BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130009997 


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 reconsideration of his earlier request for correction of military records by showing he completed 3-year contracts for special pay for Selected Reserve Health Care Professionals in Critically-Short Wartime
(SR-HCPCSW) Specialties effective 1 October 1995, 1 October 1998, and
1 October 2001.  He further requests inclusion of these contracts in such a manner as to allow for payment of the appropriate retention incentives.

2.  The applicant states the bases for his request are:

	a.  factually incorrect statements in the Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) in Docket Number AR20110011410, dated 29 March 2012; and

	b.  submission of new information and contracts for completion and placement into his military records.

3.  The applicant argues the initial ROP contains incorrect statements in paragraphs 2, 8, 13, 15, and 16 of the CONSIDERATION OF EVIDENCE section.  In essence, he states:

	a.  he was not serving in the Active Guard Reserve, but he was a member of the Selected Reserve;


	b.  he completed his training in 1993 and the references to participation in the Specialized Training Assistant Program (STRAP) was inappropriate and added confusion about what special pay/bonus programs the Board thought were available to him;

	c.  the whole point of his original request was his denial of the opportunity to sign contracts for the SR-HCPCSW special pay;

	d.  he had not requested an accession bonus as mentioned in the ROP, indicating that the Board had received inaccurate information from the U.S. Army Human Resources Command (HRC);

	e.  he did not see mentioned anywhere in the ROP the SR-HCPCSW special pay that he was requesting;

	f.  the SR-HCPCSW special pay does not require the participant to come directly from civilian life; and

	g.  he was eligible for SR-HCPCSW.

4.  The applicant argues that the ROP contains incorrect statements in paragraphs 1, 2, and 3 of the DISCUSSION AND CONCLUSIONS section.  In essence, he states:

	a.  the conclusion contradicts the two affidavits that support he was denied the opportunity to sign contracts;

	b.  the conclusion demonstrate the Board did not receive appropriate information from HRC or others concerning the specifics of his case; and

	c.  the conclusion represents a circular argument in that if there were fully signed contracts then this issue would have been handled by the Defense Finance and Accounting Service (DFAS) and there would not have been any need to involve this Board.

5.  The applicant states he understands in some ways this is a very complicated and nuanced issue and it is easy to see how highly intelligent experts could misunderstand the intent and what happened in this specific case based purely on the written word.  Therefore, he requests to appear before the Board to answer questions, provide additional references, and to otherwise clarify and explain why this was an injustice that must be rectified.


6.  The applicant provides four copies of USAREC Form 1166 (Selected Reserve Special Pay Program Contract (Special Pay for SELRES Health Care Professionals in Critically-Short Wartime Specialties), with effective dates of
1 October 1995; 1 October 1998; 1 October 2001; and 1 October 2004.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110011410, on 29 March 2012.

2.  The USAREC Forms 1166 provided by the applicant are new evidence that warrants consideration by the Board.

3.  The original ROP stated the applicant's request as "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."  It appears this was a misstatement of the applicant's intended correction.  Accordingly, it would be appropriate for the Board to reconsider the applicant's request as an exception to the 1-year policy.

4.  Because of the misinterpretation to correctly identify the subject of the applicant's request, the original ROP did not properly address the issue.

5.  The applicant provided with his original request copies of email communications dated in December 2010, and affidavits from himself and another officer dated in May 2011.

6.  The email communications provided by the applicant with his original application provide the following information from the Army Reserve Personnel Policy Integrator, Office of The Surgeon General (OTSG), located in Falls Church, VA:

	a.  The subject of this portion of the email, dated 10 December 2010, concerned the applicant's eligibility to receive retention bonuses for CWSL.

	b.  There are no signed contracts for such bonuses in his files for the period 1995 to 20 June 2006.  Without signed contracts, the case cannot go forward.

	c.  The applicant received his 20-year letter making him retirement eligible on or after 21 June 2006.  Due to his eligibility for retirement, this makes him no longer eligible to receive U.S. Army Reserve (USAR) incentive/retention bonuses for service after this date.
	d.  If he had a signed contract and commitment to service based on an area of concentration (AOC) considered eligible for retention special pay incentive on the CWSL, he would be eligible for payments and back-payment could be requested once it was determined it was an error through no fault of the applicant.

	e.  The applicant was encouraged to submit a request to this Board to be given the opportunity to receive the contracts he had been improperly denied.

