IN THE CASE OF:  	  

		BOARD DATE:  17 December 2014	  

		DOCKET NUMBER:  AR20140000235 


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 records to show he is entitled to the special pay documented in his Selected Reserve (SELRES) Special Pay Program Contract (Special Pay for SELRES Health Care Professionals in Critically-Short Wartime Specialties), dated 9 August 2012.

2.  The applicant states:

	a.  On 9 August 2012, he signed his Army National Guard (ARNG) contract and supporting contractual documents with a Reserve Component Career Counselor at Fort Carson, CO.  As part of the documents, he signed a Healthcare Professional Special Pay contract since he is a dental officer.  This document was executed for $75,000.00 per year for 3 years of ARNG service.

	b.  On 20 September 2012, he separated from the Army.

	c.  On 21 September 2012, he commenced service with the ARNG.

	d.  Since 21 September 2012, he has served continuously and remained in good standing.  His incentive contract was denied by the National Guard Bureau (NGB) because he signed it prior to his effective assignment date in the ARNG.

	e.  In July 2013, a chief warrant officer two used correction fluid to change the contract date and submitted it to NGB.  The July contract was approved and extended his mandatory service obligation.

	f.  He has held up his end of the 9 August 2012 contract.  He believes the 2013 contract should be voided and the 2012 contract should be honored with an effective date of 21 September 2012.

3.  The applicant provides:

* Reserve Component Transition Office, Fort Carson, memorandum, dated 3 August 2012
* DA Form 5691-R (Request for Reserve Component Assignment Orders)
* DA Form 5690-R (Reserve Components Career Counselor Interview Record)
* DA Form 71 (Oath of Office)
* NGB Form 337 (Oaths of Office)
* U.S. Army Recruiting Command (USAREC) Form 1166 (SELRES Special Pay Program Contract)
* discharge orders, dated 12 June 2012
* individual medical readiness document
* Officer Record Brief
* Addendum to USAREC Form 1166 for Retention Special Pay
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* special pay enrollment packets, dated 17 May 2013 and 3 July 2013
* Kentucky ARNG memorandum, dated 17 May 2013
* ARNG Retirement Points History Statement
* DA Form 1059 (Service School Academic Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant on 11 March 2003.  He was appointed as a captain in the Regular Army, Dental Corps, on 20 May 2007 and entered active duty on 3 June 2007.

2.  On 9 August 2012 in connection with his transition processing, he executed a SELRES Special Pay Program Contract for special pay in the amount of $75,000.00 per year with a 3-year service obligation in the SELRES.

3.  On 20 September 2012, he was honorably discharged from the Regular Army.

4.  On 21 September 2012, he executed an oath of office as a Reserve commissioned officer.  He was promoted to major effective 6 February 2013.

5.  On 2 July 2013, he executed a SELRES Special Pay Program Contract for special pay in the amount of $25,000.00 per year with a 3-year service obligation in the SELRES.

6.  He provided a memorandum from the Kentucky ARNG Specialty Branch Officer Recruiter, dated 9 December 2013, who states:

	a.  He was responsible for processing dental officer accessions and special pay contracts and he coordinated for Active Component (AC) to Reserve Component (RC) dental officer gains.

	b.  He started coordination to access the applicant into the Kentucky ARNG with a captain at Fort Carson, CO, in July 2012.  The captain executed the contractual documents and the Healthcare Professional Incentives contract on 9 August 2012.  Since AC to RC transitions involve terminal leave and permissive temporary duty, contractual documents are executed up to 180 days prior to separation.

	c.  In the applicant's case, the packet contained his special pay contract in the amount of $75,000.00 per year for 3 years of service signed on 9 August 2012.  This contract appears to be properly executed and legally binding.  However, the contract should have been for $25,000.00 per year for 3 years of service in accordance with NGB Army Medical Department (AMEDD) incentives policy.  According to NGB AMEDD Incentives, the contract should have been post-dated to 21 September 2012.  The applicant's effective date of separation was 20 September 2012.

	d.  To the best of his knowledge and recollection, the applicant believes this contract to be valid and has remained a member in good standing with his unit.  After numerous submissions and phone calls with NGB AMEDD Incentives and the applicant, he was unable to obtain approval of the 9 August 2012 special pay contract.  NGB stated the effective date was prior to accession into the Kentucky ARNG, the amount was incorrect, and should be denied at the State level.  They agreed to accept a corrected or re-executed contract provided it was not backdated.  He finds it unacceptable that NGB will accept post-dated generated contracts, but will not allow backdating to correct errors.  On 2 July 2013, the corrected contract was submitted and approved.

	e.  He believes the applicant entered into the 9 August 2012 special pay contract with full faith and confidence that the contract was legal and binding.  He also believes the applicant has more than upheld his obligations and expectations under this contract.  He is positive the errors in amount and effective date are administrative and no fault of the applicant.

