PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 August 2003
         DOCKET NUMBER: AR2003084855

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. John T. Meixell		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 his major (MAJ) date of rank (DOR) be adjusted to 30 June 1994 based on the constructive credit he received upon his appointment in the United States Army Reserve (USAR).

3. The applicant states, in effect, that his problem is simple, but complicated. He states that he is currently an Individual Mobilization Augmentee (IMA) serving in specialty 61K (Cardiothoracic Surgeon) in private practice in Erie, Pennsylvania with an active duty station of Tripler Army Medical Center, Hawaii. He states that he joined the USAR under the Specialized Training Assistance Program (STRAP) on 7 May 1993 and was appointed a captain (CPT) and granted
9 years, 10 months, and 6 days of constructive credit for having completed medical school and a seven year residency in general surgery. He states that at that time he was just beginning his cardiothoracic surgery residency which was two years in length. Therefore, he had no obligation to the Army whatsoever while he remained in residency and he incurred a four year service obligation in the USAR once he completed his residency. He states that his residency was increased to three years and his STRAP commitment changed accordingly, which resulted in his incurring a follow on six year service obligation.

4. The applicant states that during the three year period he was receiving his STRAP stipend between 1993 and 1996, he had no military obligations and he did not participate by performing any active duty for training or attend any military schools. In 1995, during his second year of residency he received notification that he had been considered and not selected for promotion. He contacted Army Reserve Personnel Command (ARPERSCOM) officials and was informed this was an administrative error and he should not worry about it. In his third year of residency 1996, he was notified that he had been considered and not selected for promotion a second time and as a result he would have to separate from the military. He again contacted ARPERSCOM and was again told it was an administrative error, but it would require some high level Congressional process to correct it.

5. The applicant states that he was retained while the correction process worked and completed the Officer Basic Course (OBC) in the first year of his obligation and the Officer Advanced Course (OAC) in the second year. Finally, after discovering that this promotion non-selection problem applied to about
80 physicians in various specialties that joined the USAR under the STRAP and discussing the issue with many top officials, he was finally able to resolve the issue through this Board and he was considered and selected for promotion to MAJ and promoted on 24 July 2000.

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6. The applicant is now requesting that based on his constructive credit, his MAJ DOR be adjusted to 30 June 1994, and that his promotion eligibility date (PED) for lieutenant colonel (LTC) be changed to 23 July 2001. He concludes by indicating that he has enjoyed his time in the USAR and even though he could resign at anytime, he plans to remain serving for 25 to 30 years because he believes that in these dangerous times the Army needs physicians more than ever. He states that at this time he is probably the only physician in his specialty that has been out of training for seven years and is still a MAJ. Finally, he indicates that the failure to properly apply his constructive credit has prevented him from competing for and being promoted as intended.

7. On 7 May 1993, he was appointed a CPT in the USAR Medical Corps (MC) of the USAR. The appointment memorandum issued by the Total Army Personnel Command (PERSCOM), St. Louis, Missouri, confirmed that in connection with his appointment he was granted a total of 9 years, 10 months, and 6 days of constructive credit.

8. On 27 March 1995, a memorandum notifying the applicant that he had been considered and not selected for promotion to MAJ by the Reserve Component Selection Board (RCSB) was published by PERSCOM, St. Louis. On 5 April 1996, PERSCOM, St. Louis published a second notification of promotion status memorandum that informed the applicant had been considered and not selected by the RCSB a second time, and as a result he was required to be separated from the USAR.

9. On 22 November 1995, a memorandum from the Chief, Incentives Branch, United States Army Recruiting Command (USAREC) approved an adjustment to the applicant’s STRAP end date, which was originally scheduled as 30 June 1995 and his previously established obligation ending date of 20 June 1999. The new dates established were 30 June 1996 as the STRAP end date and 30 June 2002 as the contractual service obligation end date.

10. On 19 Sepetember 1997, the applicant completed the Army Medical Department (AMEDD) OBC, and on 3 July 1999, he completed the AMEDD OAC.

11. Subsequent to administrative correction of his record, the applicant was considered and selected for promotion to MAJ by the RCSB that had convened on 10 January 2000. The PERSCOM, St. Louis memorandum announcing this selection also confirmed that his promotion eligibility date (PED) was 30 June 1994.

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12. On 25 July 2000, the applicant was promoted to MAJ. The PERSCOM,
St. Louis memorandum authorizing the promotion established his promotion effective date and date of rank as 25 June 2000.

