RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 November 2005
      DOCKET NUMBER:  AR20050006021


      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. Lester Echols                 |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Ms. Jeannette R. McCants          |     |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 granted active duty credit for
retirement for the time he spent as a student at the Uniformed Services
University of the Health Sciences (USUHS) from July 1988 to November 1992.

2.  The applicant states that, after having academic difficulties during
his initial year at USUHS, he was diagnosed with a learning disability.
Despite recommendations by Army and civilian subject area experts that he
be allowed to continue medical school with minimal accommodations, he was
dismissed from USUHS after completing four years there.  After completing
medical school at a state university, he was granted an Army physician
scholarship during his residency.  He was previously given retirement
credit for his time at USUHS.

3.  The applicant provides a DA Form 7301-R (Officer Service Computation
for Retirement); a DA Form 5074-4R (Record of Award of Entry Grade Credit
(Medical and Dental Officers); a memorandum dated 13 April 2000; active
duty orders dated 3 May 2000; grade determination orders dated 6 September
1980; his bachelor of science diploma; his medical diploma; his psychiatry
residency certificate; a letter from the Dean Emeritus, USUHS, dated 22
February 1993; pages 1 and 3 of his DA Form 61 (Application for
Appointment); and a U. S. Army Recruiting Command (USAREC) letter dated 30
August 1996.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant attended USUHS from 1988 until 1992, when
he was dismissed from the program based on "cognitive difficulties.”
Walter Reed Army Medical Center (WRAMC) diagnosed him with a learning
disability.  The applicant was dismissed by USUHS and subsequently
transferred to WRAMC.  He was released after serving 1 1/2 years on active
duty at WRAMC without further obligation to the Army.  He was subsequently
accepted at West Virginia University School of Medicine.  He served his
internship at the University of California at Irvine, where he was awarded
an Army scholarship under the Financial Assistance Program.  He was granted
that scholarship with the Army's full knowledge of his previous dismissal
from USUHS and the existence of his learning disability.

2.  Counsel states the applicant reentered the Army in the Medical Corps
and was given active duty credit for the four years he spent at USUHS, as
he had been upon his discharge in March 1994.  Counsel states the Army
recently changed its mind and reversed its decision to award this service
credit.  Under Title 10, U. S. Code, sections 2114(b) and 2126(a), the
applicant would be entitled to receive full active duty retirement credit
based on being removed from the program for having a physical disability.

3.  Counsel states the Americans with Disabilities Act (ADA) states "the
definition [of physical impairment] protects people who have a history of a
disability from discrimination, whether or not they currently are
substantially limited in a major life activity.”  The Army violated the
applicant's rights under the ADA when they failed to accommodate his
learning disability as required by law.  The Army's stance that the ADA
does not apply to the military or that the applicant is not entitled to
receive active duty credit under the cited sections of Title 10, U. S. Code
is unconscionable.

4.  Counsel mentioned, in his enclosure to the applicant's DD Form 149,
exhibits A through O.  "Exhibits" were not included with his statement;
however, additional documents were provided:  a selective continuation on
active duty memorandum dated 18 June 2004; a request for voluntary
indefinite service agreement dated 18 April 1982; the applicant's active
duty orders dated            21 August 1979 and 20 May 1988; the
applicant's appointment orders dated      24 May 1988; two DA Forms 71
(Oath of Office - Military Personnel) dated          8 June 1979 and 9 June
1988; branch transfer orders dated 22 August 1979; and a DA Form 160
(Application for Active Duty).

5.  Counsel also provided a USUHS memorandum dated 13 November 1992; a
USUHS memorandum dated 12 April 1993; a Consultation Sheet dated 3 April
1989; a medical statement dated 5 July 1989; a Routing and Transmittal Slip
dated 30 May 1989; a Georgetown University, Department of Psychiatry letter
dated 13 October 1992; a Chesapeake Psychological Services letter dated
    3 November 1992; a Georgetown University Hospital, Department of
Neurology report of neuro-psychological evaluation date of test 28 August
1992; and a memorandum from the Director of Officer Personnel Management
[U. S. Total Army Personnel Command] dated 20 January 1994.

