BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140009872 


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 cancellation of recoupment of his Health Professionals Loan Repayment Program (HPLRP) Agreement in the amount of $50,000 from his original contract and that no further collection action taken.  He also requests the Army National Guard (ARNG) be directed to backdate the contracts that should have been in place and valid over the last two years.

2.  He states:

	a.  He was not eligible to receive HPLR at the time he signed his contract since he had not yet completed two years of residency in his specialty.

	b.  He was eligible for and received the Medical and Dental School Stipend Program (MDSSP) stipend.  He also qualified to receive Specialized Training Assistance Program (STRAP), which he began receiving in July 2008 through July 2010.

	c.  He completed his second year of residency in June 2009 and would have then been eligible for HPLR.

	d.  Department of Defense Instruction (DODI) 1205.21, dated 20 September 1999, sections E9.1.1.2 and E9.1.1.3 directs that in order to be eligible for the HPLRP, a Soldier must possess the professional qualifications or complete two years of residency in an identified wartime health professional skill shortage and possess a current valid unrestricted health professional license/certification or complete at least two years of residency in that specialty.
	e.  Based on the policy governing his initial Army Medical Department (AMEDD) incentives contract, he should have received the first two payments of HPLR and not the third payment of $10,000.  However, through no fault of his own, the Utah Recruiting Command did not identify the lack in fulfillment of these requirements.  In addition, the U.S. Army Human Resources Command (HRC) also approved both contracts with the existing conflict.  At the time of signing and receiving payment, he believed everything was correct between the Army and himself.  He cited the authority for all the actions as the Chief Surgeon's Office.

	f.  He believes the record to be unjust because the initial AMEDD officer incentives contract that was signed had been approved by the Utah ARNG (UTARNG), accepted by the iMARC database, and final approval was given by HRC, who is the approval for incentives at the time.  When the applicant attempted to increase his HPLR bonus to a lifetime cap of $240,000, he discovered the error and recoupment actions were initiated.

3.  He provides:

* Memorandum, subject:  ARNG AMEDD Officer Incentive Programs for Fiscal Year (FY) 2006-2007, dated 21 November 2005
* ARNG Health Professional Specialties with Critical Wartime Shortages
* Authorized Substitutability List
* Memorandum, Subject:  Delegation of Signature Authority for Colonel R___ B_____, dated 4 December 2009
* Pending Health Professionals Bonus Recoupment Action Against the applicant, Executive Summary
* DA Form 3575 (Certificate of Acknowledgement and Understanding of Service Requirements for Individuals Applying for Appointment in the U.S. Army Reserve (USAR) under the Provisions of Army Regulation 135-100 (Appointment of Commissioned and Warrant officers of the Army) or Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to AMEDD Branches), as Applicable - Individuals Without a Statutory Service Obligation), dated 21 November 2006
* DA Form 5536 (Agreement/HPLRP), dated 29 December 2006
* Department of Defense Instruction (DODI) 1205.21,Enclosure 9, (Written Agreement - HPLRP), dated 20 September 1999
* Medical and Dental School Stipend Program 
* USAREC Form 1252 (USAR and ARNG Incentives Declaration Statement), dated 29 December 2006
* Specialized Training Assistance Program (STRAP) Enrollment Verification, dated 22 December 2006
* Memorandum, subject:  Results of the 13-15 September 2006 Medical Corps Accession Board for the ARNG, dated 20 September 2006
* DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)), dated 25 September 2006
* The University of Utah, Doctor of Medicine Degree, dated 19 May 2007
* Memorandum, subject:  Implementation Guidance for ARNG AMEDD Officer Incentive Programs for FY 2010-2011, dated 10 December 2009
* Authorized Substitutability List
* Three Memoranda, subject:  Designation of Areas of Concentration (AOC), Functional Areas, dated 8 April 2010, 29 October 2012, and 19 November 2012
* Certificate, dated 30 June 2010, from the University of Utah for completion of residency training in Pediatrics

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted his application, he was serving the UTARNG in the rank of major (MAJ)/O-4.

2.  After having prior enlisted service in the ARNG, the applicant was appointed as a Reserve commissioned officer in the UTARNG on 21 November 2006 in the rank of second lieutenant and he was granted Federal recognition.

3.  On 22 December 2006, he signed an agreement for STRAP stipends.

4.  On 29 December 2006, he completed an HPLRP Agreement which stated that with his appointment in the ARNG or USAR, he met the following criteria for the HPLRP:

   a.  I am/will be performing as an officer in a Selected Reserve unit of the ARNG or USAR.
   
   b.  The Army Surgeon General has determined that I am qualified for service in critical medical/nursing specialty 60P (Pediatrician).
   
   c.  I have a current valid medical/nursing license and, if required, specialty certification to practice and am in good standing in my profession.
   
   d.  I was first appointed/commissioned in the Medical or Nurse Corps after    30 September 1985.

	e.  I must remain in the Selected Reserve in good standing to obtain loan repayment.  I understand that the maximum aggregate amount of repayments under this agreement is $3,000.00 per year up to $20,000.00 HPLRP maximum.