13. 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 Army Medical Department (AMEDD). The minimum service credit for appointment to CPT in the MC is 4 years. Paragraph 3-3 contains guidance on determining the entry grade for officers ordered to active duty. It states, in pertinent part, that authorized credit beyond the minimum necessary for appointment to the appropriate grade will be used to adjust the DOR within that grade.

14. Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the USAR. Chapter 2 provides eligibility criteria for promotion, and the military education requirement is outlined in Table 2-2. It states, in pertinent part, that for promotion to MAJ a member must complete the OAC. However, the table also specifies that AMEDD officers who are STRAP participants do not have to complete the AMEDD resident RC OBC until 3 years after completion of the STRAP training program.

15. Chapter 2, section III (Board Consideration), of the RC promotion regulation states that boards will convene each year and will consider officers on the Reserve Active Status List (RASL) for promotion to captain through lieutenant colonel without regard to vacancies in the next higher grade. It also states, in pertinent part, that the first consideration for promotion will occur well in advance of the date the officer will complete the maximum time in grade (MTIG) requirements. Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the maximum years required in the lower grade, or MTIG requirement for promotion to MAJ/0-4 is 7 years.

16. Chapter 4, section III (Dates of Promotion) of the promotion regulation does state that the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued, and the promotion memorandum will not be issued prior to promotion board results being approved and/or confirmed by the Senate if required).

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17. In addition, Title 10 of the United States Code, section 12203
(10 USC 12203) establishes, in effect, that RC officers on a promotion list will be promoted when the report of the selection board is approved by the President. Therefore, under this provision of the law, the promotion effective date is the date the list is signed by the President. It is also codified in the law that, in effect, if a RC officer’s promotion is adjusted to reflect a date earlier than the actual effective date of promotion, for example a DOR adjustment based on MYIG, this does not entitle them to additional pay or allowances.

CONCLUSIONS:

1. The evidence of record confirms that the Army granted the applicant a total of 9 years, 10 months, and 6 days of constructive credit upon his 7 May 1993 appointment as a CPT in the MC of the USAR.

2. By regulation, appointment as a MC CPT requires a minimum of 4 years of credit, which in the applicant’s case leaves an additional 5 years, 10 months, and 6 days of constructive credit that should have been applied to his CPT DOR. As a result of this additional constructive credit, the Board finds that the applicant’s record should be corrected to show his CPT DOR was 1 July 1987.

3. The record also confirms that based on the applicant’s constructive service credit his PED to MAJ would have been established as 30 June 1994; however, he remained in training in the STRAP through 30 June 1996, and at the applicant’s request in an application to this Board, action was taken to remove his name from promotion consideration until he completed training in the STRAP.

4. Based on the action outlined in the preceding paragraph and given that the governing promotion regulation does not require AMEDD officers in the STRAP to complete basic military education requirements for promotion until
3 years after completion of the STRAP training program, the Board concludes it would be appropriate to correct the applicant’s MAJ DOR to 30 June 1996, the date he completed his STRAP training.

5. As a result of correcting the applicant’s MAJ DOR to 30 June 1996, he would have first been eligible to be considered for promotion to LTC by the AMEDD RCSB that convened on 28 May 2002. Therefore, the Board concludes it would be appropriate to place his records before a Special Selection Board (SSB) for promotion reconsideration under the criteria used by the 28 May 2002 RCSB and any subsequent RCSB that would have considered him for promotion based on the adjusted DOR.

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6. In addition, in the event the applicant is selected for promotion to LTC by a SSB, the Board also concludes that his promotion effective date and DOR to LTC should be established as the date it would have been had he been selected by the original RCSB, and he should be provided any back pay and allowances due as a result.

7. 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:

a. by changing the date of rank to Major of the individual concerned to
30 June 1996, the date he completed his Specialized Training Assistance Program commitment;

b. by submitting his records to a duly constituted Special Selection Board for promotion reconsideration to Lieutenant Colonel under the criteria followed by the 28 May 2002 RCSB and any subsequent RCSB that would have considered him for promotion based on the adjusted DOR;

c. in the event he is selected for promotion to Lieutenant Colonel by the Special Selection Board, by establishing his promotion effective date and DOR to MAJ as the date it would have been if he were selected by the original RCSB and providing him any back pay and allowances due as a result.

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

BOARD VOTE:

___MVT__ ___FE__ ___JM_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Fred N. Eichorn
                  CHAIRPERSON

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INDEX

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