BOARD DATE: 17 April 2012 DOCKET NUMBER: AR20120000150 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. he be awarded additional constructive credit for his professional experience and b. adjustment of his date of rank (DOR) to captain to 1 November 2007 (per his request in his rebuttal to the advisory opinion). 2. The applicant states: a. information concerning his civilian professional biochemistry experience was inadvertently omitted in the constructive service credit section of his DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)). As a result, his DOR was improperly calculated. He requests an additional 1 year and 6 months of constructive credit and his DOR be adjusted to 2 April 2008. b. the omission of his civilian professional experience and subsequent incorrect calculation of his DOR impedes his ability to be promoted in a timely manner with peers of equivalent and scientific experience. Previous to his branch transfer to Medical Service, he was an Adjutant General captain with over 3 years time-in-grade (TIG), two company commands, and a deployment during Operation Iraqi Freedom. Without correction of this error, he will have been a captain for at least 7 years prior to promotion to major. Additionally, several other area of concentration (AOC) 71As and AOC 71Bs (biochemist) have this experience annotated correctly on their DA Forms 5074-1-R. c. the original error can partially be attributed to AOC 71B being a low density AOC in the Reserves. This caused a significant degree of confusion when the application paperwork was originally submitted at the Deerfield Healthcare Recruiting Station in Westchester, IL, which was more knowledgeable about physician entry into the U.S. Army Reserve (USAR) than a rare health care AOC such as 71B. He was their first individual to apply for a basic science officer type AOC. At one point in the process they even mistakenly filled out the application stating he was a psychiatrist before being corrected by him. As a result, his professional experience was likely either not put into the system properly or not properly conveyed to the personnel filling out the DA Form 5074-1-R. Since the error's discovery, he has submitted three packets to the Human Resources Command (HRC) over the course of a year. Two were errantly misrouted to medical records. Only upon finally speaking with an HRC representative did he received the information that only this Board could correct this error. 3. The applicant provides: * DA Form 5074-1-R * Document with omitted entry on his DA Form 5074-1-R * Excerpt from Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) * ARPC Form 4111 (Computation Sheet for Establishing Adjusted DOR and PPED of AMEDD [Army Medical Department] RC [Reserve Component] Officer) * Letter, dated 22 November 2010, from his supervisor * Employment verification * Letter, dated 7 December 2011, from the Chair, Department of Chemistry and Biochemistry * DA Form 4187 (Personnel Action) * Original CV [curriculum vitae] submitted to the recruiting station * DA Form 2-1 (Personnel Qualification Record) * Scientific journal articles * Captain promotion orders CONSIDERATION OF EVIDENCE: 1. The applicant was appointed a second lieutenant in the USAR, Adjutant General Corps, on 11 February 2002. He was promoted to captain on 25 May 2005. He completed his Ph.D. on 16 June 2006. He was appointed a captain in the USAR, Medical Service Corps (MSC), on 2 October 2009 with 7 years of constructive credit. 2. A DA Form 5074-R, dated 27 October 2009, shows he received 4 years of constructive credit for basic qualifying degree and he received 3 years of constructive credit for prior active commissioned service credit for the period 11 February 2002 to 14 April 2009. 3. In the processing of this case, an advisory opinion was obtained from the Director, Health Services Directorate, U.S. Army Recruiting Command (USAREC), dated 18 January 2012. The advisory official recommends disapproval of the applicant's request and determined his constructive credit was properly computed. The advisory official states: a. the documentation of the applicant's education verifies that his qualifying degree for appointment as a 71B is his doctorate degree from the University of California. In accordance with the Department of Defense Instruction (DODI) Number 6000.13 (Medical Manpower and Personnel), he was awarded 4 years constructive credit for his doctorate degree because it served as his qualifying degree. b. in reference to his additional credit for military service, he had prior commissioned service culminating as a captain. Per DODI 6000.13, paragraph 6.1.1.2, "Service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, but not in the corps or professional specialty in which being appointed, shall be awarded one-half day of credit for each day served in the case of individuals seeking an original appointment as a health professions officer." Constructive credit should have been awarded for the following two periods of commissioned service; 11 February 2002 to 31 July 2002 and 17 June 2006 to 14 April 