7.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, dated on 24 November 2014.  That office recommended correction of the applicant's special pay starting date from 2 July 2013 to 9 August 2012 and re-executing the SELRES special pay contract; re-signing on the same day for oath of office for the corrected contract date of 9 August 2012; and specifying $25,000.00 per year for 3 years of service, totaling $75,000.00.

	a.  In a memorandum for record, dated 9 December 2013, the Specialty Branch Officer Recruiter for the Kentucky ARNG detailed the applicant's case, whereas the packet contained the applicant's special pay contract signed on 9 August 2012.  The contract was incorrect in stating special pay amount of $75,000.00 per year for 3 years of service and should read $25,000.00 per year for 3 years of service in accordance with NGB AMEDD Incentives Policy, dated 18 April 2011.

	b.  Upon further review, the only document signed by the applicant, dated 21 September 2012, is the Addendum to USAREC Form 1166 for Retention Special Pay which does not have any dates written beside the applicant's signature and SELRES representative under Part III (Understanding).  This may be done in part, because no contract can be signed prior to executing the oath of office.  The applicant transitioned from active duty to ARNG with a 1-day break in service on 20 September 2012.

	c.  The ARNG AMEDD Officer Accession Standard Operating Procedures (SOP), dated 18 April 2011, chapter 6, paragraph 3a, reads, "Individuals contracting for Special Pay (formerly referred to as Healthcare Professional Bonus Program) for approved ARNG specialties will receive $5,000 - $25,000 per year depending upon their specialty.  Those eligible for special pay must choose one, two, or three years of affiliation with the ARNG at the time of Accession.  Contracts must be signed on or after the oath date in order to qualify."  The applicant indicates he discovered the alleged error on 1 November 2012.  As a result of an administrative error, the required documentation was never completed or submitted for action.  This is due to circumstances beyond the Soldier's control and no fault of his own.

	d.  The applicant acted in good faith and the erroneous contract is the fault of the States and ARNG recruiters who failed to follow proper procedures.  A memorandum from the Office of the Under Secretary of Defense, subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, dated 21 May 2008, states, "A member who enters into a written agreement with specified conditions for receipt of a pay or benefit, is entitled to the full amount of the pay or benefit if the member fulfills the conditions for that pay or benefit."

	e.  The NGB Incentive Management Branch agrees to accept a corrected or re-executed contract.

	f.  The Kentucky ARNG has not yet replied to this opinion.

8.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows:

	a.  The applicant signed a special pay contract on 9 August 2012 for $75,000.00 per year for 3 years.

	b.  On 21 September 2012, he was appointed as a captain in the Army National Guard.

	c.  He signed a second special pay contract on 2 July 2013 for $25,000.00 per year for 3 years.

2.  Per the NGB advisory opinion, the applicant's special pay contract, dated 9 August 2012, was incorrect in stating special pay amount of $75,000.00 per year for 3 years of service and should read $25,000.00 per year for 3 years of service.

3.  The ARNG AMEDD Officer Accession SOP states special pay contracts must be signed on or after the oath date.

4.  Based on the foregoing, the applicant's special pay contract, dated 9 August 2012, should be corrected to show he contracted for $25,000.00 per year for 3 years on 21 September 2012 (date of his appointment in the Kentucky ARNG).

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 records of the individual concerned be corrected by:

	a.  amending his SELRES Special Pay Program Contract, dated 9 August 2012, to show he contracted for $25,000.00 per year for 3 years on 21 September 2012; and

	b.  voiding his SELRES Special Pay Program Contract, dated 2 July 2013.

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 allowing him to retain the special pay documented in his SELRES Special Pay Program Contract, dated 9 August 2012.



      _______ _   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)                                         AR20140000235



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ABCMR Record of Proceedings (cont)                                         AR20140000235



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