BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20140011165 


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:

	a.  correction of his records to show he executed a Health Professionals Loan Repayment Program (HPLRP) Agreement and relief from recoupment of $47,600.00 paid toward student loans under the HPLRP and

	b.  creating an executed HPLR agreement and that he be permitted to sign and date the DA Form 5536-R (Agreement-HPLR), the amendment to DA Form 5536-R, any other necessary documents.

2.  The applicant states the State Incentives Manager (IM), California Army National Guard (CAARNG), failed to submit the required documents to the National Guard Bureau (NGB) to establish eligibility for the HPLRP and instead made 4 payments to his lenders with enlisted student loan repayment funds totaling $47,600.  He was a fully qualified health care professional Physician Assistant (PA) (Area of Concentration (AOC) 65D) designated as a critical skill need.  He was fully eligible for the offered contract and loan repayment funds which were verified upon audit by the Incentives Task Force which showed valid promissory notes and DD Forms 2475 (Department of Defense [DOD] Educational Loan Repayment Program Annual Application) showing eligible loans.  The former IM made mistakes with regard to policy and procedures which created confusion and doubt regarding appropriate eligibility for these funds to have been provided to him.  

3.  The applicant defers his submission to counsel. 
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The applicant did not list an attorney or counsel on his application.  However, he appears to have sought assistance from a military legal assistance attorney.  The attorney requests: 

* relief of the applicant from recoupment for $47,600 in HPLR funds paid his lenders for PA school
* creating an executed HPLR agreement 

2.  Counsel states: 

	a.  The applicant had over $47,600 in eligible loans under Title 10, U.S. Code (USC), section 16302.  Neither the CAARNG nor the National Guard Bureau (NGB) could provide Army Medical Department (AMEDD) Officer Incentive Programs memorandum for Fiscal Year (FY) 00/01.  The closest AMEDD Officer Incentive Programs available is for FY04/04.  More recent policy memoranda are also provided with this application.  They all show military occupational specialty (i.e., AOC) 65D (PA) as a critical skill. 

	b.  Eligible Health Professional loans are defined by Title 10, USC, section 16302, which states a loan made, insured, or guaranteed through a recognized financial or educational institution if that loan was used to finance education regarding a basic professional qualifying degree (as determined under regulations prescribed by the Secretary of Defense) or graduate education in a health profession that the Secretary of Defense determines to be critically needed in order to meet identified wartime combat medical skill shortages. 

	c.  There is no differentiation between the Federal Education Loans and Private Education Loans in Title 10, USC, section 16302.  Additionally, the relevant AMEDD policy which sets the parameters of the HPLR states that the authority is under Title 10, USC, section 16302.  Here, the applicant's eligible health professional loans are those used to finance a graduate education in a health profession that the Secretary of Defense determined to be critically needed in order to meet identified wartime combat medical skill shortages.  PA school is a graduate school and AOC 65D is a critical skill.  His lenders at the time were recognized financial institutions whose loans were used to pay for PA school at Western University, a recognized educational institution.  Therefore, all of his three loans, totaling $47,862.29 are eligible for payment under the HPLR. 

	d.  The applicant was audited by the CAARNG Incentives Task Force (ITF) and the audit found that the applicant appeared to be eligible for payment with the exception of no contract being executed and the fact that loan supporting documents were not provided prior to making payment.  The applicant did not have the agreement but provided an amendment to the DA Form 5536-R, though not signed or dated, and the supporting loan documentation.  After reviewing the documents, the Commander of the ITF now called Soldier Incentives Assistance Center (SIAC) requested an exception to policy on behalf of the applicant.  The SIAC Commander stated that the applicant, as a qualified health professional, was eligible to contract for the HPLR in the 65D AOC.  Since receiving correspondence from the SIAC, the applicant provided valid promissory notes and DD Forms 2475 showing eligible loans.  The State IM failed to submit the required documents to the NGB to establish eligibility for the HPLR and instead made four payments to the lenders with enlisted Student Loan Repayment Program (SLRP) funds totaling $47,600. 

