IN THE CASE OF:	  

		BOARD DATE:  13 June 2013

		DOCKET NUMBER:  AR20130006413 


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 payment of her Army Medical Department (AMEDD) Special Pay. 

2.  The applicant states 

	a.  She was accessed as an AMEDD officer on 21 February 2008.  Her area of concentration (AOC) is 66H (Medical Surgical Nurse).  When she accessed, she was told her AOC could receive the Health Professionals Loan Repayment (HPLR) and the Special Pay Incentive.  She was told the HPLR would pay first and then the Special Pay would pay second.  Her HPLR was paid but she was denied payment of her Special Pay.

	b.  She believes this error is based on the total misunderstanding of the intent of the North Carolina Army National Guard (NCARNG) AMEDD Officer Incentive Program for Fiscal Year 2008 (FY08) by the personnel of the NCARNG - Officer Recruiting Office.  She was accessed on 21 February 2008.  She was told that if she signed the U.S. Army Recruiting Command (USAREC) Form 1252 (U.S. Army Reserve (USAR) and ARNG Incentives Declaration Statement) - which was the election form for Special Pay and HPLR and not a contract - and elected on the form to receive HPLR first and Special Pay second, she would be paid in that order.  She trusted her recruiter on this.  She was brought back into the recruiting office to sign this form on 10 March 2008.  Then, she was told she would need to request her payment 90 days out from her one-year anniversary, which was 20 February 2009.  It was then that she was told she needed to sign something else to get the money for HPLR and she then saw that it was the contract that was supposed to have been offered to her on 21 February 2008.  So, she signed it on 15 December 2008.  

	c.  Her first payment came on 22 May 2009.  This shows there were discrepancies in the system.  When her HPLR was paid off, she expected to get her Special Pay, but she was informed she was not eligible because her AOC had been discontinued form the Special Pay Incentive List.  She was not allowed to sign the contract that should have been offered to her on 21 February 2008. Therefore, she filed an Inspector General (IG) complaint.  The official response that came from the NCARNG Deputy Chief of Staff explained that her AOC had been removed from the Special Pay List and she was no longer eligible.  

	d.  Her argument is that according to paragraph 12 of the FY08 ARNG AMEDD Incentive Criteria, she was eligible to sign all three documents (USAREC 1252, HPLR Contract, and Special Pay Contract) on 21 February 2008 and be contracted for dual enrollment in HPLR and Special Pay to be paid consecutively. The exact wording in paragraph 12b states "Regardless of the critical shortage list at the time the Special Pay starts, the applicant had to be eligible when both incentives were contracted."  She was denied this dual contract even though she was told that is what she was getting.  She has performed her job as required by her part of the agreement and she asks that she be paid the three years of Special Pay she was promised.

3.  The applicant provides:

* USAREC Form 1252
* Letter from the NCARNG Deputy Chief of Staff to the applicant's Member of Congress
* Memorandum for Record
* Self-authored timelines
* Email exchange
* ARNG AMEDD Officer Incentive Program for FY06-07
* Addendum to the FY06-07 ARNG AMEDD Incentives Policy

CONSIDERATION OF EVIDENCE:

1.  The applicant previously served in the Regular Army from 16 April 1992 to 29 May 1999.

2.  She entered active duty in an ARNG Active Guard Reserve status on 
1 February 2001 and she was honorably released from active duty on 
15 February 2003 to the control of the State.  

3.  On 19 August 2006, having graduated from the NCARNG Officer Candidate School (21 July to 5 August 2006), she executed an NGB Form 337 (Oaths of Office) as a commissioned officer in the NCARNG.  Accordingly, on 30 November 2006, the NGB extended her Federal recognition for this initial appointment, as second lieutenant (2LT). 

4.  On 19 December 2007, she submitted an NGB Form 62E (Application for Federal Recognition as an ARNG Reserve Officer or Warrant Officer) for appointment in the Army Nurse Corps (ANC), AOC 66H.  

5.  On 21 February 2008, she executed an NGB Form 337 as a commissioned officer in the NCARNG, in the rank of 2LT.  She was assigned to the Medical Detachment, Salisbury Physical Examination Station, and later to the 163rd Medical Company, NCARNG.

