IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150012605 BOARD VOTE: ____X____ ___X_____ ___X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150012605 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 records of the individual concerned be corrected by: a. showing all appropriate documents were properly prepared and signed in a timely manner; thereby establishing his eligibility for Health Professionals Loan Repayment (HPLR) program benefits that have been previously paid; and b. cancelling any ongoing debt collection actions and reimbursing him any monies already collected. _____________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. IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150012605 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 a Health Professionals Loan Repayment (HRLR) Agreement was completed and signed in a timely manner, or waiver of the requirement for an agreement. He further requests cancellation of the ongoing recoupment actions and a waiver of the $50,000 debt that has been levied against him, including the interest charged to his account. Lastly, he requests a personal appearance before the Board. 2. The applicant states, in effect: a. He was qualified for the loan repayment program and served his time during the repayment period. He was never asked to sign a contract/agreement nor was he aware that signing a contract/agreement was necessary. b. In 2002, he applied and was approved for the HPLR program, which was signed by his unit and the California Army National Guard (CAARNG) Bonus Manager's office. The funds were sent to the Department of Education for public loans in the amount of $40,000 in September 2002 and $10,000 in April 2004. c. After his application was approved, he was not asked to sign a contract and did not know he needed to. It wasn't until 2013 that the CAARNG Incentives Task Force (ITF) contacted him regarding the missing paperwork. He has been working with both the ARNG and the Defense Finance and Accounting Service (DFAS) to resolve the situation but neither is willing to provide the final approval for his request. d. A statement was included on his ITF audit file that stated, "Soldier fully qualified to contract for HPLRP per AMEDD policy 02-03." THE CAARNG is not willing to provide an exception to policy even though this was their paperwork mistake and DFAS is not willing to waive the funds since the claim is not technically a pay issue. e. His lack of a contract/agreement for this bonus was not due to fraud on his part, simply negligence and the lack of oversight on the CAARNG's part. In 2010, is was discovered that the CAARNG's Bonus Incentive Manager was negligent in thousands of cases similar to his and engaged in fraudulent activities in many more cases. These cases involving fraud triggered an audit for all bonus payments from 2004-2010. 3. The applicant provides: * a self-authored statement * a one-page Aid Summary sheet from Federal Student Aid, the National Student Loan Data System (NSLDS) for Students, showing status effective 27 April 2001 * a copy of his Doctor of Medicine Degree from the University of Illinois, dated 6 May 2001 * Orders 135-469, issued by the Illinois ARNG (ILARNG) on 15 May 2001 * Orders 250-085, issued by the ILARNG on 7 September 2001 * DD Form 2475 (Department of Defense (DOD) Educational Loan Repayment Program (LRP) Annual Application), dated 12 February 2002 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 15 December 2004 * National Guard Bureau (NGB) Form 22E (Report of Separation and Record of Service), for the period ending 15 March 2007 * NGB Form 23B (ARNG Retirement Points History Statement), prepared 22 March 2007 * an ITF Loan Repayment Audit Form, printed on 24 June 2011 * a memorandum from the U.S. Property and Fiscal Office (USPFO) for California, Mather, CA, dated 15 August 2013 * letters from DFAS, dated 31 January 2014 and 8 June 2015 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. Following prior enlisted service in the ILARNG, the applicant was appointed as a Reserve commissioned officer in the ILARNG on 5 May 1998, as a second lieutenant in the Medical Service (MS) Corps, in area of concentrations (AOC) 00E67 (Medical Student). 3. Orders 135-469, issued by the ILARNG on 15 May 2001, honorably separated him from the ARNG and reappointed him in the ARNG effective 6 May 2001, in the rank of captain in the Medical Corps (MC), in AOC 61H9E (Family Medicine). 4. Order 241-219, issued by the CAARNG on 29 August 2001, reappointed him on 15 August 2001, in the rank of captain. He was assigned to Headquarters and Headquarters Detachment, 340th Forward Support Battalion (FSB), as a 62B (Field Surgeon). 5. Orders 103-21, issued by the NGB on 12 April 2007, honorably discharged him from the ARNG effective 15 March 2007. 6. His record reveals no evidence of a DA Form 5536 (Agreement – HPLR). 7. DFAS records reveal the applicant has a debt in the amount of $50,000, with interest, penalties, and administrative charges totaling $200.54. To date, a total of $23,910.41 has been collected and his remaining balance is $26,290.13. 8. He provides the following documents arranged chronologically: a. A DD Form 2475, which shows he filed an application for repayment of his consolidated loans under the HPLRP on 30 January 2002. This form was verified by his unit's representative on 8 July 2002 and established a loan eligibility date of 6 May 2001 (the date of his commission into the MC). The loan was then processed by the proper authorities on 12 February 2002. b. A DD Form 214, for the period ending 15 December 2004, which honorably released him from active duty by reason of completion of required active service. It is presumed this is to show he was ordered to active duty in support of Operation Iraqi Freedom for a period of nearly three months. c. An NGB Form 22E, which shows he was honorably discharged from the ARNG and the CAARNG on 15 March 2007. He completed 8 years, 10 months, and 11 days of net service this period and 10 years, 6 months, and 4 days of total service for pay. d. An