IN THE CASE OF:    

		BOARD DATE:  19 March 2015	  

		DOCKET NUMBER:  AR20140010269 


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 United States Army Recruiting Command (USAREC) Form 1166 (Selected Reserve (SELRES) Special Pay Program Contract (Special Pay for SELRES Health Care Professionals in Critically–Short Wartime Specialties)) and Addendum to USAREC Form 1166 (For Retention Special Pay), to show these forms were dated on 15 January 2013 vice 18 November 2013.

2.  The applicant states:

* his Addendum to USAREC Form 1166 was signed on 18 November 2013; however, it was deemed invalid because the approval for the contract expired on 30 September 2013
* on 26 November 2012, he inquired about signing a new 3 year contract with the Kansas Army National Guard (KSARNG)
* he was working with Captain (CPT) JM, who was new to the office and unaware his name was on an approved list for an exception to policy (ETP) to sign a new contract to continue receiving the yearly specialty pay
* throughout the following year, he repeatedly asked to sign a new contract and inquired about the status of his ETP, but was repeatedly told he was not eligible
* then, on 13 November 2013, CPT JM told him his ETP had been approved, but the approval expired on 30 September 2013; therefore, it was no longer valid
* he would have signed the contract on 15 January 2013 if he had been given the opportunity
3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* USAREC Form 1166 and Addenda, dated 14 January 2010 and 
18 November 2013
* Orders Number 022-712, dated 22 January 2010
* DA Form 5074-1 (Record of Award of Entry Grade Credit (Health Services Officers)), dated 15 March 2010
* wallet card/authorization to practice, issued on 1 March 2012
* Special Orders (SO) Number 123-5 AR, dated 21 June 2010
* SO Number 229-12 AR, dated 14 October 2010
* a memorandum, Fiscal Year (FY) 2012-2013, ARNG Army Medical Department (AMEDD) Officer Incentives Policy (Medical Surgeon's Operation Message (MEDSOM) Number 12-001), dated 18 January 2012
* a memorandum, Changes to MEDSOM Number 12-001, FY 2012-2013 ARNG AMEDD Officer Incentives Policy (MEDSOM 12-002), dated 8 June 2012
* a memorandum, Changes to MEDSOM Number 12-002, FY 2012-2013 ARNG AMEDD Officer Incentives Policy (MEDSOM 12-003), dated 
1 August 2012
* a memorandum, Changes to MEDSOM Number 12-003, FY 2012-2013 ARNG AMEDD Officer Incentives Policy (MEDSOM 12-004), dated 
12 September 2012
* a memorandum, Correction to MEDSOM Number 12-003, FY 2012-2013 ARNG AMEDD Officer Incentives Policy, dated 14 February 2013
* memoranda, Request for ETP, FOR Department of Defense Instruction (DODI) 1205.21 Policy contained in Paragraph 4.3 and Enclosure 13, paragraph 13.1.1.6 and enclosed personnel roster, dated 4 January 2013, 9 April 2013, 16 July 2013, and 12 August 2013
* a memorandum, Changes to MEDSOM Number 12-001, FY 2012-2013 ARNG AMEDD Officer Incentives Policy (MEDSOM 12-005), dated 
9 April 2013
* memoranda, Approval of ETP to DODI 1205-21, "Reserve Component Incentive Program Procedures," dated 30 May 2013 and 17 September 2013
* memoranda, Announcement of Approval of ETP to DODI 1205-21, "Reserve Component Incentive Program Procedures," dated 
26 September 2012, 30 May 2013 and 17 September 2013 with by name lists
* memoranda, Continuation of MEDSOM Number 12-001 FY 2012-2013 ARNG AMEDD Officer Incentives Policy and critical wartime skill list (CWSL) Matrix for the ARNG, dated 25 September 2013
* a bonus rejection/invalid spreadsheet, dated 5 December 2013
* three memoranda addressed to, in effect, the Army Review Boards Agency, dated 17 December 2013, 20 December 2013, and 21 December 2013
* a memorandum requesting ETP, dated 11 April 2014
* a series of email transmissions ranging from 17 November 2012 to 
13 November 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army on 20 March 2001.  He served on active duty from 30 June 2005 to 13 January 2010 in area of concentration (AOC) 63A (General Dentist).  Concurrent with his separation, he was honorably discharged from the Regular Army.

2.  His record contains a USAREC Form 1166 and addendum, dated 14 January 2010, which show he signed a 3 year contract to serve in the Kansas ARNG (KSARNG) in AOC 63A, in exchange for an entitlement to an annual special pay as determined by his specialty in the amount of $25,000.00.  His official military personnel file (OMPF) does not contain a subsequent USAREC Form 1166 and addendum.

