RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 March 2005
      DOCKET NUMBER:  AR20040000772


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Carmen Duncan                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request to have
his dates of rank adjusted.

2.  The applicant states that he has obtained additional information since
the previous consideration of his case.

3.  The applicant states that historical information obtained from the
Computation Section, U. S. Army Human Resources Command revealed that
before the Defense Officer Personnel Management Act (DOPMA) prior service
officers received a full year-for-year credit upon re-entering active duty.
 Combat arms officers made rank more quickly than Army Medical Department
(AMEDD) officers during Vietnam.  Some of those combat arms officers went
to medical school after service and upon re-entering the Army retained
their old ranks.  That often resulted in them becoming commanders of
hospitals with no medical experience, sometimes causing major problems.
Thus, 1/2 constructive service credit for prior service time for non-AMEDD
officers.

4.  The applicant states that Army Regulation 135-101, paragraph 3-4e needs
to be taken into account when calculations are made for constructive credit
for his prior service Medical Service Corps (MSC) time and credit for
dental school.  This paragraph is in effect a grandfather clause, from pre-
DOPMA to post-DOPMA.  It states that persons awarded service credit upon
original appointment before 15 September 1981 will retain such credit
(emphasis provided by applicant).  Therefore, he should have been given day-
for-day credit for his prior service and then credit for dental school
should have been added.

5.  The applicant states that the Board's 22 January 2004 decision did not
address Department of Defense Instruction (DODI) 6000.13, paragraph 6.2.2,
which states that "a former Regular or Reserve commissioned officer may, if
otherwise qualified, be appointed or reappointed as a reserve officer..."
He adds that paragraph 6.2.2.2 states, "Credit, for determining date of
rank under Section 741(d) of 10 USC (reference (c)), with service in grade
equal to that held by that person when discharged or separated."  He was a
Regular Army officer when he separated.  Therefore, he should have been
reinstated with service in grade equal to his former grade and then given
the credit for dental school.  DODI 6000.13 cites federal statutory law and
cannot be simply overlooked.

6.  The applicant states that DOD Instructions reflect federal law and are
based on law as compared to Army Regulations that are written more as
policy and procedures.  As such, DOD Instructions take precedence over Army
Regulations. The Board's 22 January 2004 decision gave higher weight to the
U. S. Army Recruiting Command's (USAREC's) advisory opinion than it did
DODI 6000.13.  DODI 6000.13, paragraph 6.1.1 states, "Prior Commissioned
Service Credit…For entry grade credit, the Medical Service Corps (MSC), the
Biomedical Sciences Corps, and the Army Medical Specialist Corps are
considered as the same Corps (emphasis provided by applicant).  The
advisory opinion falsely stated that MSC means Navy MSC.  The paragraph
specifically states Medical Service Corps (MSC), meaning all three
services.  Paragraph 6.1.1.1 states "Service on active duty or in an active
status as a commissioned officer in any of the Uniformed Services, in the
Corps (emphasis provided by applicant) or professional specialty in which
being appointed, shall be credited on a day-for-day basis with any
commissioned service performed before such appointment."

7.  The applicant states that, looking at the issue of date of rank from a
different perspective, all the different medical branches are a part of
AMEDD.  Knowledge and experience gained in one part of the AMEDD can easily
transfer to the other departments of AMEDD.  The knowledge and experience
he gained as an MSC officer serving as a medical platoon leader and a Chief
of Patient Administration of an Army hospital is indispensable to the
military health care system.  As such, he possessed requisite knowledge
necessary to serve at that rank in the Dental Corps (DC) even though it was
a different specialty.

8.  The applicant provides his prior Board packet and the original Board
decision.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003086042 on 22 January 2004.

2.  The applicant's contention that the USAREC advisory opinion contained
information contrary to DODI 6000.13 is a new argument that will be
considered by the Board.

3.  The applicant was commissioned an MSC second lieutenant in the Regular
Army out of the Reserve Officer's Training Corps program on 19 December
1976 and entered active duty.  He was not awarded any constructive credit
at that time.

4.  On 20 August 1980, the applicant submitted a request for unqualified
resignation to further his education (medical school).  He indicated he
desired appointment in the U. S. Army Reserve (USAR).

5.  On 19 December 1980, the applicant was promoted to captain.

6.  On 4 February 1981, the applicant was transferred to the USAR Control
Group (Reinforcement) in the rank of captain.  He had completed 4 years,
       1 month, and 16 days of creditable active service.

7.  On 17 September 1985, the applicant applied for service as a
commissioned officer in the Reserve.  By letter dated 26 March 1986, his
appointment as a USAR commissioned officer in the DC was approved.  He was
awarded a degree of Doctor of Dental Surgery and, on 17 June 1986, he was
ordered to active duty in the rank of captain, DC.  His active duty orders
had been amended to give him constructive credit of 6 years and 23 days.

8.  The applicant was promoted to major on 21 May 1990, to lieutenant
colonel on 21 May 1996, and to colonel on 21 May 2002.