2009. Constructive credit cannot be duplicated, nor should it be awarded for the period for which the applicant was actively pursuing his doctorate degree during the period 1 August 2002 to 16 June 2006. In addition, duplicate credit for work experience cannot be awarded for the period after he graduated because he was awarded constructive credit for his time spent as a commissioned officer through 14 April 2009. In accordance with USAREC Regulation 601-37, constructive credit is calculated up to the date of board, which was 14 April 2009. c. in reference to his additional credit for work experience after he graduated from the University of California, he cannot receive duplicate credit because he was awarded constructive credit above for his time spent as a commissioned officer during that same time period that he argues he should've been granted constructive credit for work experience. d. he was granted a current grade held waiver by the Office of the Army Surgeon General at the time of the board to retain his current grade of captain based upon his adjunctive skills from his time spent in the Adjutant General Corps. If he was not granted a waiver for his current grade held, he would've received a total of 1 year, 7 months, and 23 days of constructive credit for the dates listed above towards the grade of captain for his prior commissioned service. The applicant would've been reduced to the grade of first lieutenant based upon the promotion phase points, which were set by the U.S. Army Reserve at 7 years, 0 months, and 0 days at the time of his board on 14 April 2009. e. his total constructive credit at the time of his board was 5 years, 7 months, and 23 days, but per the recommendation from the Office of the Army Surgeon General, he was awarded 7 years, 0 months, and 0 days and retained the rank of captain. f. the advisory official recommends that the applicant's total constructive credit remain firm at 7 years, 0 months, and 0 days. 4. On 18 January 2012, the advisory opinion was furnished to the applicant for his review and possible rebuttal. On 13 February 2012, the applicant responded and stated: a. he requests his DOR be adjusted to 1 November 2007 so he may serve the USAR and country to his fullest capacity as an officer. b. his original correspondence was based on Army Regulation 135-101 that governs constructive credit for AMEDD officers. Although DODI 6000.13 supersedes Army Regulation 135-101 in certain areas altering the basis for his original calculation, the apparent inequity of his constructive credit calculation unfortunately remains. Despite usage of certain sections of DODI 6000.13, the intent of awarding constructive credit is still the same: "shall be granted to recognize previous commissioned experience, while maintaining cognizance of the level of professional knowledge, skill and experience required at specific rank levels" (paragraph 6.1.1). c. prior to his appointment as an MSC officer, he accrued 3 years, 2 months, and 3 days of TIG as a captain. During this time he served as a company commander for two different companies, as an Assistant S-3, and as an Assistant S-1. His total accrued command time was 4 years and 10 months. He completed his military education for his grade by graduating on the Commandant's list from his Officer Basic Course (OBC) and Advanced Course. He also completed the Combined Arms Course suggested for major and required for lieutenant colonel. He possessed prior to the 14 April 2009 board all the markings of a captain with over 3 years TIG of any AOC. d. beyond the success of his military career with the USAR, he has also pursued a successful civilian career as a biochemist. Prior to 14 April 2009, this success included 10 peer-reviewed publications in top tier peer-reviewed scientific journals. He garnered several academic awards to include the top graduate of his doctoral class in a discipline extensive leave of absence for OBC training and mobilization to Iraq in the middle of his doctoral program. His outstanding efforts in this arena can be further reflected in his success in obtaining a tenure-track position in half the time of contemporaries at the University of Denver in the fall of 2009. The University of Denver is a research oriented university and he has an active research program directly related to his AOC. According to one of the top publications in all of science, this would have placed him in the top 15% of all scientific Ph.D.s in the nation in 2006, and likely the top 10% in 2009. As a result, he believes the education and top notch directly-applicable experience exceeds the level of professional knowledge, skill and experience that the USAR would find in a captain with no years TIG. e. typically calculating constructive credit is a straight forward endeavor as the applicant draws the majority of experience either from prior civilian or military experience. However, his record reflects the unusual situation where he possesses both significant military and civilian experience, meeting the above 6.1.1 statement for a captain with more TIG than zero. The advisory