30,000 accession bonus. He signed the request and it was witnessed by an Army recruiter. On 28 May 1998 the applicant was appointed a Reserve commissioned officer in the grade of first lieutenant.

On 8 June 1998 that same Army recruiter completed a form verifying the applicant’s academic and current military service obligation for entry into the HPLRP. The recruiter indicated on that form that the applicant had an existing 4 year service obligation because of the dental accession bonus.

On 15 June 1998 the applicant entered into a contract with the Army to enter the HPLRP. As part of that contract, he understood that he would “incur an eight year service obligation for any participation in the program, a portion of which is an ADO. However, I further understand that the HPLRP ADO is a minimum of 2 years for each year of annual repayment, whichever is greater. I further understand that the remaining service obligation beyond the ADO shall be served in the Individual Ready Reserve (IRR) …” (Paragraph 9a of the contract).

In addition, he understood that “I will not be released from active duty until I have served my ADO for HPLRP participation, in addition to any other ADO I might incur for participation in or acceptance of any other military accession bonuses or incentives, as applicable, except when my release is determined by the Army to be in the best interests of the Government.” (Paragraph 9b of the contract).

He understood that “an obligation incurred as a program member is in addition to any obligation incurred as a result of participation in any other military incentive program or accession bonus. I may not serve all or any part of the ADO incurred by participation in this program concurrently [with] any other military obligation.” (Paragraph 10b of the contract).

He understood that “my HPLRP obligation will be added to my remaining previously incurred service obligation, currently calculated to be 4 years. I understand that in return for 4 years of loan repayment, I shall serve 4 years on
extended active duty or in the Selected Reserve. I understand that my total obligation, including the HPLRP and prior obligation, shall be 4 years on extended active duty and 4 years in the IRR.” (Paragraph 17 of the contract, which the applicant has highlighted). He signed the contract and it was witnessed by that same recruiter.
An order published by the Total Army Personnel Command at St. Louis (PERSCOM) assigned the applicant to Fort Hood, Texas with TDY enroute to Fort Sam Houston with a reporting date of 9 August 1998. That order shows that the applicant had an 8 year active duty commitment. That order also reflected that he was eligible for the Dental Corps accession bonus and the HPLRP.

On 1 September 1998 the Army Recruiting Command at Fort Knox requested that PERSCOM amend the applicant’s order to show a 4 year active duty commitment. That command stated that the applicant had refused the Dental Corps accession bonus and associated active duty service obligation. He was not eligible for the Dental Corps accession bonus. On 21 September 1998 PERSCOM amended the applicant’s order accordingly.

On 5 October 1998 the applicant completed another HPLRP contract with the Army. Paragraph 17 of that contract states “I understand that my HPLRP obligation will be added to my remaining previously incurred service obligation, currently calculated to be 0 years,” The remaining portion of that contract is the same as the one he signed on 15 June 1998.

A copy of the USAREC Form 1139-R-E (Request for Dental Officer Accession Bonus) which the applicant signed on 29 April 1998 has the handwritten notation, “DENIED per CPT. _____ 10/14/98.”

A copy of the applicant’s leave and earning statement for January 1999 shows that he was paid an accession bonus of $30,000.

On 12 April 2000 a legal assistance officer at Fort Hood, acting for the applicant, requested assistance from the chief of the Appointments Branch at PERSCOM in resolving the applicant’s contract dispute, stating that the applicant’s recruiter had personally informed him that the applicant’s understanding of his contract was a four year active duty and a four year IRR commitment in exchange for both the Dental Corps accession bonus and the HPLRP. He stated that the applicant would not have entered the Army if the agreement had not specified both. He stated that a contract could not be unilaterally changed and that the applicant did not agree to any changes to his initial contract.

On 30 August 2000 the commander of the Dental Command at Fort Sam Houston appointed an officer to conduct an inquiry into the circumstances surrounding the applicant’s receipt of the $30,000 accession bonus. The investigating officer was directed to look into the terms of the applicant’s contract and what he was told concerning his service obligation, the accession bonus, and the HPLRP at the time he was recruited.

In an 8 September 2000 sworn statement, the applicant’s recruiter stated to the investigating officer that the applicant was not told that he would have a four year obligation based on a $30,000 accession bonus and an additional four year obligation based on a loan repayment option. He was told that at the time of recruitment that he would only be obligated for four years.