6.  Counsel also provided a West Virginia University, School of Medicine
letter dated 3 June 1993; the applicant's medical diploma; a U. S. Army
Medical Department, Wuerzburg, Department of Psychiatry memorandum dated
          2 February 2005; a National Board of Medical Examiners letter
dated                27 February 1995; a United States Medical Licensing
Examination score report date of test May 1997; a Medical Board of
California letter dated 15 April 1997; and an American Board of Psychiatry
and Neurology, Inc. letter dated 15 July 2001.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant out of the Reserve
Officers' Training Corps (ROTC) on 8 June 1979.  He served on active duty
in Military Intelligence from 29 September 1979 through 18 July 1988 when
he   was discharged in the rank of captain for miscellaneous reasons (i.e.,
to attend USUHS).

2.  The applicant was appointed a second lieutenant in the U. S. Army
Reserve and ordered to active duty effective 19 July 1988 to attend USUHS.
He was to attend a pre-freshman orientation course on 19 July 1988 until on
or about          5 August 1988.  USUHS classes apparently began on 22
August 1988.

3.  The applicant/counsel provided a 5 July 1989 medical statement from the
Director, Neuropsychological Services, WRAMC which indicated the applicant
had evidenced mild weaknesses in attention, rote learning, and visuo-
spatial ability areas while verbal-intellectual, conceptual and reasoning
abilities appeared quite good.  He appeared much better in applying what he
knew than in acquiring those facts and details initially.  The Director
opined the applicant could perform satisfactorily in medical school and
recommended he be allowed to repeat his first academic year.

4.  The applicant was apparently disenrolled from USUHS effective 6
November 1992.  In a 13 November 1992 letter to the applicant, the Dean of
USUHS informed the applicant there was considerable doubt in her mind as to
the applicant's abilities to function in the military as a physician.  His
case had gone to numerous Promotion Committees with three different
recommendations for disenrollment.  He had been allowed to continue his
studies, but the committee had again recommended disenrollment.  The Dean
had already taken action to disenroll him from the school.

5.  In a 12 April 1993 letter to the applicant's attorney, the Dean of
USUHS informed the attorney that, in June 1989, the applicant was
recommended for disenrollment but Doctor S___ (the previous Dean) allowed
him to remain in school.  The applicant entered a decelerated program.  He
was permitted to progress to his second year.  His grade point average was
still below passing but, with a passing score on NBME-I (acronym unknown)
examination in June 1991, he was permitted to progress to the clinical
portion of his studies.  Upon the receipt of the grade of "F" in Clinical
Internal Medicine, he was recommended in July 1992 for disenrollment.  The
Dean had no doubt that the applicant wanted to be a physician; however, the
rigors of the school and the practice of military
medicine caused her to make some difficult decisions.  The Dean noted she
had a fiduciary responsibility to the military services.  The school had
made repeated accommodations but would have to take the unpleasant but
necessary step of disenrolling him.  The Dean stated she would recommend
the Army not attempt to recover the approximately $80,000 in educational
costs that would normally be demanded.  The Dean also stated her staff
would be willing to counsel the applicant on areas of medicine and academic
paths that were more adaptable to his needs than military medicine should
he pursue a civilian medical education.

6.  By letter dated 3 June 1993, the West Virginia University School of
Medicine accepted the applicant as an advanced standing student in the
third-year class.

7.  By memorandum dated 20 January 1994, the Director of Officer Personnel
Management, [U. S. Total Army Personnel Command] recommended approval of
the applicant's request for waiver of his active duty service obligation
and recoupment.

8.  On 4 March 1994, the applicant was released from active duty.

9.  The applicant was awarded his medical degree by West Virginia
University School of Medicine on 29 December 1995.  In April 1996, he
applied for appointment as a Medical Corps officer.  By letter dated 30
August 1996, he was notified by USAREC that he had been tentatively
selected for participation in the Financial Assistance Program in the
specialty of psychiatry.

