BOARD DATE:	  5 August 2014

		DOCKET NUMBER:  AR20140003679 


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:

* reinstatement of her Health Professionals Loan Repayment Program (HPLRP) incentive
* cancellation of recoupment of a $30,000 Special Pay incentive

2.  The applicant states, in effect:

* the Ohio Army Medical Department (AMEDD) Recruiting Office gave incorrect guidance
* she has $15,000 in outstanding student loans from Wright State University and she contracted with the Ohio Army National Guard (OHARNG) to pay her up to $50,000

3.  The applicant provides:

* self-authored statements
* emails
* DA Form 5536-R (HPLRP Agreement)
* Amendment to DA Form 5536-R
* National Guard Bureau (NGB) Form 337 (Oaths of Office)
* memorandum, dated 20 September 2006, subject:  Results of the 12 through 14 September 2006 AMEDD Accession Board for the U.S. Army National Guard 

* Special Orders Number 109 AR, dated 4 May 2007, issued by the NGB
* Certification of Education Record memorandum, dated 24 July 2006
* Wright State University undergraduate transcript, dated 21 April 2006
* Special Pay Enrollment Packet extracts
* Information Management and Reporting Center printout
* Exception to Policy (ETP) memorandum, dated 24 September 2012

CONSIDERATION OF EVIDENCE:

1.  After having prior honorable enlisted service, the applicant was commissioned a second lieutenant in the OHARNG in medical specialty 66H (Medical-Surgical Nurse) on 12 October 2006.  She is currently serving in the rank of captain.

2.  On 12 October 2006, the applicant executed a DA Form 5536-R (HPLRP Agreement).  Section II (Eligibility) shows she acknowledged the maximum aggregate amount of repayment under the agreement was $3,000 per year up to $20,000 HPLRP maximum.

3.  The amendment to her DA Form 5536-R, dated 12 October 2006, shows she acknowledged:

* the maximum aggregate amount of repayments under the agreement was increased to $20,000 per year for the first two annual payments or the remaining balance of the loans, whichever was less
* if she terminated her HPLRP agreement prior to her anniversary date she would be entitled to a pro-rated amount for the number of months served prior to her anniversary date

4.  Results of the 12 through 14 September 2006 AMEDD Accession Board for the ARNG, dated 20 September 2006, show the applicant contracted for the HPLRP and bonus incentives.

5.  On 13 October 2009, she executed a U.S. Army Recruiting Command (USAREC) Form 1103 (Incentive Enrollment Data Sheet), USAREC Form 1166 (Selected Reserve Special Pay Program Contract – Special Pay for Selected Reserve (SELRES) Health Care Professionals in Critically-Short Wartime Specialties), and Addendum to the USAREC Form 1166.  She acknowledged she was entitled to $10,000 Special Pay and a bonus incentive beginning 12 October 2006 through 12 October 2009.

6.  On 2 March 2012, the applicant submitted an ETP request for HPLRP and that her contract date be changed to a date before the removal date of the incentive in October 2011.  In her request, she states she contacted the AMEDD office in November 2011 to request assistance in processing her student loans and that after a few phone calls and email exchanges, she was informed she was not eligible for the HPLRP as it was no longer offered and that she forfeited the original contract when she accepted Special Pay in 2009.

7.  On 2 March 2012, the Commander, OHARNG AMEDD submitted an ETP request on behalf of the applicant.  He stated, in part:

   a.  When the first contract period was completed in 2009, the applicant was advised by the AMEDD office to contract for the Special Pay incentive, with the explanation that there was a chance that the Special Pay would no longer be available, but since she had already locked in the HPLRP she could take it later.

   b.  In October 2011, the applicant contacted the AMEDD office and was told that Army nurse officers were no longer eligible for the HPLRP and that she was not contracted for this incentive.  She was told she voided the initial contract by deferring the HPLRP and accepting the Special Pay bonus.

