RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       12 September 2006
      DOCKET NUMBER:  AR20050003945


      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             |
|     |Ms. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker l             |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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:

The applicant's requests and statements are referred through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be awarded 4 years of
additional constructive service credit (CSC) for his Doctor of Medicine
degree; promotion consideration to major by a special selection board (SSB)
based on an adjusted date of rank for captain; and, if selected for
promotion to major by a board prior to the Army Board for Correction of
Military Records (ABCMR) correcting his records, his promotion to major be
backdated to the date he would have been promoted had he previously been
given the 4 years CSC at the time of his original appointment in the
Medical Corps.

2.  Counsel states that from the 1991 Fall Term until the 1995 Spring
Term, a period of 4 academic years, the applicant attended the State
College of Optometry at the State University of New York and was awarded
a Doctor of Optometry degree.  The applicant is currently serving on
active duty in the US Army as a medical officer.  The Army gave the
applicant 4 years CSC based on his advanced education at optometry school
and receiving a Doctor of Optometry degree.  This CSC enabled him to
enter on active duty as a captain.  During his first year of active duty,
the applicant successfully completed advanced training as an optometrist
by completing a residency.  From the Fall 1999 through Spring 2003, the
applicant attended and completed a 4 year course of study leading to
a Doctor of Medicine degree.  Upon completing this degree, the applicant
was once again permitted to apply for CSC to determine his proper grade
determination/date of rank.  He submitted his DD Form 214 (Certificate of
Release or Discharge from Active Duty) from his first period of service
to obtain credit for his prior service and his transcripts and diplomas
from both optometry school and medical school to obtain credit for his
advanced education.

3.  Counsel also states that the applicant received orders, dated 7 May
2003, showing his date of rank would be adjusted based upon CSC of 6 years
and 17 days.  He was advised he received 4 years CSC for medical school,
and 2 years and 17 days CSC for his prior active service as an optometrist.
 Essentially, the applicant has been given additional CSC of only 2 years
and 17 days more than those officers who had never served in the military
despite the fact that he actually served as a captain for 4 years, 1 month,
and 4 days of active duty and despite the fact that he has an additional
advanced degree in
optometry that the Army previously used to credit him with additional
service credit before he went to medical school.  CSC is governed by
Federal law under Title 10, United States Code (USC), section 533.

4.  Counsel further states that the applicant is currently in a residency
being trained as an otolaryngologist, a specialty that involves head and
neck surgery.  Since 1984, when the current version of Army Regulation 135-
101 was written, the profession of optometry has changed significantly.
The clinical responsibilities have been expanded to include diagnosing as
well as treating ocular disease.  Army Regulation 135-101 is not current
with the Department of Defense (DoD) Instruction.  Table 3-4 of the DoD
Instruction No. 6000.13, specifically permits the Secretary of the Army or
designee to approve additional CSC for optometry on a "case-by-case
basis."  Counsel suggests this regulation permits approval of additional
CSC under the unique circumstances of his case where he is training in a
specialty, Otolaryngology, that is the beneficiary of the adjunctive skill
he received as an optometrist.  The outdated Army regulation permits up to
3 years additional CSC, but the DoD Instruction demands 4 years of
additional CSC.

5.  Counsel further states that the ABCMR ruled in a previous case that a
medical officer could receive additional CSC beyond the 4 years, for his
Doctor of Medicine degree, for a prior veterinary degree.  This decision
relied upon the language in Army Regulation 135-101 that permitted the
credit of the additional degree when it contributes adjunctive skills to
the primary specialty and it was not earned at the same time as the basic
qualifying degree.  If the Army could conclude that a veterinarian who was
trained to treat animals had adjunctive skills that contributed to the
primary specialty of a medical doctor, then certainly the adjunctive skills
possessed by an optometrist would contribute to the primary specialty of an
otolaryngologist.  Please note the approval of the applicant's request
would not mean that every medical corps officer who has been an optometrist
would qualify for this additional credit.  The Correction Board, acting for
the Secretary, can correct a military record if it determines that
an injustice or error has occurred.