In a 25 September 2000 memorandum the investigating officer stated that the applicant’s recruiter did recall providing the applicant copies of his active duty contract and associated paperwork and remembered that the applicant did not want to serve on active duty for 8 years. He stated that he [the recruiter] was told that the applicant would only have a four year commitment at the time he wrote the original contract; and at the time the original recruitment contract was written, the loan repayment program and the accession bonus were relatively new programs, and that the applicant was the first officer that he [the recruiter] had recruited under the new programs.

The applicant’s commander issued an undated memorandum of reprimand to the applicant because he had obtained the $30,000 accession bonus to which he [the applicant] knew he was not entitled. He presented to a finance clerk at Fort Hood a copy of orders that he knew was no longer valid, and did not provide the finance clerk a copy of his amended orders.

The applicant rebutted the reprimand, stating that the investigation did not support the conclusion that he knowingly obtained the $30,000 bonus without the proper entitlement and that a review showed that there was a reasonable dispute of whether he actually declined the bonus. He stated that if he declined the bonus on 14 October 1998 [as indicated on the USAREC Form 1139-R-E (Request for Dental Officer Accession Bonus)], why was the new contract signed on 5 October 1998, and why would he have received the amended orders in September 1998, all prior to the date that he supposedly declined the bonus. He cited other inconsistencies and stated that they showed that the Army did not know his status, his service obligation, or his entitlements. He questioned that if the Army did not know his status, then how could he be expected to know. He reiterated that when his orders where changed in September 1998, his recruiter put him in touch with a representative at PERSCOM, who informed him to comply with his original orders because he never declined the accession bonus. He stated that when he received his accession bonus, he thought his original orders were in effect and that he was eligible for the bonus.

In January of this year, the applicant’s commanding officer informed the applicant that the reprimand would be filed locally for three years or until his reassignment, whichever occurred first.

On 15 December 2000 the Army Recruiting Command requested that the applicant’s order again be amended to show that he was eligible for the Dental Corps accession bonus and that he was paid the bonus on 23 December 1998. That command stated that the applicant had refused to comply with terms of the Health Professions Loan repayment program and associated active duty service obligation and was not eligible for the Health Professions Loan Repayment Program. On 17 January 2001 PERSOM amended the order accordingly.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The accession bonus request required the applicant to serve 4 years on active duty in return for a $30,000 bonus. The applicant understood that. The HPLRP contract which he signed required another 4 year obligation, and clearly stated that any other ADO for acceptance of an incentive program or accession bonus was in addition to the HPLRP obligation. Paragraph 17 of that contract, however, is contradictory, indicating on the one hand an 8 year ADO, and on the other a 4 year ADO and a 4 year IRR obligation; however, a person reading that contract should have recognized and questioned the obvious error, in light of the other provisions contained in the contract.

2. The evidence shows that the applicant refused the Dental Corps accession bonus; consequently, the Army Recruiting Command directed that PERSCOM amend the applicant’s order reducing his active duty commitment to 4 years. It can be assumed that the applicant made known that he did not want an 8 year ADO. The applicant then knew or should have known that he was not entitled to an accession bonus and that he had an ADO of 4 years. Shortly after the order was amended the applicant completed another HPLRP contract showing no previously incurred service obligation.

3. Thereafter, he received an accession bonus apparently based on his original order authorizing that bonus. Consequently, The Army Recruiting Command requested that PERSCOM amend his order again to now show that he was authorized that bonus, and show that he had refused to comply with the provisions of the HPLRP and that he was not eligible for the HPLRP.

4. The applicant questions the note on a copy of his request for the accession bonus, stating that a captain indicated that he had declined the bonus on 14 October 1998; however, that date could also be the date inscribed by the person making the note.

5. This Board acknowledges that the recruiter may have inadvertently misled the applicant into believing that he would receive the accession bonus and the HPLRP and incur only a 4 year ADO. However, the recruiter himself in completing a form verifying the applicant’s military service obligation for entry into the HPLRP knew that the applicant had incurred a 4 year prior service obligation because of the accession bonus. Again, the applicant had only to read his contract to discover this. Nonetheless, the Comptroller General of the United States has ruled in similar cases that although a service member may have been misinformed about his entitlements, the government is not liable for erroneous actions of its officers, agents, or employees in the performance of their official duties.

6. Thus, the applicant’s Armed Forces Health Professions Loan Repayment Program Contracts of 15 June 1998 and 5 October 1998 are null and void and of no force or effect. The applicant has accepted a Dental Officer Accession Bonus in return for a 4 year ADO. There is no injustice done to the applicant.

7. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

8. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

9. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__DJ__ _ __EJA _ __DPH __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001056294
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011106
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	113.04
2.	128.06
3.	222
4.
5.
6.