IN THE CASE OF:  

BOARD DATE:  27 February 2020

DOCKET NUMBER:  AR20180006203


APPLICANT REQUESTS: 

1.  In accordance with a group application submitted by the Office of the Assistant 
Secretary of the Army, Manpower and Reserve Affairs, to this Board, the applicant 
requests a record correction to show entitlement to the incentives received.  
Additionally, the applicant requests cancellation of recoupment action established by the 
California Army National Guard (CAARNG) Incentives Task Force (ITF) and 
reimbursement of all payments collected as a result of the recoupment action, as 
applicable. 

2.  An official with the California Army National Guard (CAARNG), Captain P___, 
requested the Army Board for Correction of Military Records (ABCMR) address the 
request submitted by the applicant that was administratively closed under ABCMR 
Docket Number AR20140015086 received on 25 August 2014.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	Two DD Forms 149 (Application for Correction of Military Record)
*	DD Form 4 (Enlistment/Reenlistment Document)
*	National Guard Bureau Form 89 (Proceedings of a Federal Recognition 
Examining Board)
*	Appointment Orders
*	DA Form 1059 (Service School Academic Evaluation Report)
*	Separation Orders
*	NGB Form 22 (Report of Separation and Record of Service)
*	CAARNG ITF Audit – Health Professional Loan Repayment Program (HPLRP) 
with supporting documents
*	Three memorandums, subject: [Applicant] Incentive
*	DD Form 139 (Pay Adjustment Authorization)




FACTS:

1.  NDAA FY 2017, Section 617(c) and the Secretary of the Army Memorandum dated 4 
January 2017, states, in effect, that this Board will:

   a.  Address whether the applicant was eligible for the incentive(s) contracted for, 
eligible for the payment(s) received, and if the full length of time tied to the contractual 
obligation was served.
   
   b.  Determine waiver of recoupment is warranted, unless the Board makes an 
affirmative determination, by a preponderance of evidence, that the applicant knew or 
reasonably knew if they were ineligible for incentive pay received. The existence of a 
signed contract or other document showing that the applicant knew that his or her 
bonus payments were tied to a specific length of service and did not serve that length of 
time while retaining all payment will be sufficient evidence to conclude that they "knew 
or reasonably should have known" that he or she was not entitled to the payment(s).

2.  On 24 May 2001, having previously served in the U.S. Army Navy Reserves, the 
applicant was appointed as a second lieutenant in the CAARNG as a Physician 
Assistant.  On 17 January 2003 she successfully completed AMEDD Officer Basic 
Course. 

3.  On 28 October 2003 she was separated honorably from the CAARNG and 
transferred to the U.S. Army Reserve Control Group [IRR].  

4.  An ITF Bonus Audit Form dated 24 June 2011 shows her HPLRP was audited, it 
states the applicant was ineligible to contract for the HPLRP due to not meeting 
minimum length of service requirements and her record being void of a contract.  The 
audit provides several transmittal letters and copies of Treasury checks showing 
payments processed for payment to educational institutions. 

5.  On 12 July 2012, the NGB submitted a memorandum indicating the applicant's audit 
was thoroughly reviewed, it states, HPLRP payments in the amount of $50,000 were 
processed and although the applicant was eligible for the HPLRP, there is no contract 
on file making the payments erroneous.  Additionally, there were no loan supporting 
documents in her record to indicate whether or not her loans were eligible for the 
HPLRP.  The applicant separated prior to the completion of her three year term.  There 
is insufficient evidence to support the payments processed.  Her record is also void of a 
USAREC Form 1252 or USAREC Board Results showing she was offered and 
accepted the HPLRP or special pay at the time of her accession.  The applicant met 
eligibility requirements for the HPLRP when she commissioned and continued to 
participate until her separation in October 2003.  
6.  On 26 July 2012, she was notified the CAARNG audited her HPLRP payment in the 
amount of $50,000 was to be recouped.  The payment was paid without supporting loan 
documentation, no contract. On 1 October 2012 the CAARNG ITF submitted a charge 
for the SLRP in the amount of $50,000.  The reason for adjustment indicates the 
applicant received incentive funds erroneously.

