IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110011410 


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, correction of his records to show he was entitled to the Critical Wartime Shortage List (CWSL)) loan repayment incentive for the period 1 October 1995 through a determined date which he was eligible.  

2.  He states:  

* he was denied the opportunity to sign bonus contracts
* his records should be corrected to show the contracts that will allow him payment of the appropriate retention incentives
* he was repeatedly and erroneously told he was not eligible for retention bonuses in 1995 despite his numerous inquiries and requests to sign contracts
* he was also told he was not eligible for the Student Loan Repayment Program until 2006

3.  He provides two affidavits and email correspondence.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  At the time the applicant applied to this Board he was serving in the Active Guard Reserve program at the Uniformed Services University of the Health Sciences, Bethesda, MD, in the rank of colonel.  

3.  The applicant completed prior commissioned service in the Army Medical Service Corps from 23 May 1983 to 1 March 1987 and in the U.S. Navy from 2 March 1987 to 1 June 1989.  

4.  On 2 June 1989, he was appointed as a Reserve commissioned officer in the Army Medical Corps.  He was appointed in area of concentration (AOC) 62A (Emergency Physician).  

5.  He was ordered to active duty on 13 June 1989.  

6.  His records maintained in the interactive Personnel Electronic Records Management System do not contain a contract for a CWSL loan repayment incentive.  

7.  On 30 September 1995, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on the following day.  

8.  On 16 March 2003, he signed an agreement under the Health Professionals Loan Repayment (HPLR) Program.  On the same date, he signed an Amendment to DA Form 5536-R (Agreement – HPLR) and acknowledged:

	a.  he understood the maximum aggregate amount of repayments under this agreement had been increased to $20,000 per year for the first two annual payments or the remaining balance of the loans, whichever was less.

	b.  he understood when participating in the Specialized Training Assistant Program (STRAP) he must participate satisfactorily in a Selected Reserve status for eligibility to receive the HPLR incentives. 

   c.  he also understood that he must extend his STRAP obligation when continuing to receive the HPLR incentive after completion of his specialized training or, he could terminate his HPLR agreement and begin serving his STRAP obligation.  If he terminated his HPLR agreement prior to his anniversary date, he would be entitled to a pro-rated amount for the number of months served prior to his anniversary date.
   
	d.  he understood that when participating in both programs that time served in the Selected Reserve for receipt of the HPLR incentive did not count towards his STRAP obligation.  He also acknowledged he understood that this special pay was taxable.  

9.  His service record shows he was mobilized in support of Operation Noble Eagle from 30 June to 9 October 2003, Operation Enduring Freedom from 
4 June to 4 October 2007, and Operation Iraqi Freedom from 5 December 2009 to 25 March 2010. 

10.  He provided 7 of 12 pages of email correspondence regarding retention "Bonuses for Critical Wartime Shortages Waiver Policy."  In a 10 December 2010 email, a representative from the Office of the Surgeon General indicated that:

	a.  the applicant's electronic file does not contain signed contracts for USAR incentive payments from 1995 until 20 June 2006.  If the applicant had a signed contract and commitment to service based on an AOC considered eligible for retention special pay on the CWSL, he would be eligible for payments and this office could request back payment once it was determined it was an error at no fault of the applicant.  

	b.  the applicant received his 20-year letter making him eligible for retirement on or after 21 June 2006.  Due to his eligibility for retirement, this makes him no longer eligible to receive USAR incentive/retention bonuses as of this date (per Department of Defense Instruction 1205.21, 20 September 1999, section E13.1.1.6.). 

	c.  The incentives rules changed when the applicant was in an active duty status and according to the Active Component Special Pay Office, he was paid the appropriate special pay and incentives pay during his 2007 and 2009 mobilizations.  