7.  On 18 May 2011, a retired Army officer provided the following affidavit:

In 1998, while assigned as an analyst in the Office of the Chief, Army Reserve (OCAR) at Fort McPherson, GA, the applicant called him and asked about incentives he felt he should be eligible to receive, but had been denied by HRC.  He desired to sign contracts.  The applicant had previously shared his frustration informally with him over the years since leaving active duty.  However, the officer had never been in a position in the USAR that had any responsibility over medical retention policy.  When the applicant asked again, the officer made a call to the executive officer at OCAR who connected the officer to a person responsible for retention policy.  The officer was informed that the applicant was not eligible for incentives.  The author of the affidavit stated he was not in a position to challenge the opinion that the applicant was not eligible.  The author so informed the applicant.

8.  The applicant's affidavit provides the following:

	a.  On 29 May 2011, the applicant made a sworn affidavit concerning his request for this Board to investigate the circumstances surrounding his eligibility and denial of CWSL and loan repayment incentives he believed he was entitled to receive.

	b.  He contends he indicated his desire to transfer to the Selected Reserve in July 1995.  He states he indicated to those responsible for the USAR transition that he had heard about bonuses and special pays and wanted to sign contracts for any and all he was eligible to receive.  He was informed that he was not eligible because he had received an "HPSP" scholarship.

	c.  He contends in 1996 he was contacted by an officer from HRC  who suggested he take an Individual Mobilization Augmentee (IMA) assignment at the Uniformed Services University that appeared to be a priority at the time.  Again, the applicant indicated he wanted to sign contracts for any bonus or incentive pay but was told there were none for which he was eligible.


	d.  In 1998, the applicant shared his concern about his eligibility for bonuses and other incentives with an officer assigned to OCAR.  Again, he was told the people in OCAR who were responsible for those programs said he was not eligible.  Unfortunately, all or almost all of his communications about this issue were telephonic.  In 2003, the applicant's now ex-wife destroyed many of his records while he was mobilized.

	e.  In 2006, a representative from HRC informed the applicant he was and had been eligible to sign a contract for student loan repayment and he was finally allowed to do so.  However, he was also informed that he was ineligible for any other type of incentive.

	f.  In 2010, while the applicant was deployed to Iraq, he encountered other Reserve component medical officers in critical wartime specialties who had been in situations nearly identical to his own.  They told him they had been receiving bonuses and incentive payments.  In addition, they heard reports of senior Reserve officers who as colonels in pay grade O-6 were still receiving such payments.

	g.  Subsequently, the applicant was informed by personnel at HRC that it appeared he had previously been eligible for these incentives.  This validated his contention he had been improperly denied the opportunity to sign incentive contracts.  He was also informed there was no waiver authority and nothing could be done about it at that late date.

	h.  He indicates that on 10 December 2010, an officer at OTSG informed him that while sympathetic, without signed contracts OTSG could not help him.  He was advised to apply to this Board if he felt he was incorrectly denied the opportunity to sign contracts.

9.  On 22 September 2011, the Chief, Health Services Division, HRC, wrote in an advisory opinion that he was not eligible to receive retention bonus pay because he had reached retirement eligibility.  The incentives office at HRC had informed the applicant of this fact on 10 January 2010.  It further stated that without a signed contract requesting a particular entitlement retroactive retention bonuses could not be processed.  The applicant was provided a copy of this advisory opinion and responded by saying 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 for Health Affairs advised him to petition this Board.


10.  Records at HRC show that on 15 February 2013, the applicant signed a CWSL Special Pay contract and received $25,000.00.

11.  In the processing of this case, on 16 December 2013, an advisory opinion was obtained from the Director Human Resources/G-1, OTSG.  The advisory official stated the affidavit from a retired Army officer, as provided by the applicant, is insufficient documentation to support his request to submit retroactively-dated incentive contracts.  As a condition of the receipt of an incentive covered by Department of Defense Instruction, each recipient shall be required to sign a written agreement stating the member understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and that advance payments may be recouped.  That agreement shall clearly specify the terms of the Reserve Service commitment that authorizes the payment of the incentive to the member.  In the applicant's case, he should not be allowed to hold the Army culpable for information, resources, and research that was publicly made available to him and others.  However, if the applicant has the previously submitted contracts showing he was denied and told he was ineligible, in writing, on those very same contracts, then OTSG may be inclined to provide a more favorable opinion to award him a retroactive incentive.

12.  On 17 December 2013, a copy of the OTSG advisory opinion was forwarded to the applicant for information and to provide him an opportunity to submit comments or a rebuttal.

