DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

AFBCMR 96-0 1097 

MAY  0 4 1998 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for 

Correction of Military Records and under the authority of Section 1552, Title 10, United States 
Code (70A Stat 116), it is directed that: 

with an effective date and a date of rank of 7 Jun 95. 

tary records of the Department of the Air Force relating 
corrected to show that he was promoted to the grade of 

It is further directed that he be considered for promotion to the grade of captain by a 
Special Selection Board (SSB) for the CY96D Central Captain Board, which convened on 
9 Sep 96. 

EBERG 

. 
Director 
Air Force Review Boards Agency 

U 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  96-01097 

COUNSEL:  NONE 
HEARING DESIRED:  NO 

MAY  0 4 19% 

APPLICANT REQUESTS THAT: 

By amendment, he be retroactively promoted to the grade of first 
lieutenant  (0-2), effective  7  Jun  95;  and  that  he  be  given 
Special Selection Board consideration for promotion to the grade 
of captain  (0-3). 

APPLICANT CONTENDS THAT: 

Title  10  of  the  United  States  Code  (10 USC)  as  it  applies  to 
Uniformed Services University of Health Sciences  (USUHS) service 
credit  is unjust  and  is  unjustly  applied  between  the different 
services. 

In  support  of  his  appeal,  the  applicant  provided  a  personal 
statement, supportive statements, and other documents associated 
with the matter under review. 

Applicant's  complete submission is at Exhibit A. 

STATEMENT OF FACTS: 
Applicant was  appointed a  second lieutenant, Reserve  of the Air 
Force, Medical Service Corps  (MSC), for the purposes of attending 
USUHS, on 27 Apr 92.  On 6 Jun 95, the applicant was academically 
On  1  Aug  95,  the  applicant  was 
disenrolled  from  USUHS. 
transferred  from  the  MSC  to  the  Line  of  the  Air  Force  in  the 
grade  of  second  lieutenant  effective  and  with  a  date  of  rank 
7 Jun  95.  He was  promoted  to the grade of  first  lieutenant on 
7 Jun 97. 

Information  extracted  from  the  Personnel  Data  System  (PDS) 
indicates that the applicant is currently serving on active duty 
in  the  grade  of  first  lieutenant. 
His  Total  Active  Federal 
Military Service Date  (TAFMSD) is 7 Jun 95. 

After  reviewing  the  applicable  statutes,  JA  stated  that  they 
agree with the applicant's  assessment that they do not permit him 
pay  date  credit  for his  USUHS  time,  but  JA  disagrees that  they 
preclude date of rank credit.  In other words,  JA believes he  is 
entitled to credit for his USUHS time for determining his date of 
rank and promotion eligibility. 
The  primary  statutory  provision  is  10  U.S.C.  §  2114(b),  which 
provides in relevant part the following: 

Notwithstanding any other provision of law,  [USUHS students] 
shall serve on active  duty  in pay  grade  0-1 with  full pay 
and  allowances  of  that  grade .... The  service  credit 
exclusions  specified  in  section  2126  of  [Title  101  shall 
apply to students covered by this section. 

According  to  JA,  Section  2126  provides  that  USUHS  students  (as 
well  as  Health  Professions  Scholarship Program  (HPSP) students) 
are not  entitled to count the medical student time for basic pay 
or  retirement  eligibility  purposes. 
The  basic  pay  exclusion, 
obviously, precludes the applicant from obtaining this portion of 
his requested relief. 

However, the section 2126 exclusions do not  preclude use  of  the 
USUHS time  for date of  rank  and  promotion eligibility purposes. 
The key phrase in section 2114 (b) is " [nlotwithstanding any other 
provision  of  law,  [USUHS]  students  serve  on  active  duty . . . .  
Active  duty  time  counts  for  determining  appointment  grade  and 
date of rank/promotion eligibility. 

/ I  

An  important factor in fashioning a remedy for this  case  is the 
peculiar  nature  of  the  active  duty  service  of  USUHS  students. 
They are not on the active duty list  (ADL) and, consequently, are 
not  eligible  for  promotion. 
They  serve  their  entire  USUHS 
student time in the pay  grade of  0-1.  Therefore, the  applicant 
could not have been promoted until he was disenrolled  from USUHS 
on 6 June 1995.  On 7 June 1995, he was on the ADL as an 0-1 with 
almost three years of active commissioned service. 

