BOARD DATE:	  11 June 2014

		DOCKET NUMBER:  AR20130019183 


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 her records to show she was authorized a Special Pay Bonus in the amount of $20,000 vice $15,000 in the Kentucky Army National Guard (KYARNG). 

2.  The applicant states: 

	a.   She was appointed in the KYARNG on 13 October 2012.  She was promised an incentive specialty pay of $20,000 annually and signed this three year contract for the entitlement on 8 November 2012.  She was contacted by Kentucky Recruiting and told that her packet was sent to the National Guard Bureau (NGB) and needed to be added to an Exception to Policy (ETP) list shortly after signing on 8 November 2012.  Her name was added to this list prior to 30 November 2012 and sent to NGB by Chief Warrant Officer Two (CW2) M---or with Kentucky Recruiting.  At that time, she was told to wait approximately 60 days due to the holidays and that her approval and payment should be forthcoming.  She kept in contact with recruiting frequently and became concerned in January 2013 when the NGB would not reply to Kentucky Recruiting concerning the ETP list.  On 12 February 2013, approval for the first quarter ETP list was sent out by Captain B------n at NGB Incentive program; it was then retracted.  It had mistakenly been sent out prior to final approval authority. 

	b.  After informing her command, she contacted the Inspector General (IG) and they informed her that they would be unable to help her until NGB denied her contract.  She was advised to wait or consider filing a Congressional in May 2013.  She decided to wait but she still attended all drills and annual training assigned.  In July 2013 after passing her boards, she contacted Recruiting again and was informed they were still pending signature.  She contacted her chain of command to see if they had any answers.  She received the following answer on 26 August 2013 from Major Ba----rd, KYARNG Battalion Recruiting/Retention: "NGB apparently considers the contract void.  The contract should only have been processed for an officer that had never received any incentives before.  We did not catch this when CW2 M---or worked with [Applicant] on the contract, despite checking the Guard Incentive Management System (GIMS).  NGB did catch it and that's why they did not action or process the packet.  I verified that she is on the ETP list.  None of the ETP lists have been approved.  They are all sitting at the Undersecretary's desk.  I'm told that Lieutenant General In--m personally called and tried to get these ETP lists expedited.  If and when approved, then at that point we can submit [Applicant's] contract with a new date."  

	c.  Again, she was instructed to wait a little longer for her bonus.  On 19 September 2013, she received an email stating the ETP list was approved but with no retroactive benefits.  New contracts have to be signed by 30 September 2013. She contacted the IG who instructed her to sign the new contract ETP to not miss that opportunity and then to file a complaint/injustice to this Board to right the wrong concerning backdating of the contract.  She upheld her end of the contract and served a year before getting an answer concerning approval of the ETP list.  She is requesting the new contract that she signed be corrected to her original contract date of 8 November 2012.  She submitted her online application on 30 September 2013 and had all supporting documents ready for the mail when CPT S----l O'B---n contacted her.  On 1 October 2013, he informed her that her "new" contract signed on 24 September 2013 was incorrect and had not yet been uploaded.  He stated the bonus is $15,000, not $20,000 as originally promised.  

	d.  The "new/second" contract signed also reported $20,000.  She inquired why this has now changed and he apologized and said that his predecessor, CW2 M---or, must have overlooked the Memorandum for Specialty Pay incentive dated 26 September 2012 that stated the Exception to Policy officers were to receive $15,000 instead of $20,000.  He contacted NGB who verified this and Recruiting and Retention apologized for this confusion.  He now requests her to sign a new/third contract for 3 consecutive years and dating it 24 September 2013, same as the 2nd contract.  Again, she was advised to follow this course by her chain of command and re-submit a complaint to this Board to hopefully correct this injustice. 

	e.  In summary, Kentucky Recruiting and Retention promised her $20,000 annually for 3 consecutive years dating from November 2012 when she accessed into the KYARNG but now they add insult to injury and want her to forget the year she already served and sign the contract for $15,000 a year for 3 years.  She is frustrated because this memorandum lowering the $20,000 to $15,000 was dated in September before she even accessioned back into the KYARNG on 13 October 2012.  This memorandum was never produced prior to her accessioning nor even mentioned when she was told by CW2 M---or in November 2012 that she needed to be on an ETP list.  The entire time of having her chain of command and IG investigate the bonus issue, not once did someone mention that it was no longer $20,000 and was now $15,000.  Even Staff Sergeant B---er who also works in Kentucky Recruiting and Retention and who had prepared her 2nd contract for signature was unaware of this change prior to CPT O'B---n performing a Quality Control before he uploaded documents for submission.  

	f.  She feels that Kentucky Recruiting has failed her significantly by not being up to date on their Memoranda, Policies and Procedures.  The NGB also failed due to taking 11 months to approve an ETP list.  This was a failure at many levels and therefore her original contract should be honored.  This was not a single-person error.  This was an entire system error. 