8.  In a Memorandum for Record, dated 24 September 2012, a Program Manager, NGB, stated:

	a.  The applicant contracted for HPLRP and Special Pay upon initial accession.  Once the Special Pay contact was completed, the applicant had the opportunity to take advantage of the HPLRP; however, she chose to sign another Special Pay contract. 

	b.  At the present time, Army nurses are not on the Critical Wartime Specialties List (CWSL) and are not eligible to receive HPLRP; therefore, the ARNG does not have the authority to approve an ETP.

9.  On 5 May 2014, an advisory opinion was provided by the Chief, Personnel Policy Division, NGB.  This official recommended recoupment of the second Special Pay incentive that she received, which began on 12 October 2009 and start the HPLRP incentive as of the same date, in accordance with the original contract.  He further stated:

	a.  Upon commissioning in the OHARNG, the applicant was eligible for and contracted to receive both a Special Pay bonus and the HPLRP.

	b.  The applicant elected to receive the Special Pay bonus for the first 3-year period and HPLRP for the second 3-year period of the 6-year obligation.  After the 3-year Special Pay period, the HPLRP incentive should have begun on 12 October 2009.
	c.  The applicant was denied HPLRP benefits because she contracted for a second Special Pay incentive, which began on 12 October 2009.  She is not entitled to Special Pay for this time period because she should have been receiving the HPLRP incentive based on her original contract.  Receiving both the HPLRP and Special Pay for the same period of service is prohibited.

	d.  The OHARNG concurs with this recommendation.

10.  On 6 May 2014, the applicant was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  

11.  On 8 May 2014, she provided the following in response to the advisory opinion:

	a.  She disagrees that the original contract was for 6 years and she has been unable to get a copy of this record.  She elected to receive the Special Pay for the first 3-year period and the HPLRP for her fourth year and final year of her initial contract.  After the 3-year Special Pay period, the HPLRP incentive would have begun in October 2009, paying approximately $16,500 in student loans and ending her contract in October 2010.

	b.  She entered into the October 2009 Special Pay contract with the guidance of her State AMEDD recruiters.  When she mailed her "erroneous" contract back to the AMEDD office, she placed a Post-It-Note on the USAREC Form 1166 under Section IV (Understanding) with the comments, "Should I put something here about my student loans?"  She left this section blank and someone handwrote "None" in the given space.  She knows now she was misguided and given erroneous advice; however, her eligibility was reinforced when the section of the contractual agreement was signed by an agent of the Government indicating that she met all eligibility criteria to execute and enter into that agreement which had multiple approving authorities as payments were processed.

	c.  She requests relief from recoupment and states that had she not received erroneous advice she would have served out the entire term of the original 2006 contract and the Government would have paid the consecutive HPLRP contract to pay off her student loans in October 2010.  She also would not have entered into the erroneous Special Pay contract in October 2009.  Had she been given the correct advice in 2010, she would have been fully qualified and exercised the AMEDD Incentive policy in effect at the time which allowed medical specialty 66H to contract for 3 years for Special Pay since she met all the requirements.  She has remained in good standing and would have been fully qualified to receive the Special Pay on her anniversary dates in October 2010 through October 2012 with completion of that contract in October 2013.

	d.  A poorly written policy and contracts that even the State's service representatives did not understand contributed to her entry into an erroneous 2009 Special Pay contract.

	e.  She remains a member in good standing in the OHARNG and has served past all periods of contractual obligation.  Major life changes and financial decisions were made based on erroneous guidance given by Ohio AMEDD incentive representatives.

	f.  She also provides copies of NGB policy memoranda for ARNG AMEDD Officer Incentive Programs for Fiscal Year (FY) 06-07, FY10-11, and a 4 December 2009 memorandum concerning delegation of signature authority.

12.  An NGB Memorandum, dated 21 November 2005, Subject: ARNG AMEDD Officer Incentive Programs for FY06-07 updated policy and provided implementing guidance for the SELRES AMEDD Incentive Programs.  This policy memorandum listed medical specialty 66H as being eligible for both Special Pay and HPLRP and stated, in part:

     a.  Under the HPLRP, payment in any given year will not exceed $20,000 or the remaining balance of the student loan, whichever is less.

     b.  Individuals contracting for Special Pay approved ARNG specialties will receive $10,000 per year.  Participants must choose 1, 2, or 3 years of affiliation with the ARNG at the time of application.  

     c.  If the applicant initially received the Special Pay at the time of accession, he/she is eligible for the Special Pay in the future if the specialty is listed on the CWSL at the time a new agreement is signed.  A new 1, 2, or 3-year agreement is required.

    d.  The Special Pay may not be offered again until any remaining service obligations from other incentives previously executed have been fulfilled.