According  to JA, there are two ways  to handle  the crediting and 
promotion eligibility of  the  applicant.  One  is to treat  him  as 
an  0-1 with  almost  three  years  of  time-in-grade on  7  June  1995 
and promote him to 0-2 on such date.  This would have the effect 
of  giving him  two years of service credit for promotion  for his 
nearly three years of USUHS time.  The other is to promote him to 
0-2  effective  7  June  1995  (the first  time  he  was  statutorily 
eligible  because  before  such  time  he  was  not  on  the  A D L ) ,   but 
with a date of rank of mid-1994  (24 months after beginning active 
duty).  In this  second  case, he  would  not  be  eligible  for back 
pay  f o r   the almost one year of backdated 0-2 grade because he was 
not  then  eligible for  such  rank and  pay,  but  he  would  gain  the 
benefit of his third year of active duty time in USUHS and would 
be  an 0-2 with  almost one year in grade.  Consequently, he would 

6 

AFBCMR  96-01097 

AIR FORCE EVALUATION: 

The  GME  Program  Manager,  AFPC/DPAME,  reviewed  this  application 
and  recommended denial.  DPAME noted  that  the  applicant  signed 
his  USUHS  Military  Service  Obligation  Contract  on  27  Apr  92. 
According to DPAME, paragraph  10 of his  contract  states,  "USUHS 
Reserve  Officer  will  be  subject  to  most  of  the  same  laws, 
regulations, and policies that apply to other Reserve officers on 
active duty, except that service performed while a member of the 
program is not counted:.."  Paragraph 1Oc of his contract states, 
"In computing date of rank, promotion service date or total years 
service date.  (Completion of M.D.  degree will, however, result in 
award of appointment and entry credit according to DOD Directive 
The  applicant's  disenrollment  from  USUHS  does  not 
1320.7) 
affect the intent/contents of his USUHS contract.  Contractually, 
both the Air  Force and the individual still need to comply with 
contents  of  the  contract.  The  rules--and  in  the  applicant's 
case,  knowledge  of  these  rules-in  effect  at  the  time  an 
individual signs his contract should be binding on both  the Air 
Force  and  the  individual.  Since  the  applicant  has  signed  his 
contract, in DPAME's  view, his request has no merit. 

A  complete copy of the DPAME evaluation, with attachment, is at 
Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
In his initial response, dated 8 Jul 96, the applicant indicated 
that the Air Force interpretation of 10 USC and resultant action 
taken to "correct" his statement of service to effectively erase 
three years of his  life  spent on active duty as an officer, is 
unjust in light of the two situations described below. 

The applicant stated that the first example was described on page 
three of his personal statement in his application., He feels it 
is necessary to re-emphasize it here as no one has addressed the 
issue thus  far.  In paragraph  10 of page  three of his personal 
statement, there is an account of another Air  Force officer who 
found herself in a very similar yet very different situation from 
his.  At the date of this writing, the officer he is referring to 
is paid as an 0-2 with over five years of service. He is paid as 
an  0-1 with  one year of service. She was commissioned in May  of 
1991, following a Reserve Officer Training Corps  (ROTC) program. 
He was  given a direct commission in Apr 92.  She came on active 
duty  for  three  months  in  the  summer  of  91,  then  went  to  law 
school  on  an  educational  delay  for  four  years  in  an  inactive 
reserve  status.  He  came  on  active  duty  in  Jul  92  to begin  a 
post-commissioning officer training program, then reported to his 
medical  officer  training  program,  and  has  remained  on 
uninterrupted active duty since that time.  She failed  (at least 
twice) to pass the Bar exam required for her to use her degree in 
the USAF.  He academically failed to complete his medical officer 

2 

AFBCMR 96-01097 

training  program  at  USUHS  after  three  years.  She  returned  to 
active duty in Oct 9 
in the Intelligence Officer's 
Training  Course  at 
He  enrolled  in  the  same 
course in Dec 95. 
as retroactively promoted to 
0-2 as of the summer of 1995, and received several months of back 
pay.  Although in the past five years she has been in uniform on 
active duty as an officer for less than one year, she got half of 
the  time  for  promotion,  and  all  of  the  time  for  her  time  in 
service.  She did not serve, and she cannot use the education she 
received  for the  good  of the USAF.  He has  been  in uniform  on 
active  duty  for  four  years.  Though  he  also  cannot  use  the 
education he received, he did serve, in s 
s,  as a 
USAF  officer.  He  and  his  superiors  at 
believe 
this comparison is unjust. 

