IN THE CASE OF:	  

		BOARD DATE:	  9 July 2014

		DOCKET NUMBER:  AR20140000979 


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 U.S. Army Recruiting Command (USAREC) Form 1166 (Selected Reserve Special Pay Program Contract) to show it was signed and dated 27 April 2013 vice 19 November 2013
* entitlement to 3 years of special pay at $15,000 a year in accordance with the approved 26 September 2012 exception to policy (ETP) memorandum 

2.  The applicant states:

	a.  His USAREC Form 1166 should be corrected to show he signed it on 27 April 2013 and is entitled to 3 years of special pay.  He should have received the first bonus payment of $15,000 on 27 April 2013.  The subsequent payments should occur on 27 April 2014 and 27 April 2015.

	b.  On 17 November 2012, he contacted Captain (CPT) M_____, the medical recruiter for the Kansas Army National Guard (KSARNG), about signing a new
3-year special pay contract.  His previous contract was due to expire on 26 April 2013, he had received special pay at $15,000 a year for 3 years, and he desired to sign an additional 3-year contract.  In an email dated 4 January 2013, she informed him he would need to submit an ETP request and sign a new contract in order to receive the special pay more than once.  This was despite the fact that he was already listed on the 26 September 2012 ETP memorandum.

	c.  Normally, special pay for medical professionals can only occur once in an officer's career; however, he was informed the Department of Defense (DOD) had the ability to waive this provision in order to offer the incentive more than one time to critical wartime medical specialties such as his area of concentration (AOC) of 65D (Physician Assistant) .  He asked CPT M_____ numerous times over the course of the year via email and phone calls as to the status of his ETP request; this was as early as 4 January 2013 and as recent as 14 August 2013.  Each time she told him "there has been no list provided."  On 13 November 2013, he spoke with CPT M_____ and she informed him he had been approved on one ETP list but not on another and he asked her to please find out if he could sign another contract.  

	d.  On 13 November 2013, he received an email from CPT M_____ who stated, "I did find out more information last week.  You and Major (MAJ) T_____ were approved on a list in 2012.  This is not really good news for either of you and I can only apologize that I didn't take over and understand incentives earlier (emphasis added).  What I was told was that we will have to create a contract which will get denied because it was not done prior to October 2013 and then you will have to submit an [application to] the Army Board for Correction of Military Records.  I cannot submit it for you but I can help provide you with any documentation that is needed.  I have copy furnished (cc'd) MAJ R_____ on this email; she is with the Inspector General's office.  I'm not sure if that is where you start this process but maybe she can give us some advice."

	e.  He has completed all requisite training and fulfilled all of the conditions necessary to qualify for the Physician Assistant Professional Special Pay effective 27 April 2013.  Therefore, he should have been allowed to sign a new contract with an effective date of 27 April 2013 vice 19 November 2013.

	f.  He has prior service as a noncommissioned officer (NCO) with 15 years as a combat medic.  After he received a direct commission as a physician assistant, he continued to proudly serve as a medical officer in the KSARNG and completes 24 years of military service in April 2014.

	g.  He should not be penalized for not signing the new contract [in April 2013] as approved by the ETP list published in 2012.  He specifically asked CPT M_____ numerous times throughout the past year concerning his ability to sign a new contract.  She specifically told him every time he asked that an ETP list was not produced and he was unable to sign a new contract.  When he was finally told that he had been approved to sign a new contact, the expiration date of the ETP had passed.


3.  The applicant provides:

* two USAREC Forms 1166 
* National Guard Bureau (NGB) Form 373 (Oaths of Office)
* eleven memoranda, one undated and 10 dated between 18 January 2012 and 25 September 2013
* four orders
* three memoranda of support
* five pages of email
* a page, dated 5 December 2013, showing the status of several contracts

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a second lieutenant Reserve commissioned officer, Army Medical Specialist Corps, in the KSARNG and he executed an oath of office on 6 May 2007.  

2.  He held AOC 65D.  He was promoted to the rank of first lieutenant on 17 February 2008 and to CPT on 8 July 2010.

3.  He provides a USAREC Form 1166, dated 26 April 2010, wherein he agreed to incur a 3-year obligation in the ARNG with entitlement to special pay at $20,000 a year for 3 years.

4.  The applicant provides a memorandum, dated 26 September 2012, issued by the NGB, wherein it stated the enclosed by-name list of ARNG Army Medical Department (AMEDD) officers were approved for an ETP to contract for the special pay bonus (SPB) more than one time.  Physician assistants contracting for the bonus would receive $15,000 a year.  Contracts dated prior to the release of the memorandum would not be accepted by the AMEDD Incentives Office.  The applicant's name is listed on this memorandum.  

5.  He also provides several emails dated from 4 January to 13 November 2013 showing he repeatedly contacted the KSARNG AMEDD Incentives Office inquiring about the ETP for officers wanting to apply for the SPB in accordance with the 26 September 2012 memorandum.

