IN THE CASE OF:	  

		BOARD DATE:	  1 April 2014

		DOCKET NUMBER:   AR20130015094 


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 military records to show his entitlement to the entire $65,000.00 Health Care Professional Loan Repayment (HPLR) that he received as a physician assistant.

2.  The applicant states the Army Medical Department (AMEDD)/National Guard Bureau (NGB) contend he was overpaid $35,000.00 for HPLR.  He originally signed a contract for two payments of $15,000.00 and one payment of $20,000.00, totaling $50,000.00.  When he transferred from the New Mexico Army National Guard (NMARNG) to the Washington Army National Guard (WAARNG), his original contract was not forwarded.  He was issued a new contract to sign for two payments of $20,000.00 and one payment of $25,000.00, totaling $65,000.00.  He further contends that when his loan packet was reviewed in 2008, the technician in the NMARNG, along with the technician in the WAARNG, and a captain who previously worked for the AMEDD/NGB all stated his loans qualified for repayment.  He paid $82,072.00 for his Master of Physician Assistant Studies through the University of St. Francis.  He paid taxes on the $65,000.00 he received through the HPLR.  He argues that the money in question should not be recouped because he never received the $20,000.00 that was erroneously sent to Sallie Mae and then returned to the Defense Finance and Accounting Service (DFAS).  He further contends that his request for an exception to policy (ETP) was denied by NGB because he was unable to provide appropriate documentation secondary to the misinformation that was provided to him.  He also argues that the State Incentive Manager failed to do his job to ensure the paperwork was provided.

3.  The applicant provides tabbed copies of the following documents:

* Tab 1 – Sallie Mae Account Payment Information
* Tab 2 – Internal Revenue Service Wage and Tax Statements for 2009, 2010, 2011, and 2012
* Tab 3 – email between the applicant and the WAARNG AMEDD technician, dated 2 to 7 April 2009
* Tab 4 – email between the applicant and the WAARNG Incentive Manager, dated 15 December 2009 to 28 July 2011
* Tab 5 – email between the applicant and NGB AMEDD Officer Accessions, dated 12 June to 24 August 2011
* Tab 6 – email between the applicant and the WAARNG Incentive Manager, dated 12 July 2012 to 24 August 2012
* Tab 7 – applicant's list of charges and payments to the University of St. Francis, dated 11 September 2003 to 27 March 2006
* Tab 8 – email between the applicant and his accountant concerning tax data for bonuses received in 2010 and 2011, dated 20-21 May 2013
* Tab 9 – HPLR Program Statement of Understanding signed by the applicant, dated 5 May 2011
* Tab 10 – amendment to DD Form 5536 signed by the applicant, dated 11 July 2008
* Tab 11 – memorandum from NGB, dated 26 April 2013, subject:  Exception to Policy (ETP) for (Applicant) 
* Tab 12 – memorandum, dated 10 December 2009, subject:  Implementation Guidance for ARNG AMEDD Officer Incentive Programs for Fiscal Year 2010-2011
* Tab12 – memorandum for ARNG G-1, dated 4 December 2009, subject:  Delegation of Signature Authority
* Tab 12 – memorandum, dated 18 January 2012, subject:  Fiscal Year 2012-2013 AMEDD Officer Incentives Policy, with Critical Skill Shortage List and Authorized Substitutability List
* Tab 12 – memorandum, dated 6 June 2012, subject:  Changes to Fiscal Year 2012-2013 AMEDD Officers Incentives Policy
* Tab 13 – three DD Forms 2475 (Department of Defense Educational Loan Repayment Program (LRP) Annual Application), dated 2009, 2010, and 2011

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 of his application, the applicant was serving as a captain in the WAARNG.

3.  On 26 April 2013, the NGB Chief Surgeon responded to the applicant's request for an ETP concerning his HPLR.  The ETP was disapproved.  The WAARNG Incentive Manager was instructed to initiate recoupment in the amount of $35,000.00 resulting from payments made toward non-eligible loans in the amount of $16,333.00 and his receipt of a total of $85,000.00 in HPLR toward student loans.  His cap was only $50,000.00.