SECNAV  INSTRUCTION  1421.4D 

The  applicant  indicated  that  the  second  example  is  new 
information  he  has  compiled  since  he  submitted  his  original 
application to the AFBCMR.  In 1989, the United States Navy  (USN) 
decided  that  there  was  indeed  an  inequity  in  the  way  their 
policies  interpreted 10 USC as it concerned USUHS  students, and 
(copy 
subsequently  published 
attached).  Within a couple of months  of his disenrollment from 
USUHS,  three  USN  officers,  ensigns,  were  also  academically 
disenrolled.  After several discussions and subsequent research, 
these  officers  found  the  above  instruction.  This  instruction, 
paraphrased, states that not considering time spent at USUHS for 
pay  and  promotion  is  inconsistent with  mission  requirements  of 
the  USN.  Please  note:  although  the  US  Code  explicitly  states 
that officers on the active duty list are to be promoted, it does 
not  explicitly  say  that  officers  not  on  the  active  duty  list 
cannot  be  promoted. 
With  this  in  mind,  1421.4D  states  that 
officers not  on the active duty list  (including USUHS students) 
are to be promoted in the same manner as USN officers that are on 
the  active  duty  list.  Based  on  this  argument  and  the  attached 
copies of the above instruction, these three former classmates of 
his,  the  USN  officers,  were  promoted  to  lieutenants,  junior 
grade, on 30 May  96, retroactive to their original two year mark 
(20 May  1994, on the one example case attached).  These officers 
have begun to receive back pay, and their promotion folders will 
go before the 0-3 board this summer (1996) as "above the zone-not 
previously considered."  Again, he must ask, based upon the DOD's 
and  each  individual  service's  requirement  to  accurately, 
correctly,  consistently,  and  fairly  apply  the  US  Code,  is  this 
example, when  compared with his own, an injustice?  Again, many 
individuals at  several levels in the USAF and  DOD have verbally 
stated to him that this is an injustice.  The USN, while not the 
USAF,  changed its policy  for promotion  and  pay  of  former  USUHS 
students while  staying within  the boundaries  of  the  law.  This 
action has set a precedent. 

According to the applicant, there are only two valid reasons why 
an  individual can request consideration from the board.  One  is 
for  an  error  in  their  record.  According  to  current Air  Force 
policy, there is not an error in his record.  The recommendation 

3 

AFBCMR  96-01097 

from AFPC  argues,  in  a  few more  words,  that  his  request  is  not 
valid because there are no errors.  At no time has he claimed an 
error was  present.  However,  he  does  claim  an  unjust .entry has 
been  made,  based  on  an  unjust  policy.  That  is  the  only  other 
reason  (number two)  for  making  an  application  to  the  AFBCMR. 
Clearly in this case, policy has been  followed closely.  In this 
case, Air  Force policy  (interpretation of the US Code) should be 
changed  as  it  concerns  former  USUHS  students.  His  ability  to 
serve  his  nation  as  a  USAF  officer  cannot  and  should  not,  be 
directly  compared  to  his  academic  ability  to  complete  USUHS. 
Though  he  did  not  meet  the  qualifications  necessary  to  be  a 
medical  corps officer, at  no  time did  he  fail in qualifications 
required  to  be  a  USAF  officer.  Many  future  officers  will  not 
have what it takes to successfully complete the USUHS curriculum. 
However,  the  USAF  would  be  wise  to  consider  these  officers  as 
assets  to  the  mission,  based  on  their  experience  and  time  in 
service.  Though  frustrating, he  has  not  allowed  this  issue  to 
negatively affect his  future in the USAF.  Immediately following 
USUHS,  he  put  a  large  amount  of  effort  into  starting  another 
program  where  he  could  effectively  pay  back  his  commitment,  as 
well as continue a career in the USAF.  In only a few short days, 
he  will  complete  the  Intelligence  Operations  Officer  training 
course,  and  have  a  permanent  change  of  station  (PCS) to  Kelly 
AFB,  to  begin  an  exciting  assignment.  He  has  performed  at  the 
top of his class, professionally and academically, for the entire 
He  l o o k s   forward  to  the  opportunities 
time  of  this  program. 
before  him  as  an  Air  Force  officer. 
This  entire  request  is 
simply  a  plea  for  equal  benefits  and  equal  consideration, both 
with  fellow junior Air  Force officers as well as with  fellow USN 
officers  whose  military  background  (time  and  experience)  is 
identical to his own. 

In light  of  the above two examples, and the comparative lack  of 
fairness shown to Air  Force officers like himself, he would  have 
to question the validity and logic of  DPAME's  statement that his 
request  has  no  merit. 
As  stated  earlier,  there  has  been  no 
error; however, there is a disagreement on the interpretation of 
the law, US Code, between services. 

Applicant's  complete response and additional documentary evidence 
are at Exhibit E. 

Applicant provided a subsequent response, dated 13 Dec 96, with 
additional documentary evidence, which are attached at Exhibit F. 