3.  Orders Number 022-712, issued by the KSARNG on 22 January 2010, appointed him as a CPT in the KSARNG, in the Dental Corps as a general dentist, effective 14 January 2010.

4.  He provided SO Number 132-5 AR, issued by the National Guard Bureau (NGB) on 21 June 2010, which shows he was extended Federal recognition in the KSARNG as a CPT in the Dental Corps, effective 14 January 2010.  His date of rank (DOR) was established as 1 July 2005.

5.  He provided SO Number 229-13 AR, issued by the NGB on 14 October 2010, which shows he was extended Federal recognition in the KSARNG as a major (MAJ), effective 7 October 2010.  His DOR was established as 7 October 2010.

6.  He provided a policy memorandum that was issued by the NGB on                18 January 2012, subject:  FY 2012-2013 ARNG AMEDD Officer Incentives Policy (MEDSOM Number 12-001).  

	a.  Paragraph 2 states NGB policy is intended to be used to attract and retain health care professionals possessing (or qualifying for) training in critical skills needed in wartime and to maintain readiness within the ARNG.  

	b. Paragraph 3 states the SELRES incentives available to ARNG healthcare professionals include the special pay incentive.  The special pay incentive is for health care professionals in critically short wartime specialties and was formerly referred to as the Healthcare Professional Bonus.
	
	c.  Paragraph 5a.(5)c states general dentists are only eligible to participate in the Health Professionals Loan Repayment Program and special pay incentives.

	d.  Paragraph 7a. states individuals contracting for special pay –approved ARNG specialties will receive $5,000.00 to $25,000.00 per year, depending on their specialty.  Participants must choose 1, 2, or 3 year affiliations with the ARNG at the time of application.

	e.  Paragraph 7d.(3) states General Dentists (63A) must be state licensed.

	f.  Paragraph 7e.(1)(a) states the special pay for health professionals may be used as an accession or retention tool for Dental Corps officers.  Dental Corps officers receive $25,000.00 for a 3 year contract, $20,000.00 for a 2 year contract, and $15,000.00 for a 1 year contract.  

	g.  Paragraph 7e.(5) states if the applicant initially received the special pay at the time of accession, he or she is eligible for the special pay in the future if the specialty is listed on the critical skill wartime specialty(ies) list at the time the agreement is signed.  Special pay may not be offered again until any remaining service obligation from other incentives previously executed has been fulfilled.    A new 1, 2, or 3 year agreement is required to initiate subsequent incentive payments and obligation.  

7.  He provided a policy memorandum that was issued by NGB on 1 August 2012, subject:  Changes to MEDSOM Number 12-002, FY 2012-2013 ARNG AMEDD Officer Incentives Policy (MEDSOM 12-003).  The memorandum provided that effective 28 July 2012, the ARNG was no longer able to offer multiple special pay bonus contracts to AMEDD medical professionals.  If a medical professional had received a special pay bonus in the past with either the ARNG or the U.S. Army Reserve (USAR), they were not eligible to sign another contract.  The Office of the Secretary of Defense (OSD)-approved ETP that  authorized the ARNG to offer AMEDD officers special pay and bonus incentives more than once during their military service expired as of 28 July 2012.  

8.  He provided a policy memorandum issued by NGB on 26 September 2012, subject:  Announcement of Approval of ETP to DODI 1205-21, "Reserve Component Incentive Program Procedures".  This memorandum included an enclosed by-name list.  The memorandum stated, effective immediately, the enclosed by-name list of AMEDD officers was approved for an ETP in accordance with paragraph 4.3 and Enclosure 13, paragraphs E13.1.1.6. and E13.1.1.7., of DODI 1205-21.  This memorandum applied only to individuals listed on the enclosed by-name list (the applicant's name was listed).  AMEDD officers were authorized an ETP to contract for the special pay bonus more than once.  Dental Corps officers contracting for special pay would receive $20,000.00 per year. However, contracts dated prior to the release of this memorandum would not be accepted by the AMEDD incentives office.