3.  The applicant provides:

* U.S. Army Recruiting Command (USAREC) Forms 1103 (Incentive Enrollment Data Sheet), dated 8 November 2012 and 24 September 2013
* Triplicate NGB Form 337 (Oaths of Office), dated 13 October 2012
* Duplicate Form W-4 (2012)
* Direct Deposit Sign Up Form, dated 15 October 2012
* USAREC Form 1166 (Selected Reserve (SELRES) Special Pay Program Contract (Special Pay for SELRES Health Care Professionals in Critically Short Wartime Specialties), dated 8 November 2012 and 24 September 2013
* Addendum to USAREC Form 1166, For Retention Specials Pay, dated 8 November 2012 and 24 September 2013
* Results of the September 2012 Medical Corps (MC) ARNG Selection Board, dated 27 September 2012
* Duplicate ARNG Retirement Points History Statement
* DA Form 1059 (Service School Academic Evaluation Report)
* USAREC Form 1262 (U.S. Army Reserve and ARNG Incentives Declaration Statement)


CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the KYARNG and executed an oath office on 16 September 2001.  She completed the Reserve Component (RC) Army Medical Department Officer Basic Course.

2.  She served in a variety of assignments in area of concentration 65D (Physician Assistant (PA)), including periods of mobilization (July 2003 to June 2004 and July 2004 to July 2005), and she was promoted to captain (CPT). 

3.  She was honorably discharged from the ARNG on 31 January 2010.  Her ARNG Federal recognition was withdrawn. 

4.  On 15 April 2012, prior to her appointment, she completed a USAREC Form 1262.  This form stated that the 3-year Special Pay Incentive was available at the time to applicants and Soldiers in specified wartime critical shortage list AOCs. 

5.  On 15 August 2012, a Federal Recognition Board (FRB) convened by the KYARNG to consider the applicant for appointment as a PA into the ARNG.  The FRB found her professionally qualified for appointment as a CPT in the KYARNG. 

6.  On 24 August 2012, the National Commission on Certification of Physician Assistants (NCCPA) issued her an NCPAA certificate valid through 31 December 2013. 

7.  On 27 September 2012, USAREC released the results of the                        25-27 September 2012 MC All ARNG Selection Board for the U.S. ARNG.  She was selected with a Special Pay Incentive. 

8.  On 13 October 2012, she executed a DA Form 71 (Oath of Office- Military Personnel) as a Reserve commissioned officer and an NGB Form 337 (Oaths of Office) as a CPT in the KYARNG.  

9.  Also on 18 October 2012, the KYARNG published Orders 292-812 appointing her as a CPT in the KYARNG in the basic branch of Army Medical Specialist Corps with duty assignment as a PA to the KYARNG Medical Detachment, Lexington, KY, effective 13 October 2012. 




10.  On 8 November 2012, she submitted/executed:

	a.  USAREC Form 1103, indicating she desired the Special Pay Incentive for 3 years at the rate of $20,000 per year, beginning on 8 November 2012 and ending on 7 November 2015. 

	b.  USAREC Form 1166, indicating she was applying for participation in the SELRES Special Pay Program and she shall be entitled to an annual Special Pay, as determined by her specialty at the rate of $20,000 and she shall incur an Army SELRES obligation of 3 years in the ARNG in the PA specialty.  

	c.  An Addendum to USAREC Form 1166 for Retention Special Pay indicating she holds a specialty on the USAR critical wartime shortage list at the time the contract is signed. 

11.  On 4 April 2013, NGB published Special Orders 94 AR extending her Federal recognition for appointment in the KYARNG in the rank of CPT effective 13 October 2012 and with a date of rank of 19 June 2007. 

12.  On 24 September 2013, she submitted/executed:

	a.  USAREC Form 1103, indicating she desired the Special Pay Incentive for 3 years at the rate of $20,000 per year, beginning on 24 September 2013 and ending on 23 September 2016. 

	b.  A second USAREC Form 1103, indicating she desired the Special Pay Incentive for 3 years at the rate of $15,000 per year, beginning on 24 September 2013 and ending on 23 September 2016. 

	c.  USAREC Form 1166, indicating she was applying for participation in the SELRES Special Pay Program and she shall be entitled to an annual Special Pay, as determined by her specialty at the rate of $20,000 and she shall incur an Army SELRES obligation of 3 years in the ARNG in the PA specialty. 

	d.  A second USAREC Form 1166, indicating she was applying for participation in the SELRES Special Pay Program and she shall be entitled to an annual Special Pay, as determined by her specialty at the rate of $15,000 and she shall incur an Army SELRES obligation of 3 years in the ARNG in the PA specialty.

	e.  An Addendum to USAREC Form 1166 for Retention Special Pay indicating she holds a specialty on the USAR critical wartime shortage list at the time the contract is signed. 
	f.  A second and a similar Addendum to USAREC Form 1166 for Retention Special Pay indicating she holds a specialty on the USAR critical wartime shortage list at the time the contract is signed. 

