IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100007161 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, special pay incentive and correction of his record to show he was commissioned as a captain.

2.  The applicant states an injustice occurred when he was told he would initially receive a $30,000.00 special pay incentive when he entered the service.  He states this special pay was not paid as promised due to administrative errors on the part of U.S. Army representatives.  He states he has 6 degrees, 12 years of previous military experience, and 7 years experience as a nurse.  He also states he was told he would enter the service in the rank of major (MAJ) in pay grade
O-4.  He states he entered the U.S. Army Reserve (USAR) as a first lieutenant (1LT)/O-2.  He sought help from his unit administrators but he was told they could not adjust his entry grade, his rank, or assist him with the special pay incentive.

3.  The applicant provides the following:

	a.  U.S. Army Recruiting Command (USAREC) Form 1166 (Selected Reserve [SELRES] Special Pay Program Contract (Special Pay for SELRES Health Care Professionals in Critically-Short Wartime Specialties)), dated 25 February 2009;

	b.  USAREC Form 1252 (U.S. Army Reserve and Army National Guard Incentives Declaration Statement), dated 25 February 2009;

	c.  a memorandum, Subject:  Results of the 24-26 March 2009 Funded Nurse Education Program (FNEP) Selection Board for the U.S. Army Active/Reserve, dated 30 March 2009;

	d.  a memorandum, Subject: Results of the 24-26 March 2009 FNEP Board-MISC Selection Board for the USAR, dated 13 May 2009;

	e.  DA Form 71 (Oath of Office-Military Personnel), dated 15 May 2009; and

	f.  multiple copies of graduation certificates, nursing board certification documents, and a civilian resume.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the U.S Air Force and Air National Guard, the applicant accepted an appointment in the USAR in the Army Nurse Corps on 5 August 2004.  He was appointed in area of concentration (AOC) 66H (Medical/Surgical Nurse).  He concurrently signed an agreement under the Health Professionals Loan Repayment Program and records show he received the financial benefits of this program.

2.  On 26 September 2008, he was honorably discharged from the USAR.  He had previously completed his statutory military service obligation.

3.  Within five months of his discharge from the USAR, the applicant and a recruiter from USAREC signed a USARC Form 1252 showing the applicant agreed to be considered for a special pay incentive for 3 years in a specified Wartime Critical Shortage List AOC in the USAR.  This form states:

this declaration serves only as a written notice by the applicant or Soldier that he or she wishes to be considered for the above stated incentives.  Eligibility will be determined in accordance with the memorandum referenced in paragraph 1 (Memorandum from Office of the Chief, Army Reserve, Subject:  Army Reserve Medical Department Officer Incentive Programs for Fiscal Year (FY) 06-07)

4.  The applicant's records maintained in the interactive Personnel  Electronic Records Management System (iPERMS) contain a memorandum, dated
2 March 2009, signed by the applicant to the commander of USAREC.  In his memorandum, he states he is aware he is ineligible for the USAR incentives such as "special pay" or the "Professional Loan Repayment Program" upon entrance into the USAR due to his recent discharge from the USAR.


5.  On 6 March 2009, the applicant completed and signed a DA Form 61 (Application for Appointment) requesting an appointment in the USAR in the Army Nurse Corps in AOC 66P.  He acknowledged he had prior commissioned service in the USAR from 4 August 2004 to 26 September 2008.

6.  On 15 May 2009, the applicant and a USAREC recruiter signed a USAREC Form 1166 that states:

	a.  entitlement during his period of agreement to an annual Special Pay, as determined by his specialty, for $10,000.00 paid upon the anniversary of his receipt of assignment orders;

	b.  he would be required to perform satisfactorily in the SELRES; and

	c.  his Army SELRES obligation is 3 years in the USAR as a Nurse Practitioner in AOC 66P.

7.  The applicant accepted a second appointment in the USAR as a commissioned officer in the rank of 1LT on 15 May 2009 in the Army Nurse Corps.  His effective date of appointment and date of rank was 15 May 2009.  This memorandum does not show constructive service credit for his prior service and advanced degrees.

8.  As supporting documentary evidence, the applicant submitted a memorandum signed by the Director of Health Services, USAREC, on 30 March 2009.  This memorandum shows the results of the 24 to 26 March 2009 "FNEP BD-MISC Selection Board" for USAR.  Paragraph 3 of this memorandum includes the applicant's name showing he was approved for a special pay incentive bonus in AOC 66P.  In addition, this paragraph states:

The following individuals are pending (emphasis added) disposition of waivers/physical examinations/call outs or Secretary of Defense approval.  These individuals were selected by this accession board.  However, Do Not Commission (emphasis added) these individuals until disposition . . . is received and forwarded on a later memorandum.

9.  A second memorandum provided by the applicant, dated 13 May 2009, shows he was selected and officially approved for commissioning in the USAR Ready Reserves in AOC 66P with special incentive pay.  This memorandum was issued by the Director of Health Services, USAREC and its subject was Results of the   24 - 26 March 2009 "FNEP-MISC Selection Board" for USAR.