opinion mentions, DODI 6000.13 does state that "A period of time shall be counted only once…" However, it also states in the same section "except where noted otherwise." The USAREC calculation unfortunately only focused on a typical case scenario, not fully accounting for his unique blend of military and civilian experience. f. as a result, their calculation overlooks one of these exceptions in 6.1.1.3, by not awarding service credit for his service in Iraq. In other words, currently the calculation blocks off 4 years for his degree despite the fact that he ended his M.S. on 14 December 2002 and had to take a leave of absence from his degree program to train and mobilize to Iraq. This leaves him completing his four year degree in less than four years. However, section 6.1.1.3 states that "An officer on active duty or in an active status who completes a program that would qualify for credit under subparagraph 6.1.2.2, may be given by the Secretary of the Military Department concerned the amount of difference between the actual number of years the officer took to complete the program" (i.e. 4 years). Based on this calculation alone, his constructive credit should have been 7 years and 21 days without any additional civilian experience or waiver. Additionally, due to this unique situation, he would hope the Secretary of the Army could grant him a waiver under 6.1.5.3 to include his civilian experience and allow him the additional 1 year, 11 months, and 1 day to move his DOR back to date to 1 November 2007. g. currently his constructive credit calculation penalizes him 3 years TIG for excelling at both his civilian and military careers. In doing so, the current outcome is not "equitable." In other words, a civilian just coming in would be at or near the constructive credit years that were originally awarded to him, thus either short changing his civilian or military experience. If the situation remains unchanged, his tenure in the rank of captain will be at a minimum of 7 years before he is board eligible for major. He has already completed all of his military education and served in the top positions for a captain. This delay will stunt his military career and not place him among his true peers as is the spirit of constructive credit. h. more importantly, the current situation denies him the opportunity to contribute the full wealth of his military and civilian experience to the USAR by unnecessarily delaying his ability to serve his country in positions of greater responsibility where his talents can be used to the fullest. Overall, he humbly asks the board to consider all the parameters of his rare situation and grant him additional constructive credit to restore at least a portion of his lost TIG through a combination of sections 6.1.2.2 and 6.1.5.3, or by 6.1.5.3 alone. 5. DODI 6000.13, dated 30 June 1997, implements policy, assigns responsibilities, and prescribes procedures to carry out medical manpower and personnel programs. Paragraph 6.1. states a prospective health professions officer’s entry grade and rank within grade shall be determined by the number of years of entry grade credit awarded on original appointment, designation, or assignment as a health professions officer. The entry grade credit to be awarded shall equal the sum of constructive service credit and prior commissioned service (as outlined in the DODI) credit except in cases where the total exceeds the maximum credit allowed. A period of time shall be counted only once when computing entry grade credit. 6. Paragraph 6.1.1 of DODI 6000.13 states credit for prior service as a commissioned officer (other than as a commissioned warrant officer) shall be granted to recognize previous commissioned experience, while maintaining cognizance of the level of professional knowledge, skill, and experience required at specific rank levels of each health profession. The Secretaries shall establish procedures to ensure the awarding of prior commissioned service credit is applied in an equitable and consistent manner. 7. Paragraph 6.1.1.2 of DODI 6000.13 states service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, but not in the corps or professional specialty in which being appointed, shall be awarded one-half day of credit for each day served in the case of individuals seeking an original appointment as a health professions officer. 8. Paragraph 6.1.1.3 of DODI 6000.13 states commissioned service on active duty or in an active status while participating in an educational program leading to appointment in a specialty in which constructive service credit is awarded, shall be awarded day-for-day credit for service performed. An officer on active duty or in an active status who completes a program that would qualify for credit under subparagraph 6.1.2.2., below, in less than the number of years normally required to complete such education, may be given constructive credit by the Secretary of the Military Department concerned in the amount of the difference between the actual number of years the officer took to complete and the amount of time normally required to complete the program. The maximum constructive service creditable for completing such a program shall be the number of years (to the nearest year) normally required to complete the advanced education or receive the advanced degree, in accordance with Sections 533 and 12207 of reference (c). Constructive service credit may be awarded only if such advanced education or advanced degree is required as a prerequisite for original appointment as a commissioned officer in a particular officer category. 