IN THE CASE OF:	  

	BOARD DATE:	  21 August 2008

	DOCKET NUMBER:  AR20080004246 


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 his date of rank (DOR) to captain (CPT) be adjusted from 1 November 2003 to 18 July 2003.  

2.  The applicant states that he was not credited with 104 days of active service as a physician in a private practice.  This period of private practice occurred after his residency was completed while the U.S. Army Recruiting Command (USAREC) was processing his application for appointment.  His application for appointment took an inordinate amount of time to process, resulting in his having to seek private sector employment while it was pending.  He has not been credited with that private sector employment experience.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Certificate, dated 9 May 2003, Doctor of Medicine Degree.

	b.  Certificate, dated 31 July 2006, Residency in Emergency Medicine.

	c.  Commonwealth of Virginia License to Practice Medicine and Surgery, dated 21 January 2005. 

	d.  Letter, dated 23 August 2007, Appointment to Martha Jefferson Hospital, effective 13 September 2006.

	e.  Appointment as a Reserve Commissioned Officer, Memorandum, dated 12 October 2006.  

	f.  Oath of Office, dated 27 October 2006.  

	g.  DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers)), dated 27 October 2006.

	h.  U.S. Army Human Resources Command (HRC), St. Louis, Missouri (MO), Orders to Active Duty, dated 13 October 2006, and amendments, dated 2 November 2006.

	i.  Exchange of emails between the applicant and USAREC Medical Corps Program Managers/Officers on miscellaneous dates in 2006 and in 2008.  

	j.  Exchange of emails between the applicant and a staff officer of the Army Board for Correction of Military Records (ABCMR), dated on miscellaneous dates in 2007 and 2008.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant’s DOR.

2.  Counsel states, in effect, that the Army Board for Correction of Military Records (ABCMR) has now designated two different file numbers and has advised the applicant to consider submitting a new petition in conjunction with a revision to the requested relief regarding the determination of his DOR.  The applicant was also provided two advisory opinions.  Counsel adds that he and the applicant determined that the submission of a new petition will make matters simpler for all concerned.  In light of the fact that there was a previous petition for relief that included two advisory opinions the decision will address all the factors raised in each of the previous advisory opinions.  Counsel further states that the applicant’s package for accession onto active duty in the Army was inexcusably delayed due to the inefficiency of the recruiting command.  Misleading information regarding the status of his package resulted in delays in his commissioning date, commencement of active duty and an improper determination of his DOR.  The DOR has, in turn, resulted in an unjust loss of eligibility for consideration of selection to a fellowship.  Correction of the applicant’s DOR would restore his eligibility and correct this injustice.   



3.  On 11 July 2008, counsel submitted an electronic copy of a letter of support, dated 3 July 2008, from the applicant's current commander.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he attended Vanderbilt University, from 1 August 1999 to 9 May 2003, and was awarded a Doctor of Medicine Degree.  He subsequently completed his Residency in Emergency Medicine at the University of Virginia from 13 June 2003 to 31 July 2006.

2.  The applicant’s records also show that he was appointed as a U.S. Army Reserve commissioned officer as a captain (CPT) in the Medical Corps and executed an oath of office on 27 October 2006.  On the same date, the applicant was issued a DA Form 5074-1-R awarding him 7 years of total constructive service credit in the grade of CPT, as follows:

	a.  four (4) years for attending Vanderbilt University, from 13 June 2003 to 31 July 2004; 

	b.  one (1) year for his residency at the University of Virginia, from 13 June 2003 to 31 July 2004; and

	c.  two (2) years for graduate professional education and/or residency in Emergency Medicine from 1 August 2004 to 30 July 2006.  

3.  The applicant's records show he entered active duty on 1 November 2006 and reported to Walter Reed Army Medical Center.  He subsequently attended the Medical Corps Officer Basic Course from 3 January to 26 February 2007.

4.  In a self-authored statement, the applicant stated that he completed his medical physical at the Military Entrance Processing Station (MEPS) in July 2004 but did not sign up for the USAR at the time.  He returned to the MEPS in February 2006 to resume processing so he could join the USAR upon completion of his residency.  However, his physical had expired, therefore, he completed another physical in June 2006.  He was then told that his packet would be considered by the USAREC monthly board in June, July, and August 2006, but it was not.  He eventually contacted USAREC himself and was assured that his packet would be considered in September 2006.  Meanwhile, between the time he finished his residency and the time his accession packet was being considered by USAREC, he accepted other employment at the Martha Jefferson Hospital, Charlottesville, Virginia on 13 September 2006, with a contractual obligation through 28 October 2006.  His active duty orders were published on 
13 October 2006 with an effective date of 1 November 2006.  He completed his oath of office on 27 October 2006 and reported to Walter Reed Army Medical Center on 1 November 2006.

5.  In a second self-authored statement, dated 27 August 2007, the applicant restates his educational background and claims that the recruiting office took too long in his accession process which compromised his career track and his ability to be competitive for fellowship opportunities.  He concludes that the brief time he spent in private practice was not credited toward his DOR and that the months he spent managing his accession packet into the Army apparently could not be credited to bring him back to a July 2006 residency peer group.  

6.  In an exchange of emails, dated 25 March 2008, with the Chief, Medical Corps Program Manager, USAREC, Fort Knox, Kentucky, the applicant stated that he should receive half-day credit from 31 July 2006 to 28 October 2006 for his post residency professional experience.  The email exchange further shows that the Chief, Medical Corps Program Manager, USAREC, explained the accession process to the applicant.  He informed the applicant that once accession board results are released to recruiters, those recruiters coordinate with board-select applicants to complete the oath of office and send hard copies of all documents to USAREC within 10 days.  However, in the applicant's case, the accession board selected him on 13 September 2006, but the oath of office was not completed until 27 October 2006.  