	e.  On 10 January 2014, the NGB denied his request and stated that the applicant's contract did not contain sufficient dates and that his only recourse is to apply to this Board.  The NGB provided a review and stated that the applicant's board certification was verified via NGB Form 0122E effective 30 May 2001, but there was no DA Form 5536-R in the applicant's official records; the presence of eligible loans could not be verified; and no loan paperwork was submitted.  However, the applicant has since provided the unsigned/undated DA Form 5536-R and the loan paperwork was deemed proper by the Commander, SIAC, and that clearly shows the loans were eligible under Title 10, USC, section 16302. 

	f.  The applicant has provided loan documentation proving his loans were eligible for payment under the HPLR.  His eligible loans were greater than or equal to the amount paid to his lenders under the HPLR.  He possessed the critical skill of 65D.  Therefore, he should receive the requested relief. 

3.  Counsel provides:

* Blank DA Form 5536-R
* Unsigned/undated Amendment to DD Form 5536-R
* Extract of Title 10, USC, section 16302
* ARNG AMEDD Officer Incentives Program for FY03/04 and List of ARNG Officer Health Professional Specialties with Critical Wartime Shortages
* ARNG AMEDD Officer Incentives Program for FY06/07 and List of ARNG Officer Health Professional Specialties with Critical Wartime Shortages, FY06/07
* ARNG AMEDD Officer Incentives Program for FY09, FY10, FY11, FY12
* Loan Documentation (Sallie Mae, Academic Financial Services Association [AFSA Data Corporation], and Great Lakes)
* College transcripts
* Correspondence from Incentives Task Force
* Memorandum, ITF Audit Form
* Request for exception to policy 
* NGB denial of exception to policy 
* DD Form 139 (Pay Adjustment Authorization)
* National Student Loan Data System (NSLDS) printout
* Private student loan summary

CONSIDERATION OF EVIDENCE:

1.  The applicant attended Western University of Health Sciences between 1998 and 2000.  He was issued a PA Certificate on 31 July 2000. 

2.  On 14 December 2000, he signed a U.S. Army Recruiting Command (USAREC) Form 1205 (U.S. Army Reserve (USAR) Incentives Declaration Statement) that is used to identify USAR Soldier selection of health care professional incentives program they wish to be considered for. 

	a.  He placed his initials next to two incentives currently available to applicants in specified Wartime Critical Shortage List AOCs of the USAR: Health Care Professional Bonus Program and the Health Professional Loan Repayment Program.

	b.  He acknowledged this declaration served only as a written notice by the applicant that he wished to be considered for the above incentives.  Eligibility would be determined separately. 

3.  He was appointed as a Reserve commissioned officer of the CAARNG and executed the oaths of office on 30 May 2001.  His record is void of any written agreement or contract regarding the HPLRP.

4.  He was assigned to Headquarters and Headquarters Troop, 1st Squadron, 18th Cavalry, CAARNG, in AOC 65D (PA).  He attended and successfully completed the AMEDD Officer Basic Course from 15 to 26 July 2002.

5.  He entered active duty on 14 February 2005 and he subsequently served in Cuba from 26 April 2005 to 26 March 2006.  He was honorably released from active duty on 13 April 2006.  He was promoted to captain on 17 June 2005. 

6.  On 31 January 2008, he requested and was transferred to the Inactive National Guard (ING) and on 31 December 2009 he was released from the ING and assigned back to an active status with the 1st Squadron, 18th Cavalry, CAARNG. 
7.  He was honorably discharged from the ARNG on 1 January 2010.  His NGB Form 22 (Report of Separation and Record of Service) show he completed 8 years, 7 months, and 2 days of ARNG service.  

8.  The facts and circumstances surrounding his HPLRP participation, payment, audit, or recoupment are not filed in his official records.  All documents are either provided by him/his counsel or through NGB.