6.  Counsel provides copies of the applicant's State University of New
York, State College of Optometry, transcripts; the applicant's DD Form 214;
the applicant's State University of New York Residency completion
certificate; the applicant's assignment orders; the applicant's officer
record brief; the applicant's Delineation of Privileges Record; the
Optometrist Medication Prescribing List; the US Army Director of Medical
Education General Information booklet; Title 10, USC, section 533; DoD
Instruction No. 6000.13; Army Regulation 135-101, and ABCMR Proceedings
AC94-12834.
CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was awarded a Doctor of
Optometry degree on 21 May 1995.

2.  He was appointed in the United States Army Reserve (USAR), Medical
Services Corps (MSC), as a captain effective 5 July 1995, with 4 years CSC
and entered on active duty the same day.

3.  He completed the State University of New York, State College of
Optometry Residency on 19 May 1996.

4.  He was discharged from active duty as a member of the USAR, MSC officer
on active duty effective 8 August 1999, in the rank of captain.

5.  On 21 July 1999, the Total Army Personnel Commander, St. Louis,
Missouri, published Orders Number A-07-003982, ordering him to active duty
in the grade of second lieutenant, MSC, for the purpose of entering the
Uniformed Service University of Health Services (USUHS), obligated
volunteer officer for 4 years, with a reporting date of 9 August 1999.

6.  On 7 May 2003, the Department of the Army, Headquarters, Walter Reed
Army Medical Center, published Orders Number 127-06, reassigning him as a
USUHS student.  The additional instructions read that effective on the date
of entry on active duty, he was appointed in the USAR, as a captain and
placed on the active duty list in the grade of captain in accordance with
Army Regulation 135-101.  The date of rank was to be adjusted based on CSC
of 6 years and 17 days.

7.  He was appointed in the USAR as a captain and placed on the active duty
list effective 17 April 2001.  He was awarded a Doctor of Medicine degree
in 2003.

8.  On 4 August 2003, the Total Army Personnel Command, Alexandria,
Virginia, published Orders Number 216-003, announcing his promotion to
captain with an adjusted date of rank of 17 April 2001, based on an
adjustment of his CSC to 6 years and 17 days.

9.  He was appointed in the Regular Army, as a captain, Medical Corps (MC),
effective 17 May 2003, with a date of rank of 17 April 2001.
10.  On 11 June 2003, the applicant was assigned to Walter Reed Army
Medical Center as an otolaryngology intern.

11.  Counsel submits a copy of an ABCMR Proceedings in which the ABCMR
granted relief by awarding to another applicant, a MC officer, 3 additional
years CSC for a Doctor of Veterinary Medicine degree.

12.  In an advisory opinion, dated 9 September 2005, the Chief, Graduate
Medical Education Division, Office of The Surgeon General (OTSG), Falls
Church, Virginia, stated that the optometry degree of the applicant had
been reviewed for the purpose of determining if any constructive credit for
grade above the original 6 years and 17 days awarded and published in his
active duty orders, dated 25 March 2003, was warranted.  The Medical
Education Directorate consistently had not granted entry grade credit for
health care degrees, including dentistry, veterinary medicine and/or
optometry.  The Directorate planned to retain this limited view based on
its interpretation of the most recent DoD Directive 6000.13.  The OTSG
official also stated that the DoD directive states that "Additional credit
in unusual cases, based on special education or experience, could be
granted by the Secretary of the Military Department.  As determined by
service needs, the additional credit applies to individuals with unique
qualifications that are beyond normal requirements for appointment
as commissioned officers."

13.  The OTSG official further stated that the office did not believe the
applicant's degree met the criteria under the DoD Directive.  Other
considerations which supported denying entry grade credit for other health
care degrees were:  no unique qualification were added, it did not result
in medical school credit, it did not add adjunctive skill to residency nor
reduce length of training required, and did not result in any special
consideration in the civilian sector.  Based on this review, the Medical
Education Directorate recommended denial of the applicant's request.