ADDITIONAL AIR FORCE EVALUATION: 

Pursuant  to  the  Board's  request,  the  Office  of  the  Staff  Judge 
Advocate,  AFPC/JA,  reviewed  this  application  and  provided  an 
assessment of the appeal.  In JA's  view, the applicant's plea  for 
"justice" in his case is articulate but pleonastic.  According to 

4 

AFBCMR  96-01097 

his  understanding  of  the  applicable  statutes  and  his  USUHS 
contract, he  concedes that he  is not  eligible  for the credit he 
seeks.  Nevertheless,  he  claims  such  provisions  amount  to  an 
injustice.  Moreover, he cites what he believes to be examples of 
inequitable application of the statutes. 

JA indicated that, to begin with,  to the extent  the application 
can  be  read  to  ask  the AFBCMR  to  grant  relief  contrary  to  the 
express requirements of a statute or statutes, it is incapable qf 
being granted.  Obviously, the Board cannot change a statute, nor 
can  it  ignore  statutory  law.  Consequently,  the  critical  issue 
here is what the law provides insofar as credit for USUHS student 
time is concerned.  But first, they will examine the applicant's 
alleged examples of inequitable application of the law. 

The  applicant  refers  to  two  other  officers,  who  he  claims were 
given  favorable  service  credit  unlike  himself.  One  is  an  Air 
Force  officer  who  twice  failed  to  pass  the  bar  exam  after 
attending  law  school  in  an  ROTC  educational  delay  program,' and 
attended  intelligence  school  with  the  applicant.  He  complains 
that this officer  received credit for time  in grade  and  service 
and is senior in rank to him, yet only has nine months of active 
duty time.  The other, a Navy officer and former USUHS classmate 
of  the  applicant,  allegedly  after  failing  out  of  USUHS  as  an 
Ensign  in  the  Navy,  was  given  a  promotion  to  LTJG  (0-2) on 
30 May 96,  with  a  date  of  rank  retroactive  to  20  May  1994. 
Further,  according  to  the  applicant,  this  Naval  officer  was 
promoted to Lieutenant  ( 0 - 3 )   on 30 Oct  96.  The applicant claims 
that  his  and  the  Naval  officer's  circumstances  are  almost 
identical, but  that while he  is in pay  grade  0-1 with under two 
years  of  creditable  service,  the  other  officer  is  an  0-3  with 
over four years of creditable service.  The applicant decries how 
two officers with  the  same appointment  criteria to  the military 
service,  who  were  both  academically  disenrolled  from  USUHS  at 
approximately  the  same  time,  can  end  up  with  two  totally 
different results. 

According to JA, no discussion of the applicant's example of the 
lieutenant  who  failed  to  qualify  as  a  judge  advocate  is 
necessary.  The  applicant  and  this  lieutenant  entered  the  Air 
Force  under  different  programs,  with  different  statutory  and 
regulatory  rules  and  guidelines. 
Comparing  her  case  to  the 
applicant's  is  clearly  a  case  of  comparing  apples  and  oranges. 
More  closely aligned to the applicant's  situation is the example 
of  the  Naval  USUHS  student  who  was  ostensibly  retroactively 
promoted. While illustrative, because  the Air  Force and the Navy 
labor under  the  same  statutory constraints, the decision by  the 
Navy  is  not  dispositive  or  controlling  in  this  case. 
JA 
indicated that they simply do not know the complete basis for the 
Navy's  relief, nor the extent of such relief.  Therefore, they do 
not  know whether  the Navy  complied with  the applicable statutes. 
Suffice to say that the law--not the anecdotal cases cited by the 
applicant--must form the basis for the Board's  decision. 

be  eligible for consideration for promotion to  0-3 approximately 
one year earlier (in 1996). 

JA recommended the first remedy set forth above because  it has a 
better  basis  in  law.  It would  give  promotion  credit  for USUHS 
time,  while  recognizing  the  statutory  ineligibility  of  the 
applicant  to  be  promoted  during  the  time  he  spent  in  USUHS. 
Because he was transferred to the line, in lieu of being given a 
new  appointment,  there  is  no  authority  for  awarding  pre- 
appointment credit for active service, which would be  the effect 
of remedy two.  In other words, the only way to award credit and 
obtain an earlier date of rank than an officer would otherwise be 
entitled to is to do so upon the officer's original appointment-- 
either by awarding constructive service credit or pre-appointment 
reserve active status and active service credit." 

