RECORD OF PROCEEDINGS


      IN THE CASE OF

      BOARD DATE:           9 August 2005
      DOCKET NUMBER:  AR20040008163


      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:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann             |     |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, in effect, correction of his appointment grade
from first lieutenant (1LT) to captain (CPT) with an effective date of 23
August 2003.

2.  The applicant states, in effect, he was erroneously appointed as an
active duty CPT, but took the oath of office as a Reserve 1LT.  He states
that upon his arrival at Fort Sam Houston, Texas for Physicians Assistant
(PA) training, he was reappointed from specialty 70B Medical Service Corps
(MS) CPT to 65D Medical Specialist C
orps (SP) at the Reserve rank of 1LT and Active Duty (AD) rank of CPT,
which was confirmed as the proper action by his Phase II training
coordinator, a colonel.  He states that throughout the past year, as far as
everyone was concerned, he was a CPT.  He received evaluation reports based
on his performance in that rank, and received pay as a CPT.  He also states
that when he was reassigned to Fort Stewart, Georgia for Phase 2 training,
he received an Officer Records Brief (ORB) and orders showing his rank as
1LT.  At this time, he contacted his branch manager and the PA school
coordinator to resolve the issue.

3.  The applicant further indicates that from April 2002 through June 2003,
he was deployed to Sinai, Egypt as a MS CPT, serving as a company commander
of a medical company.  In July 2002, he was selected to enter the
Interservice Physician Assistant Program (IPAP) and to report to the PA
course during the first part of 2003.  He discussed the situation with the
PA school coordinator and his branch manager, and because he was forward
deployed, and no replacement was available, his PA class date was moved to
August 2003.  Upon his PCS in June 2003, the orders and Statement of
Understanding issued to him by the IPAP Program Manager indicated he would
remain an active duty CPT.

4.  The applicant further states that upon his arrival at Fort Sam Houston,
Texas, he was reappointed from the MS into the SP at the USAR rank of 1LT
and active duty rank of CPT, which was confirmed by his PA Phase II
coordinator, a colonel. During the year that followed, he served in the
rank of CPT and was paid in that grade.  When he was reassigned to Fort
Stewart, Georgia, his Phase 2 site orders and his ORB read 1LT.

5.  The applicant indicates the IPAP Program Manager originally believed
the 1LT rank listing was a clerical error, but upon investigation
discovered it was the result of errors made in the processing of his
appointment packet, which was based on the time in service (TIS)
requirements for CPT in effect prior to April 2003.  The applicant’s
appointment orders were dated 21 March 2003, but Military Personnel
(MILPER) Message 03-134, changed the CPT TIS requirement from 38 to 40
months.  As a result, because his appointment packet was completed prior to
the change by the previous IPAP Program Manager, the IPAP Program Manager
was unaware the applicant’s packet needed to be reworked prior to his
reporting to school in August 2003.

6.  The applicant also indicates he was informed he would be demoted to
1LT, effective 23 August 2003, and all the CPT pay he received would be
recouped.  He further states that he has also missed the opportunity to be
promoted back to CPT, and the current situation would result in his being a
year behind his PA classmates.

7.  The applicant concludes by indicating that he has arrived at this point
because he was doing his duty and remained at a forward deployed unit as a
company commander in the MS because no replacement was available when he
was first scheduled to attend the PA course.  He further states that his
appointment orders, Statement of Understanding, and PCS orders all
indicated he was an AD CPT; and he wore the rank, received pay and served
as a CPT for more than a year after he was appointed in the SP.  He further
claims the financial loss from recoupment of his pay would create an undue
financial hardship on his family, and his career path would be unduly
adversely affected as a result of his being demoted to 1LT.  As a result,
he requests the Board correct his record to show he entered active duty for
PA training as a CPT and that he not be required to revert to the rank of
1LT.  He states that he has done his duty and followed the orders of those
appointed above him in good faith and should not be penalized for actions
beyond his control.  He also indicates he was a senior CPT in the MS prior
to his attendance at the PA course and requests he be allowed to retain his
rank.

8.  The applicant provides a self authored statement, assignment orders,
statement of understanding, oath of office and permanent change of station
(PCS) orders in support of his application.
CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he was commissioned a second lieutenant
(2LT) in the MS and entered active duty on 26 June 1997.  On 1 December
2000, he was promoted to CPT in the MS, and he continued to serve on active
duty in that rank and status until his appointment in the SP for training
as a PA.

2.  The applicant’s record contains a Statement of Understanding, dated
26 August 2002, which was completed during his SP appointment processing.
This document indicates he was to be conditionally appointed a SP officer
in the United States Army Reserve (USAR) with concurrent call to AD.  It
further indicates he was granted 3 years, 1 month and 27 days of
constructive service credit, and that his USAR grade would be 1LT and his
AD would be CPT.

3.  On 21 March 2003, the applicant was appointed a 1LT in the SP of the
USAR. The appointment memorandum confirms he was granted 3 years and 2
months of constructive service credit as of the date he entered active
duty, which at the time made him eligible to be appointed a CPT.