9.  An advisory opinion had been obtained from USAREC in ABCMR Docket
Number AR2003086042, dated 22 January 2004.  The advisory opinion noted
that the applicant had been awarded 4 years of constructive credit for his
basic qualifying degree (completion of Dental school) and 1/2 credit for
his prior active commissioned service in the MSC.  It also noted that DODI
6000.13, paragraph 2.1 reminded readers that the DODI was used by all
services and that the term "Military Services" as used in the DODI refers
to the Army, the Navy, and the Air Force.

10.  The advisory opinion also pointed out that health care professionals
are designated in one of the following:  Medical Corps, Dental Corps, the
Veterinary Corps, the Nurse Corps, or the Army MSC (Medical Service Corps)
(if designated as an allied health officer, an optometrist, or a biomedical
sciences officer), the Army Medical Specialist Corps (occupational
therapist, physical therapist, dietician, physician assistant), the Air
Force BSC (Biomedical Science Corps) (if qualified for service as a
veterinarian, an optometrist, or a podiatrist), or the Navy MSC (Medical
Service Corps) (if designated to perform as an optometrist, a podiatrist,
or an allied health officer in the reserves).

11.  The advisory opinion did not point it out, but DODI 6000.13 more
clearly delineates the different medical departments in paragraph 6.3.2
(almost verbatim as cited in paragraph 10 above) and in paragraph 6.3.4
("…commissioned officer in the Veterinary Corps, the Medical Service Corps,
the Nurse Corps, or the Medical Specialist Corps of the Regular Army; the
Medical Service Corps or the Nurse Corps of the Regular Navy; or the
Biomedical Science Corps or as an officer designated as a nurse in the
Regular Air Force…").
12.  The advisory opinion went on to state that, while the applicant
correctly quoted DODI 6000.13, paragraph 6.1, in that instance MSC referred
to the Navy Medical Service Corps and not the Army Medical Service Corps.
The advisory opinion noted that the applicant had correctly been given 1/2
credit for his prior commissioned service since he had served in a
specialty (Army MSC) different from the one in which he was being appointed
(Army DC).

13.  The applicant had made the same rebuttal to the advisory that he makes
in his current application.

14.  In the processing of the applicant's current case, the ABCMR requested
the proponent of DODI 6000.13, the Office of the Assistant Secretary of
Defense for Health Affairs, comment on USAREC's advisory opinion.  That
office reviewed USAREC's advisory opinion and agreed with their
interpretation of DODI 6000.13.  That office also noted that the
applicant's prior service should be calculated as 1/2 day credit for each
day of service in accordance with paragraph 6.1.1.2.

15.  A copy of the Office of the Assistant Secretary of Defense for Health
Affairs' comments was provided to the applicant for comment or rebuttal.
He did not respond within the given time frame.

16.  Army Regulation 135-101 (Appointment of Reserve Commissioned
Officers for Assignment to Army Medical Department Branches), paragraph
  3-4 (Transition Credit) subparagraph 3-4e states that persons who, before
        15 September 1981, had been awarded service credit upon original
appointment in an Armed Force, will retain such credit for purposes of
determining grade and date of rank upon subsequent original appointment.
For persons appointed under this regulation, service credit accumulated
since the previous appointment (as measured under rules in effect after 15
September 1981) may be added to the above service credit.

17.  DODI 6000.13 (Medical Manpower and Personnel), paragraph 6.2.2, states
that a former Regular or Reserve commissioned officer may, if otherwise
qualified, be appointed or reappointed as a Reserve officer.  If so
appointed, he or she may be (paragraph 6.2.2.2) credited, for determining
date of rank under section 741(d) of Title 10 U. S. Code, with service in
grade equal to that held by that person when discharged or separated.

18.  Title 10, U. S. Code, section 741(d) states that the date of rank of
an officer of the Army, Navy, Air Force, or Marine Corps who holds a grade
as a result of an original appointment shall be determined by the Secretary
of the military department concerned at the time of such appointment.  The
date of rank of an officer of the Army, Navy, Air Force, or Marine Corps
who holds a grade as the result of an original appointment and who at the
time of such appointment was awarded service credit for prior commissioned
service or constructive credit for advanced education or training or
special experience shall be determined also  as to reflect such prior
commissioned service or constructive service.  Determinations by the
Secretary concerned under this paragraph shall be made under regulations
prescribed by the Secretary of Defense which shall apply uniformly among
the Army, Navy, Air Force, and Marine Corps.

19.  DODI 6000.13, paragraph 6.1.1.2 states that service on active duty or
in an active status as a commissioned officer in any of the Uniformed
Services, but not in the corps or professional specialty in which being
appointed, shall be awarded 1/2 day of credit for each day served in the
case of individuals seeking an original appointment as a health professions
officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant discusses the reasons behind the DOPMA change concerning
full year-for-year credit for "non-AMEDD officers" pre-DOPMA versus 1/2
credit for "non-AMEDD officers" post-DOPMA.  He also contends, accurately,
that all the different medical branches are a part of AMEDD and, not so
accurately, that knowledge and experience gained in one part of the AMEDD
can easily transfer to the other departments of AMEDD.