The Air  Force  has  awarded  such officers 

JA  briefly  addressed  the  provision  in  the  USUHS  contract  the 
applicant  signed  that  excludes  USUHS  active  duty  service  time 
"[i]n  computing  date  of  rank,  promotion  service  date  or  total 
years  service date."  In the  case  of  officers  who  successfully 
complete the program and are appointed into the medical  corps as 
regular  Air  Force  officers,  this  provision  has  had  no  adverse 
four years  of 
effect. 
constructive  service  credit  upon  appointment  into  the  medical 
corps,  and  by  statute, an  officer  cannot  receive  double  credit 
for  any  period  of  time. 
Parenthetically,  JA  noted  that  the 
statute and  a  soon to-be-released  DOD  Instruction require USUHS 
time  to  be  credited  first  as  day-for-day  active  service  credit 
and then, to the extent students complete USUHS earlier than four 
years, any time short of 48 months to be credited as constructive 
service  credit.  To  the  extent  the  contract  would  exclude this 
time  from  consideration  for  officers  who  do  not  complete  the 
program  and  are  transferred  to  another  competitive  category,  JA 
disagreed,  because  this  interpretation  of  the  contract  is 
inconsistent with statutory and regulatory guidance. 
Based  on the  foregoing, JA  recommended  that  the  Board  deny  the 
request  for pay  date  credit for the  applicant's  USUHS  time, but 
that it approve a portion of his request for promotion credit for 
such  time--namely,  effective  upon  the  day  following  his 
disenrollment  from  USUHS,  7  June  1995,  the  applicant  should  be 
promoted to the grade of 0-2.  Consequently, he should be awarded 
special selection board  (SSB) consideration for promotion to  0-3 
at the two-year point from such date. 

A complete copy of the JA evaluation is at Exhibit G. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 
Applicant  indicated  that  he  concurred  with  the  recommendation 
made  in AFPC/JA's  advisory opinion.  He requests  that the board 

7 

AFBCMR  96-01097 

award him a retroactive promotion to 0-2 (with zero/less than two 
years  for pay)  effective 7 June  1995, and  SSB  consideration  for 
retroactive promotion to  0-3  (with two  years  for pay)  effective 
7 June 1997, with  compensation for difference in pay during this 
period.  This  request  is  in  full accordance  with  statutory  and 
regulatory  guidance,  as  interpreted  by  HQ  AFPC/JA.  After  one 
year and eight months of pursuing a correction of his record, he 
believes  that  this  is  a  very  fair  and  just  resolution  to  the 
issues he has presented. 

Applicant's  complete response is at Exhibit I. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

The application was timely filed. 

2 .  
3.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  Having 
carefully  reviewed  this  application,  we  agree  with  the 
recommendation  of AFPC/JA  and  adopt  the  rationale  expressed  as 
the basis for our decision that the applicant has been the victim 
of an error or an injustice.  Accordingly, we recommend that the 
applicant's  records be corrected to reflect that he was promoted 
to  the  grade  of  first  lieutenant  effective  and  with  a  date  of 
rank of 7 Jun 95, and, that he be considered for promotion to the 
grade of captain by an SSB for the first board when he would have 
met the eligibility criteria, the CY96D Captain Board. 

THE BOARD RECOMMENDS THAT: 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be  corrected to show that he was promoted 
to  the  grade  of  first  lieutenant, with  an  effective date  and  a 
date of rank of 7 J u n   95. 
It is further recommended that he be  considered for promotion to 
the grade of captain by  a Special Selection Board  (SSB) for the 
CY96D Central Captain Board, which convened on 9 Sep 96. 

The following members of the Board considered this application in 
Executive  Session  on  26  Feb  98,  under  the  provisions  of  AFI 
36-2603: 

Ms. Martha Maust, Panel Chair 
Mr. William E. Edwards, Member 
Mr. Richard A. Peterson, Member 

All  members  voted  to  correct  the  records, as  recommended.  The 
following documentary evidence was considered: 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H. 
Exhibit I. 

DD Form 149, dated 19 Jan 96, w/atchs. 
Applicant's Master Personnel Records. 
Letter, AFPC/DPAME, dated 20 May 96, w/atch. 
Letter, SAF/MIBR, dated 17 Jun 96. 
Letter, applicant, dated 8 J u l   96, w/atchs. 
Letter, applicant, dated 13 Dec 96, w/atchs. 
Letter, AFPC/JA, dated 6 Aug 97. 
Letter, SAF/MIBR, dated 18 Aug 97. 
Letter, applicant, dated 6 Sep 97. 

