BOARD DATE:	  7 May 2013

		DOCKET NUMBER:  AR20120017352 


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 correction of his records to show he is authorized a physician's bonus and cancellation of the recoupment action.

2.  The applicant states he is a physician in the U.S. Army Reserve (USAR).  He was selected for promotion to lieutenant colonel (LTC)/pay grade O-5 in August 2010.

   a.  In the fall of 2010, he was offered the choice of remaining in the Minnesota Army National Guard (MNARNG) and waiting for a State board to approve the promotion or to transfer to the USAR.

   b.  He found a USAR unit and was advised that, provided he did not remain in the USAR (Reinforcement) more than six months, he would not have to pay back his bonus.

   c.  In November or December 2010, he was told that O-5 transfers between the USAR and ARNG were on hold.  As a result, he was placed in the USAR Individual Ready Reserve (IRR).

   d.  In December 2010, he was alerted to deploy to Afghanistan with a reporting date in February 2011.  Based on his USAR IRR status, he was informed that he couldn't join a USAR Troop Program Unit (TPU) or return to the MNARNG until he completed his deployment.

   e.  His deployment to Afghanistan was cancelled and he was informed he would be deploying to Kuwait in the fall of 2011.

   f.  In September 2011, he responded to a letter from the Defense Finance and Accounting Service (DFAS) concerning a debt of $25,000.00.

   g.  He served overseas in Kuwait from September 2011 to January 2012.  He then joined a USAR medical unit in Rochester, MN.

   h.  After returning from Kuwait, he received a threatening letter from a collection agency that was followed by harassing and inappropriate telephone calls to him at his workplace.
	
   i.  He states that the time he was assigned to the USAR IRR exceeded six months; however, he remained in an active status and was credited with qualifying service during that period.

3.  The applicant provides copies of:

* his Selected Reserve Special Pay Program Contract
* a memorandum for record (MFR)
* DD Form 368 (Request for Conditional Release)
* DA Form 4651 (Request for Reserve Component Assignment or Attachment)
* email messages
* AHRC Form 4145 (Election Options - Military Service Obligation)
* revocation orders, dated 23 February 2011
* four letters
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the USAR as a commissioned officer, in rank of LTC (O-5), in the Medical Corps.

2.  A copy of the applicant's Special Pay for Health Care Professionals contract is not available in his military personnel records.

3.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant entered the MNARNG on 26 July 2007, he was honorably released on 1 November 2010, and transferred to the USAR (Reinforcement) to accept a promotion in the USAR.

4.  U.S. Army Human Resources Command (USA HRC), Fort Knox, KY, Orders B-11-006886, dated 17 November 2010, promoted the applicant to LTC (O-5) effective and with a date of rank of 1 November 2010.

5.  USA HRC, Fort Knox, KY, Orders C-02-102308, dated 14 February 2011, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the Standby Reserve (Inactive List) effective 14 February 2011.

6.  USA HRC, Fort Knox, KY, Orders C-02-102308R, dated 23 February 2011, revoked Orders C-02-102308, dated 14 February 2011.

7.  USA HRC, Fort Knox, KY, Orders M-09-100413, dated 20 September 2011, relieved the applicant from the USAR Control Group (Reinforcement) and ordered him to active duty on 30 September 2011 in support of Operation Enduring Freedom for a period not to exceed 120 days.

8.  A DD Form 214 shows the applicant was honorably released from active duty on 27 January 2012 and he was transferred to the USAR Control Group (Reinforcement).  He completed 3 months and 28 days of net active service this period that included 3 months and 5 days of foreign service in Kuwait.

9.  USA HRC, Fort Knox, KY, Orders C-05-207569, dated 23 May 2012, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the 7212th U.S. Army Medical Support Unit, Fort McCoy, WI, effective 23 May 2012.

