IN THE CASE OF:	  

		BOARD DATE:	  7 August 2008

		DOCKET NUMBER:  AR20070016519 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his 3-year Multi-year Special Pay (MSP) and 3-year Multi-year Incentive Special Pay (MISP) contract be converted to a 
4-year Multi-year MSP and MISP agreement.  He also requests that his date of rank (DOR) to major (MAJ) in an active status be changed to 30 June 2003, the date he was promoted to MAJ in the Individual Ready Reserve (IRR).

2.  The applicant states, in effect, that his first issue is that he had signed a 
3-year Multi-year MSP/MISP for an combined annual MSP bonus of $25,000.  However, due to deployment, the Army has required him to lengthen his term of service to a minimum of 45 months.  He states that had he known this, he would have initially signed a 4-year Multi-year MSP/MSIP agreement that would have entitled him to a combined annual MSP bonus of $33,000.  He further states that he believes it is unjust for the Army to require him to serve nearly four years while only paying him the bonus for a 3-year contract, which amounts to a difference of $32,000 over the term of duty.  He further states that he believes he should receive this underpayment retroactively.

3.  The applicant also states that his second issue is his DOR to MAJ.  He states he was originally appointed to MAJ on 30 June 2003, while serving in the IRR.    However, his active duty DOR as a MAJ coincides with the date he returned to active duty, which was 15 September 2004.  He states this DOR effectively moves the date for his eligibility for promotion back 15 months.  He further states that he feels that correction to both of these items would greatly enhance the possibility that he would remain on active duty until retirement and he believes that the Army desires to keep as many Physicians as possible.

4.  The applicant provides the following documents in support of his application:  United States (U.S.) Total Personnel Command (PERSCOM) Memorandum, dated 24 June 2003; U.S Army Reserve Personnel Command (ARPERSCOM), Orders M-03-301652, dated 11 March 2003; U.S. Army Human Resources Command (HRC) Orders 341-001, dated 6 December 2004; HRC Orders
A-07-491601, dated 27 July 2004, and a Request for MISP Agreement in Conjunction with MSP.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty as a Medical Corps (MC) officer in the rank of major (MAJ), in Specialty 61H (Physician), with Headquarters and Headquarters Troop, 1st Squadron, 4th Cavalry Regiment,
in Iraq. 

2.  On 4 September 1996, the applicant was appointed a Reserve commissioned officer in the rank of captain (CPT), and entered the IRR.  At the time, he was credited with 4 years, 2 months, and 3 days of constructive service credit.  Based on the applicant's DOR to CPT, his maximum time in grade (MTIG) date for promotion to MAJ in the Reserve Component (RC) was established as 
3 September 2003.

3.  On 24 June 2003, while the applicant was serving in the IRR, a PERSCOM Memorandum was published that authorized his promotion to MAJ, effective and with a DOR of 30 June 2003.

4.  On 27 July 2004, HRC-St. Louis Orders A-07-491601 ordered the applicant to active duty on 15 September 2004.  The additional instructions contained in these orders stated "Effective on the date of entry on active duty, you are appointed in the reserve grade of MAJ and placed on the active duty list (ADL) in the grade of MAJ."

5.  On 4 August 2004, the applicant was commissioned a United States Army Reserve (USAR) MAJ in an active status, and HRC-Alexandria Orders 341-001, dated 6 December 2004, authorized his promotion to MAJ on the ADL, effective and with a DOR of 5 September 2004.

6.  In connection with the processing of this case, an advisory opinion was obtained from HRC-Alexandria Deputy Chief, Promotions regarding the applicant's request for a change to his DOR.  This official stated that the applicant's IRR record indicated that he had no active status; therefore, he received no credit warranting an adjustment to his ADL DOR, and recommended the applicant's request for a change to his DOR be denied.
7.  On 5 February 2008, the applicant was provided a copy of the HRC advisory opinion in order to have the opportunity to respond.  To date, he has failed to reply.  

