IN THE CASE OF:	  

		BOARD DATE:	       26 August 2008

		DOCKET NUMBER:  AR20080006032 


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 correction of his records to show he was awarded 28 years of constructive service credit (CSC) instead of 14, and, in effect, correction of his rank and grade from major (MAJ)/O-4 to lieutenant colonel (LTC)/O-5, and adjustment of his DA Form 5074-R (Record of Award of Entry Grade Credit), DA Form 71 (Oath of Office), and letter of appointment to show LTC/O-5.

2.  The applicant states that his constructive credit at the time of his appointment was not calculated correctly.  He claims that when he was commissioned as a medical officer in the Army he was given the rank of MAJ/O-4 when he should have been commissioned as a LTC/O-5, despite having over 28 years of experience.  He points out that in 2006, at age 54, he joined the Army in response to the need for his expertise in addressing threats to our service members.  However, he was only awarded 14 years of CSC.

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

	a.  DA Form 5074-R [Record of Award of Entry Grade Credit (Medical and Dental Officers)], dated 10 August 2006.

	b.  Appointment as a Reserve Commissioned Officer, Memorandum, dated 7 August 2006.

	c.  Oath of Office, dated 7 August 2006.
	d.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 November 2007.  

	e.  New York State, Physician Registration Certificate, valid through 31 July 2009.

	f.  Controlled Substance Registration Certificate, dated 26 January 2007, Washington, D.C. 

	g.  Committee on Trauma Card, December 2005 to December 2009, American College of Surgeons.    

	h.  American Heart Association, Health Provider Card, December 2002 to December 2004.

	i.  American Heart Association, Advanced Cardiac Life Support (ACLS) Provider Card, October 2005 to October 2007.

	j.  Committee on Trauma Card, Advanced Trauma Life Support, New York State.   

	k.  Certificate, Doctor of Medicine Degree, Hahnemann Medical College, Philadelphia, Pennsylvania. 

	l.  Certificate, dated 30 June 1981, Resident in Surgery, and Certificate, dated 30 June 1982, Chief Resident in Surgery, Robert Parker Hospital, Sayre, Pennsylvania.    

	m.  Certificate, dated 30 June 1983, Fellow in Vascular Surgery, Englewood Hospital, New Jersey.

	n.  Certificate, dated 29 February 1984, Certification to practice surgery, the American Board of Surgery, Philadelphia, Pennsylvania.

	o.  Certificate of Fellowship, dated 27 October 1988, American College of Surgeons.

	p.  Certificate of General Vascular Surgery, dated 21 May 1991, American Board of Surgeons, Philadelphia, Pennsylvania.

	q.  Certificate of Specialty of Surgery, dated 21 May 1991, American Board of Surgery, Philadelphia, Pennsylvania.

	r.  Certificate of General Vascular Surgery, dated 16 October 1998, American Board of Surgeons, Philadelphia, Pennsylvania.

	s.  Certificate of Specialty of Surgery, dated 18 October 2002, American Board of Surgery, Philadelphia, Pennsylvania.    

	t.  Exchange of emails between the applicant and the Program Manager, Medical Corps, U.S. Army Recruiting Command (USAREC), on miscellaneous dates in February 2008.  

	u.  Exchange of emails between the applicant and a staff officer of the Human Resources Command (HRC), St. Louis, Missouri (MO).

	v.  Letter, dated 18 November 2007, from the applicant to the Chief, Office of Promotions, HRC, St. Louis, MO.

	w.  Letter of Recommendation for Promotion to LTC, dated 21 September 2007, from the applicant’s supervisor.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he attended Hahnemann Medical College, Philadelphia, Pennsylvania, from 1973 to 1977, and was awarded a Doctor of Medicine Degree on 2 June 1977.  He subsequently completed several residencies, internships, and fellowships, and was awarded several certifications in general and vascular surgery.

2.  The applicant’s records also show that he was appointed as a U.S. Army Reserve commissioned officer as a MAJ/O-4 in the Medical Services Corps and executed an oath of office on 7 August 2006.  He entered active duty on or around 21 January 2007 and completed the Army Medical Department (AMEDD) Officer Basic Course on 3 February 2007.

4.  The DA Form 5074-R, completed and signed on 10 August 2006, awarded the applicant four (4) years of CSC for receiving an M.D., one (1) year of CSC for completing an Internship; four (4) years for his Residency in General Vascular Surgery; one (1) year for specializing in Vascular Surgery; three (3) years for professional experience; and over fifteen (15) years for training and/or experience.  His total constructive credit was 28 years, 9 months, and 8 days.  However, his adjusted total entry grade credit was 14 years.

5.  On 11 August 2007, the applicant was called to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 18 August 2007 to 17 November 2007.  He was honorably released from active duty for completion of required active service on 30 November 2007.  