6.  On 10 March 2008, she completed a USAREC Form 1252.  This form listed various incentives available to applicants in specified wartime critical shortage list AOCs in the USAR and the ARNG.  She initialed next to two incentives that she wished to be considered for as follows:

* She placed the number 1 and her initials next to HPLR
* She placed the number 2 and her initials next to Special Pay

7.  There is no indication she signed an agreement or executed any forms in connection with this appointment.  Specifically, her record is void of the:

* USAREC Form 1166 (Selected Reserve (SELRES) Special Pay Program Contract – Special Pay for SELRES Health Care Professionals in Critically-Short Wartime Specialties)
* USAREC Form 1166-R-E (Selected Reserve Recruitment Bonus Program Contract)
* Addendum to USAREC Form 1166-R-E for Retention Bonus Applicant
* DA Form 5536 (Health Professionals Loans Repayment (HPLR))
* USAREC Form 1166 (National Student Loan Data System)

8.  On 30 July 2009, the NGB extended her Federal recognition for her appointment as a 2LT in the NCARNG effective 21 February 2008 with a date of rank of 20 May 2007. 

9.  She attended and successfully completed the AMEDD Officer Basic Course at Fort Sam Houston, TX, from 11 April 2008 to 5 May 2008.  She was promoted to first lieutenant on 20 November 2008. 

10.  On 1 March 2010, the NCARNG received her official transcripts from Winston-Salem State University.  She was awarded a Bachelor of Science in Nursing (BSN) degree on or about 23 February 2010. 

11.  She entered active duty on 7 March 2010 and subsequently served in Kuwait/Iraq from 19 April 2010 to 27 February 2011.  She was honorably released from active duty on 12 April 2011.  Shortly after her release from active duty, she was promoted to captain in the NCARNG, on 29 June 2011.  

12.  On 20 October 2011, by letter, the NCARNG Deputy Chief of Staff for Personnel responded to the applicant's Member of Congress regarding the bonus and other issues.  The official stated:

	a.  As a medical officer, the applicant was authorized special bonus incentive managed by the NGB.  This incentive included the HPLR and a special cash bonus.  Applicants could apply for one incentive at a time and she selected the LRP in December 2007.  Her loans were paid up on February 2010, at which time she became eligible for the cash bonus.  She was then mobilized and deployed in March 2010.  Her cash bonus was not finalized.  

	b.  While deployed, she was told she could apply for the cash bonus upon completion of her deployment in April 2011.  However, in March 2011, the NGB initiated new incentive programs for medical officers and the cash incentive for her AOC was eliminated.  The NCARNG requested an exception to policy but it had not been acted upon by the time this letter was generated.  

	c.  Although she may have indicated she is entitled to a $20,000 cash payment, the NGB memorandum that authorized her bonus stated that officers in the Medical Surgical Nurse management field would be authorized a $10,000 bonus.  Therefore, if the NGB approves her request, it would be in the amount of $10,000 (less applicable taxes). 

	d.  The ARNG AMEDD Officer Incentive Programs for FY09 memorandum, dated 5 December 2008, authorized the program for which she was entitled, and paragraph 7d(1)(d) specifically authorized a $10,000 incentive for nurses with a Bachelor of Science in Nursing.  A second memorandum, Subject: Implementation Guidance for ARNG AMEDD Officer Incentives Programs for FY11, dated 10 March 2011, specifically, paragraph 6, eliminated the incentive for officers with her qualifications.

13.  Neither the exception to policy nor the decision by the NGB is available for review with this case.  However, on 2 and 8 May 2013, by memoranda, two NCARNG officials stated:
	a.  On 2 May 2013, the NCARNG Specialty Branch manager stated that after reviewing the applicant's request, he found there are no corrective actions that can be made at the unit level.  She was accessed as a Nurse and offered the HPLR as well as the Special Pay Incentive.  She accepted the offer by signing the USAREC Form 1252.  On this form, she elected to receive the HPLR first and the Special Pay second.  The Special Pay contract was not turned in at the time of accession.  If this had been done, she would have locked in both benefits.  By the time the error was discovered, the AOC had been removed from the Critical Skill List.  The AMEDD Incentive Policy specifically requires dual enrollment at the time of accession to lock in both benefits.  This was not her fault and she should receive the incentive. 

	b.  On 8 May 2012, an official at the G-1 Plans and Policy Division, NCARNG, stated that after reviewing the applicant's request, he believes due to the lack of understanding of the AMEDD Incentive Program, the AMEDD Officer Recruiter incorrectly handled the applicant's paperwork and due to no fault of hers, she was unable to receive the Special Pay Incentive.  The applicant is in good standing with the NCARNG and has met all the requirements.  According to the ARNG AMEDD Officer Incentive Programs for FY08, she was eligible for both the HPLR and the Special Pay Incentive and would have received both if her paperwork had been completed correctly at the time of her accession into the ARNG. 