MARTHA MAUST/ 
Panel Chair 

9 

AFBCMR  96-01097 

DEPARTMENT OF THE AIR  FORCE 

HEADQUARTERS AIR  FORCE MILITARY PERSONNEL CENTER 

RANDOLPH AIR  FORCE BASE TEXAS 

20 May 1996 

MEMORANDUM FOR HQ AFPClDPAMF2 
HQ AFPCDPMDOO 
HQ AFPCIAFPCIJA 
AFBCMR 

FROM:  HQ AFPUDPAME 

550 C Street West Ste 27 
Randolph AFB TX 78 150-4729 

SUBJECT:  Application for Correction of Military Records 

A thorough review o 

equest for correction of military records has been conducted.- 

-quest 

is based on his contention that he receive promotion credit for time spent in medical school 

(USUHS).  His request should be denied for the following reasons: 

a.  He signed his Uniformed Services University of the Health Sciences (USUHS) Military Service 

Obligation Contract 27 April 1992.  Paragraph  10 of his contract states , “ USUHS Reserve Officer will be subject 
to most of the same laws, regulations, and policies that apply to other Reserve officers on active duty, except that 
service performed while a member of the program is not counted:..”  Paragraph 1Oc of his contract states, “In 
computing date of rank, promotion service date or total years service date.  (Completion of M.D. degree will, 
however, result in award of appointment and entry credit according to DOD Directive 1320.7)”  Atch  1 

isenrollment from USUHS does not affect the intentkontents of  his USUHS contract. 
ir Force and the individual still need to comply with contents of the contract. 

c.  He states in paragraph 1 of his letter, dated 19 Jan 96, to the Board of Correction of Air Force Records, 

“I  ask for the time I’ve spent on AD to be credited toward my promotion eligibility/time in ran 
Based on this,‘I respectfully request immediate promotion to the rank of First Lieutenant.” Base 
contract signed 27 April 1992/public law, promotion credit cannot be granted. 

d.  The rules--and in-as,, 

knowledge of these rules- 
contract should be binding on both the Air Force and the individual.  Sin 
request has no merit. 

me an individual signs his 
signed his contract, his 

e.  If you have any questions please feel free to contact me at DSN 

DEPARTMENT O F  THE  A I R   FORCE 

HEADOUARTERS AIR  FORCE  P E R S O N N E L   CENTER 

R A N D O L P H A I R F O R C E B A S E T E X A S  

6 August 1997 

U.S.  AIR FORCE B 

1 9 4 7  *  1 9 9 7  

MEMORANDUM FOR AFBCMR 

FROM:  HQ AFPC/JA (Lt Col Posey, Capt Whitney) 

550 C Street West Suite 44 
Randolph AFB TX  78 150-4746 

SUBJECT:  Application for Correction of Military Records 

REQUESTED ACTION AND SUMMARY OF OPINION:  The applicant, who is an 

active duty second lieutenant, paygrade 0-1 ,I  requests that time which he spent as a medical 
student in the Uniformed Services University of Health Sciences (USUHS) be credited to him as 
time in grade for promotion and pay purposes.  He also requests his immediate promotion to first 
lieutenant, paygrade 0-2. 

BASIS FOR REQUEST:  The applicant bases his requests for relief on the contention 

that Title 10 of the United States Code as it applies to USUHS service credit is unjust and is 
unjustly applied between the different services. 

RELEVANT FACTS:  What follows is a chronology of the applicant's case: 

1.  On 27 April 1992, the applicant was commissioned a second lieutenant in the United 

States Air Force Reserve, Medical Service Corps, for purposes of attending the USUHS in 

2.  He entered active duty on 16 July 1992 as a medical student and has remained on 

continuous active duty since then. 

3.  He was academically disenrolled from USUHS on 6 June 1995. 

4.  On 1 August 1995, the applicant was transferred from the Medical Service Corps to 

the Line of the Air Force as a 2Lt with an effective date of rank of 7 June 1995.3 

' As of 7 Jun 97, the applicant was promoted to the permanent grade of 1Lt. See Special Order 895, dated 7 Jun 97. 
The authority cited for his appointment was 10 U.S.C. 6 593 and AFR 36-15. 
' Per  Department of  the Air Force, Special Order JB2-0127, dated 1 Aug 95. 

Fundamentals Co 

t entered the Intelligence Officer’s 

om which he has graduated and is currently 

in his regular cycle based on his 7 June 1995 date of rank. 

e at Intelligence School, the applicant filed 
filing of his request, the applicant has been promoted to 1Lt 

DISCUSSION:  The applicant’s request for relief was timely filed within the three-year 

statute of limitations specified in 10 U.S.C.  $  1552(b). 