6.  In the processing of this case, an advisory opinion, dated 17 July 2008, was provided by the USAREC Program Manager, Medical Corps Health Services Directorate.  The USAREC official stated that:

	a.  after a careful review of the applicant's record, it is the opinion of this office that the applicant should be considered for the rank of LTC/O-5 in accordance with Army Regulation (AR) 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches); 

	b.  when the applicant's entry grade credit was calculated on 10 August 2006 with 28 years, 9 months, and 8 days, of CSC, a waiver should have been requested for consideration of rank/grade higher than that of MAJ/O-4;

	c.  USAREC cannot take administrative action to correct the applicant's rank/grade because appointments of applicants in the grades of LTC/O-5 and colonel (COL)/O-6 are approved only for those applicants who are exceptionally well qualified to discharge the duties of an officer assigned to a position for which the higher grade is authorized.  Such appointment will be recommended by a board of officers convened by the Secretary of the Army.  This provision applies unless the applicant was formerly a commissioned officer of the Armed Forces.  Such board was never requested nor convened prior to the applicant's accession in 2006; and

	d.  the applicant's area of concentration (military occupational specialty), 61W, (Peripheral Vascular Surgeon) is currently not a part of the Reserve Component Wartime Health Care Specialties with critical shortages (signed and approved on 26 March 2008); therefore, USAREC cannot request a board of officers.  

7.  A copy of the advisory opinion was provided to the applicant in order to allow him to submit comment or rebuttal.  The applicant disagreed with the opinion from USAREC and provided the following rebuttal statement:

	a.  he volunteered for the Medical Corps at the age of 54 with no prior service.  He was neither aware of an option to request a waiver, nor was he informed of this possibility.  His professional experience was twice the CSC credit he was awarded.  The advisory opinion correctly states that a waiver should have been requested for consideration of rank/grade higher than that of MAJ/O-4, for the benefit of the applicant; however, this should have been the Army's responsibility, not his;

	b.  he was not notified that pursuing such a course of action was possible and that once he came to understand that it was possible, it was extremely difficult to get factual information on how to pursue this matter;

	c.  he is exceptionally well qualified to discharge the duties of a LTC/O-5 as a combat surgeon, as evidenced by his active vascular surgery certificate; active certification in general surgery; and award of the Army Commendation Medal for meritorious service in Iraq as a general and vascular surgeon.  Furthermore, a board of officers could not have convened without a waiver being requested.  Since the waiver was not requested, naturally, the board did not convene.  However, this is correctable according to governing regulations;

	d.  the Army used him as a general surgeon, which is a specialty with a critical shortage.  Only one of the 120 surgical procedures he performed or assisted at during his deployment was a vascular procedure.  There is no question that the Army used him in the role of a critical shortage specialist.  He should not be penalized because he has two certified specialties maintained through his own diligence.  It is unjust for the Army to use him in the role of a specialist where there is a shortage, yet, does not wish to convene a board of officers to undo the omission of failing to file a waiver; and

	e.  failure to recognize his vast experience in practice as a surgeon would contribute to a situation where serious inequity would otherwise result.

8.  In an exchange of emails between the applicant and the Program Manager at USAREC, dated on miscellaneous dates in February 2008, the Program Manager advises the applicant to submit a request through the Army Review Boards Agency (ARBA) with supporting documentation to show validity of a higher CSC.

9.  In an exchange of emails between the applicant and the Career Manager, HRC-St. Louis, MO, the Career Manager advises the applicant that he stands a good chance at having the higher grade awarded through ARBA.

10.  In an undated letter of support, one of the applicant's former colleague, who worked with him in Iraq comments on the applicant's vast experience in vascular surgery and management of combat trauma.  The author also states that given the applicant's training and experience, he should have been accessed at the rank of a promotable major, subject to Senate confirmation.  But since this was not done, the error should be rectified by early promotion to LTC.

11.  AR 135-101 provides policy for the appointment of reserve commissioned officers for assignment to Army medical branches.  In pertinent part, it states that the grade and date of rank upon original appointment and assignment to an Army Medical Department (AMEDD) branch will be determined by the number of years of entry grade credit awarded.  This regulation further states the maximum entry grade credit for appointment is 14 years. 

12.  AR 135-101 states, in pertinent part, the Secretary of the Army or designee may waive the maximum entry grade credit limit in certain situations (when a manning shortfall exists in the specialty within medicine or dentistry or within the other AMEDD specialty to which the individual will be assigned or appointed; or where serious inequities would otherwise result).  

