RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 November 2006
      DOCKET NUMBER:  AR20060003583


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 credited with additional 6 years of
constructive service credit and that his rank upon initial appointment be
changed to lieutenant colonel, pay grade O5.

2.  The applicant states in effect, that he should have received additional
credit based upon his practice of orthopedic surgery from 1989 through 2003
and his practice at a Level I Trauma Center drawing patients from outlying
hospitals, often many miles away.  In January 2000, he was accepted for
membership in the Eastern Association for Surgery for Trauma.  In 2002 he
passed the examination of the Board of Spine Surgery.  He believes that
this experience, training, testing and association membership indicates
that he was more skilled and thus more valuable than a orthopedic surgeon
would normally be.  He contends, in effect, that Army Regulation 135-101
allows year-for-year credit for specialty practice and that he should have
received 14 years credit, but he requests only 10 years.

3.  The applicant provides an affidavit from staff manager of the Holston
Valley Medical Center certifying that he has practiced there full time
since July 1983; a certificate of board certification from the American
Board of Spine Surgery, dated 31 December 2003; a membership certificate
from the Eastern Association for Surgery of Trauma; a certificate of
completion of a fellowship in orthopedic surgery, dated December 1982; and
his Curriculum Vitae.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s DA Form 5074-R (Record of Entry Grade Credit (Medical
and Dental Officers) dated 6 October 2003 shows he received 4 years credit
for his basic medical education degree as a Doctor of Medicine.  He
received 1 year for his internship, an additional 2 years for residency and
fellowship and 7 years for professional experience.  The form carries the
notation, “ENTRY GRADE CREDIT IS LIMITED TO 14 YEARS, 0 MONTHS, SEE AR 600-
100 OR AR 135-101 FOR JUSTIFICATION AND WAIVER REQUIREMENTS FOR AMOUNTS IN
EXCESS OF 14 YEARS.”  The applicant signed the form.

2.  A Headquarters U. S. Army Recruiting Command memorandum, dated
24 October 2003, recommended that the Commander HRC, St Louis grant the
applicant a waiver for overage and malpractice and appoint him a USAR major
with 14 years, 00 months, and 00 days of qualifying education and
experience as of 6 October 2003.

3.  On 6 October 2003, he was appointed a U.S. Army Reserve (USAR), Medical
Corps major with 14 years, 0 months, and 0 days of constructive service
credit. He took the oath of office on 6 October 2003.

4.  Reassignment orders from Human Resources Command (HRC), St Louis, dated
5 January 2004 assigned the applicant to a troop program unit.

5.  Department of Defense Instruction Number 6000.13, Medical Manpower and
Personnel, provides that,

      6.1.2.2. Constructive service credit shall be awarded as follows:


      6.1.2.2.1. Four years of constructive service credit shall be granted
      for completion of first professional degrees that include medical
      (M.D.), osteopathy (D.O.), dental (D.D.S. or D.M.D.), optometry
      (O.D.), podiatry (Pod.D. or D.P.), veterinary (D.V.M.), and pharmacy
      (Ph.D.).


      6.1.2.2.2. Credit for master’s and doctorate degrees in a health
      profession other than medicine and dentistry, whether it is the
      primary degree or an additional advanced degree, shall be awarded
      based on actual full-time equivalent education of up to two years for
      a master’s degree and up to four years for a doctorate. Credit may not
      include time spent in attainment of baccalaureate or other lower
      degrees. No additional credit may be given for more than one advanced
      degree in a single field, or closely related field. The total credit
      allowed for having both a master’s and a doctorate degree may not
      exceed the maximum allowed for a doctorate.


      6.1.2.2.3. The additional degree must add adjunctive skills to the
      primary specialty and must contribute directly to performance in the
      anticipated position in the Military Service concerned.



      6.1.2.2.4. Year-for-year credit shall be granted for the successful
      completion of internship, residency, fellowship or equivalent graduate
      medical, dental, or other formal professional training (i.e., clinical
      psychology internship or dietetic internship, etc.) required by the
      Military Service concerned. Training must be approved by the
      appropriate accrediting agency, and may not exceed that required for
      certification in the specialty. Day-for-day credit shall be awarded
      for approved programs of less than one year in duration.


      6.1.2.2.5. Credit of one-half year for each year of experience, up to
      a maximum of three years of constructive credit, may be granted for
      experience in a health profession, if such experience is directly used
      by the Military Service concerned. Creditable experience cannot
      predate the receipt of licensure, registration, or certification.
      Accordingly, volunteer, or student status cannot be credited.


      6.1.2.2.6. 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. The amount of credit shall be one year for each year of
      special education or experience. Maximum credit under subparagraph
      6.1.2.2.5 above, must be earned before earning any experience credit
      under this paragraph.

      6.1.3. Maximum Entry Grade Credit. The total entry grade credit
      granted shall be no more than that required for an officer to be
      eligible for an original appointment in the grade of Major or
      Lieutenant Commander.

