IN THE CASE OF:	  

		BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20130010928 


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 executed a Health Professionals Loan Repayment Program Agreement (HPLRP) and administrative relief in order to keep the payments of $50,000.00 received toward student loans under the HPLRP.

2.  The applicant states he was fully eligible for the HPLRP but for the lack of a signed contract.  He was told by the California Army National Guard (CAARNG) State Incentive Manager (the subject matter expert on California incentives) that he needed to complete additional paperwork to start his HPLRP.  He relied on the State Incentive Manager's assertions.

3.  The applicant provides a blank DA Form 5536 (Agreement HPLR).  He also listed several other documents as indicated below but were not provided with his application.

* memorandum, Incentives Task Force Audit Form
* Federal Bureau of Investigation Press Release related to recruiter impropriety
* Army Medical Department (AMEDD) Fiscal Year (FY) 2003/2004 HPLRP payments
* Unit Assignments to AMEDD
* Retirement Points Accounting System (RPAS) statement
* extract of Title 10, U.S. Code (USC), section 16302
* National Student Loan Data System (NSLDS) printout
* private student loan summary
* physician assistant certifications
* oaths of office

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The applicant did not list an attorney or counsel on his application.  However, he appears to have sought assistance from a military legal assistance attorney who responded to the advisory opinion.

2.  Counsel did not make an initial statement but provided a rebuttal to the advisory opinion.

3.  Counsel provides the following documents with the rebuttal to the advisory opinion:

* blank written agreement – HPLRP
* blank amendment to DD Form 5536-R
* extract of Title 10, USC, section 16302
* extract of Title 10, USC, section 2476
* NSLDS printouts
* student loan statements
* college transcripts
* U.S. Army Reserve (USAR) Officer Health Professional Specialties with Critical Wartime Shortages
* Selected Reserve Officer Health Professional Specialties with Critical Wartime Shortages
* Authorized Substitutability List

4.  On 8 October 2013, counsel provided the following additional documents by email:

* memorandum, Incentives Task Force notification
* Incentives Task Force Loan Repayment Audit Form
* memorandum, Officer Incentives Program Manager
* response to the National Guard Bureau advisory opinion
* memorandum, dated 10 March 2003, subject:  ARNG AMEDD Officer Incentives Programs for FY 03/04

CONSIDERATION OF EVIDENCE:

1.  The applicant was awarded a Bachelor of Science in Biochemistry degree on 20 December 1994.  He also attended Western University of Health Sciences beginning Spring 1997 and he was awarded a Physician Assistant degree on 31 December 1998.

2.  He was appointed as a Reserve commissioned officer of the CAARNG and executed the oaths of office on 10 December 2002.  His record is void of any written agreement or contract regarding the HPLRP.

3.  He was assigned to Headquarters and Headquarters Battery (HHB), 40th Infantry Division Artillery, in area of concentration (AOC) 65D (Physician Assistant).  He attended and successfully completed the AMEDD Officer Basic Course from 14 to 25 July 2003.

4.  He entered active duty on 30 September 2004 and he subsequently served in Kuwait/Iraq from 11 October 2004 to 19 August 2005.  He was honorably released from active duty on 10 September 2005.

5.  He was promoted to captain on 30 December 2005.  He was reassigned as a Physician Assistant to Special Troops Battalion, 40th Infantry Division, on 1 October 2005.  He was promoted to major on 20 October 2011.

6.  The facts and circumstances surrounding his HPLRP participation, payment, audit, or recoupment are not filed in his official records.  All documents are either provided by him/his counsel or through NGB.