7.  An advisory opinion was obtained in the processing of this case on 25 September 2007.  The Chief, Appeals and Corrections Branch, U.S. Army Human Resources Command (HRC), Alexandria, Virginia, stated that any adjustment to the applicant's DOR would have to be determined by the Surgeon General.

8.  On 22 October 2007, an advisory opinion was obtained from the Program Manager, Medical Corps Health Services Directorate, USAREC, Fort Knox, Kentucky.  The Program Manager stated that after careful consideration of the applicant's request, it was determined that the applicant was not due any additional constructive service credit based on Army Regulation (AR) 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) and Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and Personnel).  Additionally, constructive service credit is given up to the time the applicant was boarded on to active duty on 13 September 2006.  He completed his residency on 30 June 2006 and was ineligible to board for active duty until he obtained an unrestricted license.  Furthermore, Rule 5 of Table 3-1 of AR 135-101 states that a half year is granted for each year of experience.  The applicant, in this case, is requesting 45 days of professional experience; however, if credit were to be granted, he would receive only 22.5 days, not 45 days.

9.  On 8 January 2008, the applicant submitted a rebuttal to the advisory opinion. He stated that his DOR is 1 November 2006, not 13 September 2006 as mentioned in the advisory opinion.  He also stated that the requirement to have an unrestricted license not only can be waived, but also that he had already obtained an unrestricted license on 20 January 2005.  He further complained about USAREC's failure to file the DA Form 5074-R in his Official Military Personnel File (OMPF).  He concluded his rebuttal by stating that the advisory opinion supports his contention that his case had been handled both erroneously and unjustly and that USAREC personnel mishandled his accession process which has caused him additional financial obligations and personal uncertainties.

10.  On 26 March 2008, a second advisory opinion was obtained in the processing of this case.  The new Program Manager, Medical Corps Health Services Directorate, USAREC, Fort Knox, Kentucky, stated that:

	a.  After a careful review of the applicant's record, he is not due any further constructive service credit (CSC) based on:  AR 135-101, dated 15 February 1984; an official memorandum from the Secretary of Defense, dated 9 April 1998; and DODI 6000.13.

	b.  Based on a copy of his Emergency Medicine Residency completion certificate, the applicant completed his residency on 31 July 2006.  Therefore, in accordance with an official memorandum from the Secretary of Defense, dated 9 April 1998 and titled "Transition to Fully Trained General Medical Officers," the applicant was not eligible for a Medical Corps (MC) accession board until after 31 July 2006.  The memorandum states, “The services will be directed to neither recruit nor access physicians with less than a full residency.”

	c.  The DA Form 5074-R, completed and signed on 27 October 2006, awarded the applicant four (4) years of CSC for obtaining his M.D. degree, one (1) year of CSC for completing PGY-1/Internship (Post-Graduate Year), and two (2) years of CSC for completing PGY-2 and 3/Residency in Emergency Medicine. These credits were awarded in accordance with AR 135-101 and DODI 6000.13.

	d.  The applicant was not given any CSC based on professional work experience for the period between 31 July 2006 to his MC accession board date of 13 September 2006 due to having less than a creditable half-year.  This is in accordance with DODI 6000.13, paragraph 6.1.2.2.5 which states, “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.”

	e.  In addition, the applicant will not be given any CSC from the date of his MC accession board (13 September 2006) to the date when his DA Form 71 (Oath of Office) was signed on 27 October 2006 based on The Medical Recruiting Brigade (TMRB), Health Services Directorate (HSD) policy.  The current policy is to calculate CSC up to the closest MC accession board date of the fiscal year.  According to USAREC's database, the applicant's accession packet was received on 9 August 2006.  Therefore, his closest MC accession board date was 13 September 2006, and all CSC was calculated up to this date, except professional work experience (explained above).

11.  In his rebuttal, dated 17 June 2008, to the above advisory opinion, the applicant restated the events and timelines of his application.  He stated that:

	a.  On 27 August 2007, he filed a petition with the ABCMR, requesting his date of rank be adjusted (i.e., moved forward) from 1 November 2003 to 17 September 2003.  The failure to properly credit him with one (1) month and fifteen (15) days of CSC has had far reaching ramifications to his professional career within the Army.  In particular, it has precluded his eligibility for advanced education opportunities.

	b.  The exact status of his petition is somewhat confusing as he was advised by the Army Review Board Agency (ARBA) that his original petition (Docket Number AR20070012099) had been closed with no further action contemplated and that he could communicate directly with the USAREC on this matter, which he did.  He was further advised that, were he unable to obtain the desired relief from USAREC, he could submit a new petition for relief to ARBA.  Almost immediately after the ARBA advised him of the above, that office contacted USAREC and requested a second advisory opinion on his petition (now given Docket Number AR20080004246).  He has not received a formal reply from USAREC on his communication to them; however, ARBA has received a second advisory opinion from USAREC.  As a consequence of the above, he is uncertain whether this communication is considered as a rebuttal to the USAREC Second Advisory Opinion or is being considered in the nature of a second petition for relief.  As such, he believes it appropriate to submit a new petition for correction of his records and believes it necessary to provide a complete overview of the situation in explanation of the relief being requested.  As a consequence of the administrative processing of his request, he requests the Board to consider this as a resubmission of his petition, using docket number AR20080004246 and, with that new petition, a response to both advisory opinions thus far issued by USAREC.
	c.  In modification to the specific relief requested in his initial petition, by this new petition he is requesting that his date of rank be adjusted to 18 July 2003.