9. Paragraph 6.1.2.2 of DODI 6000.13 states constructive service credit shall be awarded as follows: 6.1.2.2.1. Four years of constructive service credit shall be granted for completion of first professional degrees that include medical (M.D.), osteopathy (D.O.), dental (D.D.S. or D.M.D.), optometry (O.D.), podiatry (Pod.D. or D.P.), veterinary (D.V.M.), and pharmacy (Ph.D.). 10. Paragraph 6.1.5.3 of DODI 6000.13 states in considering a waiver request, the Secretary of the Military Department concerned must determine that the individual receiving the waiver possesses the overall ability to perform effectively at the higher grade level, and that the waiver would not have a detrimental effect on the efficiency and effectiveness of the individual’s military assignment. 11. Army Regulation 135-101, paragraph 3–2 (Determination of entry grade for officers not ordered to active duty), Table ERR states the appointment grade of an individual in the MC with entry grade credit of 4 years or more, but less than 14 years is captain. DISCUSSION AND CONCLUSIONS: 1. The applicant contends: a. the omission of his civilian professional experience and subsequent incorrect calculation of his DOR impedes his ability to be promoted in a timely manner with peers of equivalent and scientific experience. b. typically calculating constructive credit is a straight forward endeavor as the applicant draws the majority of experience either from prior civilian or military experience but his record reflects the unusual situation where he possesses both significant military and civilian experience. c. his constructive credit should have been 7 years and 21 days without any additional civilian experience or waiver. d. his constructive credit calculation penalizes him 3 years in TIG for excelling at both his civilian and military careers. e. despite usage of certain sections of DODI 6000.13, the intent of awarding constructive credit is still the same: "shall be granted to recognize previous commissioned experience, while maintaining cognizance of the level of professional knowledge, skill and experience required at specific rank levels." 2. Evidence shows he was first appointed a USAR commissioned officer on 11 February 2002. He was then appointed a captain in the USAR, MSC, on 2 October 2009 and he was awarded 7 years of constructive credit. He was awarded 4 years constructive credit for his doctorate degree because it served as his qualifying degree. He was awarded 3 years for his prior active commissioned service credit during the period 11 February 2002 to 14 April 2009. 3. The primary guideline in DODI 6000.13, in paragraph 6.1, is that a period of time shall be counted only once when computing entry grade credit. 4. With regard to additional constructive credit for his work experience, he cannot receive duplicate credit because he was awarded constructive credit for his time spent as a commissioned officer during that same time period. 5. With regard to additional credit for his military service, constructive credit cannot be duplicated, nor should it be awarded for the period for which he was actively pursuing his doctorate degree during the period 1 August 2002 and 16 June 2006. In addition, duplicate credit for work experience cannot be awarded for the period after he graduated because he was awarded constructive credit for his time spent as a commissioned officer through 14 April 2009. 6. His contentions and request for additional constructive credit were carefully considered. However, the advisory opinion points out his total constructive credit at the time of his board was 5 years, 7 months, and 23 days, but per the recommendation from the Office of the Army Surgeon General, he was awarded 7 years, 0 months, and 0 days and retained the rank of captain. 7. He was granted a current grade held waiver by the Office of the Army Surgeon General at the time of the board to retain his current grade of captain based upon his adjunctive skills from his time spent in the Adjutant General Corps. If he was not granted a waiver for his current grade held, he would have received a total of 1 year, 7 months, and 23 days of constructive credit for his prior commissioned service and he would have been reduced to the grade of first lieutenant. 8. In view of the foregoing, there is no basis for granting the applicant's requested relief. 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 that 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) AR20120000150 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120000150 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1