IN THE CASE OF: BOARD DATE: 6 June 2013 DOCKET NUMBER: AR20130003645 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 his records to show he is eligible and approved for Health Care Professional Loan Repayment (HPLR) Program benefits. 2. The applicant states he was eligible for the HPLR in addition to several other incentives when he was commissioned; therefore, he requested the HPLR as an incentive during his recruiting/commissioning process. He completed and signed the appropriate documentation and his recruiter told him he would be able to access these benefits after his commissioning. After he signed his contract and was commissioned his recruiter told him that he was not eligible to receive the incentive until after he completed more of his education because the rules had changed. He checked in with his recruiter after completing the additional educational requirements and was told the program had changed again and he was no longer eligible for the HPLR. a. His eligibility/entitlement to this incentive should have been correctly documented in his contract and made accessible when requested. Subsequent efforts to correct these issues could and should have been made after his contract was signed and he was commissioned but they were not. b. His chain of command assisted him as he worked with the Recruiting Department, the Recruiting Office, the Education Office, and the Inspector General's Office. 3. The applicant provides: * memoranda, dated 7 December 2009 and 16 December 2009, subject: Results of the 1-4 December 2009 Medical Corps (MC)/All Corps Selection Board for the U.S. Army National Guard (ARNG) * Orders 025-040, dated 25 January 2010 * DA Form 5536 (HPLR), undated * U.S. Army Recruiting Command (USAREC) Form 1166 (Selected Reserve Special Pay Program Contract) (reverse side), dated 11 February 2010 * various email correspondence CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant is currently serving in the Massachusetts ARNG (MAARNG). He holds medical specialty 66H (Medical-Surgical Nurse) and the rank/grade of first lieutenant (1LT). 3. His records contain a certificate awarding him an Associate of Science for Nursing (ASN) issued by Quincy College on 10 January 2009. 4. His records contain a USAREC Form 1252 (U.S. Army Reserve (USAR) and ARNG Incentives Declaration Statement), dated 30 September 2009. This form is used to identify USAR and ARNG applicants' and Soldiers' selection of health care professional incentives programs for which they wish to be considered and several incentives available to Soldiers in specified (Critical Wartime Shortage List (CWSL)) areas of concentration. a. The form directs applicants to initial next to the appropriate incentive they wish to be considered for and place a number (1 or 2) next to their initials to denote which incentives they wish to receive first (special pay or HPLR Program only). The applicant placed his initials and the number "1" next to the incentive "Special Pay – 1 year" and placed his initials and the number "2" next to the incentive "HPLR." b. He acknowledged the declaration served only as a written notice that he wished to be considered for the indicated incentives and that eligibility would be determined in accordance with the USAR Medical Department Officer Incentive Programs for Fiscal Year (FY) 2006-2007 memorandum issued by the Office of the Chief, Army Reserve. 5. His records contain a memorandum issued by the USAREC Director of Health Services, dated 7 December 2009, subject: Results of the 1-4 December 2009 MC/All Corps Selection Board for the ARNG. This memorandum shows he was selected by the board and was eligible for commissioning effective 4 December 2009 and receipt of a bonus and the HPLR. 6. Special Orders Number 134 AR issued by the National Guard Bureau (NGB), dated 23 June 2010, appointed him as second lieutenant (2LT) in the Army Nurse Corps with a date of rank of 18 August 2009 and an effective date of 21 January 2010. 7. His records contain a certificate awarding him a Bachelor of Science (Fire Science) by Columbia Southern University on 15 February 2011. 8. During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, in which the advisory official recommended approval of the applicant's request. The advisory official provided the following statements and opinion: a. According to the memorandum the applicant submitted with his request, dated 7 December 2009, he was eligible for a direct commission and receipt of a bonus and the HPLR Program. The effective date of his eligibility for commissioning was 4 December 2009. However, he submitted a DA Form 5536 (HPLR Program Agreement Form) which was not signed by him or authenticated. He also submitted the reverse side of a USAREC Form 1166; however, that form was for a special pay bonus and not applicable to his HPLR. b. According to the Officer Incentive Section of the NGB, the procedures to receive HPLR were not followed. In accordance with Army Medical Department (AMEDD) Policy FY10-11, paragraph 6(c), "Applicants will complete both forms DA [Form] 5536-R and the amendment to DA Form 5536-R. SRIP [Selected Reserve Incentive Program] managers will ensure that each HPLR participant is loaded in iMARC [Information Management and Reporting Center] prior to processing." Army Regulation 135-7 (Incentive Programs), paragraph 7-3(c) discusses eligibility and states applicants must "Execute [a] DA Form 5536-R." Paragraph 