9.  On 19 February 2013, the CAARNG ITF conducted an audit of the applicant's account.  The task force noted a discrepancy in that the applicant received $47,600 in HPLR benefits and that the payments were made in violation of Army Regulation 135-7 (ARNG and USAR – Incentives Programs), paragraph 5-1.4.1(b)(2), and DOD Instruction (DODI) 1205.21(Reserve Incentives Program Procedures), section 6.2, and DODI 1205.21, section 6.9.1.  There was no evidence he executed a contract.  The ITF also informed him he that he could be eligible for an exception to policy.  He had 30 days to either submit an exception to policy request or provide the supporting documents which were missing from his official records.  His information regarding this discrepancy is as follows:

* Incentive Type(s):  Health Professional Loan Repayment
* Discrepancy Amount: $47,600
* Reason for the Discrepancy:  HPLR payment was made without a contract or supporting loan documentation, in violation of DODI 1205.21, section 6.2 and Army Regulation 135-7, paragraph 5-1

10.  On 20 March 2013, by memorandum through the NGB Personnel, Programs, Resources and Manpower Division, to the ITF, CAARNG, an Officer Incentives Program Manager stated: 

	a.  The applicant's audit packet has been thoroughly reviewed in order to determine his initial eligibility for the HPLR incentive and to determine if repayments were made erroneously.  Eligibility for the HPLR incentive can be found in Title 10, USC, section 16302, DODI 1205.21, and Army Regulation 135-7.  Section 6.2 of the DODI 1205.21 states, as a condition of the receipt of an incentive covered by this Instruction, each recipient shall be required to sign a written agreement stating that the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped.

	b.  The applicant became an officer in the CAARNG on 30 May 2001 when he was placed into the Specialty Corps (SP) as a 65D (PA).  He may have been eligible to receive HPLR upon entering the SP Corps; however, a review of documents and data at hand resulted in this office not being able to determine if the applicant met all eligibility requirements.  Enrollment in HPLR and repayment of loans requires an officer to be assigned to and remain in a critically-short AOC, complete a written agreement, be board certified in and maintain credentialing in their assigned AOC, remain in good standing with the ARNG and have qualifying loans.  No critical wartime shortage list can be found for the FY00/01.  It cannot be determined if PA was an eligible AOC for the HPLR incentive.  A review of the Information Management and Reporting Center database, the official incentive database, showed that the applicant never had an approved HPLR Bonus Control Number, nor is there a DA Form 5536-R in his interactive Personnel Electronic Records Management System record, nor has the form been submitted to this office for review.  The DA Form 5536-R is the HPLR written agreement required by DODI 1205.21.  The applicant's board certification was verified via an NGB Form 0122E, effective date 30 May 2001.  His NGB Form 23B (Retirement Points History Statement), dated 12 February 2001, shows that he was in good standing with the ARNG from 30 May 2001 to 29 May 2004.  The presence of eligible loans could not be verified by this office as no loan paperwork was submitted.

	c.  At the time this incentive was processed, HPLR was a 3-year program that paid at a rate of $20,000, $20,000 and $10,000 per year with a lifetime cap of $50,000.  The applicant received $47,600 with loan repayments paid out as follows: $22,689.20 on 25 January 2002, $9,544.75 on 25 February 2002, $7,466.05 on 6 March 2002, and $7,600 on 18 December 2002.  Based on the resources and data available to this office, it is assessed that repayment of his loans were made erroneously and should be recouped.  The absence of a signed DA Form 5536-R, the inability to validate credentialing, and the absence of proof of qualifying loans validate this assessment.  The applicant should be advised of his options to submit an exception to policy request or file a claim with the ABCMR.

11.  On 9 August 2013, the ITF initiated a DD Form 139 authorizing the U.S. Property and Fiscal Officer for California to recoup the amount of $47,600.00 from the applicant's account by reason of not having supporting documents to substantiate the incentive received.

