MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 July 2003
         DOCKET NUMBER: AR2003086377

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Walter T. Morrison		Member
Mr. Thomas E. O'Shaughnessy		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: In effect, that his time in medical school be creditable for longevity purposes.

APPLICANT STATES: That he served on active duty in the U. S. Marine Corps from 19 August 1977 through 15 September 1983. When the Department of Defense Personnel Management Act (DOPMA) was enacted in 1981 that denied military physicians time-for-pay credit for medical school, a few exceptions were allowed. Exceptions included those already enrolled in medical school, those in the Reserve Officers' Training Corps, those already graduated from medical school, and those who were already commissioned officers. Shortly after he entered medical school in 1987, he unwittingly signed a Health Professions Scholarship Program (HPSP) contract that instead specified no time-for pay benefits for his medical school years. To underscore the confusion, he was given two appointment orders. The first one appointed him a second lieutenant; the second appointed him a captain. Little did he know that the appointment order included a second error (saying there would be no time-for-pay benefit). He tried repeatedly to correct his discrepancy with the Defense Finance and Accounting Service (DFAS). Even after his personnel office prepared a new DA Form 1506 (Statement of Service – for Computation of Length of Service for Pay Purposes), DFAS refused to correct his records.

As supporting evidence, the applicant provides his U. S. Marine Corps DD Form 214 (Certificate of Release or Discharge from Active Duty); his DA Form 4629 (Service Agreement Department of the Army Armed Forces Health Professions Scholarship Program) dated 14 September 1987; an appointment order dated 10 October 1987; a corrected copy of his appointment order; a 25 March 1999 email from DFAS; a 31 March 1999 note from him to DFAS; a DA Form 1506 dated 8 October 2002; and a 5-page calculation of the back pay owed him.

The applicant also provides an extract from the Department of Defense Financial Management Regulation (DODFMR), version dated October 2000, highlighting paragraph 010202 (Constructive Service Credit for Medical and Dental Officers), subparagraph 010202.A (Crediting of constructive service for medical or dental training or internship is not authorized after September 14, 1981, except as provided in subparagaph 101020.B, below); subparagraph 010202.B (Prior to September 15, 1981, medical and dental officers who completed medical/dental training received years of credit for such training…After September 14, 1981, medical/dental officers with military or Public Health Service status may be credited with constructive service if one of the following conditions exist:); and subparagraph 010202.B.4 (On or before September 14, 1981, they had at any time been credited with constructive service as officers, notwithstanding any subsequent break in service).

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

He had prior commissioned service in the U. S. Marine Corps as a communications officer from 19 August 1977 until he was released from active duty as a captain on 15 September 1983.

On 14 September 1987, the applicant signed a DA Form 4629. Paragraph 16b stated that he understood and agreed that service performed while he was a member of the HPSP would not be counted in computing years of service creditable for pay.

By letter dated 10 October 1987, the applicant was appointed a second lieutenant in the U. S. Army Reserve. The orders indicated that if he had been credited with "years of service in an active status" the number of years, months, and days would be shown after paragraph D and that service was not valid for pay entry basic date for Medical and Dental Corps personnel and it was not the result of prior military service. Paragraph D contains no entry.

A corrected copy of the 10 October 1987 letter shows the applicant was appointed a captain in the U. S. Army Reserve. The same information concerning "years of service in an active status" is included. Paragraph D in the corrected letter also contains no entry.

Orders A-03-000205, U. S. Total Army Personnel Command, St. Louis, MO dated 31 March 1992 ordered the applicant to active duty in the rank of captain with a reporting date of 18 June 1992. Those active duty orders showed he was awarded 4 years of constructive credit for active duty grade determination.

A DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers)) dated 23 March 1993 awarded the applicant 4 years of entry grade credit for his medical school attendance; 1 year of entry grade credit for his advanced education beyond his basic qualifying degree; and 5 years, 3 months, and 21 days (1/2 day's credit for each full day) of entry grade credit for his previous service as a non-medical branch commissioned officer.

Orders A-03-000205A01, U. S. Total Army Personnel Command dated 22 April 1993 amended the applicant's March 1992 active duty orders to show he had "0 years, 3 months, 21 days" of constructive credit for active duty grade determination.

By email dated 25 March 1999 to Fort Lewis, WA, DFAS indicated that the applicant's DA Form 1506 showed he had HPSP inactive time from 22 October 1987 through 8 June 1992 and the time was not creditable. Fort Lewis would need to change his pay date and send a corrected DA Form 1506.

On 8 October 2002, a new DA Form 1506 was prepared by Fort Carson, CO which showed the applicant had service in the HPSP from 22 October 1987 through 21 October 1991 that was creditable for pay. Apparently, DFAS did not receive this DA Form 1506 or did not accept it as valid.

In the processing of this case, an advisory opinion was obtained from the Office of The Surgeon General, HPSP Program Manager. That office recommended that, based on the DA Form 5074-R dated 23 March 1993, the applicant has been awarded full [entry grade] credit for his medical degree and prior service time.

A copy of the advisory opinion was provided to the applicant for response. After understanding that the advisory opinion suggested he had already received 4 years credit [for his time in medical school] based on the DA Form 5074-R, he stated that what he was asking for is the back pay he should have received for that credit (before his personnel office gave him that credit on the October 2002 DA Form 1506).

Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) provides policy for the appointment of reserve commissioned officers for assignment to Army medical branches. In pertinent part, it states that the grade and date of rank upon original appointment and assignment to an Army Medical Department (AMEDD) branch will be determined by the number of years of entry grade credit awarded. Except as limited by maximum credit limits, entry grade credit granted will be the sum of constructive service credit and the credit for prior active commissioned service (emphasis added).

The DODFMR 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 DoD policy on the pay and allowances of military personnel. Paragraph 010105 of the current, February 2002 version, states:

         A. Some medical and dental officers are entitled to extra credit for longevity purposes to reflect the time spent in medical or dental school. 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 (emphasis added); 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.

The October 2000 extract of the DODFMR provided by the applicant included a fourth condition: "If on September 15, 1981, they were medical or dental officers (including officers of the PHS commissioned as medical or dental officers) entitled to include constructive service."

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. The applicant is misreading the DODFMR. The October 2000 version
(subparagraph 010202.B.4) read, "On or before September 14, 1981, they had at any time been credited with constructive service as officers, notwithstanding any subsequent break in service." The current February 2002 version (subparagraph 010105.A.1) reads, "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."

3. In accordance with Army Regulation 135-100, there is a difference between constructive service credit and credit for prior active commissioned service.

4. On 14 September 1981, the applicant was serving as a communications officer and had never been awarded constructive service credit. He was awarded constructive service credit only when he entered active duty as a medical officer in 1992. Merely being a commissioned officer prior to the enactment of DOPMA did not meet the conditions to be an exception to the new policy of not allowing time spent in medical school to be creditable for longevity purposes.

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

__mkp___ __wtm___ __teo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086377
SUFFIX
RECON
DATE BOARDED	20030729
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	128.15
2.
3.
4.
5.
6.