7.  On 24 June 2011, the CAARNG Incentives Task Force conducted an audit of the applicant's account.  The task force determined the applicant was eligible for the HPLRP in 2002; however, there was no evidence he executed a contract.  He was paid the HPLRP as well as an AMEDD bonus for due dates prior to satisfactory completion of service (2002).  He received a total of $139,996.00 between HPLRP and AMEDD bonuses to date, of which $50,000.00 were HPLRP and $89,996.00 for AMEDD bonuses.  The task force determined:

	a.  The HPLRP was subject to recoupment in accordance with Army Regulation 135-7 (Army National Guard and Army Reserve – Incentives Program), paragraph 5-1-3(b)(2); ARNG AMEDD Policy Letter 06-07, paragraph 13(b); (DOD) Instruction (DODI) 1205.21 (Reserve Incentives Program Procedures), section 6.2; and Title 10, USC, section 16302(c)(1).

	b.  The applicant was erroneously paid the HPLRP and he may request remittance or waiver of the indebtedness through command channels to the DOD Office of Hearings and Appeals (DOHA).

	c.  He was ineligible for payment due to receipt of HPLRP as well as Health Pay Incentive (HPI) for overlapping periods of service which is not authorized under the AMEDD policy in place at the time he contracted for both the HPI and HPLRP.  Additionally, there was no contract for the HPLRP incentive and no loan documentation provided to substantiate payment requests.  The entire amount of HPLRP is subject to recoupment.  If a contract is provided, he may request an exception to receive both incentives simultaneously.

8.  On 9 February 2012, the applicant was advised by memorandum that the CAARNG had audited his bonus and/or student loan repayment incentive payments and noted a discrepancy.  The Incentives Task Force had taken all available measures prior to notification; however, the discrepancy could not be resolved without his assistance.

	a.  His information regarding this discrepancy is as follows:

* Incentive Type(s):  Health Professional Loan Repayment
* Discrepancy Amount: $50,000.00
* Reason for the Discrepancy:  He was paid HPLR without a contract or supporting loan documentation.
* Discrepancy Reference(s) –

* DODI 1205.21, section 6.2
* Army Regulation 135-7, paragraph 5-1

	b.  The supporting documentation to substantiate his incentive payments are absent from his personnel file.  He must provide the required documentation within 30 days from the date of the memorandum to the Incentives Task Force.  Failure to do so would result in initiation of termination and/or recoupment of his incentive.  Upon timely receipt of these documents, the CAARNG may be able to validate his eligibility and make any necessary corrections to his incentive record.

	c.  If the reason for the above discrepancy is missing student loan documents, he may have the ability to access his personal Federal education loan documentation through the NSLDS database.  If he does not have Federal education loans, he would not have any available documentation to access.  If he has qualifying loans that are over 10 years old, they may not be available through this website; he may, in turn, provide all Master Promissory Notes and all Disbursement Statements from his loan servicer.  All other Soldiers with Federal loans must provide the following documents:  NSLDS Aid Summary Sheet and NSLDS Loan Details.

	d.  If the reason for the above discrepancy is a missing document (other than student loan documents), he should contact his unit readiness noncommissioned officer and battalion career counselor and/or search his personal files.  He has the right to speak with a legal assistance attorney.

9.  It is unclear what action the applicant took at this point.  However, it appears his action or lack of action further triggered a response from the CAARNG Officer Incentives Program Manager who stated by memorandum, dated 31 July 2013, through NGB to the Incentives Task Force:

	a.  The purpose of the memorandum was to determine eligibility for the HPLRP incentive and to determine if repayments were made erroneously.  Eligibility for the HPLRP incentive can be found in Title 10, USC, section 16302; DODI 1205.21; and Army Regulation 135-7.  DODI 1205.21, section 6.2, states, "As a condition of the receipt of an incentive covered by this Instruction, each recipient shall be required to sign a written agreement stating that the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped."