The applicant’s plea for “justice” in his case is articulate but pleonastic.  According to his 

understanding of the applicable statutes and his USUHS contract, he concedes that he is not 
eligible for the credit he seeks.  Nevertheless, he claims such provisions amount to an injustice. 
Moreover, he cites what he believes to be examples of inequitable application of the statutes. 

We note, to begin with, that to the extent the application can be read to ask the AFBCMR 
to grant relief contrary to the express requirements of a statute or statutes, it is incapable of being 
granted.  Obviously, the Board cannot change a statute, nor can it ignore statutory law. 
Consequently, the critical issue here is what the law provides insofar as credit for USUHS 
student time is concerned.  But first, we will examine the applicant’s alleged examples of 
inequitable application of the law. 

The applicant refers to two other officers, who he claims were given favorable service 
credit unlike himself.  One is an Air Force officer who twice failed to pass the bar exam d e r  
attending law school in an ROTC educational delay program, and attended intelligence school 
with the applicant.  He complains that this officer received credit for time in grade and service 
and is senior in rank to him, yet only has nine months of active duty time. The other, a Navy 
officer and former USUHS classmate of the applicant, allegedly after failing out of USUHS as an 
Ensign in the Navy, was given a promotion to LTJG (0-2) on 30 May 96, with a date of rank 
retroactive to 20 May  1994.4 Further, according to the applicant, this Naval officer was 
promoted to Lieutenant (0-3) on 30 Oct 96.  The applicant claims that his and the Naval officer’s 
circumstances are almost identical, but that while he is in pay grade 0-1 with under two years of 
creditable service, the other officer is an 0-3 with over four years of creditable service.  The 
applicant decries how two officers with the same appointment criteria to the military service: 
who were both academically disenrolled from USUHS at approximately the same time, can end 
up with two totally different results. 

No discussion of the applicant’s example of the lieutenant who failed to qualify as a 
judge advocate is necessary.  The applicant and this lieutenant entered the Air Force under 
different programs, with different statutory and regulatory rules and guidelines.  Comparing her 
case to the applicant’s is clearly a case of comparing apples and oranges.  More closely aligned 
to the applicant’s situation is the example of the Naval USUHS student who was ostensibly 

‘ See last page of Tab 3 in the applicant’s package. 
’ Both were apparently appointed to USUHS in 1992; the applicant in the Air Force, the other in the Navy. 

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retroactively promoted.6 While illustrative, because the Air Force and the Navy labor under the 
same statutory constraints, the decision by the Navy is not dispositive or controlling in this case. 
We simply do not know the complete basis for the Navy’s relief, nor the extent of such relief. 
Therefore, we do not know whether the Navy complied with the applicable statutes.  Suffice to 
say that the law-not  the anecdotal cases cited by the applicant-must form the basis for the 
Board’s decision. 

* 

After reviewing the applicable statutes, we agree with the applicant’s assessment that 

they do not permit him pay date credit for his USUHS time, but we disagree that they preclude 
date of rank credit.  In other words, we believe he is entitled to credit for his USUHS time for 
determining his date of rank and promotion eligibility. 

The primary statutory provision is 10 U.S.C.  8 21 14(b), which provides in relevant part 

the following: 

Notwithstanding any other provision of law, WSUHS students] shall serve on 
active duty in pay grade 0-1 with full pay and allowances of that grade. ... The 
service credit exclusions specified in section 2126 of [Title 101 shall apply to 
students covered by this section. 

Section 2126 provides that USUHS students (as well as Health Professions Scholarship Program 
(HPSP) students) are not entitled to count the medical student time for basic pay or retirement 
eligibility purposes.  The basic pay exclusion, obviously, precludes the applicant from obtaining 
this portion of his requested relief. 

However, the section 2 126 exclusions do not preclude use of the USUHS time for date of 
rank and promotion eligibility purposes.  The key phrase in section 21 14(b) is “[nlotwithstanding 
any other provision of law, [USUHS] students serve on active duty ....”  Active duty time counts 
for determining appointment grade’ and date of rank/promotion eligibility.* 

An important factor in fashioning a remedy for this case is the peculiar nature of the 

active duty service of USUHS students.  They are not on the active duty list (ADL)’  and, 
consequently, are not eligible for promotion.  They serve their entire USUHS student time in the 
pay grade of 0- 1.  Therefore, the applicant could not have been promoted until he was 
disenrolled from USUHS on 6 June 1995. On 7 June 1995, he was on the ADL as an 0-1 with 
ahnost three years of active commissioned service. 