10.  In support of his request, the applicant provided evidence including the following documents:

   a.  USAREC Form 1166 (Selected Reserve Special Pay Contract - Special Pay for Selected Reserve Health Care Professionals in Critically-Short Wartime Specialties), dated 26 July 2010, that shows the applicant agreed to an annual Special Pay of $25,000.00 based upon his specialty of 61N (Family Practice).  He acknowledged a 1-year service obligation and that if he terminated service in the Selected Reserve before the end of the period for which the payment was made, he would be required to refund the full amount of the payment made for the period on which the payment was based.

   b.  DA Form 4651, dated 15 October 2010, that shows he requested assignment to the 7302nd Medical Training Support Brigade, Madison, WI, for duty in an O-5 position;

   c.  email messages, spanning the period from 14 December 2010 to
15 March 2011, that document the applicant's correspondence with several ARNG and USAR officials and his efforts during this period to transfer from the USAR Control Group (Reinforcement) to either an ARNG or USAR unit;

   d.  an AHRC Form 4145, dated 2 February 2011, that shows he elected to transfer to a Selected Reserve unit;

11.  In the processing of this case, an advisory opinion was obtained from the Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, Washington, DC.

	a.  The advisory official recommends administrative relief for the applicant by cancellation of his debt and full repayment of his bonus.

   b.  The advisory official notes the applicant was selected for promotion in the fall of 2010.  During counseling he was offered the choice of remaining in the MNARNG and waiting for promotion or being transferred to the USAR and being promoted immediately.

   c.  The applicant chose to join the USAR and found a USAR unit that he could join in Madison, WI.  He was released from the MNARNG and placed in the USAR IRR with plans to join his new USAR unit in November 2010.

   d.  Due to circumstances that were beyond the applicant's control, concerning both USAR policy and mobilizations while he was in the USAR, he remained in the USAR IRR beyond the 6-month period allowed by Department of Defense instructions.  However, he joined his new USAR unit as soon as circumstances warranted.

   e.  His extended tenure in the USAR IRR is the sole reason for recoupment of the applicant's bonus.

12.  The applicant was provided a copy of the DCS G-1 advisory opinion in order to have the opportunity to respond; however, a response was not received.

13.  Department of Defense Financial Management Regulation, Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), provides in:

   a.  section 0201 (General provisions) a member of the uniformed services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "pay or benefit"), is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit.  If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit.  Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control.  Conditions under which repayment will not be sought are set forth in section 0202; and

   b.  section 0202 (Repayment and non-repayment conditions) provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member's control.  In addition, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on one or more of the following: 

* contrary to a personnel policy or management objective
* against equity and good conscience
* contrary to the best interest of the United States

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected by cancelling the recoupment action pertaining to his physician's bonus because the circumstances that led to the recoupment action were beyond his control.

2.  The evidence of record shows the applicant was authorized a $25,000.00 physician's bonus.  He was subsequently selected for promotion to LTC (O-5).

   a.  He elected to transfer to the USAR (Reinforcement) in order to accept the promotion with the intention of transferring to a USAR TPU or back to the MNARNG within the 6-month specified time period.

   b.  He transferred to the USAR and he was promoted on 1 November 2010.

3.  Due to circumstances that were beyond the applicant's control, concerning both USAR policy and mobilizations while he was in the USAR, he remained in 


the USAR IRR beyond the 6-month period.  However, the applicant joined his new USAR unit as soon as circumstances allowed.

4.  The evidence of record shows the Secretary of the Military Department concerned has the discretion to render a determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on it being contrary to a personnel policy or management objective or against equity and good conscience.

5.  After careful review of the applicant's case, it is concluded that repayment action should not be pursued because the applicant's inability to fulfill specified service conditions related to the bonus was due to circumstances that were reasonably beyond the member's control.

6.  Therefore, in view of the foregoing, it would be appropriate to correct the applicant's records by cancelling the recoupment action pertaining to his Selected Reserve Special Pay Program Contract - Special Pay for Selected Reserve Health Care Professionals in Critically-Short Wartime Specialties (Doctor's Bonus).

BOARD VOTE:

__X___  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by showing a request to waive the applicant’s debt was approved, refunding any monies already recouped, and showing he is entitled to full payment of the physician's bonus.

2.  As a result of the above correction, the Defense Finance and Accounting Service shall be notified of the Board's determination, cancel the recoupment 


action, and remit payment of any monies that may have been recouped from the applicant based the debt action.




      _______ _ 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)                                         AR20120017352



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ABCMR Record of Proceedings (cont)                                         AR20120017352



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