RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 January 2008
	DOCKET NUMBER:  AR20070010131 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Donald Steenfott

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, in effect, that he be provided a waiver for promotion consideration [in effect an adjustment of his appointment rank and pay grade from major] to the rank and pay grade of lieutenant colonel (LTC/O-5) upon his return to active duty on 16 July 2007. 

2.  The applicant states, in effect, that he returned to active duty and is currently working as a staff surgeon on a one-year hardship tour at Fort Irwin, California.  He has successfully completed all requirements of an arduous 5-year civilian residency training program in trauma and general surgery.  He is currently board eligible, having successfully passed all of his written board examinations in April 2007, and will be sitting for his oral boards in October 2007.  He received the highest score in the nation on the general surgery inservice examination in January 2007.    

3.  He states that he is fortunate to have been selected for the Army Graduate Medical Education (GME) fellowship in Vascular Surgery at the Walter Reed Army Medical Center (WRAMC) beginning in July 2008.  This selection showed the GME’s belief in his potential and commitment to furthering his career as a health care provider on active duty in the United States military.  He was promoted to the rank of major in June 1999 and had the distinction of serving with the 10th Special Forces Group (SFG) as their flight surgeon for 5 years.  He deployed to Bosnia and Kosovo.  His last deployment was into southern Turkey in April and May of 2002 in order to help stabilize the medical evacuation in northern Iraq.  

4.  He states that he met all military education requirements for promotion to the next field grade rank and completed the Officer Basic Course (OBC) (honor graduate) in 1991 and the AMEDD (Army Medical Department) Officer Advance Course (OAC) in 2001.  He currently has accrued 16 years, 11 months, and 18 days of service which qualifies him for the rank of lieutenant colonel based on years of service.  He is now 2 years above the zone for promotion to LTC compared to his peer group, i.e., June 2005 would have been his in-the-zone promotion from the rank of major to lieutenant colonel.  He concluded his request to the Board by stating he was assigned to the Individual Ready Reserve (IRR) for the last 5-years while completing a civilian residency in general surgery and would appreciate the Board’s consideration for his promotion [in effect an adjustment of his appointment rank and pay grade] to the rank of LTC effective the date of his return to active duty in July 2007.

5.  The applicant provides a copy of his ORB (Officer Record Brief), active duty orders, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he was ordered to active duty in the United States Army Reserve (USAR) on 12 July 1995, with prior commissioned service, as a captain (CPT/O-3), in the Army Medical Corp, in Area of Concentration (AOC), 61N9D, Flight Surgeon.  

2.  A review of his ORB shows that he completed the AMEDD OBC and Advanced Course.  He was promoted to major (MAJ/O-4) effective 10 June 1999.

3.  The applicant was released from active duty on 30 June 2002, to attend school.  He was transferred to the USAR Control Group (IRR). 

4.  Based on the required completion of 7 years maximum time in grade (MTIG), his promotion eligibility date (PED) for lieutenant colonel was 9 June 2006.

5.  On 16 May 2007, the applicant was ordered to active duty in the rank of major for a period of 2 years, with duty at Fort Irwin, California.  His orders indicate that his date of rank (DOR) was to be adjusted based on constructive service credit of 16 years, 11 months, and 26 days of service, HPPED (Health Profession Pay Entry Date) credit of 12 years, 11 months, and 18 days of service, and that he had attended OBC.  

6.  In the processing of this case, an advisory opinion was requested of the Office of The Surgeon General (OTSG), Director, Medical Education.

7.  On 20 October 2007, the Chief, and Program Director, Vascular Surgery Service, WRAMC, provided a memorandum, Subject:  Consideration for Promotion.  In summary, this medical official reiterated the applicant’s accomplishments and encouraged this Board to support the applicant’s appeal for his promotion [in effect an adjustment of his appointment pay grade and rank] to LTC.




8.  An opinion was provided from the OTSG on 25 October 2007.  The OTSG states that the applicant “is requesting that his rank be adjusted to LTC (with a DOR of June 2005) to reflect the 5 years he spent in non-funded graduate medical education (no Army civilian sponsorship) in a civilian general surgery program while in the IRR.  Had the applicant been an HPSP (Health Professions Scholarship Program) obligor placed in education delay (such individuals are also in an IRR status) for the 5 years of his civilian general surgery training, he would have accrued 5 years of credit for both promotion and pay purposes.  The applicant is a 61J (general surgeon) which is currently classified as a shortage specialty.”  

9.  The OTSG stated that because the applicant had to re-enter the Army following completion of his general surgery training, the maximum entry grade credit for appointment in the MC, as per Army Regulation 135-101, is 14 years.    The OTSG prepared the computation that demonstrated that the applicant’s entry level credit exceeded the 14 year limit.  They strongly recommended to the AHRC (Army Human Resources Command) that a waiver be pursued, and offered to work with them to achieve that outcome.  The recommendation from AHRC was to pursue relief via the ABCMR (Army Board for Correction of Military Service) process.

