RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           23 September 2004
      DOCKET NUMBER:   AR2004100381


      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. G. E. Vandenberg              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Roger Able                    |     |Member               |
|     |Ms. Elose C. Prendergast          |     |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 that he be allowed to retire in the pay grade of
O-3 and be retroactively granted the difference in retired pay between E-7
and O-3.  He also requests that if retroactive retirement in pay grade O-3
cannot be granted that he be given constructive service credit for
specialized experience and training.

2.  The applicant states it was not made clear to him that, if he accepted
his commission as a physician's assistant (PA), he would not be entitled to
retirement pay in the rank he held at the time of retirement but would be
retired in the highest enlisted grade he held.  He states that it is unjust
to penalize former senior enlisted personnel who accepted commissions at
the time the Army was converting from a warrant officer PA program to the
commissioned officer's PA program.

3.  The applicant provides copies of the front page of a 25 September 1992
letter notifying him of his selection, orders indicating his selection to
the PA program, a page from the 1993 Military Qualifications Standards
Manuel, two Certificates of Training, a 1997 college degree certificate, a
Life Cycle Model for PAs, 2 pages from Army Regulation 15-80, his DD Form
214 (Certificate of Release or Discharge), a 2000 base pay chart, and a
letter of support from the Chief, Legal Assistance Division, Fort Jackson,
South Carolina.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged injustice which
occurred on 1 June 2000, the date he was placed on the retired list.  The
application submitted in this case is dated 30 October 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The records show that the applicant first entered active duty in the
United States Marine Corps on 1 February 1978.  He subsequently enlisted in
the Army and attained the rank of sergeant first class (SFC) (E-7).

4.  In September 1992, the applicant was selected to participate in the
physician assistant (PA) training program as a commissioned officer.

5.  The official record does not contain any documentation relating to the
applicant's application and selection for the PA program or his
commissioning.

6.  He entered the PA course on 19 January 1993, successfully completed the
program, and was commissioned a second lieutenant on 17 February 1995.

7.  He completed additional military medical training in Military Tropical
Medicine, on 16 August 1996; Medical Management of Biological Causalities,
on 19 September 1997; and the Army Emergency Medicine Physician Assistant
Basic Course, on 19 March 1999.

8.  He was awarded a Master of Physician Assistant Studies (MPAS) degree
from the University of Nebraska on 1 August 1997.

9.  He was promoted to captain (O-3) effective 1 March 1999.

10.  On 31 May 2000, the applicant, a captain, voluntarily retired with 20
years of active duty and 22 years of service for pay purposes.  He was
transferred to the Retired Reserve and was placed on the Retired List in
the pay grade of SFC,    E-7, effective 1 June 2000.

11.  In the development of this case an advisory opinion was obtained from
the Army Human Resources Command, Transitions and Separations Branch.  In
its entirety it states "A Review of the claim determined that the soldier
is not eligible for advancement to the grade of Captain until August 2,
2009."

12.  The applicant's rebuttal to the opinion again offered that the policy
was unfair to former senior enlisted personnel who accepted selection for
the PA program because former warrant officers are allowed to retire in the
highest grade held.

13.  A review of the pay rates, as in effect in 2000, indicates that there
is over a $2,000 difference in basic pay between an E-7 and an O-3E (a
captain with prior enlisted service).

14.  The applicant provided an annotated copy of the first page of a
25 September 1992 Officer Procurement Division acceptance letter.  The
letter indicates that the applicant was selected to participate in the PA
program beginning on 19 January 1993.  It also indicated that this was a
conditional upon acceptance of the four provisions.  One of the enclosures
was a Retirement Ineligibility Statement.  The applicant did not forward
the enclosures and they are not in the official record.

15.  In a letter of support the Chief, Legal Assistance Division, Fort
Jackson, South Carolina, states, that at the time that the applicant was
recruited, the Army had a critical need for PAs and knew that the applicant
would not be able to retire at 20 years and keep his officer rank.  She
opines that this practice is fundamentally unfair.  She notes that the Army
later recognized this problem and, in 1994, stopped recruiting senior
enlisted personnel.

16.  Title 10 United States Code, section 1406, as amended, states that a
commissioned officer will be retired in the grade he successfully held on
the day prior to his retirement, if otherwise qualified.

17.  Army Pamphlet 135-101 provides the policy and sets forth the
procedures for the Reserve appointment of Army Medical Department (AMEDD)
officers with or without a concurrent call to active duty.  General
provisions for entry grade determination specify that entry grade credit
will (except as limited by maximum credit limits) be the sum of
constructive credit plus credit for prior service.  Constructive credit for
professional experience and advanced (not basic qualifying) degrees is
awarded on a basis of 1/2 year credit per year of experience with a total
of 6 years credit possible in unusual cases.  Tables 3-1, 3-2, 3-3, 3-4,
and 3-5 list the degrees that are considered as advanced degrees for the
purpose of constructive credit.  An MPAS is not listed on any of these
Tables.  Additionally, a basic principle provides that no period of time
may be counted more that once.

18.  Army Regulation 600-8-24 (Officer Transfers and Discharges), in
pertinent part, states that Army Medical Specialist Corps physician
assistants (PAs), who are members of the PA transition force and who have
10 years active Federal commissioned service may elect to be retired at the
highest commissioned officer grade held or revert to the highest enlisted
or warrant officer grade in which the officer satisfactorily served on
active duty and be retired.  During the period 1 October 1990 through 30
September 1999, the active commissioned service could be reduced to 8 years
with Secretary of the Army approval.  Commissioned warrant officer active
service will be applied toward the 10 years of total active commissioned
service (8 years if waived) for retirement.  Transition force PAs who
cannot meet the 10 years active commissioned service (8 years if waived)
requirement will be placed on the retirement list at the highest enlisted
or warrant officer grade in which the officer served on active duty
satisfactorily for more than 30 days.  When his or her service (plus
service on the retired list) totals 30 years, they may be advanced on the
retired list to the highest commissioned grade in which he or she served
satisfactorily on active duty.
DISCUSSION AND CONCLUSIONS:

1.  The applicant, with over 14 years of enlisted service, volunteered for
and accepted a position in the Army PA program.  During his application
process he would have had to acknowledge he would be ineligible to retire
as an officer at 20 years of service.  The minimum number of years of
commissioned service required by either former warrant officers or enlisted
soldiers, is 10 years.

2.  The applicant voluntarily requested retirement five years before he
qualified to be placed on the Retired List as a commissioned officer.

3.  Constructive credit is granted for professional experience and advanced
(not basic qualifying) degrees.  The applicant's enlisted service while
helpful to him and the Army does not meet the criteria of professional
experience.  His MPAS was not obtained prior to his commissioning and he
had already been credited with service for that period of time.

4.  Since there is no provision in the law to waive the 8-year requirement
of commissioned service and the applicant's degree and prior experience do
not qualify for constructive credit, no relief is warranted.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 June 2000; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 31 May 2003.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_RJW___  __RA ___  __ECP __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            _   Raymond J. Wagner___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100381                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040923                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |Retired pay grade                       |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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