RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20060006390


      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. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne D. Douglas            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 reconsideration of his earlier request to
correct his records to show he was appointed as a First Lieutenant (1LT).

2.  The applicant states he is not contesting his constructive service
credit.  The basis of appeal is that he was clearly offered appointment in
the rank and grade of 1LT, O-2 prior to entering into an agreement with the
Army.  On 26 August 2000, he made the decision to forfeit a highly
successful and advancing enlisted career based on the information [he
received on] 13 June 2000.  He would not have given up his rapidly
progressing enlisted career for a commission as a Second Lieutenant (2LT),
O-1.  He was only willing to end his enlistment for a promised [appointment
as a] 1LT.  The Army made an agreement with him on  26 August 2000.  The
Army has demanded that he uphold his end of the agreement; it should do the
same.  Otherwise, his unit will outprocess [him] under an erroneous Oath of
Office as he does not intend to sign another Oath.

3.  The applicant provides a 13 June 2000 letter from the Director, Health
Services, Headquarters, U. S. Army Recruiting Command (USAREC); a 13 June
2000 letter from the Military Personnel Staffing Technician, 5th Recruiting
Brigade, U. S. Army Medical Department Detachment; a letter to the Board
dated 16 April 2006; the first page of an undated letter from the U. S.
Army Human Resources Command – St. Louis, Subject:  Consideration for
Captain and Major Army Medical Department Selection Board; his appointment
memorandum; and a DA Form 5074-1-R (Record of Award of Entry Grade Credit
(Health Services Officers); and assignment orders dated 4 December 2000.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20040010943 on 19 January 2005.

2.  The applicant enlisted in the Army National Guard around March 1993 and
was a Sergeant, E-5 at the time he applied for appointment as a
commissioned officer.  He completed a DA Form 61 (Application for
Appointment) on 10 April 2000.  In item 3 (Grade for Which Applying), he
indicated he was applying for appointment as a 2LT.

3.  On 30 May 2000, a DA Form 5074-1-R was prepared to show the applicant
was eligible for 1 year, 4 months, and 29 days of constructive service
credit, which qualified him for appointment as a 2LT (1 year for advanced
education beyond his basic qualifying degree (certification from 9 August
1999 to the present) and 4 months and 29 days for professional experience).

4.  In a 13 June 2000 letter, the Director, Health Services, Headquarters,
USAREC informed the applicant he had been recommended for reserve forces
duty in the U. S. Army [Medical] Specialist Corps and, after a review to
determine he met all appointment criteria, the following information would
be included in his orders:  “USAR Appointment Grade:  First Lieutenant.”
This letter also informed him that his official letter of appointment and
instructions for executing his oath of office would be forwarded to the
Health Care Recruiter who assisted him with his application.

5.  In a 13 June 2000 letter, a Military Personnel Staffing Technician from
the 5th Recruiting Brigade, U. S. Army Medical Department Detachment
congratulated the applicant on his recent selection in the Army Medical
Specialist Corps (as a physical therapist) and informed him he would be
awarded the grade of 1LT.

6.  The U. S. Total Army Personnel Command sent the applicant’s appointment
memorandum, dated 26 August 2000, through his Health Care Recruiter to the
applicant.  The memorandum shows the applicant was appointed as a 2LT.  The
memorandum instructs him to complete the “enclosed form for oath of office”
and return it.

7.  The applicant signed the DA Form 71 on 26 August 2000.  The form stated
the applicant was appointed as an officer in the Army of the United States
in the grade of 1LT.

8.  Orders dated 4 December 2000 assigned the applicant to a USAR Troop
Program Unit effective 28 August 2000.  The orders indicated the purpose
was appointment.  The standard name line listed his grade as 2LT.

9.  The available records contain officer evaluation reports for the
periods ending 14 June 2002, 14 June 2003, and 31 January 2004 that
identify the applicant as a 1LT with a date of rank of 26 August 2000.

10.  In a memorandum provided with his original application, the applicant
stated that he received his appointment letter in December 2000 incorrectly
identifying him as a 2LT.  When he reported for his first drill, he
informed his unit of the error.  His unit informed him they could correct
the error using his oath of office.  By mid 2001, his records at the U. S.
Army Reserve Personnel Command, his LESs, his pay and orders, and all other
correspondence began to reflect his rank as 1LT.  On 31 July 2006, the
Defense Finance and Accounting Service confirmed that “The member was
promoted to a 2nd LT on August 26, 2000.  They then promoted him to O2
(1LT) same effective date.”

11.  The Soldier Management System at the U. S. Army Human Resources
Command – St. Louis shows that, on or about 14 September 2004 and
apparently as a result of determining the applicant’s eligibility for
promotion to Captain (based upon a 1LT date of rank of 26 August 2000), it
was discovered that no 1LT promotion order existed and the applicant was
erroneously “oathed” on his DA Form 71 as a 1LT.

12.  The applicant was promoted to Captain effective 3 March 2006 based
upon a 1LT date of rank of 14 June 2001 (the date he would have been
eligible for promotion to 1LT based upon the constructive service credit he
was awarded upon appointment as a 2LT).

13.  In the processing of this case, an advisory opinion was obtained from
the Heath Services Directorate, USAREC.  That office noted that the
applicant had been officially notified by USAREC that he would be appointed
as a 1LT.  However, “1LT” was a typographical error and the notification
should have stated he would be appointed as a 2LT.  That office stated it
was unfortunate that he was not notified of the error immediately after his
incorrect oath as a 1LT was received.  In spite of that, it appears that
his processing documents were done correctly and he received his
appointment letter and orders that reflected his correct grade of 2LT.

14.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

16.  Army Regulation 135-101 (Appointment of Reserve Commissioned
Officers for Assignment to Army Medical Department Branches) states that
the grade of an individual appointed as a Reserve officer without
concurrent call to   active duty, who is given entry grade credit of less
than 3 years (changed to        2 years effective 1 October 1996), will be
2LT.

17.  DODI 6000.13 (Medical Manpower and Personnel), paragraph 6.1.1.2.,
states service on active duty or in an active status as a commissioned
officer in any of the Uniformed Services, but not in the corps or
professional specialty in which being appointed, shall be awarded 1/2 day
of credit for each day served in the case of individuals seeking an
original appointment as a health professions officer.

18.  DODI 6000.13, paragraph 6.1.2.2.4., states 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

19.  DODI 6000.13, paragraph 6.2.2.2.5., states that 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.

DISCUSSION AND CONCLUSIONS:

1.  There is insufficient evidence to show the applicant was clearly
offered appointment in the rank and grade of 1LT, O-2 prior to entering
into an agreement with the Army.

2.  The applicant’s DA Form 61, completed when he was a Sergeant, E-5 with
  7 years of service, clearly showed he was applying for appointment as a
2LT.  This is in contradiction to his contention that he would not have
given up his rapidly progressing enlisted career for a commission as a 2LT
and was only willing to end his enlistment for a promised appointment as a
1LT.

3.  It is regrettable that neither the applicant, nor his Health Care
Recruiter, nor his first unit sought to contact the issuer of his
appointment memorandum to resolve the discrepancy between the two 13 June
2000 letters and his DA Form 71 with that appointment memorandum.
Nevertheless, the appointment memorandum was correct and was in agreement
with his DA Form 61.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__pms___  __lmd___  __rdg___  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 to amend the decision of
the ABCMR set forth in Docket Number AR20040010943 dated 19 January 2005.




                                  __Paul M. Smith_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006390                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |102.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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