9.  He provided four memoranda, issued by the NGB, on 4 January 2013, 
9 April 2013, 16 July 2013, 12 August 2013, subject: Request for ETP, for DODI 1205.21 Policy contained in Paragraph 4.3 and Enclosure 13, paragraph 13.1.1.6.  These memoranda each included an enclosed personnel roster and each formally requested an ARNG ETP for paragraph 4.3 and enclosure 13, paragraph 13.1.1.6, to authorize the ARNG to offer special pay contracts to ARNG qualified medical professionals who agree to assignment in units to full critical wartime medical specialialties.  These memoranda go on to state a roster of eligible ARNG medical personnel assigned to fill critical wartime shortage AOCs, as identified in SELRES Healthcare Professionals in Critically Short Wartime Specialties (Title 37, U.S. Code (USC) Section 302g) was enclosed.  

	a.  The 4 January 2013 memorandum and enclosed by-name list entitled ARNG 1st quarter/FY13 ETP request for incentives.  The applicant's name was not listed.  

	b.  The 9 April 2013 memorandum and enclosed by name list entitled ARNG 2nd quarter/FY13 ETP request for incentives.  The applicant's name was not listed.

	c.  The 16 July 2013 memorandum and enclosed by name list entitled ARNG 3rd quarter/FY13 ETP request for incentives.  The applicant's name was not listed.

	d.  The 12 August 2013 memorandum and enclosed by name list entitled ARNG 4th quarter/FY13 ETP request for incentives.  The applicant's name was not listed.

10.  He provided a memorandum, issued by the Assistant Secretary of the Army (ASA) Manpower and Reserve Affairs (M&RA) on 30 May 2013, subject:  Approval of ETP to DODI 1205-21, "Reserve Component Incentive Program Procedures".  

	a.  This memorandum shows the ASA (M&RA), requested the Principal Deputy Assistant Secretary of Defense (Reserve Affairs) approve the Army's requests for ETP for Reserve Component officers who met the criteria listed in Title 10, USC, section 12731 and DODI 1205.21 to execute a 1, 2, or 3 year contract for special pay no later than 30 September 2013; therefore allowing the eligible officers to continue receiving retention incentives.  

	b.  This memorandum  also stated the Army had carefully considered the application of force shaping tools in the uncertain fiscal environment and would, in FY 2014, reassess requirements and resourcing to determine whether to seek further ETPs.  

	c.  The applicant's record does not contain and he has not provided any evidence to show his name was on the lists provided.  However, it appears that only the lists of names discussed in paragraph 9 above, of this record of proceedings, was provided to the ASA (M&RA) and subsequently to the Principal Deputy Assistant Secretary of Defense (Reserve Affairs) for consideration and approval. 

11.  He provided a memorandum, issued by the Principal Deputy Assistant Secretary of Defense (Reserve Affairs) on 17 September 2013, subject:  Approval of ETP to DODI 1205-21, "Reserve Component Incentive Program Procedures," which shows the ETP for the attached [but not provided] list of by-name SELRES Healthcare Professionals had been approved allowing those officers to receive the special pay incentive more than one time.  

12.  He provided a memorandum, issued by the NGB on 25 September 2013, subject:  Continuation of MEDSOM Number 12-001 FY12-13 ARNG AMEDD Officer Incentives Policy.  This memorandum included an enclosed critical wartime skill list (CWSL) Matrix for the ARNG.  

	a.  This policy states that MEDSOM Number 12-001 FY12-13 ARNG AMEDD Officer Incentives Policy would remain in effect for FY 2014.

	b.  The attached Matrix shows AOC 63A was authorized incentives for FY14/15 for a maximum of $25,000.00 for a 3 year contract.  

13.  He provided a series of email transmissions ranging from 17 November 2012 to 13 November 2013, which shows a dialogue between himself and CPT JM.   In effect, it was explained that the applicant had been on a list approved in 2012, however, due to a misunderstanding, his name was not placed on the list of names that was sent up to DOD and he was therefore, not approved for the ETP by DOD.  He was advised to contract for the three year period anyway and informed that his contract for the incentive would be denied and that he would have to submit a request to the ABCMR to adjust/backdate his contract, thereby implying that if his contract was backdated he would be eligible for the special pay bonus.

14.  He provided a USAREC Form 1166 and addendum, dated 18 November 2013.  These forms show he signed a 3 year contract to serve in the ARNG in AOC 63A, in exchange for an entitlement to an annual special pay in the amount of $20,000.00, as determined by his specialty.  

15.  He provided a spreadsheet or database printout, dated 5 December 2013.  This spreadsheet shows a bonus contract, dated 18 November 2013, was rejected as invalid.

16.  He provided three memoranda addressed to, in effect, the Army Review Boards Agency, dated 17 December 2013, 20 December 2013, and 
21 December 2013.  The first memorandum was from the applicant, the second was from his state Director of Personnel (J-1).  The third memorandum, dated 
21 December 2013 is the most notable of the three.  This memorandum was issued by The Adjutant General of Kansas, Major General LET, and states that after reading the memorandum from the J-1 he supports the J-1's recommendation to grant the applicant's requested relief.   He further states the applicant was improperly informed that he was not on a NGB ETP list to receive special pay when the applicant was approved on 26 September 2012.  The applicant was not afforded the opportunity to sign the special pay contract by the 30 September 2013 deadline and should not be penalized.  