4.  On 17 April 2003, the United States Total Army Personnel Command
(PERSCOM) published assignment instructions for the applicant’s AD
assignment to Fort Sam Houston, Texas for PA training.  These assignment
instructions indicated his active duty rank would be CPT.  On 23 August
2003, the applicant entered active duty in the rank of CPT.

5.  Upon his reassignment from Fort Sam Houston to Fort Stewart in
September 2004, the applicant was informed there had been a change in the
CPT promotion TIS requirement from 38 months to 40 months on 1 April 2003,
and as a result, his record was changed to reflect he entered active duty
in the PA program as a 1LT.

6.  On 5 December 2004, the United States Army Recruiting Command (USAREC)
IPAP Program Manager addressed a memorandum on the applicant’s situation to
the Human Resources Command (HRC) SP branch chief. In this memorandum, it
was explained that the applicant’s appointment packet was completed in
accordance with the policy in effect prior to 1 April 2003, under which the
CPT TIS requirement was 38 months.

7.  The IPAP Program Manager further indicated that the USAREC agreement
with the applicant, as documented in the Statement of Understanding, dated
26 August 2002 and the appointment memorandum, dated 21 March 2003,
indicated the applicant’s AD grade would be CPT.  He further stated the
applicant did everything he was told and acted in good faith based on the
guidance he received from IPAP Program Managers.  The administrative errors
in the applicant’s appointment packet that resulted in his erroneous AD
rank were the fault of the responsible USAREC personnel, and it would be
unjust to punish the applicant for these errors.

8.  On 13 January 2005, the HRC Chief, Health Services Division provided a
memorandum of support for the applicant and a statement of facts to this
Board.  He requested the applicant’s appointment grade be corrected from
1LT to CPT.  He states the applicant was erroneously appointed in the USAR
1LT and placed on active duty in the rank of CPT, and took the oath of
office as a 1LT.  He furthers states the applicant has served in the rank
of CPT since he began
PA training on 23 August 2003, and he is completing his second and final
year of training.  The applicant has worn the rank in good faith and has
served honorably unknowing that he should have been considered for CPT
during the 2004 board. The applicant was advised he should not submit a
waiver to compete for promotion by his instructor because he was wearing
the rank of CPT as appointed.

9.  A review of the HRC promotion branch web site confirms the applicant
was selected for promotion by the Fiscal Year 2005 CPT Army Medical
Department (AMEDD) Promotion Selection Board (PSB) and was assigned a
sequence number of 1.

10.  Army Regulation 600-8-29 (Officer Promotions) established the time in
service (TIS) requirement for promotion to CPT as 42 months.

11.  MILPER Message 02-172, published in October 2002, established the TIS
requirement for promotion to CPT as 38 months in order to address shortages
of officers in the grade of CPT, with the intent to return to a 42 TIS
requirement at the earliest opportunity.

12.  MILPER Message 03-134, published in April 2003, increased the CPT TIS
requirement to 40 months, effective 1 April 2003, as an incremental return
to the 42 TIS requirement outlined in the officer promotions regulation.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct his record to show he was appointed
a CPT in the USAR and entered active duty in that rank on 23 August 2003
was carefully considered and found to have merit.

2.  Although the Army policy that changed the CPT TIS requirement from 38
to 40 months was implemented in April 2003, prior to the applicant’s entry
on AD, there are equity considerations in this case that must be addressed
and resolved in the interest of justice.

3.  The evidence of record confirms the applicant appointment in the SP was
processed prior to the change in CPT TIS policy.  He entered AD in the rank
of CPT, and served in that rank in good faith for more than a year before
he was notified his AD rank should have been 1LT.  As evidenced by the
supporting memorandums from the HRC Health Services Division Chief and the
USAREC IPAP Program Manager, the errors that resulted in the applicant
entering active duty as a CPT were the result of improper processing by the
responsible USAREC officials through no fault of the applicant.

4.  The applicant’s record also confirms he completed almost three years of
active military service as a CPT in the MS, which included a successful
company command, prior to entering the IPAP.  It also shows he served as a
CPT for more than a year after his appointment in the SP.  Finally, he was
selected for promotion CPT by the FY CPT AMEDD PSB.  These facts confirm he
was fully qualified to perform duties as a CPT at the time he was appointed
in the IPAP and entered active duty in August 2003.

5.  In view of the facts of this case, it would appropriate to correct the
applicant’s record to show he was appointed a CPT in the SP and entered
active duty in that rank on 23 August 2003, and that he is entitled to all
pay and allowances he received and/or to which he is due based on service
in that rank and pay grade since that appointment date.

BOARD VOTE:

___BJE _  ___KLW _  __PHM _  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing he was appointed a captain in the Medical Specialist Corps and
entered active duty in the rank of captain on 23 August 2003; and by
showing that he is entitled to the pay and allowances he received and/or to
which he is due based on his active duty service in that rank and pay
grade.




            ___Barbara J. Ellis_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008163                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/09                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |112.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]