10.  The OTSG stated that there was no question the applicant demonstrated performance that qualified him for the relief he seeks.  Had he remained on active duty, he would have been promoted in due course and they would not be having this conversation.  Because of saturated training capacity at military treatment facilities and end strength considerations, non-funded graduate medical education was the only option available to train more general surgeons to mitigate the existing shortage at the time the applicant was selected for training.  The information provided clearly shows he meets both criteria for a waiver of the entry level credit limit for Medical Corps (MC).  OTSG concluded that not granting relief would perpetuate a serious inequality for a shortage specialty and recommended approval of this action.  

11.  The opinion was forwarded to the applicant for his acknowledgement on 30 October 2007 and he concurred with the opinion on 31 October 2007.

12.  On 13 November 2007, the Administrative Director, of the American Osteopathic Board of Surgery, prepared a letter to the applicant.  He was informed that the results of his oral examination were reviewed on 19 October 2007 and that he had successfully completed and passed the oral examination.  He was further informed that after official approval of his certification is given he will be provided with a certificate number.
13.  Army Regulation 135-101 provides the policy and sets forth the procedures for Reserve Appointment of Army Medical Department (AMEDD) officers with or without a concurrent call to active duty.  Chapter 3 covers grade determination.  Paragraph 3-1 pertains to entry grade credit for Reserve appointment grade determination.  Subparagraph 3-1b states that the maximum entry grade credit for appointment in the MC or DC (Dental Corp) is 14 years.  For appointment in the ANC (Army Nurse Corps), MSC (Medical Service Corps), VC (Veterinarian Corps), or AMSC (Army Medical Specialist Corps), entry grade credit granted (with or without concurrent active duty) will be more than the amount required for entry grade O4 as if the officer were to be concurrently called to active duty in the corps concerned.  The SA or designee may waive the maximum credit limit in the situations such as:  (1) When manning shortfall exists in the specialty with in medicine or dentistry or within the other AMEDD specialty to which the individual will be assigned or appointed; and (2) Where serious inequities would otherwise result.  An action requesting approval of waiver will be initiated by the USAMEDDPERSA (United States Army Medical Department Personnel Support Agency) for each waiver requested.  Constructive service credit will be granted for period of professional training and experience accrued after receipt of the basic qualifying degree.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was released from active duty, in the rank of major to attend school and he was transferred to the IRR.  While serving in the IRR, he completed a 5-year residency training program in trauma and general surgery.

2.  The applicant was ordered to active duty on 16 May 2007, in the rank of major, with his DOR to be adjusted based on his constructive service credit.

3.  The evidence shows that the applicant successfully completed and passed his oral examination on 9 October 2007, he is board-certified as a general surgeon and will be provided with a certificate number after official approval.

4.  In view of the circumstances in this case, it would be appropriate to grant the applicant an adjustment of his appointment rank and pay grade to lieutenant colonel/O-5 based on his constructive service credit of 16 years, 11 months, and 26 days; his HPPED credit of 12 years, 11 months, and 18 days; and the fact that he has completed both the AMEDD OBC and the advanced course.

5.  The OTSG determined that the applicant's entry level credit exceeded the 14 year limit and that there was no question that his demonstrated performance qualifies him for the relief he seeks.  The OTSG strongly recommended to AHRC that a waiver be pursued, based on the outcome via the ABCMR.  

6.  The applicant is a general surgeon (61J) which is currently classified as a shortage specialty within the AMEDD and had he remained on active duty he would have been promoted in due course.  

7.  The OTSG stated that due to military treatment facility and end strength considerations, non funded graduate medical education was the only option available to train more general surgeons to mitigate the existing shortage at the time the applicant was selected for training.  The applicant met both criteria for a waiver of the entry level credit for MC and not granting relief would perpetuate a serious inequity for a shortage specialty.  

8.  Based on the evidence and recommendations from the OTSG, it would now be in the interest of justice and equity to grant the applicant an adjustment of his appointment rank and pay grade to LTC/O-5 effective the date of his return to active duty.  The Board recommends that AHRC recompute the applicant's time in service and upon completion of this action that orders be published showing his adjusted DOR with entitlement to back pay and allowances.  Upon completion of this action a copy of orders will be provided to the OTSG.   

BOARD VOTE:

__JP___  __WDP__  ___DWS_  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.  the AHRC recomputing the applicant's time in service;

b.  publishing orders to show the applicant was promoted from major to LTC/O-5, effective the date of his return to active duty, 16 July 2007, with entitlement to back pay and allowances; and

	c.  providing the OTSG a copy of the orders upon completion of this action.




___William D. Powers______
          CHAIRPERSON




INDEX

CASE ID
AR20070010131
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080110
TYPE OF DISCHARGE

DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR .ACTIVE DUTY
DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY

ISSUES         1.
131
2.

3.

4.

5.