	b.  The applicant became an officer in the CAARNG on 10 December 2002 when he was assigned to the Army Medical Specialist Corps (SP) as a 65D.  He may have been eligible to receive HPLRP upon entering the SP Corps; however, a review of documents and data at hand resulted in this office being unable to determine if he met all eligibility requirements.  Enrollment in the HPLRP and repayment of loans requires an officer to be assigned to and remain in a critically-short AOC, complete a written agreement, be board certified in and maintain credentialing in his or her assigned AOC, remain in good standing in the ARNG, and have qualifying loans.  No critical wartime shortage list can be found for FY 01-02.  It cannot be determined if 65D was an eligible AOC for the HPLRP incentive.  A review of the Information Management and Reporting Center (the official incentive database) showed the applicant did have an approved HPLRP bonus control number; however, he does not have a DA Form 5536-R in his interactive Personnel Electronic Records Management System record, nor has the form been submitted to that office for review.  The DA Form 5536-R is the HPLRP written agreement required by the DODI 1205.21.  The applicant's board certification was verified via NGB Form 0122E effective 10 December 2002.  He does not have an available NGB Form 23B (Retirement Points History Statement) to verify he was in good standing in the ARNG during the qualifying period.  The presence of eligible loans could not be verified by that office as no loan paperwork was submitted.

	c.  At the time this incentive was processed, HPLRP was a 3-year program that paid at a rate of $20,000.00, $20,000.00, and $10,000.00 per year with a lifetime cap of $50,000.00.  The applicant received $50,000.00 with loan repayments paid out as follows:  $30,000.00 on 4 October 2006 and $20,000.00 on 18 October 2006.  Based on the resources and data available to that office, repayment of the applicant's loans were made erroneously and should be recouped.  The absence of a signed DA Form 5536-R, the inability to validate credentialing, and the absence of proof of qualifying loans validate this assessment.  The applicant should be advised that the ARNG does not have the authority to approve an exception to policy for a missing agreement or addendum.  However, the Soldier may file a claim with the Army Board for Correction of Military Records (ABCMR).

10.  Subsequent to this audit, the Incentives Task Force initiated a DD Form 139 (Pay Adjustment Authorization) authorizing the U.S. Property and Fiscal Officer for California to recoup the amount of $50,000.00 from the applicant's account by reason of not having supporting documents to substantiate the incentive received.

11.  On 6 September 2013, an advisory opinion was received from NGB in the processing of this case.  NGB recommended partial relief and stated:

	a.  The applicant was eligible to receive HPLRP benefits.  The CAARNG did not complete a contract addendum for this but paid him $50,000.00 in HPLRP benefits.  National Guard Regulation 600-7 (Selected Reserve Incentives Program), paragraph 1-13c, states, "All required addenda will be completed at the time of enlistment/reenlistment or extension.  An addendum cannot be completed after the fact in order to gain eligibility for an incentive or the Student Loan Repayment program."  The applicant is not at fault for the addendum not being completed because he contacted the incentives manager to inquire about the documentation required and was informed that he only needed to send his student loan information.

	b.  An HPLRP contract addendum should be completed retroactively to authorize payment of HPLRP benefits to the applicant in the amount of $14,125.00.  The amount of $35,875.00 should be recouped because the applicant had eligible loans totaling $14,125.00, but he was paid $50,000.00 in HPLRP benefits.  This amount will be adjusted in the final determination to account for any interest and fees that were eligible to be paid under the HPLRP.  The ARNG AMEDD Officer Incentive Programs for FY 03-04, paragraph 7e(2), dated 10 March 2013, states, "Repayment cannot exceed outstanding balance of DOD recognized loan(s)."  Officers can contract for both the HPLRP and the Health Professional Bonus to be paid consecutively.  The CAARNG concurs with this recommendation.