12.  It is unclear what action the applicant took at this point.  However, it appears his action or lack of action further triggered a memorandum from the Commander, CAARNG ITF to the NGB Education, Incentives, and Employment Division, dated 2 December 2013.  He stated: 

	a.  The applicant signed his USAREC Form 1205 on 14 December 2000 and the form was witnessed by the AMEDD Procurement NCO.  He initialed next to the Health Care Professional Bonus Program and the HPLR Program.  He also completed a USAREC Form 1166-R-E (Selected Reserve Recruitment Bonus Program Contract) on 27 December 2000 which was also witnessed by the AMEDD Procurement NCO.  A copy of the DA Form 5536-R is part of his file but only his signature appears.  It is clear from the documents he provided that he was offered the HPLR incentive.  ARNG AMEDD Officer Health Professional Specialties with Critical Wartime Shortages for FY01/02 authorized a 3-year HPLR benefit up to $50,000, payable in three installments of $20,000, $20,000, and $10,000.  Based on the applicant's appointment date of 30 May 2001, the payment would have been processed after each satisfactory year of service, i.e., May 2002, May 2003, and May 2004.  He provided loan documentations (DA Form 2475, NSLDS, and medical transcripts) showing he had more than $44,000 in student loans prior to his appointment. 

	b.  He is a qualified health professional who is eligible for the HPLRP in AOC 65D.  The former IM, ignoring policies and procedures, not only authorized the SLRP incentive without an authorized HPLRP Bonus Control Number from the NGB, but instead of making the annual payments of $20,000, $20,000, and $10,000, actually processed four payments.  The total amount paid on behalf of his HPLRP was $47,600.  The applicant served in support of Operation Enduring Freedom in his assigned AOC of 65D.  Since his receipt of the correspondence from the SIAC in regards to the bonus, he has provided valid promissory notes and DD Forms 2475 as required by the terms of the contract showing eligible loans.  The IM failed to submit the required documents to the NGB to establish eligibility for the HPLR and instead made four payments to the applicant's lenders with the enlisted SLRP funds totally $47,600 ($22,989.20 on 25 January 2002; $9,544.75 on 25 February 2002; $7,466.05 on 6 March 2002; and a final payment of $7,600.00 on 18 December 2002).  He served honorably and he was separated on 1 January 2010. 

	c.  Based on the history of the previous IM and after a review of the applicant's records, the CAARNG recommends approval of the exception to policy request.  

13.  On 10 January 2014, the NGB denied the exception to policy request.  An NGB official stated: 

	a.  The CAARNG request for an exception to policy for the applicant to receive the HPLRP incentive is denied and returned to the State without further action.  In accordance with Memorandum, Headquarters, Department of the Army (HQDA), dated 17 February 2012, Subject: Exception to Policy Guidance for Selected Reserve Officer Accession/Affiliation Bonuses and Reserve Component Critical Skills Retention Bonuses, HQDA granted the ARNG the authority to approve and/or action exception to policy requests that meet specific criteria.  

	b.  According to paragraph 4(g), the ARNG has the authority to approve an exception to policy provided all of the parties have signed the addendum/contract and it contains a minimum of one date.  If there are no dates, the exception to policy must be denied.  Upon review of the applicant's incentive documents, it was discovered a DA Form 5536 was never completed.  The only contract documents found do not contain sufficient dates in accordance with the aforementioned memorandum.  The applicant's only recourse is to apply to the ABCMR. 

14.  DODI 1205.21 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.

15.  Army Regulation 135-7 prescribes policies and procedures for administration of the ARNG and USAR incentive programs.  It states the loan repayment incentive provides for the repayment by the U.S. Government of a designated portion of any outstanding loan(s).

16.  National Guard Regulation (NGR) 600-7, dated 26 March 1999, sets policies and procedures for administration of the ARNG incentive programs, including bonuses and loan repayment programs.  Paragraph 1-13 states applicants for programs administered by this regulation are required to sign documents which specify the eligibility criteria for the term of service for the desired incentive.  The document will contain an acknowledgement that the applicant has been advised of and understands the benefits of the program and the conditions which can cause suspension or termination of recoupment, if applicable.  These documents will be authenticated by a proper witnessing official and will include the preparation date.  Each incentive program in this regulation specifies the documents required for program eligibility.