12.  In addition, the applicant presented what he calls a succinct and prioritized rebuttal to the second advisory opinion.  He stated that in an effort to be compliant with the ABCMR directive to more succinctly prioritize his rebuttal, he offers the following abbreviated response to the second advisory opinion rendered by USAREC, dated 26 March 2008.  His full petition, chronological details, and supporting documentation are offered in greater detail below.

	a.  The advisory opinion stated that he was not given CSC based on professional work experience between 31 July 2006 to 13 September 2006 (MC accession board date) due to having less than a creditable half year.  However, AR 135-101 Table 3-1, states: “Qualifying periods of less than one full year will be proportionately credited.”  The advisory opinion's assertion that he is not due CSC because it is “less than a creditable half year” is directly contradictory to the AR 135-101 directive to credit half-day for every day of professional experience.

	b.  The advisory opinion stated that he will not be given any CSC from the date of the MC accession board (13 September 2006) to the date when the DA Form 71 was signed (27 October 2006), based on The Medical Recruiting Brigade (TMRB), Health Services Directorate (HSD) policy: 

		(1)  This assertion violates the most basic tenants of contract law, as it implies he was under contract to HSD/Army effective 13 September 2006.  As he carefully documented in his Letter of Intent (LOI), “I have contractual obligations to a local hospital here that expires [sic] on 28 October 2006.”  To disregard AR 135-101 professional experience CSC during this interval runs counter not only to established contractual law and Army Regulations, but also to USAREC’s own first advisory opinion; 

		(2)  Alternatively, if USAREC should choose to imply a contractual relationship was established 13 September 2006, then his DOR must be effective as of that date.  He was either under contract or he was not, from 13 September to 1 November 2006.  If USAREC implies he was under contract, their additional delay from 13 September to 1 November is in violation of their own HSD documented policies:  “It is our policy (Health Services Directorate, USAREC) that once board result is released (within 24 hours of last board date) to all recruiters, they have to coordinate with board-select applicants to complete DA Form 71 and send all hard-copy packets to us within 10 days.  This is in place to eliminate/minimize the lag time between board select date and actual accession date"; and 

		(3)  The preponderance of evidence demonstrates that no contractual relationship existed and that CSC should be calculated for this time frame in accordance with AR 135-101.  Alternatively if a contractual relationship is implied, CSC should be adjusted to reflect a DOR (no later than 23 September 2006) that is in accordance with stated HSD policy.  Either conclusion warrants modification of the DOR to comply with established regulations and stated policies.

	c.  The advisory opinion stated that according to the USAREC database, his accession packet was received on 9 August 2006; therefore the closest MC accession board date was 13 September 2006:

		(1)  Accepting as fact that USAREC did not enter the packet into their database until 9 August 2006, that is exactly the point!  The author in the first advisory opinion failed to enter it in the database in June, July, or in time for the August board and refused to provide any information on its status.  Yet, at the same time, the USAREC recruitment office was telling him that his packet was already before the June, July and August boards.  Based on the first advisory opinion which was, incidentally, drafted by the same author of opinion number two, this is now presumably because the author incorrectly believed he [applicant] had not obtained his unrestricted license; and

		(2)  He documented the Walter Reed Army Medical Center (WRAMC) OIC asking him to join the WRAMC staff on 18 May 2006 after the job interview that the USAREC recruiter arranged and attended.  The recruiter at the recruitment office, and the officer who wrote the advisory opinions have been released from USAREC.  He should not be punished because they could not find a way to “enter the accession packet into the database” from 18 May 2006 until 9 August 2006. 

	d.  The advisory opinion stated that, in accordance with the official DOD memorandum "Transition to Fully Trained General Medical Officers" he was not eligible for Medical Corps (MC) accession board until after 31 July 2006.  The memorandum states that the services will be directed to neither recruit nor access physicians with less than a full residency:

		(1)  This 1998 peacetime memorandum, in essence asserting that USAREC never meant to recruit or access a trauma trained doctor in a time of war, is irrelevant to his case for a number of reasons:

		(a)  in 2006, HRC policy identified emergency medicine specialty training as a “critical wartime specialty” for USAREC retention and accession programs and increased special pay and incentive programs (FAP, MISP, ISP) were authorized specifically to recruit physicians such as himself who were either fully trained or in the process of training in critical wartime specialties;

		(b)  a 1998 peacetime memorandum pertaining to General Medical Officers (GMO) is not relevant to him as a physician in emergency medicine, either at the conclusion of his specialty training or afterwards.  USAREC fails to grasp this fundamental difference: a GMO is no more an ER doctor than an ER doctor is a brain surgeon.  The memorandum indicates that as “part of the larger 13 points of quality initiative” the services will “no longer access or deploy GMOs with only a single year of post graduate medical training.”  He was not a GMO, nor was he an intern with a single year of post-graduate medical training!  At all points in this process his post graduate medical specialty training exceeded both of those capacities by several years;

		(c)  the USAREC failed to complete his accession packet at its board meeting in August 2006, after his last shift of residency training was completed 18 July 2006 and his certificate was distributed 31 July 2006.  Even if USAREC misapplies the 1998 memorandum, it does not explain the failure to process his packet in August 2006 or why his Pay Entry Base Date (PEBD) was delayed until 1 November 2006;

		(d)  as previously documented, USAREC coordinated his initial MEPS physical in June 2004 when he first considered joining the military, under the HRC established FAP "critical wartime specialty" program, during his residency.  This demonstrates that USAREC routinely accesses and recruits specialty physicians at all stages of training, again highlighting that the 1998 peacetime memorandum is irrelevant; and

		(e)  as previously documented, the USAREC recruiter arranged his interview with the WRAMC Officer in Charge (OIC) and was present during the interview in May 2006.  To assert USAREC was not accessing or recruiting him prior to the very last day of his residency is patently, almost comically, false.

		(2)  In the first advisory opinion, the author asserted that he was not eligible for accession in June, July, or August 2006 because he had not obtained his unrestricted license.  He documented that this assertion was false and demonstrated that the author and others at USAREC failed to properly process his packet; thus creating undue delays for many months (in total, February 2006-November 2006).