14.  An advisory opinion was obtained on 14 May 2013 from the NGB in the processing of this case.  An NGB official recommended approval and stated:

	a.  The applicant states she was accessed as an AMEDD officer, 66H, on 21 February 2008.  She was informed her AOC qualified her for the HPLR benefits and Special Pay incentive.  According to the USAREC Form 1252, dated 10 March 2008, she elected to receive the HPLR first and the Special Pay second.

	b.  According to NGB Incentives Branch, she has a USAREC Form 1252 and USAREC board results which show the intent to contract for the Special Pay and the HPLR benefits.  However, the NGB cannot determine her eligibility for those benefits due to lack of documentation.  There is no evidence that the packet was ever submitted to the NGB Incentives Branch.  Her packet is missing a signed, valid DA Form 5536 and USAREC Form 1166 which would have shown a listing of all student loans.  If the student loans were private, the NGB would also require something from the lender, as well as an oath of office and NGB Form 23 (ARNG Current Annual Statement).

	c.  The NGB Incentives Branch states it would be contrary to the U.S. Army to deny her the opportunity to submit both the HPLR and Special Pay packet to the NGB Incentives Branch.  Therefore, it is recommended that the DA Form 5536 be completed, with a valid effective date of 10 March 2008, which is the same date on the USAREC Form 1252.  This would allow her and the State to submit a complete packet in order to determine her eligibility for HPLR and Special Pay.  If she had met the requirements that were in place on 10 March 2008, the ARNG would be responsible for making the appropriate payments.  

	d.  If the Board corrects her records and establishes a contract with an effective date, the applicant must meet all criteria of the incentives before payment can be made.  

	e.  The State concurs with this recommendation. 

15.  The applicant responded to the advisory opinion on 23 March 2013.  She stated:

* the USAREC Form 1252, dated 10 March 2008, does reflect she elected to receive the HPLR first and the Special Pay second
* the DA Form 5536 was submitted and her student loans were paid and closed out
* the USAREC Form 1166 was never submitted
* she is willing to work with all concerned to correct any deficiencies 

16.  Army Regulation 135-7 (ARNG and USAR Incentive Programs) sets forth the policy and procedures for repayment of student loans for health care professionals.  It states the HPLR provides for the repayment by the Government of a designated portion of any outstanding student loan(s).  The loan amount to be repaid may not exceed a certain amount for each year of eligible service.  The total amount that may be repaid may not exceed a certain amount.  To be eligible for the HPLR incentive, a person must perform satisfactory service as an officer in the Selected Reserve and possess professional qualifications in a health profession that the Secretary of Defense has determined to be needed critically in order to meet identified wartime combat medical skill shortages.  Each complete satisfactory year of service performed under this HPLR agreement establishes an anniversary date.  Any qualifying loan, which is at least a year old, may then be paid in accordance with the terms of this educational agreement.

17.  NGB Memorandum, dated 5 December 2009, Subject: ARNG AMEDD Officer Incentive Programs for FY09 updates policy and provides implementing guidance for the SELRES AMEDD Incentive Programs.  It is NGB policy to use incentives to attract and retain healthcare professionals who possess or qualify for training in the critical skills needed in wartime and to maintain readiness in the ARNG.  The SELRES incentives available to ARNG healthcare professionals include the following programs:  

* HPLR
* Special Pay (Healthcare professionals in critically short wartime specialties, formerly referred to as Healthcare Professional Bonus)
* Specialized Training Assistance Program
* Medical/Dental Student Stipend Program

	a.  DOD authorizes the services to offer incentives based on Critical Wartime Shortages.  In the ARNG, these shortages are positions in Modified Table of Organization and Equipment (MTOE) units.  This does not mean that personnel assigned to positions in Table of Distribution and Allowances (TDA) units are ineligible to receive incentives.  However, in any given specialty in a TDA unit, all identical positions in MTOE units within that State must be filled prior to the TDA position being eligible for incentives.  Alternatively, if a current officer in the same specialty is moved to an MTOE position, the new officer recruited to fill the vacated TDA position is eligible to receive incentives. Positions that are only found in TDA structures are exempt from this requirement. If a State has no vacancies and all positions are filled then Medical Corps, Dental Corps and Physician Assistants assigned overstrength in accordance with the annually published overstrength memorandum are eligible to receive incentives. Enclosure 1 lists 65D (Medical Surgical Nurse) as one of the specialties authorized.  