10.  In the processing of this case, a staff advisory opinion was obtained from the Medical Recruiting Brigade, USAREC.  The advisory official recommends adjusting the applicant's entry grade based on constructive service credit.  The official stated the applicant's records were reviewed and he should have been awarded the rank of captain with 1 year and 27 days of constructive service credit in accordance with Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches).  The recommendation states his date of rank to captain should be adjusted to 18 April 2008 based on his commissioning date of 15 May 2009.  The following calculations were provided:

	Prior Service Credit						3 years, 3 months, 28 days
	Work Experience Credit				0 years, 2 months, 29 days
	National Certification					0 years, 6 months, 00 days
	Education (MSN, PhD)					4 years, 0 months, 00 days

	Total Entry Grade Credit				8 years, 0 months, 27days

	Total Constructive Service Credit		4 years, 8 months, 29 days

11.  The advisory opinion did not favorably recommend correcting the applicant's records to show entitlement to the special pay incentive.  The official stated at the time of the applicant's application, on 27 February 2009, special pay incentives were not available for AOC 66P.  In support of the opinion, a document was attached that shows the approved special pay incentive board results did not show AOC 66P applicants were entitled to incentive special pay as of 14 May 2009.  

12.  On 14 July 2010, the applicant acknowledged by email that he had received the advisory opinion.  He concurred with the advisory opinion's recommendation to adjust his entry rank to captain and concurrently adjust his captain's date of rank.  However, he did not provide any comments concerning the recommendation to not grant him special incentive pay.

13.  References:

	a.  DOD Instruction 6000.13 (Medical Manpower and Personnel) implements policy, assigns responsibilities, and prescribes procedures for medical manpower and personnel programs.  Paragraph 6-1 (Entry Grade Credit) states that a prospective health professions officer's entry grade and rank within grade shall be determined by the number of years of entry-grade credit awarded on original 
appointment, designation, or assignment as a health professions officer.  The entry-grade credit to be awarded shall equal the sum of constructive service credit and prior commissioned service credit (other than as a commissioned warrant officer), except in cases where the total exceeds the maximum credit allowed.  A period of time shall be counted only once when computing entry grade credit.  The constructive credit limitations set forth in this instruction are based on Title 10, U.S. Code, section 12207.  Credit for prior service as a commissioned officer shall be granted to recognize previous commissioned experience, while maintaining cognizance of the level of professional knowledge, skill, and experience required at specific rank levels of each health profession.

	b.  DOD Instruction 6000.13 provides for constructive service credit which allows a person who begins commissioned service after obtaining additional education, training, or experience required for appointment, designation, or assignment as an officer in a health profession, with a grade and date of rank comparable to that attained by officers who begin commissioned service after getting a baccalaureate degree and serve for the period of time it would take to obtain the additional educations.

		(1)  Credit for master’s and doctorate degrees in a health profession other than medicine and dentistry, whether it is the primary degree or an additional advanced degree, shall be awarded based on actual full-time equivalent education of up to two years for a master’s degree and up to four years for a doctorate. 

		(2)  Credit of one-half year for each year of experience, up to a maximum of three years of constructive credit, may be granted for experience in a health profession, if such experience is directly used by the Military Service concerned.

	c.  Army Regulation 135-101 prescribes policy, procedures, and eligibility criteria for appointment in the Reserve Components of the Army in the six branches of the Army Medical Department (AMEDD) to include the Army Nurse Corps.  Grade and date of rank upon original appointment and assignment to an AMEDD branch will be determined by the number of years of entry-grade credit awarded.  Except as limited by maximum credit limits, entry-grade credit granted will be the sum of constructive service credit and credit for prior active commissioned service.  Credit for additional advanced degrees must add adjunctive skills to the primary specialty and must contribute directly to performance in the anticipated AMEDD duty position.  The DA Form 5074 is the required form to adjust a medical or dental officer's date of rank upon appointment in the Medical Corps based on constructive service credit.

	d.  Army Regulation 135-101 states that entry grade credit for an individual appointed as a Reserve officer without concurrent call to active duty who has 7 years or more, but less than 14 years of phase points will be appointed as a captain. 

	e.  Title 37, U.S. Code, section 308j(b), states the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary to (a) accept an appointment as an officer in the Armed Forces, and (b) to serve in the Selected Reserve of the Ready Reserve in a skill designated under paragraph (2) for a period specified in the agreement.  Paragraph (2)(a) states the Secretary concerned shall designate for an Armed Force under the Secretary's jurisdiction the officer skills to which the authority under this subsection is to be applied.  Paragraph (2)(b) states a skill may be designated for an Armed Force under paragraph (2)(a) if, to mitigate a current or projected significant shortage of personnel in that Armed Force who are qualified in that skill, it is critical to increase the number of persons accessed into that Armed Force who are qualified in that skill or are to be trained in that skill.  Paragraph (2)(b) states an accession bonus payable to a person pursuant to an agreement under this section accrues on the date on which that agreement is accepted by the Secretary concerned.