		(3)  The USAREC has now changed the officer who wrote the first advisory opinion [note:  Program Manager, Medical Corps Health Services Directorate was replaced in the course of normal assignment rotations] as well as its explanation for the failure to process his accession packet in June and July.  They also still have no explanation for missing the August board, or any regulatory basis to deny CSC for his professional time after his last residency shift on 18 July 2006.  Of note, the Office of the Surgeon General (OTSG) previously intervened with USAREC supervising officials when they mishandled a student loan benefit that was supposed to be included in his accession.  The very office that has received prior admonishment from OTSG superiors for mishandling his accession is now being asked to re-calculate his CSC.  He finds it somewhat challenging to believe USAREC can be fully objective in the CSC calculation, given the prior history of difficult administrative corrections the OTSG ordered them to undertake.

13.  The applicant further presents a chronological detail of events regarding his accession as follows:  

	a.  The entire chronology of events regarding his accession into the Army must be understood and appreciated with regard to relief requested in his petition.  When reviewing the following chronology, it is important to pay attention to some of the annotations and comments found within the footnotes (can be viewed on the hardcopy of this rebuttal, attached).  Only with full knowledge of and attention to the totality of events that have transpired to this point can one appreciate the inefficient and neglectful manner in which he was accessed into the Army and in which his petition for relief has been addressed to this point in time.

	b.  He submits his chronological sequence of events as follows:

		(1)  9 May 1999 – he graduated from medical school at Vanderbilt University.

		(2)  3 June 2003 – he commenced his intern year (i.e. GMO year) in Emergency Medicine at the University of Virginia (UVA) Medical Center.

		(3) 13 June 2004 – he continued with his specialty training in Emergency Medicine residency program at the University of Virginia Medical Center.

		(4) July 2004 – he completed a MEPS physical, but did not complete accession at that time.

		(5) 21 January 2005 – he received his valid, unrestricted license as a Physician in the Commonwealth of Virginia.

		(6) February 2006 – he resumed processing for accession into the Army.  His intent was to commence active duty in July 2006 upon completion of civilian residency.

		(7) 18 May 2006 – subsequent to his interview with WRAMC OIC, he emailed him to advise that he believed he would be an excellent addition to the staff at WRAMC.  The USAREC recruiter set up and attended the interview.

		(8) June 2006 – he completed a second MEPS physical as his 2004 physical had expired or would have expired prior to board action on his application for a commission in the Army.

		(9) June 2006 – he was advised by USAREC recruitment office that his application was before the USAREC commissioning selection board.  It was not.

		(10) July 2006 – he was again advised by USAREC recruitment office hat his application was before the USAREC commissioning selection board.  It was not.

		(11) 18 July 2006 – he completed his last duty shift for residency, thus completing his contractual employment at the University of Virginia.  He continued his calls to the recruiters to inquire about where his packet stood with the USAREC board.  He was told on multiple occasions that it was before the July board and that he needed to wait for their decision.

		(12) 31 July 2006 – he received his residency certificate in Emergency Medicine at the UVA Medical Center.

		(13) August 2006 – the month that he intended and desired to commence active duty in the Army upon completion of civilian residency at the UVA Medical Center.

		(14) August 2006 – he was, for a third time, advised that his application was before the USAREC commissioning selection board.  He requested that the recruiters or the USAREC recruitment office OIC provide him with a point of contact for the individual who had his packet.  He then contacted the officer who wrote the first advisory opinion directly at USAREC headquarters to verify his packet was being considered before the August board.  That officer never returned his calls.  His packet was, once again, not considered by the USAREC August board. 

		(15) August 2006 – because he could not obtain an update on the status on the review of his packet by the commissioning board, he was compelled to seek other employment.

		(16) 15 August 2006 – he emailed the WRAMC Personnel Officer (S-1) for assistance as his application, again, was not presented before the commissioning selection board.  In that email, he addressed his employment situation.

		(17) 17 August 2006 – the S-1 emailed him to advise that USAREC reported that his packet had not been processed by the August board.  The recruiting team commander assured the S-1 that his package would go before the September board.

		(18) 18 August 2006 – he emailed the S-1 to advise that after speaking with the recruiting team commander, it did not appear that his application would go before the September board and that the next available board would be January 2007.

		(19) 19 August 2006 – the S-1 emailed the OIC for assistance and also to tell him she  (S-1) would continue to try and assist in having his package go before the September board.

		(20) 21 August 2006 – his assignment officer emailed that the draft Request for Orders (RFO) for him was ready to go out as soon as she heard from USAREC.

		(21) September 2006 – he personally contacted USAREC Board to ensure that his packet would be reviewed that month.  It was.

		(22) 13 September 2006 – he completed his credentialing for an appointment to the medical staff of Martha Jefferson Hospital, effective that date. His obligation with this hospital was set to run through 28 October 2006.  The Army was informed in writing of this fact.

		(23) 25 September 2006 – he submitted his statement of intent to accept a commission based on board approval of his packet.

		(24) 4 October 2006 – he emailed USAREC recruitment office confirming his acceptance of a commission.  

		(25) 12 October 2006 – the HRC issued a memorandum of his appointment as an officer in the USAR.

		(26) 13 October 2006 – his orders were issued with an effective date of 1 November 2006.

		(27) 27 October 2006 – he executed his oath of office.

		(28) 27 October 2006 – the presumed date of preparation of DA Form 5074-R, although this form does not actually appear anywhere in any records until after 3 October 2007 when he is requested to provide it and a copy is not located, nor was one included in his OMPF.

		(29) 1 November 2006 – reported to Walter Reed Army Medical Center.

		(30) 2 November 2006 – amendment Orders issued erroneously reporting that he does not have a current unrestricted license.

		(31) 27 August 2007 – he submitted his petition to the ARBA.

		(32) 5 September 2007 – the ARBA requested an advisory opinion from HRC regarding his petition.

