MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 March 2002
         DOCKET NUMBER: AR2001061443

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Thomas B. Redfern III		Member
Mr. Donald P. Hupman, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: Reconsideration (sic) of her previous request for 4 years’ constructive service credit for longevity pay purposes for her attendance at the Uniformed Services University of the Health Sciences (USUHS), Class of 1987, from August 1983 to May 1987.

APPLICANT STATES: In effect, that on 15 September 1981, the Defense Officer Personnel Management Act (DOPMA) repealed constructive service credit for medical officer graduates of USUHS who matriculated after 14 September 1981. She adds that in September 1999, this Board reconsidered the cases of 14 Army physicians from the USUHS Class of 1987 who were seeking constructive service credit and granted relief to 13 of them. She adds the basis for the Board's action was that the successful applicants were all members of the United States Military Academy (USMA) Class of 1983, and had been misled in a briefing given by the USMA Surgeon and Chairman of the Medical Program Advisory Committee. The prospective medical students were incorrectly told that they would receive constructive service credit for their 4 years' attendance at USUHS and thus made career decisions based on that misinformation. The applicant contends that she, too, was misinformed at the USUHS during a 3 March 1983 briefing for prospective students and made similar career choices based upon the same misinformation. She states that she was a member of the US Naval Reserve (USNR) at the time and received no briefing from the Navy concerning USUHS; however, at USUHS, she was told “not to worry,” that while DOPMA existed, it would not impact her and she would receive constructive service credit.

The applicant notes that two of the physicians granted relief in September 1999 were mistakenly credited with having attended the USMA Surgeon's briefing. One was a 1977 USMA graduate and not a party to the briefing, and the other never attended the USMA. She adds that the Board revoked the non-USMA graduate's relief by supplemental action, but allowed the 1977 USMA graduate's relief to stand. She also notes that a few USUHS graduates who did not attend briefings at USUHS have been granted constructive service credit and states that she should not be penalized for having lived close enough to USUHS to receive her briefing at that location.

In support of his application for reconsideration, the applicant submits: copies of two pages of a Board Proceeding (AR2000041588) in which the applicant received constructive service credit; a copy of a 14 March 2001 letter from the Director, Office of Admissions at USUHS noting that the applicant was briefed at USUHS on 3 March 1983 along with five other prospective students; a copy of a 29 September 1998 letter from the USUHS General Counsel to the Office of The Secretary of Defense admitting that the university may have misinformed students of the Class of 1987 concerning the issue of constructive service credit; a copy of a 26 December 1985 memorandum from the Dean of the Medical School to the Air Force Corrections Board admitting that the USUHS School of Medicine Bulletin for 1983-1984, which was written in December 1982, did not include revisions concerning constructive service credit which were mandated by DOPMA, and that certain briefing officials did not clarify the issue for prospective students; a copy of a 5 December 1986 memorandum from the Dean of the Medical School to the Board for Correction of Naval Records reiterating his belief that applicants from the Class of 1987 who either were not informed, or misinformed, about constructive service credit be given constructive service credit for attendance at USUHS; a copy of an 18 April 1985 memorandum from the Director of Admissions/Registrar of the Medical School admitting that segments of the Class of 1987 which he did not personally brief could have been misled on the issue of constructive service credit; and a copy of the pertinent pages of the Bulletin of The School of Medicine, Uniformed Services University of the Health Sciences 1983-1984 which states, “Longevity credit for pay purposes accrues for students for time spent in school . . . .”

EVIDENCE OF RECORD: The applicant's military records show:

She is a lieutenant colonel serving on active duty in the Army Medical Corps. She was a member of the USUHS Class of 1987, graduating with a Doctor of Medicine degree in May 1987.

In a memorandum dated 18 April 1985 to the each Service’s Board of Corrections, the Director of Admissions/Registrar stated, “It is very possible that a given segment of the Class of 1987 could have, and probably did, receive inaccurate or incomplete information from any number of official/semi-official sources concerning the effects upon entitlements (pay purposes at the time of graduation and retirement) due to the DOMPA legislation.” He made this statement regarding those prospective students whom he did not personally brief and added that on two occasions on the West Coast (25-27 January 1983 and
22-24 February 1983) and one occasion on the East Coast (9 December 1982), he was not available to conduct briefings and sent staff members.

