IN THE CASE OF:	  

		BOARD DATE:	       16 December 2008

		DOCKET NUMBER:  AR20080007986 


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 he be granted 1 full year of constructive service credit (CSC) for the period 1 July 1998 – 30 June 1999, that his date of rank (DOR) as a captain (CPT) and promotion eligibility date as a major (MAJ) be adjusted, and that he be paid all back pay and allowances due as a result of such adjustments.

2.  The applicant states he is a board-certified neurosurgeon.  Certification requires completion of a 1-year surgical internship, followed by a 5-year residency in neurosurgery.  He completed his internship while on active duty (AD) in the Army, then was released from AD to undergo his 5-year neurosurgery residency in the civilian sector.  After 1 year of his civilian residency, he re-entered the Army on AD and completed the next 4 years of his residency at Walter Reed Army Medical Center (WRAMC), Washington, DC.  He states that when he reentered the Army in July 1999, he was granted only 6 months of CSC for his first year resident training.  He believes he should have been granted a full year, and this would change his DOR as a CPT and his promotion date as a MAJ.  He adds that he contacted the Office of the Surgeon General (OTSG) and was advised that he should have received a full year of CSC credit instead of the already-awarded 6 months.  He was encouraged to submit his application to this Board.

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

	a.  Electronic mail exchange with the OTSG, dated 6 May 2008.
	b.  U.S. Total Army Personnel Command (now known as Human Resources Command or HRC), St. Louis, Missouri, Orders A-03-003190, dated 14 March 1997.

	c.  HRC-Alexandria, Virginia, Orders 280-003, dated 7 October 1997.

	d.  HRC-St. Louis Orders A-07-003930, dated 7 July 1999.

	e.  DA Form 5074 (Record of Award of Entry Grade Credit (Health Services Officers)), dated 6 July 1999.

	f.  HRC-Alexandria Orders 306-007, dated 2 November 1999.

	g.  HRC-Alexandria Orders 350-033, dated 16 December 2003.

	h.  U.S. Army Medical Department (MEDDAC) certificate of completion, dated 30 June 1998.

	i.  verification of internship/residency/fellowship letter, dated 7 September 1999.

	j.  National Capital Consortium certificate of residency training in neurosurgery, dated 21 March 2004.

	k.  Officer Record Brief (ORB), dated 20 May 2008.

	l.  certification in neurological surgery letter, dated 9 November 2007.

	m.  official transcript of grades, dated 17 May 1997, University of Vermont.

	n.  transcripts, dated 26 May 1994, Bowdoin College, Brunswick, Maine.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered the University of Vermont College of Medicine in August 1993.  In August 1994, he became an Armed Forces Health Professions Scholarship Program (HPSP) participant and accepted appointment as a second lieutenant, U.S. Army Reserve (unassigned), on 2 August 1994.

2.  In anticipation of his graduation from medical school, the HRC-St. Louis published Orders A-03-003190 ordering the applicant to active duty in the rank of CPT as a 4-year obligated volunteer officer to fulfill Army requirements.  The orders contained, in pertinent part, the following special instructions:
EFFECTIVE DATE (ASSIGNED ACTIVE DUTY ACCESSION DETACHMENT):  11 JUN 97.  INDIVIDUAL IS AWARDED CONSTRUCTIVE CREDIT FOR ACTIVE DUTY GRADE DETERMINATION:  04 YEARS, 00 MONTHS, 00 DAYS. ACTIVE DUTY COMMITMENT INCLUDES INCURRED OBLIGATION AND ONE YEAR OF INTERNSHIP TRAINING FOR FIRST YEAR GRADUATE MEDICAL EDUCATION PROGRAM IN GENERAL SURGERY, BEGINNING:  01 JUL 97.

3.  The applicant completed medical school, receiving his degree on 17 May 1997 and was appointed as a CPT, Medical Corps, effective 9 June 1997.  He entered active duty on 11 June 1997 and was assigned to WRAMC effective 13 June 1997.  On 7 October 1997, HRC-Alexandria published Orders Number 280-003 adjusting the applicant’s DOR as CPT to 13 June 1997.

4.  The applicant’s records show he completed his first year of graduate medical education, a 1-year general surgery internship, as an active duty CPT at WRAMC from 1 July 1997 to 30 June 1998.

5.  During his internship at WRAMC, the applicant was accepted into a 5-year neurosurgical residency program at Health Sciences University Hospital and Clinic, Oregon Health Sciences University, Portland, Oregon.  On 1 May 1998, Headquarters, WRAMC, published Orders 121-01, separating the applicant from active duty and transferring him to the U.S. Army Reserve Control Group (Individual Ready Reserve (IRR)), effective 19 June 1998.  As part of the separation process, he was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty).