12.  On 11 September 2013, the applicant's counsel responded to the advisory opinion and stated:

	a.  The applicant was fully eligible for the $50,000.00 HPLRP incentive that he received.  However, neither he nor the Army can find a copy of his DA Form 5536-R, which is the HPLRP addendum.  He met all of the requirements specified in AMEDD Officer Incentive Program FY 02-03 as shown in his ABCMR memorandum.  The only issue is that he does not have a copy of the DA Form 5536-R.  Counsel requests on behalf of applicant that the ABCMR create a DA Form 5536.R or grant him relief from recoupment so that he may keep the funds ($50,000.00) that he received for his HPLRP.  This request is based on the fact that he was and is fully eligible for the HPLRP.

	b.  The NGB advisory opinion states the applicant is not eligible for lack of a signed DA Form 5536-R, proof of credentials, proof of valid loans, evidence of a critical skill, and no RPAS statement.  Attached is evidence of his credentials from the National Commission on Certification of Physician Assistants.  Also attached is evidence of valid student loans and private loans, NSLDS printouts, and transcripts from the Physician Assistant School.  The private loans were disbursed during the time he was in Physician Assistant School.  The total loans exceed the $50,000.00 in HPLRP funds paid to his lenders.  Also attached is an extract of Title 10, USC, section 16302.  Paragraph (a)(5) states the requirements for qualifying loans and permits payment for both Federal and private loans for health professionals.  The relevant language is that the loans paid must "finance education regarding a basic professional qualifying degree...or graduate education in a health profession...[that was a critical need at the time]."  Here, the HPLRP funds paid the applicant's loans for education as a Physician Assistant.  Physician Assistant was a critical skill at the time he was commissioned on 10 December 2002.  Finally, attached is also a copy of the applicant's RPAS statement.

	c.  The applicant was fully eligible to receive the $50,000.00 HPLR, but for the lack of a signed DA Form 5536-R.  On behalf of the applicant, he requests that the ABCMR create a DA Form 5536-R, grant him relief from recoupment, or make any other changes necessary so that the applicant can keep the $50,000.00 in HPLR funds he rightfully received.

13.  On 13 September 2013, the applicant's counsel provided response to the advisory opinion, dated 6 September 2003.  He stated:

	a.  He agrees with NGB in that the applicant was eligible to receive HPLRP benefits and that he is not at fault for the addendum not being completed because he contacted the incentives manager to inquire about the documentation required and he was informed he only needed to send his student loan information.

	b.  He disagrees with the amount of HPLRP benefits the applicant is entitled to according to NGB.  As stated in the advisory opinion, the ARNG AMEDD Officer Incentive Program for FY 03/04, paragraph 72(2), effective 1 March 2013, states "repayment cannot exceed outstanding balance of DOD recognized loans.

	c.  DODI 1205.21, paragraph E9.1.2.1, states, "The Government of the United States shall repay portions of outstanding loans…secured…in accordance with Section 16302 of Title 10, U.S.C.  DOD recognized loans are defined in 10 USC Sec 16302 as:  'a loan made, insured, or guaranteed through a recognized financial or educational institution if that loan was used to finance education regarding a basic professional qualifying degree (as determined by regulations prescribed by the Secretary of Defense) or graduate education in a health profession that the Secretary of Defense determines to be critically needed in order to meet identified wartime combat medical skill shortages.'"

	d.  The applicant had $14,125.00 in Federal Education Loans found in his NSLDS printouts and $42,878.76 in education loans from UNIPAC.  The UNIPAC loans were used to pay the Physician Assistant School as evidenced by the facts that his disbursements dates of 2 June 1997, 22 September 1997, and 14 November 1997 coincide with the dates he was in the Physician Assistant School.  He was not going to two different colleges at the same time.  AOC 65D was then and still is a critical skill.

	e.  Both the Federal loans and the UNIPAC loans are made through a recognized financial or educational institution and used to finance graduate education in a health profession that the Secretary of Defense determined to be critically needed in order to meet identified wartime combat medical skill shortages.  Therefore, the applicant is entitled to the full HPLRP incentive of $50,000.00.

	f.  The applicant was fully eligible to receive the full $50,000.00 HPLRP but for the lack of a signed DA Form 5536-R.  Counsel requests that the Board create the DA Form 5536, relieve him from recoupment, or make any other changes necessary so he can keep the $50,000.00 he rightfully received.

