MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 March 2003
         DOCKET NUMBER: AR2002077809

         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Margaret V. Thompson		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 given constructive service credit for his law degree.

APPLICANT STATES: He was awarded a J.D. degree in February 1992, and has passed the New York bar exam. He has 3 ½ years of experience being a practicing attorney. Prior to his acceptance into the Health Professionals Scholarship Program (HPSP), he had served 12 years on the New York City Police Department. He was within 3 years of a 15 year retirement. He only accepted the scholarship based on the assurance by his recruiter that he would be given constructive service credit for his law degree and his experience as a lawyer. Prior to his graduation from medical school, he submitted a request to be awarded constructive service credit for his law degree. That request was denied. He was told that there is no significant relationship between law and medicine and his law degree would not contribute directly to his performance as a medical doctor. He believes this assessment is incorrect. He relates how he has been asked for his legal opinion on medical-legal issues by his fellow physicians, how he has attended and participated in forensic autopsies, and how he has attended and participated in seminars dealing with medical-legal issues. He cites positions within the Army that require medical-legal expertise. He then references a program wherein active duty commissioned officers can go to law school while remaining on active duty. The applicant concludes that it is not fair to allow these officers to remain on active duty while in law school if he is not given constructive service credit for his J.D. degree.

In support of his request, the applicant submits his law and medical degrees, documents pertaining to his HPSP admission, documents from his Official Military Personnel File, and documents showing the legal nature of some medical offices within the Department of the Army.

In a supplement to his application, he quotes two Department of Defense Instructions (DoDI) which address constructive service credit. In those instructions it is stated that additional constructive service credit may be awarded in unusual cases, based on special education or experience. The applicant states that his case is clearly unique and, therefore, he should be given constructive service credit for his law degree.

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

On 27 March 2000, active duty orders were published for the applicant. Those orders show that he was awarded 4 years of constructive service credit, giving him an entry rank of captain.




On 3 June 2000, the applicant entered active duty.

The applicant has one Officer Evaluation Report (OER) on his OMPF. In the Senior Rater portion of the OER, it was stated that the applicant “. . . performed very well during his internship ranking in the middle third of his peer group overall.”

In the processing of this case an advisory opinion was obtained from the Office of The Surgeon General (OTSG). The OTSG stated that it had previously reviewed and denied the applicant’s request on 4 May 2000. The OTSG stated that the applicant’s degree did not result in medical school credit, it did not shorten his residency, and it did not add adjunctive skill to internship training, and did not result in any special consideration in the civilian sector. The OTSG recommends denial of the applicant’s request.

The applicant was furnished a copy of this advisory opinion and submitted a rebuttal. In that rebuttal, the applicant examines the DoDI language, as it pertains to constructive service credit. He points out that the degrees authorized constructive service credit all lead to licensing, as does a law degree. He lists some of the degrees which the OTSG has previously granted constructive service credit and opines, in effect, that his law degree and his experience as a policeman provide just as much benefit as those degrees in the performance of duties as a physician. He then states that the OTSG did not actually state that he does not have unique qualifications or that there is a service need for a legal-medical degree. He then addresses all the points made by the OTSG in its advisory opinion. This includes the fact that his medical school included courses on law; that no degree shortens the length of residency to his knowledge; and that his law degree would assist him in performing quality assurance plans and inspections and to provide a unique perspective to hospital commanders, administrators and formal legal counsel.

Army Regulation 135-101 provides the policy and sets forth the procedures for the Reserve appointment of Army Medical Department (AMEDD) officers with or without a concurrent call to active duty. General provisions for entry grade determination specify that entry grade credit will (except as limited by maximum credit limits) be the sum of constructive credit plus credit for prior service. Constructive credit for professional experience and advanced (not basic qualifying) degrees is awarded on a basis of 1/2 year credit per year of experience with a total of 6 years credit possible in unusual cases. The maximum entry grade credit for Medical Corps and Dental Corps Officers is




normally 14 years. A basic principle provides that no period of time may be counted more that once. Entry grade credit is used only to determine entry rank and date of rank, which controls time in grade and promotion eligibility.

Army Regulation 135-100 provides for awarding constructive service credit for officers commissioned as Chaplains, and Lawyers.

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. The applicant has not submitted any evidence to support his statement that he was told he would be awarded constructive service credit for his law degree or his experience as either a lawyer or a police officer.

2. While any formal schooling can be said to benefit any officer, the Army limits constructive service credit to Medical Corps, Dental Corps, Medical Service Corps, Chaplains, and Lawyers. Constructive service is not awarded to any other area of concentration, regardless of the level of degree or discipline.

3. It would appear apparent from the limitation of constructive credit to what would be considered professional disciplines, that constructive service credit is intended for those professionals when it is determined that the degree or experience would assist them directly in the performance of their professional duties. For physicians, this assessment is best made by the OTSG, which knows the needs of the Army Medical Corps.

4. The applicant has outlined many areas that he believes his law degree would be of assistance in the performance of his duties as a physician. As previously stated, all education should be of assistance to any officer. However, while a law degree may be of benefit in performing non-core aspects of the applicant’s duties, it cannot be said that it will help him perform his medical duties. This is true of many degrees which also aren’t awarded constructive service credit.

5. As such, the OTSG’s denial of the applicant’s request for constructive service credit appears fair and equitable.









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

___jlp ___ ____mvt_ ___aao __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077809
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020318
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	102.08
2.
3.
4.
5.
6.