		(32) 25 September 2007 – the HRC Advisory Opinion stated that adjustments to his service data would have to be determined by the Surgeon General’s office.

		(33) 3 October 2007 – the ARBA emailed him that in order to act on his petition for correction, the Board will need a copy of the DA Form 5074-1R and his appointment orders.

		(34) 5 October 2007 – he emailed HRC regarding the absence of a DA Form 5074-1R in his OMPF.  He had also emailed S-1 at his recruitment office to inquire about this missing document.  

		(35) 9 October 2007 – he replied to ARBA regarding the missing DA Form 5074-1R, that no one had been able to produce one, and that he attempted to create one as best he could.

		(36) 9 October 2007 – an email went out to USAREC for assistance in providing a copy of the missing DA From 5074-1R.

		(37) 11 October 2007 – the USAREC replied via email stating that constructive credit is determined until the day he was boarded, which was 13 August 2006, immediately after he completed residency.  He took his oath of office on 27 October 2006.

		(38) 22 October 2007 – the USAREC provided a written Advisory Opinion [the first opinion] to the ABCMR.  In this opinion, the Program Manager, Medical Corps Health Services Directorate, USAREC stated he [applicant] was not due any constructive credit.  She [Program Manager] stated that he was not boarded until 13 September 2006 (vice the 13 August 2006 date provided in her email of 11 October 2007); that he completed residency on 30 June 2006; and that he was ineligible to board for active duty until he obtained an unrestricted license.  In a subsequent paragraph she stated: AR 135-101 Table 3-1, number 5 provides credit of a half-year for each year of experience.  He [applicant] is requesting 1 month and 15 days of professional experience.  If this were the case where he was given constructive credit for 45 days, IAW AR 135-101, he will receive 22.5 days, not quite a month.

		(39) 7 January 2008 – the ARBA followed up with USAREC as they had not received a copy of the Advisory Opinion.  USAREC replied that the Advisory Opinion [first opinion] was issued on 22 October 2007 and electronically forwarded a copy.

		(40) 7 January 2008 – the ARBA forwarded to him a copy of the unfavorable Advisory Opinion from USAREC.

		(41) 8 January 2008 – he submitted his rebuttal to the USAREC 22 October 2007 Advisory Opinion.

		(42) 4 March 2008 – the ARBA returned his 8 January 2008 rebuttal to the 22 October 2007 USAREC Advisory Opinion and advised that he may submit it directly to the USAREC to obtain relief.  If the desired outcome is not provided by USAREC, then he can again apply to the Board.  At that time, Docket Number AR20070012099 was closed without action and without prejudice.  He may refer to that Docket Number, however, a blank DD Form 149 is provided should he desire to reapply to the Board.

		(43) 15 March 2008 – he complied with the direction of the 4 March 2008 ARBA letter and wrote to USAREC.  

		(44) 19 March 2008 – the ARBA forwarded a memorandum to USAREC requesting a Second Advisory Opinion on his petition, now captioned as AR20080004246.  

		(45) 26 March 2008 – the USAREC issued a Second Advisory Opinion. 

		(46) 26 March 2008 – the ARBA forwarded the USAREC Second Advisory Opinion to him.  

		(47) 4 April 2008 – he advised the Case Management Division, ARBA, that he has retained counsel to assist in preparation of his rebuttal to the second advisory opinion and requested a 60 day extension beyond the initial 30 day response time for submission of his rebuttal.

		(48) 4 April 2008 – the ARBA approved an extension request until 24 June 2008 for submission of his rebuttal. 

14.  The applicant also submitted the following argument in support of his petition for relief:

	a.  He was under no prior obligation or HPSP commitment to the Army prior to accepting his commission on 27 October 2006.  He has subsequently learned that the NCOIC in his recruitment office was relieved of duty.  The inexcusable delay (from February 2006 to October 2006) between re-commencing his application and his entry into the Army will have a permanent and detrimental impact on his career progression within the Army.  Specifically, it will preclude him from obtaining fellowship training at the time he should be eligible to do so.  Thus, the first basis upon which he is requesting relief is because he should have been accessed onto active duty anytime on or after 18 July 2006, the last day of actual work performed in his residency.

	b.  Evidence of the failure of the USAREC, through the recruitment office, to properly process his application for a commission is that he was compelled to intervene directly to USAREC headquarters and obtain the assistance of the S-1 at WRAMC.  Even with the assistance of the S-1 and the OIC from WRAMC, he was still compelled to obtain outside employment pending approval of his application for a commission in the Army.  As it turned out, he was not able to commence his employment at Martha Jefferson Hospital until 13 September 2006.  Had the Army properly accessed him, however, he would never have had the need to obtain that interim and temporary employment.  To thus hold him accountable for the period between either the last day of his performance of duty in his residency (17 July 2006) and, at the very latest, the official end of his residency (31 July 2006) improperly places the consequences of the Army’s failure on him.  To the contrary, because he was ready, willing and able to access onto active duty at any time from on or after 18 July 2006, his effective date of rank and calculation for CSC should be from that time period forward, not from 13 September 2006, the day that he was actually boarded by USAREC.  He had also been advised each month – June, July and August – that his case was before the selection board.  It did not finally go before a selection board until he personally intervened and requested assistance.  The Army, not he, should be responsible for the consequences of that delay.  Had he been advised, by any person, at any time, that there would be even the possibility of such an inordinate delay, and that as a result of such delay, his CSC would be calculated to his detriment for not being employed for any days after he was available upon completing his residency work or upon formal completion of his residency, then he would have undoubtedly obtained such interim and temporary employment on the first available day.  Alternatively, he would have accepted any of the standing permanent private practice offers he had previously declined.  Because he had no reason to believe that there would either be such a delay, and no knowledge of the consequences of such a delay, he did not accept any of his permanent private practice offers.  He only obtained temporary employment because as the extensive USAREC delays continued, his wife was due to deliver their child and he needed some employment and health coverage.