6.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers
for Assignment to Army Medical Department (AMEDD) Branches) prescribes
policy, procedures, and eligibility criteria for appointment in the Reserve
Components of the Army, in the six branches of the AMEDD.  Chapter 3
contains guidance on grade determinations.  Paragraph 3-2 provides the
policy for determination of entry grade for officers not ordered to active
duty.  It states, in pertinent part, that an individual appointed as a
Reserve officer without concurrent call to active duty with 14 years or
more, but less 21 years of entry grade credit will be appointed a major.

7.  During the processing of this case an advisory opinion was obtained
from the Program Manager, Medical Corps, Health Services Directorate
USAREC.  The opinion stated that the original constructive service awarded
the applicant was accurate based upon the information available at the
time.  It notes that, at the time there was no evidence showing either
employment after June 1993 or proof of a 12-month fellowship rotation.  It
noted that the governing regulation, Army Regulation 135-101, provided for
a maximum of 3 years entry grade credit at the rate of ½ year for each year
of full-time experience.  The regulation also provided that appointees with
at least 4 years of entry grade credit but less than 20 years would be
appointed in the rank of major.

8.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers
for Assignment to Army Medical Department Branches), paragraph 3-1 (Entry
grade credit for Reserve appointment grade determination) provides the
following pertinent subparagraphs:
      a. The maximum entry grade credit for appointment in the MC or DC is
      14 years.  For appointment in the ANC, MSC, VC, or AMSC, entry grade
      credit granted (with or without concurrent active duty) will be more
      than the amount required for entry grade 04 as if the officer were to
      be concurrently called to active duty in the corps concerned.  (See
      the DA Circular 601 series for fiscal year of appointment).  The
      Secretary of the Army or designee may waive the maximum credit limit
      in the situations shown below. An action requesting approval of waiver
      will be initiated by USAMEDDPERSA for each waiver requested.  This
      action will be forwarded for consideration by TSG or designee.
      (1) When a manning shortfall exists in the specialty within medicine
      or dentistry or within the other AMEDD specialty to which the
      individual will be assigned or appointed.
      (2) Where serious inequities would otherwise result.
      b. Constructive service credit will be granted for periods of
      professional training and experience accrued after receipt of the
      basic qualifying degree. (See tables 3-1, 3-3, 3-4 , and 3-5. Credit
      limitations are prescribed in table entries and footnotes.)
      c. Credit for prior active commissioned service will be computed as
      shown in table 3-2.
8.   The advisory opinion was forwarded to the applicant’s home address.
His wife responded, in a 10 September 2006 letter, that he was deployed to
Germany and he had asked that the case be kept open until he returned and
could prepare a proper response.

9.  In a 23 October 2006 letter to the Board the applicant protested the
advisory opinion and maintained that the people who determined his rank
knew that he had been in continual practice from July 1983 to October 2003
and that he had not been asked for any additional documentation.  He argued
that, with 20 years of experience he was more valuable to the Army than if
he had only 10 years experience.  He asks, “Doesn’t the Army acknowledge
that my job in the civilian world is exactly the same as in the Army
(orthogenetic surgeon.  Therefore, my experience in the civilian world is
valuable to the Army, is it not?”  He asks that he be allowed to appear
before the Board.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records)
states in paragraph that the ABCMR may, in its discretion, hold a hearing
(sometimes referred to as an evidentiary hearing or an administrative
hearing in 10 USC 1034 and DODD 7050.6) or request additional evidence or
opinions.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

2.  The governing directive, Army Regulation 135-101, provided that 14
years constructive service credit was the maximum allowable.

3.  Therefore, the details noted in the advisory opinion, while correct,
are largely irrelevant in that the applicant received the maximum allowable
constructive service credit and recruiting officials had no reason to
request documentation of additional years of medical practice.
4.  While the practice of orthopedic surgery in the military may be the
same as it is in the civilian world, the responsibilities for supervision
and administration of a Medical Corps lieutenant colonel far exceeds those
of a doctor in the rank of major.  There is neither evidence nor argument
that the applicant possessed the capacity and experience to fulfill the
responsibilities of the higher rank.

5.  The applicant did not apply for a waiver so that he could receive more
than 14 years of entry grade credit and the DA Form 5074-R (Record of Entry
Grade Credit (Medical and Dental Officers) that he signed indicates in
capital letters that a waiver was required.  There is no available evidence
that the applicant would have received a waiver if he had applied.

6.  There was no error in the applicant’s appointment as a major and,
considering that he, a highly educated, mature individual voluntarily
accepted that appointment, an injustice is not apparent.

7.  A personal appearance hearing is not warranted in this case because
there is no unresolved question of evidence or argument that could only be
clarified by the applicant’s testimony.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__TAP___  __PBF   _  _LMD___  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.




                                  _     Thomas A. Pagan______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003583                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/11/21                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |112.07                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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