PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 November 2003
         DOCKET NUMBER: AR2002083278


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

Mr. Carl W. S. Chun		Director
Mr. Vic Whitney		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Ronald E. Blakely		Member
Ms. Eloise C. Prendergast		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that he receive full constructive service credit (CSC) for his prior commissioned service as an Ordnance Corps (OD) officer and his captain date of rank (DOR) as a Medical Service Corps (MSC) officer be adjusted accordingly.

3. The applicant states that he was not informed that his DOR on appointment as a MSC officer would be adjusted from his prior DOR as an OD officer. He was also not informed that he could request a waiver to keep his prior commissioned service as full credit for his MSC appointment. He provides the name of five other officers he states were provided approved waivers of constructive credit by the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASAMRA). At a minimum, he should have been credited with the full 6 months of work experience prior to his MSC appointment and an additional 5 days from his prior commissioned service. He submits copies of his 8 September 2000 request for a waiver of the service computation for his MSC appointment and the denial of his request by the Assistant Secretary of Defense (Health Affairs) (ASDHA) in support of his application.

4. The applicant’s military records show that he was originally appointed an OD second lieutenant effective 20 December 1991 and entered active duty. He was promoted to captain effective 1 January 1996. He was separated from active duty effective 30 June 1999 and discharged from the Army based on an approved unqualified resignation. He had 7 years, 6 months, and 11 days active commissioned service.

5. On an unknown date the applicant requested a Reserve appointment with concurrent active duty as an MSC officer. On 22 December 1999, a Record of Award of Entry Grade Credit (DA Form 5074-1) was prepared. The form shows that the applicant was granted 3 months credit for civilian work experience as a systems engineer and 3 years and 9 months credit for his prior active commissioned service as an OD officer. He was awarded a total of 4 years, 0 months, and 0 days entry grade credit which qualified him for appointment as a captain. The form also shows that 3 years and 6 months credit were required for appointment as a captain and that he had 6 months credit in excess of that required for his grade. It is not known if the applicant was provided a copy of this form prior to his appointment.

6. On 27 December 1999, less than 6 months following his unqualified resignation, orders were issued for the applicant to report for active duty on 10 January 2000 for a 4-year active duty commitment. The orders state that he was appointed in the grade of first lieutenant and placed on the active duty list in the grade of captain. It also states that his DOR will be adjusted based on his total constructive credit of 4 years, 0 months, and 0 days and phase points of 3 years and 6 months. The bottom of the available orders show that it was sent to the applicant by facsimile transmission on 23 December 1999.
7. The applicant's oath of office is not in the available record to confirm his date of appointment. His Officer Record Brief, dated 10 April 2000 shows a basic date of appointment of 29 December 1999. It also shows that he entered active duty on his current tour on 10 January 2000 and his captain DOR is shown as 1 January 1996.

8. Orders were issued on 8 May 2000 showing that the applicant had an adjusted DOR for captain of 29 June 1999. This appears to be promulgating his active duty order that notified him his DOR would be adjusted based on his
6-months excess entry grade credit.

9. On 8 September 2000, the applicant submitted a request to the Secretary of the Army for a waiver of the service computation for his MSC appointment. The purpose of this request was to maintain his service credit and grade where it was at the time of his unqualified resignation on 30 June 1999. He stated that he did not discover the problem with his date of rank until August 2000 and, if he had been made aware of this adjustment to his date of rank prior to his appointment, it could have affected his decision to return to active duty.

10. His request contained his justification that his prior leadership positions and professional training equaled that of other captain, MSC officers with the DOR he was requesting and would allow him to progress with his peers as an Army Medical Department (AMEDD) officer. He also noted that his 6 months professional experience as a civilian systems engineer included 3 months at a technical school. His request was addressed through channels and favorably endorsed by the Commander, Total Army Personnel Command and The Surgeon General.

11. On 23 April 2001, the Office of The Judge Adjutant General (OTJAG) responded to the Office of The Surgeon General with a legal opinion concerning the applicant's request for exception to policy in DODI 6000.13 concerning entry grade credit. The opinion noted that certain provisions of the DODI grant waiver authority to the Service Secretary but not for the waiver requested in this case. The opinion further noted that only the ASDHA may grant an exception to award an officer more than one-half day of credit for each day served as an officer on active duty in a specialty other than that to which appointed prior to the new appointment. The opinion goes on to state that a waiver of this requirement, even by the ASDHA, is not addressed in the DODI.

12. On 3 June 2002, the ASDHA responded to the ASAMRA concerning an exception to policy for the applicant. The memorandum stated that the request for a waiver was disapproved, as there were no provisions in the DODI for waiver of the requirement to grant only one-half day of credit for each day served as an officer on active duty prior to appointment as an MSC officer. He further stated that he had no desire to begin granting waivers on an individual basis of the prior service credit rule that might lead to inequities and lack of uniformity among the Services and between the branches of the Service.

13. DODI 6000.13 provides DOD policy and procedures to carry out medical manpower and personnel programs. Paragraph 6.1. discusses entry grade credit and states that credit shall be awarded in accordance with this Instruction and Title 10, US Code. Paragraph 6.1.1.2. provides prior commissioned service credit for an officer whose service was not in the corps or specialty in which being appointed in the amount of one-half day credit for each day served. There is no mention of waiver authority for this provision by a Service Secretary.

14. Paragraph 6.1.5. provides the policy for waivers of entry grade credit. It only applies in those cases where an individual is eligible for entry grade credit in excess of that required to receive an entry grade of major.

15. Army Regulation 135-101 prescribes policy, procedures, and eligibility criteria for appointment in the Reserve Components of the Army, in the six branches of the AMEDD. Paragraph 3-3 states that the criteria for determining the grade of Reserve Component officers ordered to active duty will be published annually and that credit in excess of the appointment grade will be used to adjust the date of rank within grade.

16. Table 3-1 of the regulation specifies that credit for extended active commissioned service in other than the specialty in which being appointed will be awarded at the rate of ½ year for each year of service.

17. Table 3-1 also specifies that professional experience accrued after the qualifying degree may be awarded based on ½ year for each year to a maximum of 3 years. It also states that experience of ½ year or less will earn no credit.

CONCLUSIONS:

1. The evidence of record shows that the applicant was informed through a copy of his orders prior to appointment that he was credited with 4 years constructive service, not 7 years, 6 months, and 11 days as he believes would have been correct. The orders also clearly state that he was being appointed as a first lieutenant and ordered to active duty as a captain. There is no evidence that he questioned this information at the time.

2. His contention that other officers were provided waivers to receive additional constructive credit does not establish precedent in his case. The specifics of these other officers situations and waivers are not known.


3. The legal opinion from the OTJAG and the memorandum from the ASDHA are very clear and to the point on granting constructive credit for prior active duty in another specialty other than the AMEDD one to which appointed. The maximum constructive credit allowed is ½ year for each year and there are no waiver provisions.

4. The applicant was given 3 months professional experience credit for his work history while not on active duty. He admitted in his waiver request that three of those months were spent in a technical school, not performing systems engineer duties. He clearly is not entitled to 6 months credit for professional experience and no authority can be located for the 3 months he was given.

5. It does appear that the applicant should have been given half credit for his 11 days of prior active commissioned service that does not appear on his DA Form 5074-1 and his records should be corrected accordingly.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that he was credited with an additional 5 days of constructive credit for his prior active commissioned service at the time of his appointment as a MSC officer.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__ao____ ___rb___ ___ep___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Arthur A. Omartian___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002083278
SUFFIX
RECON
DATE BOARDED	20031113
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1.	102.07
2.	102.08
3.
4.
5.
6.