7.  On 6 March 2006 the CAARNG submitted a request for an exception to policy on 
behalf of the applicant indicating the CAARNG's incentive program routinely processed 
erroneous incentive and loan payments and ignored program rules without NGB 
authority to do so from 2004 until 2009, resulting in the former state incentive manager 
being sentenced to 30 months in a federal penitentiary and $15.2 million in restitution. 

8.  On 3 October 2018, an official with the National Guard Bureau provided an advisory 
in regards to her HPLRP recoupment in the amount of $50,000 and recommended full 
relief, stating that based on the information provided, the lack of evidence to 
demonstrate an intent of deceit, the errors associated with the processing of the 
Soldier’s incentive, and the lack of proper counseling in regards to her incentive, the 
applicant should retain all monies paid to her for the HPLRP incentive.

9.  Contract and Incentive Eligibility.  The applicant was eligible for the HPLRP and she 
was eligible to receive payment from the date she was appointed into the CAARNG to 
the date of separation.  She did not complete her 3 year obligation in regards to the 
contractual term required.  

BOARD DISCUSSION:

After reviewing the application, the supporting documents, the records, applicable 
regulations, and the facts above, the Board found that relief is warranted as 
recommended in the Board Determination and Recommendation below.





BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:XXX	:XXX	:XX	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 records of the individual concerned be corrected by showing a request for 
waiver of recoupment in the amount of $50,000 has been approved and reimbursing to 
her any money recouped.  


 

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.


REFERENCES:

1. National Defense Authorization Action for Fiscal Year 2017 (NDAA FY17)
Section 671(c), Benefits Paid to Members of California National Guard, provides
the Secretary of Defense shall conduct a review of all bonus pays, special pays, student 
loan repayments, and similar special payments that were paid to members of the 
National Guard of the State of California during the period beginning on 1 January 2004, 
and ending on 31 December 2015; and states, the board of review concerned will carry 
out a complete review of all incentive contracts awarded to members for which the 
CAARNG has reason to believe a recoupment of pay may be warranted, to determine:

	a.  Whether the members were eligible for the contract and whether the contracts 
accurately specified the amounts of pay for which they were eligible. 

   (1)   If any member is determined not to have been eligible for an incentive
payment paid, the board will determine whether waiver of recoupment is warranted.

	(2)  The board or review will determine a waiver of recoupment is warranted 
unless the board makes an affirmative determination by a preponderance of evidence 
that the member knew or reasonably should have known the member was ineligible for 
the incentive pay otherwise subject to recoupment.

	b.  If any incentive payments paid to any member has been recouped and 
whether the recoupment is unwarranted. The board of review shall determine that 
recoupment was unwarranted unless the board makes an affirmative determination, by 
a preponderance of evidence that the member knew or reasonably should have known 
that the member was ineligible for the incentive pay otherwise subject to recoupment.

2.  A memorandum, Secretary of the Army, subject: Army Review of California Army 
National Guard Bonus and Student Loan Repayment Cases, dated 4 January 2017, 
states, cases referred to the Army Board of Corrections of Military Records (ABCMR) to 
be adjudicated will comply with the standards contained NDAA FY 17, Section 671(c) 
specifically that ABCMR shall determine:

     a. That waiver of recoupment is warranted with respect to a Soldier unless the Board 
makes an affirmative determination by a preponderance of evidence that the Soldier 
knew or reasonably should have known that the Soldier was ineligible for payments at 
issue.

      b. The existence of a signed contract or other document showing that a Soldier 
knew that his or her bonus payments were tied to a specific length of service and failed 
to serve that length of time while retaining all payment may be sufficient evidence to 
conclude that a Soldier "knew or reasonably should have known" that the Soldier was 
not entitled to the payments. 

//NOTHING FOLLOWS//


ABCMR Record of Proceedings (cont)	 AR20180006203


5
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1