	c.  In addition to the delay in bringing his application before the board, his accession processing time substantially exceeded what he understands to be the Health Services Directorate, USAREC policy that board results are to be released (within 24 hours of last board date) to all recruiters.  This policy is in effect so that the recruiters can coordinate with board-select applicants to complete the DA Form 71 and send all hard-copy packets within 10 days, specifically to eliminate/minimize the lag time between board selection and actual accession dates.  Having been advised that his board select date was 13 September 2006, in order to meet the policy processing time goals, he should, therefore, have been accessed not later than 23 September 2006.  Again, to impose upon him the consequences of USAREC’s failure to comply with their own policy guidelines is unjust.

	d.  Most troubling in the consideration of his case is that one of the individuals who was perhaps most responsible for the untimely and erroneous processing of his application is the same individual who authored the initial Advisory Opinion on his application for correction of his records.  It is further troubling that it appears that the same office he previously had to deal with in obtaining a correction, through a request to the Office of the Surgeon General for another problem that arose in the processing of his accession onto active duty (that being mismanagement of his student loan benefit), is once again the office being tasked with “defending” their errors in handling of his case.  The analysis from the Army, in response to his petition, should be prepared by unbiased individuals who have not previously been involved in the management of this issue.

	e.  In the first advisory opinion, the author – again the same person responsible for the delays in his accession onto active duty – states that he was entitled to constructive credit up to the date that he was boarded on 13 September 2006.  In yet another of her errors, the author goes on to state that the applicant completed his residency on 30 June 2006.  He officially completed his residency on 31 July 2006.  Either unaware of, or misapplying the requirements for accession, the author then states that the applicant “was ineligible to board for active duty” until he obtained an unrestricted license.  Again, she is in error as he obtained an unrestricted license on 21 January 2005. Further, the specific basis upon which she is relying in her advisory opinion is not supported by the ASD Memorandum – which is only specifically referenced in the second advisory opinion.  She speaks in terms of an unrestricted license, whereas the ASD Memorandum speaks in terms of residency.  It is also interesting that it is only in this advisory opinion that such an “issue” is first raised.  At no time in his accession processing was any question neither raised about his license to practice medicine nor was any mention made that such concerns were the basis for delays in getting his package before the selection board.  Had such a question been raised, he would have been able to quickly resolve the matter.  This appears to be nothing more than an after-the-fact search for another excuse for the mismanagement of his accession package.

	f.  Finally, in her “second” paragraph 2 to the first advisory opinion, she places emphasis on “AR 135-101 Table 3-1, number 5 states, half year for each year of experience and that he is requesting 1 month and 15 days of professional experience.  If this were the case where he was given constructive credit for 45 days, IAW AR 135-101 he will receive 22.5 days, not quite a month.”  The phrasing of this comment is confusing, but lends to only one conclusion.  Because she calculates that it is “only 22.5 days” it is not important whether he were to receive that relief.  The actual period for which he is requesting an adjustment to his date of rank is based upon an initial eligibility for commissioning date of 18 July 2006.  Therefore, he is requesting that his date of rank be adjusted from 1 November 2003 to 18 July 2003.  Had his application been properly processed, then he could have been commissioned as early as that date, therefore, that is the date of rank to which he is entitled.

	g.  Appreciating that had he not been commissioned on 18 July 2006, he submits that he should still be eligible for additional CSC for the time period between 18 July 2006 and 13 September 2006 (the day that he was actually boarded for selection).  Had the Army complied with the policy of processing applications within 10 days of board action, he would have completed his commissioning not later than 23 September 2006 in any event.  Applying the formula contained in AR 135-101, that would then lead to CSC bringing his date of rank to not later than 21 August 2003, by giving half credit for the 67 days between 18 July and 23 September 2006, when he would have been employed had he known that he would have ended up needing interim temporary employment between the end of his residency and his commencement on active duty.

	h.  Turning to the second advisory opinion, the USAREC “now” bases its opinion, at least in part, on Reference (a).  Of note, reference (a) provides that a decision has been made to “no longer access or deploy GMOs with only a single year of post-graduate medical training” as part of a larger quality improvement initiative.  It then goes on to state that “The Services will be directed to neither recruit nor access physicians with less than a full residency.”  Application of this document is inappropriate in his case for the following reasons:  First, it is the service’s, not the individual’s, responsibility to know the eligibility of an applicant for accession onto active duty; second, he is not a GMO; third, he submits that a peacetime memo from 1998, has hardly been applied by the Department of Defense, and especially the Department of the Army, in accessing qualified physicians during the last number of years when our country has been engaged on the actual field of combat; and finally, even if the memorandum was applied to his case it has no bearing on the ultimate outcome.  He received and returned to WRAMC the credentialing packet for full, unrestricted clinical privileges in May 2006.  His file reflects that he had already interviewed with and received credentialing materials for WRAMC privileges as early as May 18, 2006 (when the record reflects the statement that he would make an excellent addition to the WRAMC staff).  He was not applying to access onto active duty until the completion of his residency (i.e., not earlier than 18 July 2003 and not later than 1 August 2003).  Consequently, he was eligible for accession during the relevant times addressed in this petition and the policy articulated in that Memorandum has no material substantive impact on the outcome of his case.  Even in its strictest application, he should have been accessed onto active duty not later than during the month of August 2006.  He was actively recruited for over two years, from 2004 to 2006, and he is now being told that the USAREC recruiter, the personnel at WRAMC, and MEPS were somehow exceeding their authority in pursuing his accepting a commission.  This is laughable on its face.  The implication of this basis for denying his relief is to say that a physician would have to wait until the completion of residency before the Army would even consider speaking with them.  That makes absolutely no sense at all.