17.  ARNG AMEDD Officer Incentive Program for FY 03/04 updates policy and provides implementation guidance for the Selected Reserve AMEDD Incentive Programs.  One of the incentives available to ARNG healthcare professionals is the HPLRP.  This is based on critical wartime shortages.  AOC 65D is listed as a critical specialty.

	a.  The amount authorized under Title 10, USC, section 16302, is the maximum allowable yearly payment of $20,000.00 and the total amount authorized under this section of the law may not exceed lifetime payments totaling $50,000.00.

	b.  The ARNG officer must serve in an ARNG table of distribution and allowances/table of organization and equipment unit in order to receive HPLRP. For each year of satisfactory service in the unit with 50 qualifying retirement points, any DOD-authorized student loan will be considered eligible for repayment that has an outstanding balance on the principal and was secured for at least 1 year prior to the current anniversary date.

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances of the applicant's appointment are not available for review with this case.  Based on the evidence he provides and the information provided by NGB, it appears that he was eligible for the HPLRP when he was appointed in May 2001.  Despite the absence of the HLPRP Written Agreement, including the acknowledgement, understanding, and authentication, it also appears the applicant's lenders were paid a total of $47,600.00, albeit under the wrong incentive program and without authorization. 

2.  It further appears the CAARNG ITF audited his account and determined a discrepancy existed in the incentive process and initiated action to recoup the paid incentive.  He submitted an exception to policy but could not provide the written agreement or proof that he submitted the loan documentation.  The NGB ultimately denied his request.  

3.  The Board is not an investigative agency.  Furthermore, the Board does not have sufficient information and he provides insufficient documents to establish his entitlement to the incentive or to reverse the recoupment action.  Based on what he provided, it appears:

	a.  He was eligible to receive HPLRP benefits.  The CAARNG did not complete a contract addendum for this but paid him $47,600.00 in SLRP benefits (vice HPLRP benefits).  NGR 600-7, paragraph 1-13c, states, "All required addenda will be completed at the time of enlistment/reenlistment or extension.  An addendum cannot be completed after the fact in order to gain eligibility for an incentive or the loan repayment program." 

	b.  The FY01/02 ARNG AMEDD Officer Incentives Program for FY03/04 is no longer available and as such, it is unknown if AOC 65D was authorized the incentive at the time.  Likewise, it is unknown what the total amount of the applicant's eligible loans was at the time.  Equally puzzling is the fact that the applicant's lenders were paid the amount of $47,600.00 under the wrong incentive and without authority.  To make matters even more complicated is the fact that he may have been also paid other incentives (such as a cash bonus) for the same overlapping period.

	c.  Nevertheless, the applicant is not at fault for the addendum not being completed because he clearly completed a USAREC Form 1205 and placed his initials next to two incentives currently available to him in specified Wartime Critical Shortage List AOCs of the USAR: Health Care Professional Bonus Program and the Health Professional Loan Repayment Program.  He should not be penalized for the failure by the State ARNG to manage its own incentive program or the lack of oversight by officials of the CAARNG to ensure the incentive program was properly executed. 

	d.  Therefore, as a matter of equity, an HPLRP contract addendum should be completed retroactively to authorize payment of HPLRP benefits to the applicant in the amount equal to his loans at the time he was appointed, not to exceed $50,000.0 and less any other incentive he may have been paid (such as a cash bonus) for the same overlapping period.  The ARNG AMEDD Officer Incentive Programs for FY 03-04 (the earliest available), dated 10 March 2013, states, "Repayment cannot exceed outstanding balance of DOD recognized loan(s)."  

4.  In view of the foregoing evidence, he is entitled to correction of his 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 the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by:

* showing he executed an HPLRP Agreement on 30 May 2000 authorizing him up to $50,000.00 in HPLRP benefits
* authorizing him payment of $47,600.00, the value of his total recognized loans at the time, less any cash bonus incentives he may have received 




      _______ _ 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)                                         AR20140011165



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ABCMR Record of Proceedings (cont)                                         AR20140011165



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