14.  DODI 1205.21 states the authority to execute payment of all incentive programs included in this instruction is subject to authorization in law and appropriation of funds, and applicable DOD and Service policies.  Section E9 covers the HLPRP Written Agreement, including the acknowledgement, understanding, and authentication.

15.  Army Regulation 135-7 prescribes policies and procedures for administration of the ARNG and USAR incentive programs.  It states the loan repayment incentive provides for the repayment by the U.S. Government of a designated portion of any outstanding loan(s).

16.  National Guard Regulation 600-7, dated 26 March 1999, sets policies and procedures for administration of the ARNG incentive programs, including bonuses and loan repayment programs.  Paragraph 1-13 states applicants for programs administered by this regulation are required to sign documents which specify the eligibility criteria for the term of service for the desired incentive.  The document will contain an acknowledgement that the applicant has been advised of and understands the benefits of the program and the conditions which can cause suspension or termination of recoupment, if applicable.  These documents will be authenticated by a proper witnessing official and will include the preparation date.  Each incentive program in this regulation specifies the documents required for program eligibility.

17.  ARNG AMEDD Officer Incentive Program for FY 03/04 updates policy and provides implementation guidance for the Selected Reserve AMEDD Incentive Programs.  One of the incentives available to ARNG healthcare professionals is the HPLRP.  This is based on critical wartime shortages.  AOC 65 is listed as a critical specialty.

	a.  The total amount authorized under Title 10, USC, section 16302, is the maximum allowable yearly payment of $20,000.00 and the amount authorized under this section of the law may not exceed lifetime payments totaling $50,000.00.

	b.  The ARNG officer must serve in an ARNG table of distribution and allowances/table of organization and equipment unit  in order to receive HPLRP. For each year of satisfactory service in the unit with 50 qualifying retirement points, any DOD-authorized student loan will be considered eligible for repayment that has an outstanding balance on the principal and was secured for at least 1 year prior to the current anniversary date.

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances of the applicant's appointment are not available for review with this case.  Based on the evidence he provides and the information provided by NGB, it appears that he was eligible for the HPLRP when he was appointed in December 2002.  Despite the absence of the HLPRP Written Agreement, including the acknowledgement, understanding, and authentication, it also appears the applicant was paid a total of $50,000.00.  He was also paid other incentives for the same overlapping period.

2.  It further appears the CAARNG Incentives Task Force audited his account and determined a discrepancy existed in the incentive process and initiated action to recoup the paid incentive.  It is unclear if he responded to the Incentives Task Force or if he provided the required documents to corroborate his entitlement to this incentive.  It is equally unclear if he submitted a request for an exception to policy through the State ARNG to NGB and was denied.

3.  His case is further complicated by the fact that he failed to provide the necessary documents with his application.  Therefore, when NGB rendered its advisory opinion, it may or may not have had a complete packet/all the information on him.  Finally, it appears he solicited legal assistance from a State legal assistance officer who drafted a response to the NGB advisory opinion prior to the advisory opinion being rendered.

4.  The Board is not an investigative agency.  Furthermore, the Board does not have sufficient information and he provides insufficient documents to establish his entitlement to the incentive or to reverse the recoupment action.  Based on what he provided, NGB provided a partially favorable opinion authorizing payment of HPLRP benefits to the applicant in the amount of $14,125.00.  NGB further recommended recoupment in the amount of $35,875.00 because the applicant had eligible loans totaling $14,125.00 but he was paid $50,000.00 in HPLRP benefits.  His State ARNG concurred.  This appears to be the total value of his DOD-recognized loans.

5.  In view of the foregoing evidence, he is entitled to correction of his records as indicated below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* showing he executed an HPLRP Agreement on 10 December 2002 authorizing him up to $50,000.00 in HPLRP benefits
* authorizing him payment of $14,125.00, the value of his total recognized loans at the time, from ARNG funds
* recouping amounts paid in excess of $14,125.00

2.  The Board further determined 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 entitlement to the full amount of $50,000.00 in HPLRP.



      _____________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)                                         AR20130010928



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130010928



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1