14.  The opinion was forwarded to the applicant for acknowledgement or
rebuttal on 22 September 2005.  In the rebuttal, dated 13 October 2005,
applicant's counsel stated that the opinion was taking a "limited review"
and then went on to quote a provision of the DoD Instruction that permits
additional credit beyond that which is required to be given.  The
applicant's counsel also stated that a careful reading of this regulation
required that the applicant be given the CSC that he had requested; it is
not optional.  The applicant is not asking for special experience credit,
but instead, he is only asking for the CSC mandated by the regulation.  It
is true that for CSC (as well as for special experience credit) the
additional degree (optometry) must add adjunctive skills to the primary
specialty (otolaryngology) and must contribute directly to performance in
the anticipated position in the military service concerned.  The opinion
then suggests other factors that supposedly justify not giving the
applicant this credit, but none of those factors are cited in the
regulations.

15.  The applicant's counsel also states that the opinion ignored the
evidence provided by the applicant proving that the ABCMR had previously
given CSC in a similar case.  Recent court decisions required corrections
boards to follow previous precedent unless it can show a legitimate reason
not to do so.  In Case Number 406 F.3d 684, 687 (DC Dir. 2005), the court
required the Air Force Board for Correction of Military Records to follow
previous precedent.  The opinion makes no effort to provide a legitimate
reason for failing to follow the previous ABCMR decision.

16.  Counsel further stated that in the applicant's brief, the applicant
alluded to the use of the word "shall" in the DoD Instruction.  It is
essential for the ABCMR to note that not only does the DoD Instruction
contain this language, but so does the Federal statute mandating CSC.
Under regulations prescribed by the Secretary of Defense, the Secretary of
the Army shall credit a person who has received an original appointment in
a commissioned grade…and who has advanced education or training or special
experience with CSC for such education, training, or experience.  The
Supreme Court has made clear "that when a statute uses the word 'shall,'
Congress has imposed a mandatory duty upon the subject of the command."
The opinion is conclusory in nature and makes no effort to explain why the
Amy should not follow the requirements of the Federal statute or the
DoD Instruction.

17.  Army Regulation 135-101, prescribes the policies, procedures and
eligibility criteria for appointment of commissioned officers in the
Reserve, in the six branches of the Army Medical Department (AMEDD).  This
regulation provides that officers will be granted CSC for periods of
professional training and experience accrued after receipt of the basic
qualifying degree.  The CSC is awarded based on an officer’s effective date
of appointment.  Individuals appointed in the Medical Corps with 4 years or
more, but less than 14 years will be appointed in the grade of captain.
Authorized credit in excess of the minimum required for appointment to the
appropriate grade will be used to adjust the date of rank within that
grade.

18.  Army Regulation 135-101 also specifies that officers being appointed
in the Medical Services Corps with a basic qualifying degree of Doctor of
Optometry
may be awarded up to 4 years CSC.  Officer being appointed in the Medical
Corps and Medical Service Corps may be awarded additional credit of one
year for each year of school for advanced degrees.  The degree must add
adjunctive skills to primary specialty and must contribute directly to the
performance in the anticipated duty position.  Advanced degrees earned in
Optometry may qualify for additional CSC.  Additional CSC for officers
appointed in the Medical Corps must be approved by the Secretary of the
Army or designee on a case-by-case basis.  Award of CSC for advanced
education is based upon a completed program (degree awarded) prior to
application for appointment.  CSC for advanced education is not awarded
after appointment.

19.  The DoD Instruction Number 6000.13, specifies that CSC is awarded to a
person who begins commissioned service after obtaining additional
education, training, or experience required for appointment, designation,
or assignment as an officer in a health profession.  Four years of CSC
shall be granted for completion of first professional degrees that include
optometry.  CSC shall be awarded for an additional degree that adds
adjunctive skills to the primary specialty and must contribute directly to
performance in the anticipated position in the military service concerned.
Additional credit in unusual cases, based on special education or
experience, can be granted by the Secretary of a Military Department or
designee.  As determined by service needs, the additional credit applies to
individuals with unique qualifications that are beyond normal requirements
for appointment as commissioned officers.