	i.  The second advisory opinion states that the DA 5074-R “completed and signed on 27 October 2006” gave me “four (4) years of CSC for receiving M.D., one (1) year of CSD from completing PGY-1/Internship, and two (2) years of CSC from completing PGY-2 and 3/residency in emergency Medicine.”  That advisory opinion goes on, in paragraph 4, to provide that the applicant was not given any CSC based on professional work experience, between 31 July 2006 to his MC accession board date, 13 September 2006 due to having less than a creditable half-year; IAW DODI 6000.13, paragraph 6.1.2.2.5; provides that, “Credit for 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.”  First, he submits that there is absolutely no question that his experience at an urgent care center is directly used by the Army.  His training provided for a critical wartime specialty. Second, that explanation, as well as the previous explanation provided in the first advisory opinion, implies that for any period less than a full year, no credit is awarded.  Those explanations fly in the face of the Army’s application of this provision as found in Note 1 to Figure Table 3-1, CSC of AR 135-101.  That note provides “Qualifying periods of less than 1 full year will be proportionately credited except where noted otherwise; a period of time will be counted only once; periods of time spent as a commissioned officer either in an active status or on active duty will not be counted; valid requirement must exist for utilization.”  Note 1 is applicable to ALL of the constructive credit basis listed in Figure Table 3-1.  Consequently, he is entitled to half-day credit for each day.

	j.  Finally, the comment in paragraph 5 of the second advisory opinion that “According to the USAREC's database, the applicant's accession packet was received on 9 August 2006; therefore, his closest MC accession board date was 13 September 2006, and all CSC were calculated up to this date, except professional work experience (explained earlier).”  This again is simply the USAREC using the data compiled in their own inefficiency in not entering his accession package in their database until 9 August 2006 to justify the denial of the credit to which he is entitled.  As documented in the chronology provided earlier, it was only through his efforts, after having been advised that his package was before the board in June, then July, then August that he was finally able to get a complete package before the selection board.  The Army is, through this rationale, again using their own mismanagement of his application as a basis for denying him the relief to which he is entitled.  As addressed in the immediate preceding paragraph, the failure to award him professional credit (i.e, “explained earlier) has already been demonstrated to be in error.

	k.  Yet further evidence of the mismanagement of his application is related to the “supposed” preparation of the DA 5074-R.  Again, noting that he was contacted by ARBA in October of 2007 to provide a document that should have already been in his record, but was not, he prepared a handwritten DA 5074-R as best that he, a novice, could do.  Only after that did the “supposed” original document miraculously appear, dated 27 October 2006, calculating his date of rank.  This anomaly is significant in that after the second advisory opinion was issued, his attorney contacted the author of the second advisory opinion requesting clarification of some of the references used in the two advisory opinions.  In response, the Program Manager at USAREC stated that “In response to your inquiry on the HSD policy on the timing of [Applicant] board:  It is our policy that when calculating constructive service credit, the credit is granted up to the date/month of board.  This is because the rank has to be determined prior to the board, based on entry service credit calculation using DA 5074-R.”  If the date of rank has to be determined prior to the board, based upon entry service credit calculation using DA Form 5074-R, and if he was boarded on 13 September 2006, then the DA Form 5074-R was required to be completed prior to 13 September 2006, NOT 27 October 2006.  Thus, it is submitted, the evidence is overwhelming that the DA Form 5074-R in his case was manufactured after the fact and solely for the purpose of creating a basis for supporting an incorrect conclusion that had already been determined with regard to his constructive service credit.

	l.  In conclusion, the facts of his case are irrefutable:  he began the accession process in earnest in February 2006.  The USAREC chain of command, to include the local recruiter, did not do their job properly or in a timely manner.  He should have been accessed on active duty any time on or after 18 July 2006.  It took both his individual efforts as well as the efforts of personnel at WRAMC to finally get his package before a selection board in September 2006 – after having been told it would go before the June, then July, then August boards – and then took an additional 6 weeks before he was able to execute his oath of office.  Those inexcusable delays are the result of mismanagement by the Army, not him, and it should be the Army, not him, to bear the consequences.  In addition to having mismanaged his student loan repayment issue, referred to previously, his date of rank was miscalculated.  At each step of the way the USAREC has come up with one excuse after another, each of which has been demonstrated by their own regulations and communications to be inapplicable.  He concludes by respectfully request that his petition and relief be granted.

15.  The Department of Defense (DOD) through a system of Directives (DODD) and Instructions (DODI) establishes policy and assigns responsibilities for matters related to health services operations and readiness, including, but not limited to, medical manpower, medical personnel, medical compensation, military medical training, medical logistics, patient movement and the Armed Services Blood Program (ASBP).  DODI 6000.13 implements policy, assigns responsibilities, and prescribes procedures to carry out medical manpower and personnel programs and ensure that the Services have sufficient military medical personnel to meet all mission requirements.  It provides that, when accessing a prospective health professions officer, entry grade and rank within grade shall be determined by the number of years of entry grade credit awarded on original appointment, designation, or assignment as a health professions officer.  The entry grade credit to be awarded shall equal the sum of constructive service credit and prior commissioned service credit, except in cases where the total exceeds the maximum credit required to access the officer in the grade of major, MAJ/O-4.  The DODI specifically states:

	a.  In Section 6.1.2, that the purpose for this credit is to provide health professionals who begins commissioned service after obtaining the additional education, training, or experience required for appointment, designation, or assignment as an officer in a health profession, with a grade and date of rank comparable to that attained by officers who begin commissioned service after getting a baccalaureate degree and serve for the period of time it would take to obtain the additional education.

	b.  In Section 6.1.2.2, that four years of constructive service credit shall be granted for completion of a first professional degrees, which include a medical (M.D.) degree.  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.  Day-for-day credit shall be awarded for approved programs of less than 1 year in duration.

	c.  Also in Section 6.1.2.2 (specifically, Section 6.1.2.2.5), credit for work experience, up to a maximum of 3 years of constructive credit, may be granted on the basis of one-half year of credit for each year of experience.