13.  Army Regulation 135-7 (ARNG and U.S. Army Reserve Incentive Programs) sets forth the policy and procedures for repayment of student loans for health care professionals.  It states the HPLRP provides for the repayment by the Government of a designated portion of any outstanding student loan(s).  The loan amount to be repaid may not exceed a certain amount for each year of eligible service.  The total amount that may be repaid may not exceed a certain amount.  To be eligible for the HPLRP incentive, a person must perform satisfactory service as an officer in the SELRES and possess professional qualifications in a health profession that the Secretary of Defense has determined to be needed critically in order to meet identified wartime combat medical skill shortages.  Each complete satisfactory year of service performed under this HPLRP agreement establishes an anniversary date.  Any qualifying loan, which is at least a year old, may then be paid in accordance with the terms of this educational agreement.

14.  Title 37, U.S. Code, section 373, states the Secretary concerned may grant an exception to the repayment requirement and requirement to terminate the payment of unpaid amounts of a bonus, incentive pay, or similar benefit if the Secretary concerned determines that the imposition of the repayment and termination requirements with regard to a member of the uniformed services would be contrary to a personnel policy or management objective, would be against equity and good conscience, or would be contrary to the best interests of the United States.

15.  Department of Defense (DOD) Instruction 1205.21 (Reserve Component Incentive Programs Procedures) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reinstatement of her HPLRP incentive and cancellation of a $30,000 recoupment action was carefully considered.

2.  Records show the applicant contracted for a 3-year period for a $10,000 bonus per year and she contracted for a 3-year period for the HPLRP incentive in 2006.  However, in 2009 she executed a new incentive contract in which she received a total of $30,000 of Special Pay.  Although this contract was void from its inception, the NGB accepted and processed the contract and paid the applicant.

3.  The applicant completed her 2006 contractual obligated service for receipt of $30,000 Special Pay in 2009.  However, at the time she should have began receiving the HPLRP incentive she contracted for.

4.  The 2006 amendment to her DA Form 5636-R increased her HPLRP amount to $20,000 per year for the first two payments.  Since her student loans totaled less than $20,000, these loans would have been paid off with the first installment of the HPLRP incentive.  Therefore, since her loans would have been paid, there was no need for further HPLRP payments or obligation on her part and she would have been free to enter into a new Special Pay contract.

5.  Nevertheless, the applicant relied on the advice provided by the Incentives Manager as well as AMEDD personnel at the time and she was erroneously approved for and paid $30,000.00.  She has fulfilled the requirements of her contracts and she did absolutely nothing wrong.

6.  In view of the facts of this case and in the interest of equity and justice, the applicant should not be penalized for errors committed by the State Incentive Manager, OHARNG AMEDD personnel, or the NGB.  It would be appropriate to grant her an ETP to cancel recoupment of Special Pay and correct her records as indicated 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 the state Army National Guard and the Department of the Army records of the individual concerned be corrected by:

   a.  showing the applicant submitted a properly-completed DA Form 5356-R and the OHARNG approved payment of her student loans in accordance with the HPLRP addendum;
   
   b.  processing her paperwork for repayment of her eligible student loans as a result of the above correction and paying those loans out of ARNG funds;
   
   c.  amending her USAREC Form 1103, USAREC Form 1166, and Addendum to USAREC Form 1166 to show she contracted for a critical skill and received a valid bonus control number on 13 October 2010 for the Special Incentive Pay in the amount of $10,000 per year; and
   
   d.  showing an exception to policy was approved to terminate recoupment of the $30,000 Special Pay.



      _______ _   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)                                         AR20140003679



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ABCMR Record of Proceedings (cont)                                         AR20140003679



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