BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160013134 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160013134 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. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160013134 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 military records to show his entitlement to repayment of all Stafford student loans under the Health Professional Loan Repayment (HPLR) Program. 2. The applicant states in summary: a. His DA Form 5536 (Agreement Health Professional Loan Repayment) allows for repayment of up to $240,000 of qualified loans, which is higher than his total balance. At the last anniversary payment in 2015, he was expecting to have had them paid off in full. He was notified that some of his Stafford student loans were considered ineligible because they were considered undergraduate loans, even though they met the qualifications under the agreement. b. Neither the HPLR agreement nor the governing statutes exclude undergraduate loans. After a review of the HPLR agreement and governing regulations Army Regulation (AR) 135-7 (Army National Guard (ARNG) and Army Reserve – Incentive Programs) and Title 10, U.S. code, section 16302 (Authority for the HPLR program), it appears clear that all of his qualified student loans are eligible for repayment under this program. c. He has requested help and sent in supporting documentation to the Pennsylvania Army National Guard (PAARNG) Incentive Branch and the National Guard Bureau (NGB) Incentive Branch that his undergraduate Stafford loans be repaid in accordance with the signed HPLR agreement. d. The NGB Incentives Branch responded by stating that this section of the law was interpreted by the Office of the Secretary of Defense (OSD) Health Affairs, Headquarters Department of the Army (HQDA), and by the NGB Staff Judge Advocate (SJA) to only apply to a person who possesses professional qualification, or is enrolled in a program of education leading to professional qualifications in a health profession. The Secretary of Defense must have determined the health profession to be needed critically in order to meet identified wartime combat medical skill shortages. e. NGB Incentives Branch also stated that an undergraduate degree, while required for medical school application, is not a program of education leading to professional qualifications. Medical school is the first degree that awards a professional qualification and is the only degree eligible for repayment. NGB agreed that the written agreement the applicant signed is silent on the matter of undergraduate loans, however NGB may not break how the command interprets the law. Fiscal law requires us to have affirmative authority to expend funds for a particular purpose. f. It appears that NGB ignored the first part of Title 10, U.S. Code, section 16302, paragraph (b) 2, where it clearly delineates an individual who possesses professional qualifications from an individual who is currently in training. He argues he qualifies under the "possesses qualifications," as he is not in a training program and therefore his loans are to be considered authorized by Congress to be paid. g. He has asked for and has not received any written validation of who provided their interpretation of this law to date. He asked the Pennsylvania Inspector General's (IG) office for their assistance and they as well as the Incentives Branch directed him to the Army Review Boards Agency (ARBA) for further assistance in this matter. From his perspective both appear to be in agreement with his interpretation of the HPLR agreement and governing statues. 3. The applicant provides: * exception to policy (ETP) request * copy of email to incentive branch * NGB response to exception to policy request * National Student Loan Data System supporting documents * loan payment information printout * PAARNG action request * DD Form 5536 * copy of email from NGB-IB * copy of AR 135-7 * copy of Title 10, U.S. Code, section 16302 CONSIDERATION OF EVIDENCE: 1. At the time of his application, the applicant was serving as a colonel (COL), pay grade O-6 in the PAARNG. 2. The applicant's HPLR agreement, dated 19 November 2011, shows the Army Surgeon General determined that he was qualified for service in critical medical/nursing specialty 60J, Obstetrics/Gynecology (OB/GYN). It also shows: a. On each anniversary date, his unit will initiate a request for repayment on eligible loans. On an anniversary date, any loan will be considered eligible that: (1) Has been secured on or after 1 October 1975 and made, insured or guaranteed under Part B or E of the Higher Education Act of 1965 or a health education assistance loan (HEAL) made or insured under Part C of Title VII of the Public Health Service Act. (2) Has an outstanding balance on the principal. (3) Is not [in] default. (4) Has been secured for at least one year prior to current anniversary date. b. An amendment to DA Form 5536-R, states that the maximum aggregate amount of repayments under this agreement has been increased to $40,000 per year or the remaining balance of the loan(s), whichever is less. Total program repayments for all years will not exceed the maximum amount authorized of $240,000. 3. On 15 March 2016, the applicant requested assistance from the PAARNG IG in determining the eligibility of student loans that qualify under the Army HPLR program, and the interpretation of eligible loans according to Title 10, U.S. Code, section 6302. He requested assistance with paying off his student loans in full. In his request he also stated that the NGB determination that some of his Stafford loans were not eligible left him with a remaining balance of approximately $10,500. He questioned several ARNG officials in regards to the interpretation of eligible loans under the HPLR contract. He claimed all his student loans are Federal loans and meet the eligibility criteria and were used to obtain his professional degree. 4. The applicant provided an undated email form the PAARNG Assistant IG, which states that she received plenty of information about his case, but unfortunately she received the same answers [from authorities] as the applicant. She recommended his next course of action was to apply through the Army Board of Corrections for Military Records (ABCMR) or contact the NGB-Inspector General (NGB-IG). 