	b.  The HPLR program reflects policy prior to the enactment of the 2009 National Defense Authorization Act (NDAA), 14 October 2008.  The ARNG AMEDD Officer Incentive Programs memorandum for FY10 will incorporate policy changes from the NDAA 2009.  Under the HPLR Program, payment in any given year will not exceed $20,000 or the remaining balance of the student loan, whichever is less.  Total program repayments for all years will not exceed the maximum amount of $50,000.  Applicants will complete both DA Form 5536-R and the Amendment to DA Form 5536-R.  

	c.  Special Pay:  Individuals contracting for special pay-approved ARNG specialties will receive $5,000 to $25,000 per year depending upon their specialty.  Participants must choose 1, 2, or 3 years of affiliation with the ARNG at the time of application.  Taxes are withheld.  All participants must meet the criteria for appointment as commissioned officers in the ARNG.  Bachelor of Science in Nursing Nurses are authorized a $10,000 bonus.  Applicants must be properly credentialed as appropriate.  

18.  NGB Memorandum, dated 10 March 2011, Subject: Implementation Guidance for ARNG AMEDD Officer Incentives Program for FY11 updates current guidance and provides implementing instructions for the SELRES AMEDD Incentive Program.  This memorandum eliminated the Special Pay bonus for AOC 65D.

DISCUSSION AND CONCLUSIONS:

1.  The applicant executed an oath of office and was appointed as an ANC commissioned officer in the NCARNG on 21 February 2008.  The following month, on 10 March 2008, she completed a USAREC Form 1252.  This form is not a contract.  It listed various incentives available to applicants in specified wartime critical shortage list AOCs in the USAR and the ARNG.  She initialed next to two incentives that she wished to be considered for HPLR first and the Special Pay second. 

2.  There is no evidence in her records and she provides insufficient evidence to show she completed the necessary forms/contracts in connection with this appointment, including the SELRES Special Pay Program Contract – Special Pay for SELRES Health Care Professionals in Critically-Short Wartime Specialties, the SELRES Recruitment Bonus Program Contract, an Addendum for the Bonus Retention, or the HPLR form.  However, despite the fact that the required DA Form 5536 remains missing since her loans were paid in 2010, it is reasonable to presume she had completed at least the necessary HPLR form. 

3.  The NGB Incentives Branch states it would be contrary to the Army to deny her the opportunity to submit both the HPLR and Special Pay packet to the NGB Incentives Branch.  The NGB recommended that the DA Form 5536 be completed, with a valid effective date of 10 March 2008, which is the same date on the USAREC Form 1252.  This would allow her and the State to submit a complete packet in order to determine her eligibility for HPLR and Special Pay.  If she had met the requirements that were in place on 10 March 2008, the ARNG would be responsible for making the appropriate payments.  

4.  DOD policy requires a contract to be executed between the two parties, in this case between the applicant and the NCARNG, in order for a specific payment to be honored.  Although there is no evidence such a contract was done, the applicant's AOC was authorized the Special Pay when she was commissioned and she made her intent clear when she indicated she wished to be considered for both incentives.  

5.  It appears that some errors were committed in the processing of her appointment and that none of this was her fault.  She contracted in good faith and continues to serve the terms of her commitment.  She should not be penalized for errors committed by recruiting officials, the State Incentive Manager, or the NGB.  Provided she is determined to be fully qualified by the ARNG and the NGB, she should be entitled to receive payment of the $10,000 Incentive Pay. 

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and State Army National Guard records of the individual concerned be corrected to show she:

* contracted for a critical skill and received a valid bonus control number upon her commission in the NCARNG for the Health Professional Loan Program and the Special Incentive Pay (in the amount of $10,000)
* her appointment packet with allied documents was submitted to the NGB at the time of commissioning
* if otherwise qualified, is eligible to be paid the $10,000 Special Pay Incentive out of ARNG funds



      _______ _  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)                                         AR20130006413





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