16.  Army Regulation 135-101 prescribes policy, procedures, and eligibility criteria for appointment in the Reserve Components of the Army, with or without concurrent active duty, in the six branches of the Army Medical Department (AMEDD).  It states that commissioned officers of any Reserve Component (RC) of the Army who have served satisfactorily in the specialty for which they are applying may be appointed and/or called to active duty in the grade currently held if serving in the specialty for which applying or in the highest grade for which they can fully qualify by education and experience, gained after becoming professionally qualified, whichever selection would result in a higher grade or greater promotion service on the date of appointment.

17.  Grade and date of rank upon original appointment and assignment to an AMEDD branch will be determined by the number of years of entry grade credit awarded.  Except as limited by maximum credit limits, entry grade credit granted will be the sum of constructive service credit and credit for prior active commissioned service.  Entry grade credit awarded to AMEDD officers upon-appointment or assignment will be recorded on one of the following forms: DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers)) for Medical Corps (MC) or Dental Corps (DC) officers ; or DA Form 5074-1-11 (Record of Award of Entry Grade Credit (Health Services Officers)) for Army Nurse Corps (ANC), Medical Service Corps (MSC), Army Medical Specialist Corps (AMSC), or Veterinary Corps (VC) officers. Computation will be completed at the US Army Medical Department Personnel Support Agency (USAMEDDPERSA); it will be approved by the procurement program manager.

18.  Table 3-1 of Army Regulation 135-101 describes constructive service credit. It states, in pertinent part that a Medical Doctor (M.D) Degree, qualifies for 4 years of CSC; successful completion of internship or first-year graduate medical education which is approved by the American Medical Association, qualifies for 1 year of CSC; graduate professional education (GPE) in a specialty required, approved by the AMA, and creditable toward certification qualifies for year-for-year CSC; and full-time experience not otherwise credited as a practicing physician, osteopath, or dentist after qualifying degree, qualifies for half-year for each year of experience, up to a maximum of 3 years.  Additional 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 is credited at 1 year for each year of special experience, provided that maximum credit was earned for full-time experience.

19.  Department of the Army Pamphlet 600-4 (Army Medical Department Officer Development and Career Management) outlines commissioned officer development and career management programs for Army Medical Department personnel.  It states, in pertinent part, that the term "AMEDD Corps" is used synonymously with "branch" and is a Service of the Army.  An AMEDD Corps is a grouping of officers who have or are developing specific skills unique to their particular branch.  These skills, when integrated into the whole, become the provider portion of the Army health care delivery system.  Each AMEDD Corps is composed of one or more broad health professional disciplines.  Each broad discipline is composed of several specialties, or AOCs, that describe restricted areas of functional expertise necessary to support the discipline as a whole when viewed in its total context.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his date of rank as a captain be adjusted from 1 November 2003 to 18 July 2003, and in effect, award of appropriate CSC for professional work experience prior to entering active duty.  However, he is also arguing that USAREC's mishandling his accession disadvantaged him; thus, in the interest of justice and equity, his date of rank should be adjusted to the date he completed his Residency in Emergency Medicine.

2.  The applicant's credentials in the field of emergency medicine are noted, as well as his patriotism and selfless service to the Army and Nation at a time of war.  His frustration with the administrative process involved in his accession to the Army Medical Corps and timely payment of student loan benefit is also noted. 

3.  With respect to the applicant's DOR, the evidence of record shows that the applicant completed his residency in emergency medicine [i.e., received his certificate] on 31 July 2006.  His accession packet could not have possibly been considered by the June or July 2006 boards at USAREC.  It is unclear if and why the recruiter promised the applicant a June 2006 or a July 2006 board accession, knowing that he would not have completed his residency training until 18 July 2006 and would not have received his certificate until 31 July 2006.  Nevertheless, as soon as the applicant completed his residency and received his certificate, his packet was forwarded to and received by USAREC in mid-August 2006 and the closest MC accession board date of the fiscal year was on 13 September 2006. 

4.  It is not clear why the applicant's appointment memorandum was not forwarded until 12 October 2006 or why the applicant executed his oath of office on 27 October 2006.  He argues that USAREC personnel delayed his packet.  Nevertheless, the fact remains that he executed an oath on 27 October 2006 and entered active duty on 1 November 2006.  He cannot possibly be given a DOR prior to his commission date or before entering military service, USAR, or otherwise.

5.  With respect to any constructive service credit claimed by the applicant from the date he completed his residency in emergency medicine to the date he was commissioned in the USAR and executed his oath of office on 27 October 2006, the evidence of record shows that the applicant does not qualify for any additional constructive service credit.  The DODI and Army Regulation clearly state that CSC is credited for multiples of years of work experience, not days, months, quarters, or any other increments.  Had he completed a full year or more of full-time work experience, he would received credit at the rate of one-half year for each full year of experience up to a maximum of 3 years.  The fact that he voluntarily entered into employment with Martha Jefferson Hospital on 13 September 2006 was a personal choice that he elected. 

6.  With respect to the USAREC process, the applicant is absolutely correct with regards to the fact that he had already obtained an unrestricted license on 21 January 2005, contrary to what was stated in the first advisory opinion.  It appears that the author of that advisory opinion was either not aware of this fact or overlooked it.  Furthermore, the applicant was provided with his appointment memorandum on or after 12 October 2006.  He subsequently executed an oath of office on 27 October 2006 and entered military service on 1 November 2006, thus making this date his DOR.  These timelines do not seem unreasonable or lengthy.  On the contrary, it appears that USAREC personnel accommodated the applicant by boarding his packet at the first opportunity.

7.  The applicant is advised that the Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for programs or benefits.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



							XXX
       _    _______   ___
       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)                                         AR20080004246



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ABCMR Record of Proceedings (cont)                                         AR20080004246



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