RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 April 2007
      DOCKET NUMBER:  AR20060017796


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Edward Montgomery             |     |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 2 years, 5 months and 5 days of constructive
credit with all back pay and allowances.

2.  The applicant states that according to his Record of Award of Entry
Grade Credit (Health Services Officers) (DA Form 5074-1-R) he qualified for
2 years, 5 months and 5 days of constructive credit which he never
received.

3.  The applicant provides in support of his application, copies of
documents maintained in his Official Military Personnel File.

CONSIDERATION OF EVIDENCE:

1.  On 22 June 2000, the applicant accepted an appointment as a second
lieutenant (O1) in the California Army National Guard (CAARNG).

2. On 14 December 2001 a DA Form 5074-1-R was completed by the Medical
Procurement Officer granting the applicant 2 years, 5 months and 5 days of
constructive service credit for his professional experience as a Licensed
Physician Assistant.  The DA Form 5074-1-R shows his inclusive dates of
professional experience as 12 August 1995 through 21 June 2000; 17 January
2000 as his date of rank; and first lieutenant (O2) as the grade for which
his credit qualified.

3.  On 8 October 2002, the applicant was notified by the National Guard
Bureau (NGB) that he was being promoted to O2 with date of rank of 17
January 2002.  Federal Recognition Special Orders Number 280 AR was
published showing the applicant's extension of Federal recognition as 17
January 2002.

4.  Proceedings of a Federal Recognition Examining Board (NGB Form 89)
were approved by the appropriate authority on 20 January 2005, for the
applicant to be promoted to captain, in an authorized position
(specifically, a unit vacancy promotion).  On 25 January 2005, the CAARNG
published orders number 25-1002 promoting him to O3 with an effective date
of 20 January 2005. Federal Recognition Special Orders Number 79 AR was
issued showing the applicant's extension of Federal recognition as 10 March
2005.





5.  On 25 May 2005, the Department of the Army and the Air Force NGB,
Arlington, VA, Chief, Personnel Division forwarded a memorandum to The
Adjutant General, State of California, promoting the applicant to the pay
grade of O-3 with an effective date of 10 March 2005.

6.  During the processing of this case an advisory opinion was obtained
from the Chief, Personnel Division, Department of the Army and the Air
Force NGB, who recommends that the applicant's date of rank be adjusted to
17 January 2002 and that he receive all pay and allowances as a result of
the date of rank adjustment.  In the opinion the Chief, Personnel Division
states that her recommendation is based on comments from the NGB, Chief
Surgeon Division and she further recommends that if the ABCMR approves the
request that the applicant records be forwarded to the Special Selection
Board for promotion under the 2006 promotion criteria for the major (O4)
Army Medical Department (AMEDD) Board.  The Chief, Personnel Division
indicates that the NGB, Chief Surgeon Division stated that the applicant's
initial Federal recognition request from the CAARNG erroneously appointed
him as an O1 and that the 5074-1-R, dated 22 June 2000, was approved and
awarded the applicant 2 years, 5 months and 5 days of constructive credit
or 5 months and 5 days of constructive credit as an O2.  The Chief,
Personnel Division recommends that the initial Federal recognition for the
applicant be corrected to reflect O2 effective 17 January 2000. She states
that as a result of the error the applicant's date of rank, time in grade
and subsequent promotions were impacted as he could have been promoted to
O3 on 17 January 2002 and would have been eligible for promotion to O4 in
January 2006.  The Chief, Personnel Division concluded by recommending that
the applicant's records be corrected to reflect that he was promoted to O3
on 17 January 2002 and that consideration be given by the state for
immediate promotion to O4 based on position availability.

7.  A copy of the advisory opinion was forwarded to the applicant on 20
March 2007.  He concurred with the advisory opinion on 27 March 2007.

8.  Army Regulation 135-101 provides for additional service credit in
unusual cases based on special education or professional experience in the
specialty in which assigned when experience is accrued after qualifying
degree and licensure, if applicable.  It provides, in pertinent part, that
experience of 1/2 year or less earns no credit and 1/2 year of service
credit may be granted for each year of education or experience up to a
maximum of 3 years.  Unusual case determinations will be made by The
Surgeon General or designee.



9.  DODI 6000.13, at paragraph 6.1.2.2.5. provides that credit of 1/2 year
for each year of experience, up to a maximum of 3 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.  Experience of 1/2 year or less earns no credit.
Accordingly, volunteer or student status cannot be credited and enlisted
time is not creditable for constructive credit purposes as an officer.

10.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  This regulation specifies that completion
of 5 years maximum time is grade is required before promotion to captain.
An officer selected for the first time for promotion to the next higher
grade may be promoted on or before the date that he/she completes the
maximum service provided that officer is serving in a position requiring
the higher grade or assigned to the Individual Ready Reserve or as an
Individual Mobilization Augmentee.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the applicant was not awarded the constructive service
credit to which he was entitled.  However, the Board does not completely
agree with the advisory opinion that was obtained from Chief, Personnel
Division, Department of the Army and the Air Force NGB.

2.  On 22 June 2000, at the time he accepted his appointment in the CAARNG,
he was eligible for appointment as an O2 with 5 months and 5 days of time
in grade.  However, his DA Form 5074-1-R was not prepared until 14 December
2001.  The applicant should have been awarded 2 years, 5 months and 5 days
of constructive credit at the time of his initial appointment which
qualified him for appointment as on O2.  As a result, he is entitled to
correction of his records to show that he was initially appointed as an O2
in the CAARNG with 5 months and 5 days of excess constructive service
credit, and that he initially received Federal recognition on 22 June 2000
with an adjusted date of rank of 17 January 2000.

3.  The applicant and the Chief, Personnel Division, Department of the Army
and the Air Force NGB both contend that his records should be corrected to
show the effective date of his promotion to captain as 17 January 2000.
However, this Board does not have jurisdiction over unit vacancy promotions
performed by The Adjutant General of the State.



4.  Nonetheless, the applicant was promoted to grade of O-3 on 20 January
2005, as a result of a position vacancy.  If he had been considered for and
promoted to the grade of O-3 in accordance with Army Regulation 135-155, he
probably would have been selected for promotion when he reached his maximum
time in grade, which would have given him an effective date of promotion to
captain of 17 January 2005.

5.  Although this Board has no jurisdiction over the position vacancy
promotion performed by The Adjutant General of the State, this Board
believes that the applicant is entitled to correction of his records to
show that he met all requirements for promotion O-3, based on his existing
position vacation promotion date and his maximum time in grade.

BOARD VOTE:

__CG ___  __MF ___  ___EM__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

      a.  amending his records to show that he was appointed in the
California Army National Guard as a first lieutenant (O2) with 5 months and
5 days of excess constructive service credit, with Federal recognition
effective 22 June 2000 and paying him all back pay and allowances due; and


      b.  showing that he was promoted to the rank of captain (O3) with an
effective date of rank of 17 January 2005.




                                  _____Curtis Greenway_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060017796                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070412                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  229  |120.0000/CONSTRUCTIVE CREDIT            |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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