7-4 provides guidelines for applicability and states, "(a) To apply for participation in [the] HPLR Program, the eligible officer will complete [a] DA Form 5536-R. (b) The agreement should be executed on assignment to the Selected Reserve or thereafter meeting all eligibility criteria. (c) The anniversary date for the repayment of loans is based on the date the officer completes the agreement. Each complete satisfactory year of Selected Reserve service performed under the term will establish the anniversary for repayment of eligible loans. (d) The completed agreement will be…incorporated as part of the accession packet. This copy will be filed in the officer's official military personal [sic] file (OMPF) [now known as the Army Military Human Resource Record (AMHRR)]." c. Department of Defense Instruction (DODI) 1205.21, dated 20 September 1999, paragraph 6-2, 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. That agreement shall clearly specify the terms of the Reserve service commitment that authorized the payment of the incentive to the member." d. The Officer Incentives Section of NGB stated the Soldier was not provided with a bonus control number on either document he provided to support the intent to process the HPLR Program benefits. The applicant does not meet the requirements per the contract, AMEDD policy, Army Regulation 135-7, or the DODI. e. However, the memorandum, dated 7 December 2009, states he was eligible to commission under two incentives, a bonus and the HPLR Program. The intent for him to receive and sign for the HPLR was there. The Soldier should not be held accountable for what the recruiting office failed to do. The Soldier would not have been aware of the process and the steps required to complete the addendum and receive a bonus control number. Therefore, as a result of the recruiting official's error, the applicant should be awarded full administrative relief. 9. NGB received an email from the recruiting official who worked with the applicant, dated 2 April 2013. The recruiting official stated: a. The Health Services Board approved the applicant for the special pay and HPLR incentives. Unfortunately, NGB rescinded the special pay incentive for Army nurses sometime after the date of the Health Services Board and before the date of his State Federal Recognition Board. Therefore, he was never actually eligible to sign a contract for the special pay incentive. b. The recruiting official spoke with the AMEDD Incentives Branch about this issue at length. The AMEDD Incentives Branch said that even though the date of the board was prior to the date of the incentive change, he was not eligible due to his appointment date (State Federal Recognition Board). c. The applicant was still eligible for the HPLR incentive but decided to wait until after completing his Bachelor of Science in Nursing (BSN). Somewhere during that time, a chief warrant officer three (CW3) started working with him because the CW3 was handling most of the incentive issues at that time. d. The recruiting official was unsure why he had the applicant sign a special pay incentive contract in February. He may have done so because he was new on the job and still hoping he could get the applicant a bonus. Unfortunately, when the applicant signed for the special pay contract he was not eligible for HPLR because he did not have a BSN. He was appointed with an ASN. e. The recruiting official was not sure why the applicant did not get the HPLR incentive after he received a BSN because he was no longer involved in the process by that time. 10. He provided an undated, unsigned, and unauthenticated DA Form 5536 which does not contain a bonus control number. 11. He provided the reverse side of a USAREC Form 1166, dated 11 January 2011, indicating he had contracted for special pay. The reverse side of this form was signed and dated by the applicant and the recruiting official. 12. His records do not contain any evidence to show he attained a BSN. 13. He provided an email he sent to a warrant officer in the Education Incentive Office on 13 May of 2012 after speaking with the Inspector General's Office wherein he stated he desired an exception to policy for receipt of the HPLR. a. He was authorized the HPLR during his commissioning process and when he signed his contract. He was told by his recruiter he would be able to take advantage of this benefit during his contractual period. In addition to the HPLR, he was eligible for special pay and the GI Bill. However, he has not been able to access any of these benefits. b. He entered the ARNG with an ASN. After he signed his contract he was told the Army changed the regulations and some of the benefits for nurses with ASN's had changed with them. The special pay incentive had been reduced and the HPLR was now only available to Army nurses with a BSN. In an effort to comply with the new regulations, he went back to school for his BSN. c. While pursuing his BSN, he tried to access his GI Bill benefits and learned he was not eligible for the GI Bill despite what he had been told. d. Once enrolled in the BSN program, he attempted to take advantage of the Specialized Training Assistance Program (STRAP). Although eligible for this program, a correct and complete packet was not able to be submitted until the very end of his BSN program. Consequently, there was not enough time left in his BSN program to take advantage of the STRAP. Weeks after learning this, he contacted his recruiter and informed him he would be completing the BSN program in the coming month. He asked how he should go about accessing the HPLR benefits and was told the HPLR Program and the special pay incentive had been completely eliminated only days earlier. He currently has over $40,000.00 in student loans. 