2.  First, day-for-day constructive credit is not awarded just based on
whether an officer was previously an AMEDD officer or not.  The officer
must have been in the same AMEDD corps or professional specialty.

3.  Second, it is not reasonable to presume that Congress or Department of
Defense meant that the different branches in AMEDD should be considered to
be interchangeable.  Administrative AMEDD positions such as Chief of
Patient Administration of an Army hospital are rare compared to the
clinical duty positions of an AMEDD officer.  The Board doubts Congress or
Department of Defense meant the DC position of Orthodontist or Oral Surgeon
to be interchangeable with the Medical Corps position of Orthopedic Surgeon
or the Veterinary Corps position of Veterinary Microbiologist.

4.  Army Regulation 135-101, paragraph 3-4e does not apply to the
applicant.  As
accurately noted by the applicant, this paragraph states that persons
awarded service credit upon original appointment before 15 September 1981
(emphasis added) will retain such credit.  However, when he was appointed
an MSC officer in 1976, he had not been awarded any constructive credit.
Therefore, there was no constructive credit to be retained when he was
appointed as a DC officer in 1986.

5.  As an example, Army Regulation 135-101, paragraph 3-4e would have
applied if the applicant, prior to his 1976 appointment in the MSC, had
previously served on active duty for 2 years as an Infantry officer.  Based
upon pre-DOPMA rules, he would have been awarded 2 years of constructive
credit upon his appointment as an MSC officer in 1976.  He would then have
retained that           2 years of constructive credit upon his 1986
appointment as a DC officer, plus his 4 years for completing Dental school,
plus his 1/2 credit for his active duty as an MSC officer.

6.  As Army Regulation 135-101, paragraph 3-4d also states, service credit
accumulated since (emphasis added) the previous appointment (as measured
under rules in effect after 15 September 1981 (emphasis added)) may be
added to the above service credit.  The rules in effect upon the
applicant's appointment in 1986 were that he receive 1/2 credit for his
previous active commissioned service not in the same specialty.

7.  The applicant correctly quotes DODI 6000.13, paragraph 6.2.2 which
states, "a former Regular or Reserve commissioned officer may (emphasis
added), if otherwise qualified, be appointed or reappointed as a reserve
officer..."

8.  The applicant partially quotes paragraph 6.2.2.2.  The full quote is,
"If so appointed, he or she may (emphasis added) be credited, for
determining date of rank under section 741(d) of 10 U. S. C. (reference
(c)), with service in grade equal to that held by that person when
discharged or separated."

9.  DODI 6000.13 allows the Service Secretaries to credit an officer with
service in grade equal to that held by the officer when separated; however,
it does not mandate that the Service Secretaries grant that credit.  It
appears the Department of Defense has chosen not to exercise this option.

10.  The applicant contends that the Board's 22 January 2004 decision gave
higher weight to USAREC's advisory opinion than it did DODI 6000.13.  The
ABCMR asked the proponent of DODI 6000.13 to review USAREC's advisory
opinion and the proponent agreed with USAREC's interpretation of DODI
6000.13.

11.  The applicant quotes DODI 6000.13, paragraph 6.1.1 to contend that the
referral to "MSC" meant the Army Medical Service Corps.  He also contended
that the paragraph meant that his prior service in the Army MSC should have
been credited on a day-for-day basis upon his appointment in 1986.
12.  First, paragraph 6.3.4 of DODI 6000.13 more clearly delineates the
various health corps in the Armed Services to include the Regular Army
Medical Service Corps and Medical Specialist Corps, the Regular Navy
Medical Service Corps, and the Regular Air Force Biomedical Science Corps.
Since paragraph 6.1.1. mentions the Medical Service Corps (MSC), the
Biomedical Sciences Corps, and the Army Medical Specialist Corps, the term
"MSC" cannot mean "all three services" because the Air Force does not have
a "MSC."

13.  DODI 6000.13, paragraph 6.1.1 specifically states "Army" Medical
Specialist Corps.  It is reasonable to presume that had this paragraph
meant to include the Army Medical Service Corps it would have stated "Army"
Medical Service Corps to differentiate it from the Navy Medical Service
Corps.  The only logical reading of this paragraph is that it meant the
Navy Medical Service Corps, the Air Force Biomedical Sciences Corps, and
the Army Medical Specialist Corps are to be considered as the same Corps
when granting constructive credit.

14.  Second, the applicant was not appointed in the same Corps in which he
had previously served on active duty as a commissioned officer.  Had his
previous service been in the Army Medical Specialist Corps and in 1986 he
had been appointed in the Navy Medical Service Corps, then his previous
service would have been credited on a day-for-day basis.  Or, had his
previous service been in the Air Force Dental Corps, then upon his 1986
appointment in the Army Dental Corps his previous service would have been
credited on a day-for-day basis.

15.  However, the applicant's previous service was in the Army Medical
Service Corps and in 1986 he was appointed in the Army Dental Corps, a
different Corps. Therefore, he was properly given 1/2 credit for his
previous service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __le____  __cd____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2003086042, dated 22 January 2004.




            __John N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000772                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050310                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |102.08                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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