13.  On 29 December 2013, in response to the advisory opinion, in essence he stated the following:

	a.  He appreciates the Board's benevolent consideration of his case.

	b.  After reviewing the advisory opinion, it is unclear to him why after both the Director, Reserve Component Medical Programs in the Office of the Assistant Secretary of Defense for Health Affairs and the Director, OTSG, and the Human Resource Directorate strongly encouraged him to bring his case to the Board as an inequity needing to be addressed, that subsequent personnel in the OTSG did not endorse the request.

	c.  He believes, given the basis for the OTSG recommendation, the advisory opinion is overreaching its proper role and in fact is usurping the role of the Board by stating his request "should be denied."  A careful review of the advisory opinion reveals this conclusion was based solely on its opinion that the documentation supporting the request is insufficient.  He argues that the role of the OTSG in this case should be to clarify policies that were in effect at the time and not determine what constitutes sufficient documentation for the Board to correct a record.

	d.  He points out that the advisory opinion also attempts to address the issue of loan repayment and makes an incorrect conclusion because he had personally financed 2 years of his 4 years of basic professional qualifying degree outside of the HPSP program and therefore fully qualified for loan repayments.  More importantly, this issue is not relevant to the discussion of his primary request concerning the payment of specialty bonuses for continued participation in the Selected Reserve as a critical wartime specialist.

	e.  He further argues the reference to DODI 1205.21, paragraph E2 that authorizes the payment of incentives subject to signed written agreements, does not in any way contradict his request or eligibility for payments had he been given the opportunity to sign these agreements.  The whole point of his request to this Board is to be allowed to place written agreements into his record and thereby correct his record to rectify the injustice caused by his being inappropriately denied the opportunity to sign those contracts in a timely manner.

	f.  He points out that given he has stayed in the Army, it is inconceivable that anyone would believe he would not have wanted to sign these retention agreements if he had been provided correct information and been allowed to do so.  In spite of the opinion's assertion that information was available, he has previously stated, and will continue to state, as an O-6 under oath, that his multiple requests to execute written agreements were specifically denied by USAR representatives, who he had every reason to believe at the time were knowledgeable and credible.

	g.  He argues that even if he had found other sources of information and asserted to these USAR representatives that they were wrong; then somehow, in spite of their lack of cooperation, had located the proper forms in the pre-internet forms era and subsequently signed them, this would not have done him any good given that anyone who he would have known to give them to for execution were the same individuals who were telling him he was not eligible.

	h.  He argues that the law authorizing incentive payments to critical wartime specialties does not require written agreements.  The requirement for written agreements is merely an administrative procedure specified in order for the special pay/bonus to be paid.

14.  Title 37, U. S. Code, section 302g provides special pay for SR-HCPCSW Specialties.


	a.  Special pay authorized:  An officer of a Reserve component of the armed forces described in subsection (b) who executes a written agreement under which the officer agrees to serve in the Selected Reserve of an armed force for a period of not less than 1 year nor more than 3 years, beginning on the date the officer accepts the award of special pay under this section, may be paid special pay at an annual rate not to exceed $25,000.00.

	b.  Eligible Officers:  An officer referred to in subsection (a) is an officer in a health care profession who is qualified in a specialty designated by regulations as a critically-short wartime specialty.

	c.  Time for Payment:  Special pay under this section shall be paid annually at the beginning of each 12-month period for which the officer has agreed to serve.

15.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected by showing he had completed contracts for CWSL special pay for SR-HCPCSW Specialties.  He further contends these contracts should be included in his records in such a manner as to allow for payment of the appropriate retention incentives.

2.  The available evidence, provided by the applicant, indicates he has been attempting to sign and submit contracts for CWSL special pay since before 1998.  He contends he was repeatedly told he was not eligible.  However, the email communication dated in 2010, as provided by the applicant from the Personnel Policy Integrator at OTSG, clearly states that had the applicant been permitted to sign and submit those contracts he most likely would have been eligible for such incentive pay.  This email further indicates that if he can produce such contracts; and if he had met the service commitment requirements, then back pay could have been requested.

3.  The available evidence shows that in 2006 the applicant was informed that he was eligible to sign a student loan repayment contract, but was not eligible for any other incentive pay.  Then in 2011, the Health Services Division, HRC, stated in a letter that he had been advised that because he had reached retirement 


eligibility he was no longer eligible for a retention bonus.  In 2013, the same office stated that the applicant signed a contract and received $25,000 in special pay.  This inconsistency is unexplainable given the available evidence.  While it adds credibility to the applicant's contention that he may have been unjustly denied the opportunity by USAR personnel to submit contracts in 1995 through 2001 for incentive pay, it still fails to sufficiently support his allegation.

4.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130009997



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ABCMR Record of Proceedings (cont)                                         AR20130009997



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