14. He provided an email from an MAARNG Incentives Manager, dated 5 February 2013. The MAARNG Incentives Manager indicated he had been in touch with the AMEDD Incentives Manager at NGB who stated: Looking through our records, we have never received anything on this SM [service member] (HPLR/bonus contract nor ETP [exception to policy]). There are some issues/errors with the bonus contract but it could be fixed and a complete packet submitted for review. As far as the HPLR contract goes, it is not signed by either the Soldier or the recruiter and is not valid. The Soldier could file a claim with the ABCMR regarding this incentive. 15. The Implementation Guidance for ARNG AMEDD Officer Incentive Programs for FY10-11 issued by NGB on 10 December 2009 states the Selected Reserve incentives available to ARNG healthcare professionals included the HPLR and special pay for health care professionals in critically-short wartime specialties. The medical specialty 66H is listed among the ARNG medical specialties authorized to receive AMEDD incentives and among the alternative specialties authorized or authorized substitutability list to fill specific modification table of organization and equipment (MTOE) or table of distribution and allowances (TDA) positions. a. The HPLR Program requires ARNG officers to serve in an ARNG TDA/MTOE unit to receive HPLR. Applicants will complete the DA Form 5536-R and the amendment. SRIP managers will ensure that each HPLR participant is loaded into iMARC prior to processing. Officers with a BSN are entitled to $10,000.00 per year with a $30,000.00 lifetime cap. b. Individuals contracting for special pay-approved ARNG specialties will receive $5,000.00 to $25,000.00 per year depending upon their specialty. Participants must choose 1, 2, or 3 years of affiliation with the ARNG at the time of application. Medical-surgical nurses (66H) must be State licensed and all participants must meet criteria for appointment as a commissioned officer in the ARNG. The special pay for health professionals may be used as an accession or retention tool for the Nurse Corps when the officer holds a BSN. Army nurse officers holding a BSN are entitled to $5,000.00. Special pay for nurses applies to all 66H's with a BSN up to the rank of MAJ. c. The HPLR Program and special pay may be offered but not contracted at the same time in either order. However, payments and the payback time will be consecutive. The healthcare professional will sign a USAREC Form 1252 at the time of accessioning to show the intent to participate in both programs and in which order. The officer will be required to provide the USAREC Form 1252 as proof of intent in the event that his/her specialty falls off of the CWSL after he/she completes his/her first program (either HPLR or special pay). Applicants must meet the requirements for HPLR and special pay, to include having their specialty listed on the CWSL for the ARNG in the year that they are eligible to apply for the special pay. The USAREC Form 1252 will lock the officer into the policy at the time of his/her accession. DISCUSSION AND CONCLUSIONS: 1. The applicant's argument that his record should be corrected to show he was eligible and approved for the HPLR Program because he was eligible for the HPLR when he was commissioned has been carefully considered. 2. The implementation guidance for ARNG AMEDD Officer Incentive Programs for FY10-11, in effect at the time, covered the period 1 October 2009 to 30 September 2011. This policy contained specific eligibility criteria pertaining to medical specialty 66H for award of special pay and the HPLR incentives. * the applicant must complete a DA Form 5536-R * the applicant must complete an amendment to the DA Form 5536-R * the applicant must possess a BSN 3. He provided a DA Form 5536 for the HPLR; however, this form was not signed or dated and did not have a bonus control number. As such, this form is invalid. Although he provided a partial document, his records do not contain and he has not provided, a completed DA Form 5536-R or an amendment which were required for receipt of the HPLR. 4. He provided the reverse side of a USAREC Form 1166 for the special pay incentive. This form was signed and dated on 11 January 2011; however, it does not contain a bonus control number. Additionally, the FY10-11 policy was still in effect at the time this document was executed. As such, this form is invalid. 5. Even though the memorandum, dated 7 December 2009, states he was eligible for commissioning on 4 December 2009 under two incentives (special pay incentive and the HPLR), he did not meet the criteria of the SRIP policy in effect at the time (FY10-11) because he did not hold a BSN. 6. Notwithstanding the NGB advisory opinion, based on the foregoing, there is insufficient evidence to grant relief in this case. 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 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) AR20130003645 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130003645 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1