	f.  Army Regulation 601-37 (Army Medical Recruiting Program) prescribes the eligibility criteria governing the appointment of persons into the Army Medical Department of the Regular Army and Army Reserves.  In pertinent part, special pay is available to certain critical AOCs based on the needs of the USAR with the amounts and critical AOCs changing each fiscal year.  The critical AOCs will be identified at the beginning of each fiscal year.  Eligibility requirements for this program state each participant must come directly from civilian life.  

	g.  Memorandum from the Department of the Army (DA), Office of the Deputy Chief of Staff, G-1, issued on 3 October 2008, provides for the FY 2009 Army Accession Missions.  In pertinent part, it states the officer accession's mission for the Army Nurse Corps in the U.S. Army Reserve was 403 commissioned officers.  Enclosure 8 (Army Reserve Army Medical Department Accession Mission [AMEDD] Officer Accessions Requirements) shows the following AOC recruitment requirements:

* 66B, Public Health Nurse
* 66C, Psychological/Mental Health Nurse
* 66E, Operating Room Nurse
* 66F, Nurse Anesthetists
* 66H, Medical/Surgical Nurse
* 66H8A, Critical Care Nurse

   h.  Memorandum from the DA, Office of the Assistant Secretary, Manpower and Reserve Affairs, issued on 18 August 2008, approved the implementation guidance for the Army Reserve Medical Department Officer Incentives Programs for FY 2008-2009 SELRES.  In pertinent part, it states the Army Reserve policy is to attract and retain healthcare professionals possessing or qualifying for training in critical skills needed to maintain wartime readiness.  It authorized special pay for SELRES healthcare professionals on the Army Reserve Critical Wartime Specialties List.  Special Pay can be received only once in an officer's career.  The following AOCs were authorized special pay

* 66B, Public Health Nurse (Community Health Nurse)
* 66E, Operating Room Nurse (Non Bachelor of Science, Nursing [BSN])
* 66E, Operating Room Nurse 
* 66F, Nurse Anesthetists
* 66H, Medical/Surgical Nurse (non BSN)
* 66H, Medical/Surgical Nurse
* 66H8A, Critical Care Nurse (non BSN)
* 66H8A, Critical Care Nurse

	i.  The U.S. Supreme Court's opinion in United States v. Larionoff, 431 US 864 (1977), concerning military reenlistment bonuses does not alter fundamental rules of law that (1) a service member's entitlement to military pay is governed by statute rather than ordinary contract principles and (2) in the absence of specific statutory authority, the government is not liable for negligent or erroneous acts of its agents; hence the amount of any reenlistment bonus payable to a service member depends on applicable statutes and regulations, and in no event can the bonus amount be established through private negotiation or contract between the member and his recruiter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was promised a special pay incentive when he entered the USAR for a second period of service is without merit.  While he did produce documentary evidence to show a representative from USAREC did sign his incentives declaration statement on 25 February 2009, documents filed within his service record show that on 2 March 2009 he signed a memorandum stating he knew he was ineligible for special pay or a professional student loan repayment program.  The reason for his ineligibility was due to his recent 
discharge from the USAR on 26 September 2008.  As he had recent prior service as a commissioned officer in the Army Nurse Corps and had received special incentive pay through the Health Professional Student Loan Repayment Program, he is not eligible for an additional incentive.   In addition, documentary evidence provided by USAREC states his AOC of 66P was not entitled to special pay incentive in FY 2009 as determined by the Secretary of the Army.

2.  It is recognized that the Army has limited funds to apply to bonuses and they must be applied prudently to maximize the Army's return on its investment by ensuring that only those eligible to receive them do so.  It is also recognized that according to the fundamental rules of law, the Army is not liable for the erroneous actions of its officers, noncommissioned officers, agents, or employees, even though committed in the performance of their duties.  Court cases have ruled that reenlistment bonuses (and, by extension, appointment bonuses) are governed by statute rather than ordinary contract principles.  Therefore, he was not entitled to a special pay incentive upon his entry into the Army Reserve on 15 May 2009.

3.  Based on the evidence of record and the USAREC advisory opinion, the applicant's entry grade and date of rank were not accurately calculated.  Therefore, he is entitled to a correction of his record to show he entered the USAR on 15 May 2009 in the rank of captain with a date of rank 18 April 2008.  In addition, based on this correction he is entitled to all back pay and allowances due him.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

   a.  correcting his appointment memorandum, dated 15 May 2009, to show he entered the USAR in the rank of captain with a date of rank of 18 April 2008;
   
   b.  paying him any back pay and allowances due as a result of this correction; and

   c.  correcting his DA Form 71 to show he accepted an appointment in the USAR in the rank of captain on 15 May 2009.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to special pay incentive in the amount of $30,000.00.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100007161



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 RECORD OF PROCEEDINGS