6.  He provides a USAREC Form 1166, dated 19 November 2013, wherein he agreed to incur a 3-year obligation in the ARNG with entitlement to special pay at $15,000 a year for the 3 years.

7.  The applicant provides three memoranda of support from:

	a.  Colonel (COL) M______, Director of Personnel, Joint Force Headquarters (HQ), KSARNG, dated 20 December 2013, wherein he recommended the applicant be granted relief by showing he signed his contract on 27 April 2013 and he should not be penalized for mistakes beyond his control.  COL M______ further stated the applicant was fully eligible to sign the specialty pay contract on that date after fulfilling his first contract 26 April 2013.  He made numerous inquiries with the AMEDD recruiter and his command but was continually given incorrect information.  There was a 100 percent turnover in the KSARNG AMEDD Recruiting Office during this period.  Had he been informed his ETP was approved on 26 September 2012, he would have signed the contract on 27 April 2013.

	b.  CPT M______, Specialty Branch Officer, Recruiting and Retention Battalion, KSARNG, wherein she stated that toward the end of September 2013 her office received an ETP list approving repeat incentives but the applicant was not on the list despite her adding him to the first quarter Fiscal Year 2013 (FY13) list.  Being new to AMEDD incentives, she asked why he wasn't on the list and was told his name was removed.  It was not explained to her until October 2013 that an FY12 ETP list had approved him for the incentive.  She was not in the AMEDD office at the time the FY12 list was approved and was not notified he was removed from the FY13 because he had been on the FY12 list.  In November 2013, she asked for an explanation from the Incentives Office and it was explained she should complete the contract [for the applicant], it would be denied, and then he could complete the process to ask for a change in the date of the contract.

	c.  Major General T________, The Adjutant General, KSARNG, wherein he stated he fully supported the recommendation to correct the applicant's USAREC Form 1166.  The applicant was improperly advised and informed he was not on a National Guard Bureau (NGB) ETP list to receive the SPB when he had been approved on 26 September 2012.  He was not afforded the opportunity to sign the special pay contract by the 30 September 2013 deadline and should not be penalized.

8.  During the processing of this case, an advisory opinion was obtained on 6 May 2014 from the Chief, Personnel Policy Division, NGB.  The advisory official opined:

	a.  The applicant should be granted partial relief.  His special pay contract [dated 19 November 2013] was executed outside the 30 September 2013 deadline due to no fault of his own.  His bonus control number (BCN) V1311004KS for $45,000 should be honored and made valid for a 3-year term dating 19 November 2013 through 18 November 2016.

	b.  On 26 September 2012, the NGB published a memorandum announcing specialty pay bonus eligibility for certain AMEDD officers on the by-name list and the applicant was on the list.  The memorandum does not address the SPB being retroactive; however, by law, the incentive begins the date the officer accepts the award.  

	c.  The applicant suggests he was misinformed and not given the opportunity to sign the special pay contract within the 1-year deadline.  The 27 April 2013 date would allow him to continue a second bonus contract without a break.  He indicates he made several inquires about the ETP list and his eligibility and never received an accurate response.  When he finally learned of his eligibility he diligently put forth all efforts to sign the bonus contract immediately.  He signed a binding contract on 19 November 2013.  

	d.  NGB Officers Incentives Branch, ARNG, and the KSARNG concur with the recommendation to reset the extension to the signed contract date [19 November 2013].

9.  On 7 May 2014, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  No response was received.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was fully eligible to contract for the special pay on 27 April 2013 as verified by the advisory official and KSARNG officials.  Although he repeatedly contacted the KSARNG Incentives Office enquiring about his eligibility, he was repeatedly given incorrect information by CPT M____.  She verified she didn't understand the incentives and did not know until November 2013 that he should have been allowed to sign the contract on 27 April 2013.  In addition The Adjutant General, KSARNG, confirmed the applicant was improperly advised about his eligibility, was not afforded the opportunity to sign the contract based on the 26 September 2012 EPT list, and should not be penalized because of it.  

2.  Notwithstanding the advisory opinion which recommends partial relief, what is clear is that he acted in good faith and was diligent in pursuing his eligibility to sign the special pay contract on 27 April 2013.  However, despite his efforts and through no fault of his own, his contract was not processed until 19 November 2013.  The applicant relied on the expertise of retention officials to properly execute his special pay contract and should not be penalized for the administrative errors committed by KSARNG retention officials.  Therefore, he should be entitled to show his contract was properly executed on 27 April 2013.
3.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by:

* amending his USAREC Form 1166, dated 19 November 2013, to show all the proper officials and the applicant signed the contract on 27 April 2013 and it contained a valid BCN 
* paying him the $45,000 special pay at $15,000 a year in accordance with the terms of the contract as a result of this correction
* paying him out of ARNG funds 



      _______ _   _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)                                         AR20140000979



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000979



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1