5.  His service record is void of evidence which indicates he completed 2 years of residency in his specialty (60P) prior to signing the HPLRP agreement.  

6.  On 29 December 2006, he completed an MDSSP Service Agreement for stipends to commence on 1 January through 19 May 2007.  

7.  He provided a diploma from the University of Utah which shows he was awarded a Doctor of Medicine Degree on 19 May 2007.

8.  On 19 May 2007, he was reappointed in the UTARNG as a captain in the Medical Corps and he was granted Federal recognition. 

9.  He provided the following documents:

	a.  A memorandum, subject:  Designation of AOC, Functional Areas, dated 8 April 2010, which indicates he held the designation of 60P.

   b.  A certificate from the University of Utah which shows he had fulfilled all requirements for completion of residency training in Pediatrics on 30 June 2010.

	c.  A memorandum, subject:  Designation of AOC, Functional Areas, dated 29 October 2012, which indicates he held the designations of 62B (Field Surgeon), 60P, and 9E.

	d.  A memorandum, subject:  Designation of AOC, Functional Areas, dated 19 November 2012, which indicates he held the designations of 60P, 62B, and 9E.

10.  He was promoted to the rank of MAJ/O-4 on 26 October 2011.

11.  On 14 January 2015, an advisory opinion was obtained from the Deputy, Personnel Policy Division, National Guard Bureau, who recommended approval of the applicant's request for termination of recoupment of funds received from the HPLRP for the amount of $50,000 and that no further collection be taken.  The advisory official opined that:

	a.  The applicant signed contracts for the HPLRP on 29 December 2006, STRAP on 22 December 2006, and MDSSP on 20 December 2006.

	b.  Upon coordination with the UTARNG and ARNG Incentives Branch, the applicant was not eligible to receive HPLRP at the time he signed his contract since he had not yet completed two years of residency in his specialty.  He was eligible for and received the MDSSP stipend.  The applicant also qualified to complete his second year of residency in June 2009 and would have then been eligible for HPLRP at that time. 

	c.  In accordance with Department of Defense Instruction 1205.21, 20 September 1999, E9.1.1.2 and E9.1.1.3, to be eligible for HPLRP, a Soldier must possess the professional qualifications or complete two years of residency in an identified wartime health professional skill shortage and possess a current valid unrestricted health professional license/certification or complete at least two years of residency in that specialty.  

	d.  Per policy governing his initial AMEDD incentives contract, the applicant should have received the first two payments of HPLR but not the third payment of $10,000.  However, at no fault of his own, the Utah Recruiting Command did not identify the lack in fulfillment of these requirements.  Additionally, HRC also approved both contracts with the existing conflict.

	e.  At the time of signing and payment, the applicant believed everything was correct regarding his contracts.  It was not until the applicant attempted to increase his HPLR bonus per NGB-ARS (Subject:  Implementation Guidance for ARNG AMEDD Officer Incentive Programs for FY 2010-2011, 6d) that the Student Loan Repayment Program (SLRP)/HPLRP department discovered the error and initiated recoupment actions.

	f.  A memorandum from the Office of the 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."  The applicant has fulfilled these conditions and therefore should not be penalized.  

	g.  The UTARNG concurred with this recommendation.

12.  On 20 January 2015, a copy of the National Guard Bureau advisory opinion was provided to the applicant for review and comment.  However, no response was received.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for cancellation of a $50,000 HPLRP recoupment action was carefully considered and considered to have merit.

2.  The evidence of record shows the applicant accepted a commission in the UTARNG on 21 November 2006.  

3.  On 29 December 2006, the applicant completed and signed a contract (DA Form 5536-R) to receive the HPLRP incentive.

4.  Through no fault of the applicant, it was later determined that he was not eligible for the HPLRP at the time he signed his contract because he had not completed 2 years of residency in his specialty.

5.  The National Guard Bureau advisory opinion stated:

   a.  The applicant completed his second year of residency in June 2009 and would have been eligible for HPLRP at that time.  
   
   b.  The applicant should have received the first two payments of HPLRP, but not the third payment of $10,000 per policy governing his initial AMEDD incentives contract.
   
   c.  The Utah Recruiting Command did not identify the lack in fulfillment of these requirements.  

6.  In view of the facts of this case and in the interest of justice and equity, the applicant should not be penalized for errors committed by the State Incentive Manager, UTARNG AMEDD personnel, or the National Guard Bureau.  It would be appropriate to grant him an exception to policy to cancel recoupment of HPLRP incentive and correct his records as indicated below.

BOARD VOTE:

__X______  __X______  __X__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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

	a.  showing a cancellation of recoupment of his HPLRP agreement in the amount of $50,000 from his original contract and that it was approved by the appropriate authority; and 

	b.  refunding any monies already recouped.

2.  As a result of the above correction, the Defense Finance and Accounting Service shall be notified of the Board's determination, cancel the recoupment action, and remit payment of any monies that may have been recouped from the applicant based on the debt action.



      _________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)                                         AR20140009872





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ABCMR Record of Proceedings (cont)                                         AR20140009872



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