Although it should be noted that, apparently, the Naval student’s promotion came after some sort of appeal two 
years later. 
’ 10 U.S.C. Q 12207(a) (reserve officers) (at time of applicant’s original appointment and his transfer to the line of 
the AF, the applicable statute was 10 U.S.C. Q 8353, now rescinded). 
Id  at Q 619. 
Id  at Q Q 101(b)( 13) and 641(5).  The ADL is defmed in Q 101(b)( 13) and excludes active duty officers described 
in Q 641 of the same title.  Section 641(5) excludes USUHS students fiom Chapter 36 (promotion and retirement) 
consideration under Title 10. 

There are two ways to handle the crediting and promotion eligibility of the applicant. 

One is to treat him as an 0- 1 with almost three years of time in grade on 7 June 1995 and 
promote him to 0-2 on such date.  This would have the effect of giving him two years of service 
credit for promotion for his nearly three years of USUHS time.  The other is to promote him to 
0-2 effective 7 June 1995 (the first time he was statutorily eligible because before such time he 
was not on the ADL), but with a date of rank of mid- 1994 (24 months after beginning active 
duty).  In this second case, he would not be eligible for back pay for the almost one year of back 
dated 0-2 grade because he was not then eligible for such rank and pay, but he would gain the 
benefit of his third year of active duty time in USUHS and would be an 0-2 with almost one year 
in grade.  Consequently, he would be eligible for consideration for promotion to 0-3 
approximately one year earlier (in 1996).” 

We recommend the first remedy set forth above because it has a better basis in law.  It 

would give promotion credit for USUHS time, while recognizing the statutory ineligibility of the 
applicant to be promoted during the time he spent in USUHS.  Because he was transferred to the 
line, in lieu of being given a new appointment, there is no authority for awarding 
pre-appointment credit for active service, which would be the effect of remedy two.  In other 
words, the only way to award credit and obtain an earlier date of rank than an officer would 
otherwise be entitled to is to do so upon the officer’s original appointment-either by awarding 
constructive service credit or pre-appointment reserve active status and active service credit. 

Before concluding, we briefly address the provision in the USUHS contract the applicant 

signed that excludes USUHS active duty service time “[iln computing date of rank, promotion 
service date or total years service date.”I2 In the case of officers who successfully complete the 
program and are appointed into the medical corps as regular Air Force officers, this  provision 
has had no adverse effect.  The Air Force has awarded such officers four years of constructive 
service credit upon appointment into the medical corps, l3 and by statute, an officer cannot 
receive double credit for any period of time.  Parenthetically, we note that the statute and a soon- 
’’ The promotion eligibility criteria for officers is established by 10 U.S.C.  $619 and promulgated in AFI 36-2501, 
Attachment 2, which specifically states: 

A2.1. Eligibility for Promotion to First Lieutenant. Second lieutenants on the ADL are eligible for 
promotion as soon as they have 24-months time-in-grade computed from their date of rank as a second 
lieutenant. 
A2.2. Eligibility for Promotion to Captain. Promote first lieutenants on the ADL selected for promotion to 
captain after completing 24-months time- in-grade computed from their date of rank as a first lieutenant, or 
upon the Assistant SECDEF (Force Management and Personnel) approval of the captain selection board 
report, whichever is later .... 

10 U.S.C. $  12207. 
Paragraph of the applicant’s contract reads, in pertinent part, “[Slervice performed while on active duty as a 

member of the program is not counted: 

a. 

b. 
c. 

In determining eligibility for retirement, other than by reason of physical disability incurred while on 
active duty as a member of the program, and 
In computing years of service creditable for basic pay; and 
In computing date of rank, promotion service date or total years service date.  (Completion of M.D. 
degree will, however, result in award of appointment and entry credit according to DOD Directive 
1320.7) 
l 3   See  10 U.S.C.  9 533 

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to-be-released DoD Instruction require USUHS time to be credited first as day-for-day active 
service credit and then, to the extent students complete USUHS earlier than four years, any time 
short of 48 months to be credited as constructive service ~redit.'~ To the extent the contract 
would exclude this time from consideration for officers who do not complete the program and 
are transferred to another competitive category, we disagree, because this interpretation of the 
contract is inconsistent with statutory and regulatory guidance. 

RECOMMENDATION:  Based on the foregoing, we recommend the Board deny the 
request for pay date credit for the applicant's USUHS time, but that it approve a portion of his 
request for promotion credit for such time-namely, effective upon the day following his 
disenrollment from USUHS, 7 June  1995, the applicant should be promoted to the grade of 0-2. 
Consequently, he should be awarded an SSB for consideration for promotion to 0-3 at the two- 
year point from such date. 

1 

Senior Attorney Advisor 

l4  See Id. at 8 533(d)( 1). 

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