5. On 7 June 2016, the applicant submitted an ETP for HPLR to the Army Medical Department (AMEDD) incentives team. He requested an exception to policy in regards to repayment of his student loans under the HPLR program. The applicant requested that all federally qualified loans that were required to obtain his professional degree be considered for repayment under the HPLR program. This included his undergraduate Stafford loans. 6. He provided an email from the AMEDD Incentives Team, dated 11 July 2016, which states that there is no ETP for AMEDD incentives. Delegation of authority to grant exceptions to policy has not been passed from HQDA to AMEDD. AMEDD cannot allow undergraduate loans to be paid under the HPLR program. The applicant was advised to take his case to PAARNG legal counsel or ABCMR. 7. In support of his case the applicant provides: a. Numerous emails between himself and Army officials showing his attempts to obtain an ETP, and information regarding his eligibility to receive repayment of all his student loans. b. National Student Loan Data System printouts listing his loans. c. A DA Form 5536 with amendment, which explains the HPLR program and confirms the eligibility requirements and repayments. He and the appointing commissioning official signed this form on 11 November 2011. d. Extracts from Title10, U.S. Code, section 16302. 8. In connection with the processing of this case, an advisory opinion was received from NGB, Chief, Personnel Policy Division. The NGB official recommended disapproving the applicant's request. a. The NGB official pointed out that the applicant signed a HPLR program agreement (DA Form 5536) on 19 November 2011, in the critical skill military occupation specialty 60J (OB/GYN). The applicant terminated his HPLR contract on 28 August 2016 in order to receive a retention bonus of $25,000. b. Per email from the ARNG (NGB)-Incentives branch, it was determined that in the ARNG's interpretation of Title 10, U.S. code, section 16302, the applicant’s undergraduate degree did not allow him to practice medicine as an OB/GYN. Thus the applicant's undergraduate degree did not qualify as a basic professional qualifying degree. The applicant's undergraduate degree also did not qualify as graduate education in a health profession that the Secretary of Defense determined to be critically needed. His undergraduate degree qualifications would not allow him to be placed on the Critical Wartime Shortage List as he would not have been allowed to practice anything or awarded an area of concentration. The ARNG does not have the authority to recommend repayment of the applicant's undergraduate degree loans due to the aforementioned reasons based on law. c. Title 10, U.S. Code, section 16302(b) (2) states the Secretary concerned may repay loans described in subsection (a) only in the case of a person who possess professional qualifications, or is enrolled in a program of education leading to 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. 9. The applicant was provided a copy of the advisory in order to allow him time to respond or submit a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 135-7 prescribes policies and procedures for administration of the ARNG and Army Reserve incentive programs. The Secretary of the Army authorizes the use of incentives described in this regulation including the HPLR. Incentives serve as an extraordinary measure to assist the ARNG and the Army Reserve in meeting and maintaining manpower requirements. Incentives will be used to support early deploying units, critical shortage skills, and personnel shortages in the Army Reserve-Individual Ready Reserve. Skill selection for incentive coverage is based on a military occupational skill review performed under the Secretary of Defense. It states the loan repayment incentive provides for the repayment by the U.S. Government of a designated portion of any outstanding loan(s) provided the Secretary of Defense determines the health profession is critically needed in order to meet identified wartime combat medical skill shortages. To be eligible for the HPLR, among other qualifications the individual concerned must be in good professional standing, with a current and valid medical/nursing license, and if required a specialty certificate. 2. Title 10, U.S. Code, section 16302 prescribes the legal framework for the HPLR program. 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. DISCUSSION: 1. The available evidence shows the applicant executed a contract in 2011 to receive HPLR incentive program benefits for service in critical medical/nursing specialty 60J, OB/GYN. He states and authorities confirm he received payment incentives for HPLR. However, he had a remaining balance of approximately $10,000 at the time of his application. 2. The applicant terminated his HPLR contract on 28 August 2016 in order to receive a retention bonus of $25,000. 3. The NGB advisory opinion, regulation, and law do not support his interpretation that all of his student loans were eligible for repayment under the HPLR program. As the applicant's undergraduate degree would not have allowed him to practice medicine as a licensed OB/GYN, those loans attributed to his undergraduate degree cannot be paid under the HPLR. 4. The applicant's undergraduate degree did not qualify as graduate education in a health profession that the Secretary of Defense determined to be critically needed. His undergraduate degree qualifications would not allow him to be placed on the critical wartime shortage list, because he would not have held a recognized medical specialty and licensed to practice that specialty upon receiving his undergraduate degree. 5. While the applicant argues otherwise, the Secretary concerned may repay student loans only in the case of a person who possess professional qualifications, or is enrolled in a program of education leading to 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. It appears the NGB Incentives Branch, based on guidance from the Secretary of the Army, paid a portion of his student loans that were directly attributed to his medical degree, not his undergraduate degree. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013134 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013134 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2