20.  Title 10, USC, section 533, specifies that for the purpose of
determining the grade and rank within the grade of a person receiving an
original appointment in a commissioned grade in the Regular Army, such
person shall be credited at the time of such appointment with any active
commissioned service that he performed, advanced education, training, or
special experience with CSC.

21.  Army Regulation 600-8-29, prescribes the policies and procedures for
the promotion of officers on the active duty list.  This regulation
provides that officers in the grade of captain must serve at least 3 years
time in grade to be considered for promotion, unless waived by the
Secretary of the Army.  Promotion zones for Medical Corps officers will be
established to ensure that those in the zone, if selected, will be promoted
on the sixth anniversary of the adjusted date of rank.  The regulation also
specifies that promotion consideration/reconsideration by a SSB may only be
based on erroneous non-consideration or material error that existed in the
record at the time of consideration.
DISCUSSION AND CONCLUSIONS:

1.  The applicant was awarded a Doctor of Optometry degree on 21 May 1995.
He was appointed in the USAR, MSC, as a captain, on 5 July 1995, and
awarded 4 years CSC at the time of his appointment for his medical degree.
He served on active duty until 8 August 1999 when he was discharged for
miscellaneous/
general reasons.

2.  He was given a new appointment and ordered to active duty, for 4 years,
in the USAR, MSC, as a second lieutenant, on 9 August 1999, for the purpose
of entering the USUHS.

3.  He was awarded a Doctor of Medicine degree in 2003.  On 25 March 2003,
Headquarters, Walter Reed Army Medical Center, published Orders Number 084-
14, appointing the applicant in the USAR as a captain and he was placed on
the active duty list.  The applicant was awarded 4 years CSC which
essentially led to his being commissioned in the grade of captain in the
MC.

4.  On 7 May 2003, Orders Number 084-14, were appended to show award of
6 years and 17 days CSC.  The additional 2 years and 17 days credit awarded
for his prior active duty service as a captain in the MSC authorized the
adjustment of his date of rank for captain in the MC.

5.  On 4 August 2002, the Total Army Personnel Command, Alexandria,
published Orders Number 216-003, announcing the applicant's grade
determination and adjusted date of rank for captain of 17 April 2001.

6.  The OTSG reviewed the applicant's case and provided the Board an
advisory opinion.  This review was for the purpose of determining if
additional CSC for grade, above the original 6 years and 17 days awarded,
was warranted.  The Medical Education Directorate advised that it has
consistently not granted entry grade credit for health care degrees,
including dentistry, veterinary medicine and/or optometry.  The Directorate
also advised that it plans to retain this limited view based on its
interpretation of the most recent DoD Directive 6000.13.  This directive
states that, "Additional credit in unusual cases, based on special
education or experiences, can be granted by the Secretary of the Military
Department.  As determined by service needs, the additional credit applies
to individuals with unique qualifications that are beyond normal
requirements for appointment as commissioned officers."

7.  Counsel stated that the advisory opinion ignores the evidence provided
by the applicant proving that the ABCMR has previously given CSC in a
similar case
and that recent court decisions required corrections boards to follow
previous precedent unless it can show a legitimate reason not to do so.
The basic regulation which provided policy and guidance to this Board
states that the ABCMR will consider individual applications that are
properly brought before it and will decide cases on the evidence of record.
 This essentially means that cases are considered and the evidence is
judged on its own merits.  Each case that is brought before the Board may
have some similarities; however, each has many differences and therefore
what was done in one case and the outcomes achieved can not necessarily be
applied to another similar or like case.

8.  The applicant is not entitled to award of additional CSC for his Doctor
of Medicine degree completed in 2003.  He was awarded 4 years CSC for his
Doctor of Optometry degree at the time of his appointment in 1995.  He was
awarded 2 years and 17 days CSC for his prior active duty service in 2003.
Therefore, in accordance with regulatory guidance, the applicant would have
had to complete his Doctor Medicine degree prior to his appointment for
entitlement to additional CSC for this degree.

9.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_ALR ___  __QAS__  _LB_____  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 for correction of the
records of the individual concerned.




                                  ________Allen L. Raub _____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050003945                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |102.00                                  |
|2.                      |102.07                                  |
|3.                      |102.08                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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