4.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The opinion discussed the applicant's HPLR agreements and addenda in 2008 and 2011.  He received a final payment of $25,000.00.  An ETP was initiated for the new addendum to allow for an increase of his lifetime cap to $120,000.00, but it was disapproved because such an increase was not authorized for physician assistants.  However, the cap was increased to $60,000.00.  Because the applicant had received a total of $65,000.00, he received an overpayment of $5,000.00.  However, the guidance for the increase in the lifetime cap did not go into effect until after the applicant had signed his initial contract.  The opinion suggested that such excess payments could be waived in whole or part if it were determined that do so would be in the best interest of the U.S. Government.  It further opined that full recoupment of the $35,000.00 was not warranted because the ARNG verified the applicant had received only $65,000.00.  Therefore, $15,000.00 should be recouped.  The advisory opinion stated the State did not concur but did not specify why or what the State considered appropriate.

5.  On 22 January 2014, a copy of the advisory opinion was sent to the applicant for his information and an opportunity to respond.

6.  On 10 February 2014, the applicant responded to the advisory opinion.  He argued that he was entitled to receive the higher incentive payments for Fiscal Years 2010-2011 and 2011-2012.  He contends that he is being penalized for the failures of the WAARNG Incentive Manager.  He trusted the WAARNG Incentive Manager to do his job properly.  He does not believe he should be held accountable to repay the questionable $15,000.00 overpayment because he was eligible for these incentive increases.

7.  The email communications provided by the applicant under tabs 4 and 6 contain the following statements:

	a.  On 27 October 2009, the State Incentive Manager stated, "I sent the $20,000 Sallie Mae check back to DFAS yesterday and they will be adjusting your taxes..."

	b.  On 12 July 2012, the WAARNG Specialty Branch Technician stated, "Well sir after further review of your HPLR incentive by NGB they had found an error in your past incentive.  Currently they had paid your entire consolidation in error and now they are looking to recoup approximately 15k [$15,000.00]."

	c.  On 17 July 2012, the State Incentive Manager stated, "NGB is disputing the last $25,000 payment that I processed on 3 Aug 11, the $15,000 that they are looking to recoup was the increased payment I made for you based on the new payment/annual cap increase.  I know you signed a [sic] Amendment your original HPLRP agreement for the increased amounts but I cannot find a copy in your file, do you by chance have a copy?"

	d.  On 2 August 2012, the State Incentive Manager stated, "…the Soldier and myself were told by the AMEDD Recruiter that all of his loans qualified for the HPLRP.  Also, don't we have to notify the Soldier in writing and give him the option of submitting an exception to policy before any recoupment action can take place?"

	e.  On 24 August 2012, the State Incentive Manager stated, "Sorry it took so long to get back to you, I was TDY [performing temporary duty] last week and had to go to a two day course this week.  According to NGB the recoupment they want to me start is for what they say are payments on loans 5-7 on the attached NSLDS [National Student Loan Data System] printout, but I never made payments on those loans, all of the payments were for the first loan ($76,423) that according to them is a qualifying loan.  I've tried a couple of times today to make contact with them with no success; I'm going to try again first think [sic] Monday morning and will elevate this to my boss if I have to."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his entitlement to the entire $65,000.00 HPLR that he received as a physician assistant.

2.  The available evidence indicates the applicant signed a contract for the HPLR in 2008; however, a completed copy of that document is not available for review.  The evidence also suggests that he subsequently signed a contract to obtain the increased HPLR as authorized in 2009, wherein the maximum for his specialty as a physician assistant was raised to $60,000.00.

3.  The email communications clearly show there were delays and possible mishandling of the applicant's HPLR processing by the WAARNG Incentive Manager.

4.  The advisory opinion suggests that partial relief would be appropriate by either recognizing his HPLR cap at $60,000.00 and recouping only $5,000.00 or by holding him to the original cap of $50,000.00 and recouping $15,000.00.  This recommendation was based on verification that he received $65,000.00, not the $85,000.00 as stated in the ETP.

5.  In view of the above, as a matter of equity, it would be appropriate to grant the applicant partial relief by showing he signed a valid contract for the HPLR with the cap of $60,000.00 and recouping only the $5,000.00 he received in excess of this cap.

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:

	a.  showing he properly and timely signed an HPLR contract providing for the higher incentive of $60,000.00 and

	b.  recouping HPLR funds paid to the applicant in excess of the $60,000.00 cap.

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 showing he is entitled to the entire $65,000.00 HPLR he received.



      _____________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)                                         AR20130015094



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ABCMR Record of Proceedings (cont)                                         AR20130015094



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