17.  He provided a memorandum, issued by the NGB Officer Incentives Program Manager, on 11 April 2014 and entitled (ETP).  The NGB stated the ARNG does not have the authority to approve or deny an ETP when the exception is for a policy made at a level above the ARNG or Army.  Incentives are not authorized for health care professionals unless there is an ETP granted by DOD.  The applicant missed the window to complete and sign a valid contract, the ETP expired before the applicant signed his contract, and can no longer be honored.  

18.  DODI 1205.21 (Reserve Component Incentive Programs Procedures), dated 20 September 1999shows:

	a.  Paragraph 4.3 states the Ready Reserve Health Professional Stipend Program for Reserve Service Physicians, Dentists, Registered Nurses and Baccalaureate Students in Nursing and Other Healthcare Services, and the Health Professionals Loan Repayment Program may be offered in combination with one another, in accordance with the requirements in the agreements contained within this Instruction, with all incurred service obligations running consecutively (not concurrently) to provide the required payback period for each separate incentive. Separate or combined incentive service obligations cannot extend beyond an individual's mandatory removal date or retirement eligibility date in the Ready Reserve.

	b.  Enclosure 13, paragraph E13.1.1.6. indicates the prospective recipient will be ineligible for the incentive if he/she reaches their mandatory removal date or retirement eligibility date in the Ready Reserve during any service obligation period incurred under the agreement.

	c.  Enclosure 13, paragraph E13.1.1.7. indicates the prospective recipient will be ineligible for the incentive if they have received the incentive previously.

DISCUSSION AND CONCLUSIONS:

1.  Effective 28 July 2012, the ETP that allowed the ARNG to offer multiple special pay bonus contracts to AMEDD medical professionals expired.  If a medical professional had received a special pay bonus in the past with either the ARNG or the U.S. Army Reserve, they were not eligible to sign another contract unless they were granted an ETP by DOD to do so.

2.  On 26 September 2012, NGB issued a memorandum approving the applicant for an ETP to DODI 1205-21, thus allowing him to contract for the special pay bonus more than once.  Dental Cops officers contracting for special pay will receive $20,000.00 per year; however, contracts dated prior to the release of this memorandum would not be accepted by the AMEDD incentives office.  This memorandum did not clearly indicate whether this ETP approval was granted by the NGB or announced by the NGB on behalf of DOD.  Furthermore, it appears this ETP may have applied only to contracts executed in 2012.  

3.  The NGB issued 4 memoranda, dated 4 January 2013, 9 April 2013, 16 July 2013, and 12 August 2013.  These memoranda included by-name rosters listing the names of those officers on whose behalf ETPs were requested for the 1st, 2nd, 3rd, and 4th quarters of FY13.  These requests for ETP were staffed through ASA (M&RA) to DOD and did not include the applicant's name.  On      17 September 2013, The Principal Deputy Assistant Secretary of Defense (Reserve Affairs) approved the ETP by-name list.  

4.  Although the applicant was eligible to re-contract on 15 January 2013, he did not sign a new 3 year contract for special pay until 18 November 2013.  This appears to be because he was waiting on DOD to approve the ETP list, on which he thought his name had been included.  Nevertheless, he signed this contract knowing the bonus/special pay would be disapproved because his name was not listed on the ETP request or approval, and he was therefore ineligible.  He was told he may be able to receive this special pay if his contract was back dated.  

5.  The memorandum, which the applicant and The Adjutant General of Kansas refer to as being an approved ETP containing the applicant's name, was not official.  A memorandum from the NGB Officer Incentives Program Manager indicates this ETP was not approved at the DOD level, but rather at a lower level not authorized to approve the ETP.  The NGB incentive manager also stated that the applicant missed the window to complete and sign a valid contract; the DOD ETP expired before the applicant signed his contract and could no longer be honored.  

6.  The ETP approval process was specific to each FY, based on available funds and the contracts that were projected to be signed within that FY.  It is unclear whether or not the 26 September 2012 list with the applicant's name constituted an approved ETP; however, it is clear that the applicant did not sign a contract in FY12 even though he was authorized to do so in February 2012.  Therefore, even if the list was official, he missed his window of opportunity to contract for special pay during FY12.  His name was not on any of the ETP by-name lists approved by DOD for FY13 and there is no evidence his name was on an FY14 ETP request for approval. 

7.  Based on foregoing evidence and the fact that the 26 September 2012 list with the applicant's name appears to be an unauthorized ETP approval, there is insufficient evidence to justify granting the requested relief.  

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)                                         AR20140010269



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ABCMR Record of Proceedings (cont)                                         AR20140010269



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