NGB Form 23B, dated 22 March 2007, which shows he was credited with 6 years, 6 months and 4 days of satisfactory military service for retired pay since his commissioning date of 6 May 2001. This form also shows he was credited with 9 years, 6 months, and 4 days of satisfactory military service since his original Reserve commission appointment date of 5 May 1998. e. A CAARNG Incentives Task Force (ITF) Loan Repayment Audit Form, printed on 24 June 2011, which shows his records were audited for incentive entitlement compliance. It shows he was paid $50,000 by DFAS through the HPLR program. It recommends full recoupment of the amount by reason of erroneous pay or entitlement with the auditor summary stating the following: Soldier fully qualified to contract for HPLRP per AMEDD policy 02-03. [AOC] 62B has authorized substitutability for qualification of AOC. Soldier has no indication of ever contracting for HPLRP. Recommend notification of full recoupment without contract being presented. Soldier enlisted into ILARNG on 12 September 1996 as 11B, appointed to 2LT in Medical Services Branch on 5 May 1998, transferred as 62B Field Surgeon into CAARNG on 15 August 2001, separated on 15 March 2007. f. A memorandum from the USPFO for California, NGB, dated 15 August 2013, subject: Incentive Notice of Indebtedness (NOI): Out-of-Service Personnel. This memorandum states the CAARNG ITF found him to be indebted to the U.S. Government for receiving Selected Reserve Incentive Program funds (HPLRP) erroneously in the amount of $50,000, for which recoupment will be sought. Since he has been separated from the CAARNG, the debt will be referred to DFAS for collection. g. A letter from DFAS, dated 31 January 2014, indicating that his request for a waiver consideration of a $50,000 indebtedness cannot be actioned since, DFAS has no record of his debt. h. A letter from DFAS, dated 8 June 2015, referencing his waiver request with a file number. It stated: * his waiver consideration of indebtedness in the amount of $50,000 resulting from the recoupment of his HPLRP incentive bonus payments * he received two payments, one in the amount of $40,000 on 19 September 2002 and one in the amount of $10,000 on 27 April 2004 * his HPLRP incentive bonus contract was absent from his personnel file; because one did not exist * once this error was discovered, the CAARNG initiated a collection of the incentive payments, thus causing the indebtedness * the debt was posted to his account on 3 April 2015 * after careful consideration, DFAS determined his debt for HPLRP is ineligible for waiver consideration * to be considered for waiver, the debt must result from the overpayment of an erroneous pay or allowance; however, this debt is because of educational expenses and not considered pay or allowances REFERENCES: 1. Title 10, U.S. Code, section 16302 prescribes the legal framework for the HPLRP. It states, in pertinent part, that under regulations prescribed by the Secretary of Defense and subject to the other provisions of this section, the Secretary concerned may repay 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. 2. 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. It states repayment of any loans under this program shall be made after each year of satisfactory service performed as a commissioned officer in the Selected Reserve, beginning with the date of signing this contractual agreement. 3. 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 Selected Reserves 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. 4. National Guard Regulation 600-7 (Selected Reserve Incentive Programs), sets policies and procedures for administration of the Army National Guard incentive programs, including bonuses and loan repayment programs. Paragraph 1-13 (Required Documents) 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 acknowledgment that the applicant has been advised of and understands the benefits of the program, and the conditions that require suspension, termination or recoupment, if applicable. These documents will also be authenticated by a proper witnessing official and will include the preparation date. 5. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions when it is deemed necessary, and the Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant requests correction of his records to show he was eligible and approved for benefits under the HPLR program and the cancellation of his outstanding debt and any ongoing recoupment actions. 2. The available evidence shows he accepted a commission in the CAARNG in the MC. Based on the evidence he provides, it appears he was eligible for the HPLRP when he was appointed on 6 May 2001, in accordance with applicable laws and regulations. He filed an application for repayment of his educational loans, which was verified by his unit and certified and processed by the proper authorities on 12 February 2002. 3. Despite the absence of the HPLR agreement, his lenders were paid a total of $50,000. It appears the CAARNG ITF audited his account and determined a discrepancy existed – i.e., the lack of a HPLR agreement – in the incentive process and initiated action to recoup the paid incentive, albeit some 11 years after his repayment application. He submitted a waiver request to DFAS; however, the request was denied. 4. The CAARNG ITF validated on their audit form that he was fully eligible to contract for HPLR. Upon his appointment, it appears he was not informed of his eligibility or the requirement to execute a DA Form 5536 by the recruiting official and/or the State Incentives Manager. 5. It appears he fulfilled his military obligations and he was eligible for the incentive. The evidence indicates any errors were not his own. 6. A formal hearing may be authorized by the Board or by the ABCMR Director whenever justice requires. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interests of equity and justice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012605 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012605 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2