13.  An advisory opinion was received on 17 January 2014 from the NGB in the processing of this case.  An NGB official recommended disapproval of her request.  The NGB official stated: 

	a.  The applicant, a PA, signed a contract on 8 November 2012 to receive a Special Pay Bonus for health care professionals in a critically-short wartime specialty, of $20,000 per year for 3 years.  The $20,000 should have been $15,000.  The error was discovered before validating her contract. 

	b.  A memorandum published by NGB on 26 September 2012, Subject: Announcement of Approved Exception to Department of Defense Instruction (DODI) 1205.21, RC Incentives Program Procedures, paragraph 5b states PAs are eligible for Special Pay Bonus in the amount of $15,000 per year. 

	c.  In order to contract for the incentive, she was added on an ETP list.  She had previously received this incentive in 2007 and therefore the ETP was required for her to be eligible for this incentive again. 

	d.  After the ETP approval, she signed two contracts in September 2013.  The ETP approval took nearly a year for approval.  She signed another contract for the Special Pay Bonus for $20,000 per year and then another contract for $15,000 per year.  The $15,000 contract was signed by her because the IG recommended she sign it and submit it to this Board. 

	e.  Although the recruiter made an error in allowing her to sign a contract for a $20,000 per year bonus instead of $15,000 per year, the contract was not validated because she was not entitled to the higher amount.  This is normal procedure to prevent erroneous contracts from being paid.  Therefore, there is no evidence of an injustice to the applicant. 

14.  The applicant was provided with a copy of this advisory opinion for an opportunity to submit a rebuttal.  She did not respond. 

15.  On 26 September 2012, the Chief Surgeon, ARNG, issued a memorandum announcing the approved exceptions to DODI 1205.21.  This memorandum states: 

	a.  Effective immediately, a by-name list of ARNG AMEDD officers are approved for exception to paragraph 4.3 and Enclosure 13, paragraphs E13.1.1.6 and E13.1.1.7, DODI 1205.21.  AMEDD officers are authorized an exception to contract for the Special Pay Bonus once they have reached their retirement eligibility date or mandatory removal date (MRD).  Health professionals may receive this bonus provided their MRD is extended to the end of the renewed service agreement. 

	b.  AMEDD officers are authorized an exception to contract for the Special Pay Bonus more than once.  States must ensure professionals meet all eligibility requirements outlined in the Fiscal Year 2012/2013 ARNG AMEDD Officer Incentive Policy with updates.  Individuals contracting for the Special Pay Bonus will receive the amounts of $20,000 per year for Medical Corps, Dental Corps, and Clinical Psychologists; and $15,000 per year for PAs, Nurse Practitioners, and Social Workers.  Contracts dated prior to the release of this memorandum will not be accepted by the AMEDD Incentive Office. 

16.  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; and 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 (PA) as one of the specialties authorized.  

	b.  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.  Applicants must be properly credentialed as appropriate.  

17.  DODI 1205.21 (RC Incentives Program Procedures) updates policy, assigns responsibilities, and prescribes procedures for management of the Reserve components incentive programs.  Paragraph E13 pertains to the written agreement, Special Pay for SELRES Healthcare Professionals in Critically Short wartime Specialties.  Members acknowledge that (paragraph E13.1.1.6) they will not reach their mandatory removal date or retirement eligibility date in the Ready Reserve during any service obligation period incurred under this agreement (and that they (paragraph E13.1.1.7.) they have not received this incentive previously.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not eligible to contract for the incentive until the ETP list was approved.  Her name was added to an ETP list because she had previously received this incentive in 2007.  This incentive is offered to members who have not previously received it.  In order to again authorize the applicant the incentive, it was necessary to add her name to an ETP list.  

2.  The ETP list – with her name on it - was ultimately approved, albeit nearly a year later.  Nevertheless, at the time of approval, the authorized incentive for her specialty was at the rate of $15,000 per year.  This is the correct incentive amount and she is not authorized a higher amount.  Regardless what she was previously promised and regardless what document she previously executed, the agreement was not validated until her exception was approved.  

3.  It is regrettable that she was promised a higher amount by the recruiter in an otherwise invalid contract.  However, that promise could not be validated without a by-name approval to the ETP.  She was then and remains now ineligible for the higher amount.  

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)                                         AR20130019183





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