According to records from the Office of the Registrar at USUHS, the applicant, as a prospective student, attended a briefing at the USUHS, Bethesda, Maryland on 28 October 1982. The Director of Admissions/Registrar, and not a staff member, gave the briefing. The applicant states that while the briefing addressed the issue of constructive service credit and DOPMA, she was told that DOPMA would not impact USUHS students. Further, each prospective student was given a copy of the Bulletin of The School of Medicine, Uniformed Services University of the Health Sciences 1983-1984 which affirmed that students would receive 4 years’ constructive service credit for longevity pay purposes for their successful completion of medical school at the USUHS.

As stated by the applicant, this Board reconsidered the requests of 14 USUHS graduates (Class of 1987) who were seeking 4 years' constructive service credit for attendance at USUHS and had been previously denied. On 23 September 1999, the Board granted relief to 13 of the applicants; one applicant was denied by Board action on 7 October 1999. The successful applicants were all thought to be 1983 USMA graduates and the Board based its favorable decision on one piece of supporting documentation -- a 23 July 1998 letter from a retired colonel who, in 1983, was the USMA Surgeon and Chairman of the USMA Medical Program Advisory Committee. In this letter, the former USMA Surgeon stated unequivocally that he told prospective USUHS students from the USMA Class of 1983 that they would receive constructive service credit for their attendance at the USUHS. The Board reasoned that the cadets were misinformed concerning the issue of constructive service credit; that each cadet then made a career decision (to resign a Regular Army commission and accept a US Army Reserve commission) based upon erroneous information; and that it would be unjust to withhold constructive service credit after the cadets had been told they would receive it.

The Board erroneously included two applicants among those USUHS students who were graduates of the USMA, Class of 1983, and granted them relief even though they had not been party to the USMA Surgeon's briefing. One applicant was a 1977 graduate of the USMA and the other did not attend the USMA and was not even among the group of applicants seeking reconsideration (i.e., he did not submit a formal request for reconsideration). When the non-USMA graduate received the Board’s proceeding, he notified the Board that he had not requested reconsideration and, in any case, was not entitled to relief on the basis set forth by the Board. Since the jurisdiction of the Board is based on a request from an applicant (and the applicant did not make such request), the Board's earlier decision was voided. However, in the case of the 1977 USMA graduate, a valid request for reconsideration was received and the erroneous relief was allowed to stand because once an application is finally decided, it cannot be reopened absent either a request for reconsideration by the applicant or by circumstances supporting an exception to the doctrine of administrative regularity. Exceptions are fraud, substantial new evidence, mistake of law, or mathematical miscalculation.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. Although the applicant has requested reconsideration of her case, this is, in fact, her initial consideration by the Board. When she previously applied to the Board, there was no Army record of her attendance at USUHS because she initially matriculated as a USNR officer. In her current application, she has provided the necessary documentation to permit the Board to consider her case.

2. Pertinent records reflect that the Director of Admissions/Registrar briefed the applicant at the USUHS, Bethesda, Maryland, on 3 March 1983. The Director of Admissions/Registrar has stated for the record that he understood the ramifications of DOMPA upon constructive service credit for USUHS students and properly briefed this to all prospective students.

3. Although the applicant was given a copy of the USUHS School of Medicine Bulletin for 1983-1984 which incorrectly stated that students would receive longevity credit for pay purposes, records indicate that she was verbally briefed that such was not the case. It would have been desirable if the USUHS had published a new Bulletin, or at least published an errata sheet for the existing Bulletin, but this was not done.

4. The standard of proof applied by the Board in all similar cases is whether the applicant can prove that he or she was misinformed about the implications of DOPMA on constructive service credit. The 1983 USMA graduates met that standard of proof, as have several other USUHS graduates who were not briefed by the Director of Admissions/Registrar. The place of the briefing was inconsequential.

5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__FNE__ __TBR___ ___DPH_ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001061443
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020305
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	102.08
2.	128.00
3.
4.
5.
6.