8.  In connection with the processing of this case, a second advisory opinion was obtained from the Chief, Army Medical Department (AMEDD) Special Pay Branch, Office of the Surgeon General (OTSG) regarding the applicant's request for an adjustment to his MSIP-MSP contract.  It indicates that the applicant is requesting, based on extenuating circumstances to include extension beyond obligation for deployment is requesting to re-execute his current 3-year MSP retention bonus at $13,000/year and corresponding 3-year MISP at $13,000/year, both effective 15 September 2004 through 14 September 2007, as a 4-year MSP at $17,000/year and MISP at $13,000/year, effective 1 October 2004 through 30 September 2008.  The Chief, AMEDD Special Pay Branch, recommends approval of the applicant's request and states that his 3-year MSP and MSIP should be converted to a 4-year MSP at $17,000/year and MISP at $13,000/year, effective 1 October 2004 through 30 September 2008, and his new obligation should expire on 30 September 2008.  Upon approval, the Defense Finance and Accounting Service (DFAS) action would require payment at the higher rate MSP difference due, and collection of any partial over or under lap periods.  On 15 February 2008, the applicant concurred with this advisory opinion.  

9.  Army Regulation 135-210 (Order to Active Duty as Individuals for Other Than a Presidential Selective Reserve Call-up, Partial or Full Mobilization) states, in Paragraph 2-6, that officers will be ordered to active duty in their Reserve grade unless additional service credit is authorized by Title 10, U.S. Code, Section 689.  DOR adjustments may be required under Title 10, U.S. Code, section 741.

10.  Title 10, U. S. Code, section 741(d)(3) states that under regulations prescribed by the Secretary of Defense, the DOR of a Reserve commissioned officer (other than a warrant officer) who is to be placed on the ADL and who has not been on continuous active duty since his original appointment as a Reserve commissioned officer in a grade above chief warrant officer, W-5, may, effective on the date on which he is placed on the ADL, be changed by the Secretary concerned to a later date to reflect such officer’s qualifications and experience

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his MSP and MISP be converted to a 4-year contract was carefully considered and found to have merit.  The Chief, AMEDD Special Pay Branch, OTSG, advises the applicant's record should be corrected to 
show his current 3-year MSP and MISP converted to a 4-year MSP at $17,000/year and a 4-year MISP at $13,000/year, both effective 1 October 2004 through 30 September 2008.  

2.  The applicant's contention that his DOR to MAJ of 15 September 2004 should be changed to his original DOR to MAJ in the IRR of 30 June 2003 was also carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record confirms that the applicant was given constructive credit of 4 years, 2 months, and 3 days at the time of his original RC appointment, which resulted in his appointment as a CPT in the IRR.  By regulation, a CPT will be considered for promotion to MAJ after serving 
7 years time in grade.  The evidence of record confirms that the applicant was promoted to MAJ in the IRR with a DOR of 30 June 2003.  

3.  The evidence of record also confirms that at the time the applicant was added to the ADL as a MAJ, he received no constructive credit based on his lack of any active status time while serving in the IRR.  As a result, when he was ordered to active duty on the ADL as a MAJ on 15 September 2004, his active duty DOR was properly adjusted to 15 September 2004, the date he entered active duty.

4.  The adjustment of the applicant’s DOR to 15 September 2004 was in accordance with statutory guidance.  Once the applicant was placed on the ADL he would then be competing for promotion with officers who had served continuously on active duty, enhancing their Army qualifications and experience relative to his USAR Control Group (Reinforcement)-only qualifications and experience.  It would not be equitable to give the applicant the same 2003 CPT DOR as officers who had served continuously in that rank on active duty since 2003.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by replacing the applicant’s 3-year Multi-year MSP at $13,000 and MISP at $13,000 for the period 15 September 2004 through 14 September 2007, with a 4-year Multi-year MSP at $17,000 and MISP at $13,000, both effective 1 October 2004 through 30 September 2008.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction to his major 
date of rank.



      _________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070016519



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ABCMR Record of Proceedings (cont)                                         AR20070016519



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