10.  A DA Form 5074-4R shows the applicant was awarded 4 years of
constructive service credit for his medical degree (location of academic
institution USUHS and West Virginia University School of Medicine) for the
purpose of determining his entry rank/grade only.  He was ordered to active
duty in the rank of Major in the Medical Corps on 17 July 2000.  His active
duty orders show he was awarded 4 years of HPPED (Health Professions Pay
Entry Date, used to determine eligible service for medical special pays
only) creditable service.

11.  The applicant provided a DA Form 1506 dated 20 July 2000 which shows
he was credited with 5 years, 7 months, and 16 days of service from 19 July
1988 through 4 March 1994 for purposes of pay computation only.

12.  By letter dated 19 June 2004, the applicant was notified he had been
considered but not selected for promotion to the next higher grade but was
selected for continuation on active duty.

13.  In the processing of this case, an advisory opinion was obtained from
the Medical Corps Division, USAREC.  That office stated the Defense Officer
Personnel Management Act, which became law on 15 September 1981, repealed
the four years constructive service credit under Title 37, U. S. Code,
section 205(a)(7) and (8) for medical officers attending USUHS; however, it
was preserved for officers who were enrolled at USUHS on 14 September 1981.
 The applicant was, however, eligible for retirement pay multiplier for
time spent at USUHS under the provisions of the Military Retirement Reform
Act of 1986 (Title 10, U. S. Code, section 2114).

14.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  His second counsel, apparently the successor to his
first counsel, rebutted that refusing to grant the applicant constructive
service credit for the four years he spent attending USUHS was
unconscionably unfair treatment of an officer who has spent over 19 years
in service to his country.  The Army's refusal to grant the applicant
constructive credit is based on a spurious, yet circular argument.  His
dismissal from USUHS was based in large part on the Dean's opinion that he
would not make a competent military physician.  Yet, a few years later, the
Army reversed its opinion and awarded the applicant a scholarship under the
Financial Assistance Program.

15.  Title 10, U. S. Code, chapter 104 (Uniformed Services University of
the Health Sciences), section 2114 (Students:  selection; status;
obligation), subsection 2114(b) states, "Medical students shall be
commissioned officers of a uniformed service as determined under
regulations prescribed by the Secretary of Defense…The service credit
exclusions specified in section 2126 of this title shall apply to students
covered by this section."

16.  Title 10, U. S. Code, chapter 105 (Armed Forces Health Professions
Financial Assistance Programs), section 2126 (Members of the program:
service credit), subsection 2126a states service performed while a member
of the program shall not be counted (1) in determining eligibility for
retirement other than by reason of a physical disability incurred while on
active duty as a member of the program; or (2) in computing years of
service creditable under section 205 of Title 37, U. S. Code.

17.  Title 42, U. S. Code (The Public Health and Welfare), chapter 126
(Equal Opportunity for Individuals with Disabilities), section 12111(2)
defines "covered entity" to mean an employer, employment agency, labor
organization, or joint labor-management committee.  Section 12111(5)(B)(i)
states, "The term "employer" does not include the United States, a
corporation wholly owned by the government of the United States, or an
Indian tribe."  Section 12112(a)
states, "No covered entity shall discriminate against a qualified
individual with a disability because of the disability of such individual
in regard to…privileges of employment."

18.  Title 29, U. S. Code (Labor), section 791 (Employment of Individuals
with Disabilities), subsection 791a(1) states an InterAgency Commission of
Employees was established to provide a focus for federal and other
employment of individuals with disabilities and to review the adequacy of
hiring, placement, and advancement practices with respect to individuals
with disabilities by each department and agency in the executive branch of
government.

19.  Several court decisions, including Golding v. U. S., 48 Fed. Cl. 697
(Ct. Fed. Cl. 2001) and Doe v. Ball, 725 F. Supp. 1210 (M.D. Fla. 1989)
state the ADA and the Rehabilitation Act do not apply to military
personnel.

20.  Army Regulation 135-101 provides policy for the appointment of reserve
commissioned officers for assignment to Army medical branches.  Chapter 3
provides that grade and date of rank upon original appointment and
assignment to an Army medical Department branch will be determined by the
number of years of entry grade credit awarded.