11.  As supporting documentary evidence, he submitted a 2-page affidavit, dated 29 May 2011.  He stated:

	a.  he indicated his desire to transfer to the Selected Reserve during his active duty out-processing at Fort Gordon, GA in July 1995.

	b.  he informed those responsible for USAR transition that he had heard about bonuses and special pays and he wanted to sign contracts for any and all he was eligible for in the USAR.  They informed him he was not eligible because he had been a Health Professions Scholarship Program recipient.  

	c.  he was contacted by a Human Resources Command (HRC) assignments officer in 1996 who suggested that he take an Individual Mobilization Augmentee (IMA) assignment at the Uniformed Services University.  He indicated again he wanted to sign contracts for any bonus or incentive pays and was again informed there were no incentives or bonuses he was eligible to receive.

	d.  he was not informed at any time during his subsequent participation in the USAR that he was eligible for incentives.  He shared his concern with an officer assigned to the Office of the Chief, Army Reserve (OCAR).  As a result, this officer talked to the people in OCAR who were responsible for those (bonus and special pay) programs and he was told the applicant was not eligible.  

	e.  all or most of his communications were telephonic and in 2003 his now ex-wife destroyed many of his records while he was mobilized.  

	f.  he was informed by an HRC representative in 2006 that he was eligible to sign a contract for a student loan repayment, but he was told he was ineligible for any other type of incentives.  He was also told there was nothing that could be done about the fact he should have been offered a student loan repayment contract 11 years earlier.

	g.  he encountered other senior Reserve Component Medical Corps officers while he was deployed to Iraq in 2010.  They were in critical wartime specialties, had been in similar situations, and were receiving bonuses and incentive pay.  In addition, they heard reports of senior Reserve officers who were still receiving this pay.

	h.  he investigated policies and was referred to HRC representatives who informed him that those at Fort Gordon, HRC, OCAR, and elsewhere, were incorrect and there was no waiver authority or nothing that could be done at that point.  He later contacted the Office of the Assistant Secretary of Defense (Health Affairs) and Office of the Surgeon General, Human Resources Directorate, Policy Branch.  He was advised to apply to this Board.  

12.  He also provided an affidavit from a retired lieutenant colonel, dated 18 May 2011, who has known the applicant for 36 years.  In summary, he attested the applicant asked him about Medical Corps incentives and shared with him his desire to sign incentive and retention contracts.  The lieutenant colonel contacted a representative at the division responsible for retention policy and was informed the applicant was not eligible for incentives.
 
13.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Health Services Division, HRC-Fort Knox.  The advisory official stated the applicant was informed on 10 January 2010 by their incentives office that he was not eligible for retention bonus pay because he had reached retirement eligibility.  The applicant requested HPLR on 11 April 2006 and received an HPLR payment on 11 April 2007, but he did not request retention bonus pay at that time.  The advisory official stated the incentives section would honor the applicant’s request for retroactive bonus pay if he had a signed contract and commitment to service based on an AOC considered eligible for retention pay.  However, without a signed contract requesting this particular entitlement this office was unable to process his retroactive retention pay.  

14.  On 11 October 2011, a copy of the advisory opinion was forwarded to the applicant in order to allow him to provide comments.  On 31 October 2011, the applicant responded to the advisory opinion.  He stated the absence of these signed contracts and HRC’s inability to correct the situation is why both the 
HRC-Health Services Division and the Assistant Secretary of Defense- Health Affairs advised him to petition this Board.  He alleged it was unclear to him the exact mechanism to accomplish this task and inquired if this Board would like him to work with HRC-Health Services Division to create documents with the appropriate effective dates for approval or if there was some other process he should follow to rectify this injustice.  

15.  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.

16.  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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that he was denied the opportunity to sign contracts for CWSL loan repayment incentives.  

2.  There is no documentary evidence which shows his AOC of 62A was not entitled to special pay incentive in fiscal year 1995.  As evidence shows, he received special incentive pay through the HPLR Program and other special pays and incentives; he is not eligible for an additional incentive.  

3.  Based on the HRC-Fort Knox advisory opinion, the incentives section would honor the applicant’s request for retroactive bonus pay if he had a signed contract and commitment to service based on an AOC considered eligible for retention pay.  However, without a signed contract requesting this particular entitlement, there is insufficient evidence in which to grant the requested relief.  

4.  In the absence of signed contracts to indicate his entitlement to a CWSL loan repayment incentive, there is no basis for granting the applicant's request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __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)                                         AR20110011410



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ABCMR Record of Proceedings (cont)                                         AR20110011410



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