13.  AR 135-101 states an individual with 14 years or more, but less than 21 years of entry grade credit will be commissioned as a major/pay grade O4.  An individual with 21 years or more, but less than 23 years of entry grade credit will be commissioned as a lieutenant colonel/pay grade O5.  An individual with 23 years or more of entry grade credit will be commissioned as a colonel/pay grade O6.

14.  DODI 6000.13 (Medical Manpower and Personnel), dated 30 June 1997, implements policy, assigns responsibilities, and prescribes procedures to carry out medical manpower and personnel programs.  Paragraph 6.1. states that a prospective health professions officer’s 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 (as outlined in the DODI) credit except in cases where the total exceeds the maximum credit allowed.  A period of time shall be counted only once when computing entry grade credit.

15.  Paragraph 6.1.2.2.2. of DODI 6000.13 states that credit for master’s and doctorate degrees in a health profession other than medicine and dentistry, whether it is the primary degree or an additional advanced degree, shall be awarded based on actual full-time equivalent education of up to two years for a master’s degree and up to four years for a doctorate.  Credit may not include time spent in attainment of baccalaureate or other lower degrees.  No additional credit may be given for more than one advanced degree in a single field, or closely related field.  The total credit allowed for having both a master’s and a doctorate degree may not exceed the maximum allowed for a doctorate. 

16.  Paragraph 6.1.2.2.4. of DODI 6000.13 states that 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. 

17.  Paragraph 6.1.2.2.5. of the DODI 6000.13 states that credit of one-half year for each year of experience, up to a maximum of three years of constructive credit, may be granted for experience in a health profession, if such experience is directly used by the Military Service concerned.  Creditable experience cannot predate the receipt of licensure, registration or certificate.  

18.  Paragraph 6.1.2.2.6. of the DODI 6000.13 states that additional credit in unusual cases, based on special education or experience, can be granted by the Secretary of a Military Department, or designee.  As determined by Service needs, the additional credit applies to individuals with unique qualifications that are beyond normal requirements for appointment as commissioned officers.  The amount of credit shall be one year for each year of special education or experience.  Maximum credit under subparagraph 6.1.2.2.5, must be earned before earning any experience under this paragraph.

19.  All professionally qualified AMEDD commissioned officers are awarded an AOC upon appointment.  This initial specialty designation is one in which commissioned officers normally receive early development or utilization, depending on the skills possessed at the time military service is begun.  In some cases AMEDD commissioned officers will enter the Service with highly sophisticated training in one or more of the health professions (for example, Cardiology, Oral Surgery, or Optometry), while others will have obtained the basic educational prerequisites for further professional development through experience, advanced training, and graduate professional education. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's impressive academic and professional credentials, his patriotism and service to our Nation, and commitment to the medical profession are not in question.  Furthermore, the applicant's outstanding performance in Iraq in general surgery as well as vascular surgery and his subsequent award of the Army Commendation Medal are also noted.

2.  Nevertheless, the applicant was commissioned in a specialty that is not a part of the Reserve Component Wartime Health Care Specialties with a critical shortage.  It appears that there was never any intent to request a waiver or convene a board of officers to determine a higher rank/grade for the applicant.   Accordingly, the applicant received the appropriate CSC of 14 years and was correctly appointed to the rank/grade of MAJ/O-4 based on his 14 years of CSC.

3.  In considering a request for a waiver, the Secretary of the Military Department concerned must determine that the individual receiving the waiver possesses the overall ability to perform effectively at the higher grade level, and that the waiver would not have a detrimental effect on the efficiency and effectiveness of the individual’s military assignment.  An Army officer must meet several institutional, tactical, operational, and strategic thresholds at each rank/grade before he/she can be promoted to LTC or COL.  Although the applicant is highly qualified in the technical aspect of his profession and although the primary reason for his ability is what he does to a patient on the operating table, he lacks substantial tactical, operational, and strategic military experience that would not only have a detrimental effect on him, but also on those he supervises and/or commands.

4.  The applicant should be aware that one of the reasons for the regulation limiting the maximum entry grade credit for appointment to 14 years is for the officer’s own benefit.  When an individual with no prior service is commissioned as a lieutenant colonel (or higher), he would then be competing for promotion against officers with more military experience, making those other officers much more competitive for promotion to very limited colonel (or higher) positions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X ___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined during their review that the evidence presented was sufficient to warrant a recommendation for partial relief.  The applicant’s case should be sent before an appointment grade waiver board to be considered for appointment as a LTC/O5 vice MAJ/O4.  If approved, his records be further corrected by showing he was appointed in the rank of LTC/O5, provided he was otherwise qualified and met all other prerequisites for appointment.  If not approved, the applicant be so notified.


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 award of additional CSC.



      _______ _ 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)                                         AR20080006032



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ABCMR Record of Proceedings (cont)                                         AR20080006032



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