21.  DODI 6000.13 (Medical Manpower and Personnel) implements policy,
assigns responsibilities, and prescribes procedures to carry out medical
manpower and personnel programs.  Paragraph 6.1.2.2.1. states four years of
constructive service credit shall be granted for completion of first
professional degrees that include medical (M.D.).

22.  Title 10, U. S. Code, section 12207(e) states constructive service
credited an officer under subsection (b) (education) shall be used only for
determining the officer's initial grade, rank in grade, and service in
grade for promotion eligibility.

23.  The DODFMR Volume 7A, paragraph 010105 states, in pertinent part:


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

24.  The DODFMR, paragraph 010201 provides that the time a member serves
while enrolled in the Armed Forces Health Professions Scholarship and
Financial Assistance Programs, or while a student at USUHS, is not
creditable service in computing a basic pay date.

25.  The DODFMR volume 7B, paragraph 0103 (Service Creditable for
Percentage Purposes), subparagraph 010301B (Voluntary Retirement
Commissioned Officers), subparagraph 010301B(2) states crediting of
constructive service for medical and dental officers is not authorized
after  14 September 1981, unless a member was already enrolled in such a
program and later graduated and was commissioned as a medical or dental
officer.  However, post 14 September 1981, time is creditable in computing
retired pay provided the officer is retirement eligible.  Example:  An O-6
with 20 years and 6 months service under Title 37, U. S. Code, section 205
(excludes time at USUHS) is receiving basic pay for an O-6 over 20 years.
If this member served 4 years and 6 months time at USUHS, then upon
retirement, the member is to receive retired pay computed at 62.5 percent
of basic pay as an O-6.  Thus, the time at USUHS does not count toward
computation of retirement eligibility for length of service but does count
in the computation of the amount of retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and counsel's contentions have been considered.
However, service at USUHS is not creditable towards determining pay upon
graduation and it is not creditable in determining eligibility for military
retirement.  The fact the applicant was disenrolled from USUHS for having a
learning disability even though he later completed medical school and was
subsequently appointed in the Army Medical Corps is not relevant.  Had he
graduated from his USUHS class with honors, his service at USUHS still
would not have been creditable for determining his eligibility for
retirement.  The only time service at USUHS is creditable towards pay and
retirement is when the officer was enrolled in USUHS on or before 14
September 1981.  The applicant enrolled at USUHS in 1988.

2.  Contrary to counsel's contention, the Army did not "recently change its
mind and reverse its decision to award this service credit."  The applicant
was credited with four years of constructive service credit for completion
of his medical
degree; however, that credit was used to determine the entry grade credit
awarded to him and is used for promotion purposes only.  He was awarded
    4 years of HPPED credit, which is used to determine his eligibility for
medical special pays.  The applicant did not meet the eligibility criteria
(i.e., enrollment in USUHS on or before 14 September 1981) to have that
four years of constructive service credit for USUHS attendance creditable
for retirement purposes.

3.  Counsel appears to be misreading Title 10, U. S. Code, sections 2114(b)
and 2126(a).  He contends the applicant would be entitled to receive full
active duty retirement credit based on being removed from the program for
having a physical disability.  Section 2126a(1) states service performed
while a member of the program shall not be counted in determining
eligibility for retirement other than by reason of a physical disability
incurred while on active duty as a member of the program.  The applicant's
learning disability did not render him unfit for service sufficient to
warrant disability retirement, the exception referred to by section
2126a(1).  He re-entered active duty and he is requesting the credit for
purpose of a length of service retirement.

4.  Contrary to counsel's contention that the Army violated the applicant's
rights under the ADA when they failed to accommodate his learning
disability, the evidence of record shows USUHS took steps to accommodate
the applicant's learning disability.  In addition, the ADA specifically
exempts the United States [government] from the requirements of the law.
The Rehabilitation Act, Title 29, U. S. Code, section 791, in effect waives
portions of this exemption by incorporating some substantive employment
standards of the ADA.  However, this law only applies to protect federal
civilian employees, not to military personnel like the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__le_____  __jed___  __jrc___  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.




                                  __Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006021                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051117                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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