MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 March 2003
         DOCKET NUMBER: AR2002075601

         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. Raymond J. Wagner		Chairperson
Mr. William D. Powers		Member
Ms. Linda M. Barker		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: That he be awarded 4 years' constructive service credit for longevity pay purposes for his attendance at medical school under the Armed Forces Health Professions Scholarship Program (HPSP).

APPLICANT STATES: That he graduated from United States Military Academy (USMA) and was appointed a Regular Army (RA) Second Lieutenant on 8 June 1977; that he was separated as a Captain on 27 July 1983 with 6 years, 1 month, and 20 days of creditable active Federal service; that he entered the HPSP on 28 July 1983 and spent 4 years obtaining a medical degree; that he graduated medical school in June 1987 and was appointed an RA Captain, Medical Corps. Although he and his HPSP classmates were told that their 4 years of medical school would not count for longevity pay purposes under the Defense Officer Personnel Management Act (DOPMA), he believes that his prior service places him in a special category that entitles him to such credit. He cites paragraph 010105 A3, Department of Defense Financial Management Regulation (DODFMR) in support of his request, and he cites as precedent a prior favorable Board decision wherein the Board granted relief to a fellow 1977 USMA graduate who attended the Uniform Services University of Health Sciences (USUHS) from 1983 to 1987.

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

He served on active duty as an RA officer from 8 June 1977 to 27 July 1983 when he was separated with 6 years, 1 month, and 20 days of creditable active Federal service.

The applicant entered the HPSP on 28 July 1983. Following his graduation from medical school, he was appointed as an RA Captain in the Medical Corps on 20 June 1987. He served as a Medical Corps officer until he was retired for length of service on 30 September 2001.

The applicant's DD Form 214 (Certificate of Release or Discharge From Active Duty) credits him with 14 years, 3 months, and 11 days of service on his last period of active duty. It also credits him with 6 years, 7 months, and 24 days of creditable service on his earlier period of active duty.

The DODFMR stipulates the policy, regulation, and procedures within the area of responsibility of the Under Secretary of Defense. The Regulation is applicable to all DoD Components and consists of 15 volumes, including Volume 7A: Military Pay Policy and Procedures - Active Duty and Reserve Pay. This regulation provides statutory provisions for entitlements, deductions, and collections, and establishes Department of Defense policy on the pay and allowances of military

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personnel. It is issued by the Under Secretary of Defense (Comptroller) in coordination with the Director, Defense Finance and Accounting Service. It is issued for the information, guidance, and compliance of all personnel in the administration of military pay and is the sole entitlement implementation by the Military Services. Paragraph 010105, DODFMR states, in pertinent part:

         A. Some medical and dental officers are entitled to extra credit for longevity purposes to reflect the time spent in medical or dental school [emphasis added]. Medical and dental officers must meet one or more of the following criteria to be entitled to the constructive credit:

                  1. On or before September 15, 1981, the officer already had the constructive service credit; the credit is not lost if there is a break in service either before or after that date. This includes Public Health Service officers.

                  2. On September 14, 1981, the individual was enrolled either in the Armed Forces Health Professions Scholarship Program or the Uniformed Services University of Health Sciences, completed that program, and was appointed as a medical or dental officer.

                  3. On September 14, 1981, the individual was participating in a program that credited years of service and led to an appointment as an officer in the Army, Navy, Air Force or Marine Corps.


Paragraph 010201 provides "[T]he time a member serves while enrolled in the Armed Forces Health Professions Scholarship and Financial Assistance Programs, or while a student at the Uniformed Services University of Health Sciences (USUHS) . . . ." is not creditable.

Army Regulation 601-141 (US Army Health Professions Scholarship Program) establishes the Army portion of the Armed Forces Health Professions Scholarship Program and states, in pertinent part, that military service performed while a member of the program will not be counted: in determining eligibility for retirement other than by reason of a physical disability incurred while on active duty as a member of the program; or in computing years of service creditable for pay under 37 U.S.C. section 205.

In 1999, the 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

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granted relief to 13 of the applicants. 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 [the individual cited by the applicant in this case] 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.

In the processing of this case, an advisory opinion was obtained from the US Army Reserve Personnel Command (AR-PERSCOM). The advisory opinion discusses the granting of Army Reserve retirement points based on participation in the HPSP. Because the applicant is retired from the Regular Army, the advisory opinion is not applicable to him. The applicant was provided an opportunity to respond to the advisory opinion and correctly pointed out that the advisory opinion did not apply to his case.

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

1. 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.

2. Pertinent regulatory guidance provides that time spent participating in the HPSP is not creditable for longevity pay purposes.

3. The applicant clearly states that he was informed that his attendance at medical school under the HPSP would not be creditable for longevity pay purposes.

4. The previous Board case cited by the applicant as precedent for granting his request was an error by the Board and cannot be applied to the applicant's case.

5. 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

__rjw___ __wdp___ __lmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075601
SUFFIX
RECON
DATE BOARDED	20030304
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	129.0100
2.
3.
4.
5.
6.