6.  Item 26 (Separation Authority) of the applicant's DD Form 214, dated 19 June 1998, shows the entry "AR 600-8-24, Para 2-15" indicating that the applicant voluntarily requested release from active duty for the purpose of seeking non-funded graduate medical education and/or training leading to specialty board eligibility and/or internship in accordance with Army Regulation 600-8-24 (Officer Transfer or Discharges).  However, the applicant remained obligated to the Army for 4 years of active duty.  Additionally, his Reserve Obligation Termination Date (item 6 on his DD Form 214) was established as 30 June 2007.

7.  The applicant’s records further show that he completed 1 year of the residency program at Oregon Health Sciences University and Clinics from 1 July 1998 to 30 June 1999.  It is unclear why the applicant left this residency program prior to completion of the full 5 years of training required to attain specialty board eligibility.

8.  On 6 July 1999, a DA Form 5074-R was completed and awarded the applicant 4 years of CSC for his doctor of medicine (MD) degree, 1 year of CSC for his internship from 1 July 1997 to 30 June 1998, 6 months for his professional residency from 1 July 1998 to 30 June 1999, and 6 days for prior service from 2 August 1994 to 14 August 1994, for a total CSC of 5 years, 6 months, and 6 days.

9.  On 7 July 1999, HRC-St. Louis published Orders A-07-003930 ordering the applicant to active duty as an obligated volunteer for a period of 3 years.  He was ordered to report for temporary duty to attend the Brigade Surgeon’s Course at Fort Sam Houston, Texas, on 25 July 1999, with a subsequent assignment to the 3rd Infantry Division, Fort Stewart, Georgia, effective 20 August 1999.  The records show he reentered active duty on 18 July 1999.

10.  On 2 November 1999, HRC-Alexandria published Orders 306-007 adjusting the applicant’s DOR as CPT to 12 August 1995.

11.  The applicant’s records further show he completed the Brigade Surgeon’s Course in 1999 and then he completed the remaining four years of residency training in neurosurgery from 24 January 2000 to 21 March 2004.  He was promoted to MAJ on 12 January 2004 during his residency training.

12.  In 2007, the applicant, having fulfilled his statutory military service obligation, submitted a request for his unqualified resignation.  The request was approved by HRC-Alexandria on 27 December 2007.  On 1 October 2008, the applicant was honorably discharged.  His DD Form 214 shows he completed a total of 10 years, 5 months, and 21 days of creditable active Federal service.  He was discharged as a MAJ.

13.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) provides, in Table 3-1 (Constructive Service Credit), that 4 years’ CSC may be awarded for the basic qualifying degree (MD); 1 year may be awarded for successful completion of internship or first-year graduate medical education (GME); and year-for-year credit may be awarded for GME in a specialty required, approved by the American Medical Association or American Osteopathic Association, and creditable toward certification.

14.  Army Regulation 135-101 provides, in Table 3-1 (Computation of Prior Active Commissioned Service Credit), that individuals who complete education qualifying for CSC under Table 3-1 (specifically, medical school, internship, GME) while a commissioned officer on active duty will be treated as having "constructive service credit" for the period during which the education was obtained.  However, periods treated as "constructive service credit" while on active duty will not be treated as "prior active commissioned service" in the computation of credit.

15.  The Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and Personnel) implements policy, assigns responsibilities, and prescribes procedures to carry out medical manpower and personnel programs.

	a.  Paragraph 6.1, Entry Grade Credit, 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 credit (other than as a commissioned warrant officer), 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.  The constructive credit limitations set forth in this instruction is based on Title 10, U.S. Code, section 12207.

	b.  Paragraph 6.1.1.3 states commissioned service on active duty while participating in an educational program leading to appointment in a specialty in which CSC is awarded (i.e., MD, internship, residency, fellowship or equivalent GME) shall be awarded based on day-for-day credit for service performed.

	c.  Paragraph 6.1.2, Constructive Service Credit, states that this CSC provides a person 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.

   d.  Paragraph 6.1.2.2.4 states that year-for-year credit shall be granted for the successful completion [emphasis added] 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.  Training must be approved by the appropriate accrediting agency and may not exceed that required for certification in the specialty.  Day-for-day credit shall be awarded for approved programs of less than one year in duration.

	e.  Paragraph 6.1.2.2.5 states credit of one-half year for each year of experience, up to a maximum of 3 years, may be granted for experience in a health profession.  Creditable experience cannot predate the receipt of licensure, registration, or certification.

16.  An advisory opinion was obtained on 11 August 2008 in the processing of this case.  The Chief, GME Division, OTSG, recommended approval of the applicant’s request.  The opinion stated that in accordance with the DODI 6000.13, paragraph 6.1.2.2.4, year-for-year credit is granted for the successful completion of internship, residency, fellowship, or equivalent.  Although the applicant did not complete his neurosurgery residency in the civilian sector, he completed 1 year of the residency and then immediately came on active duty to a military program and successfully completed the program.  There was no break in his training between the civilian program and the military program.  The applicant was only credited with 6 months of CSC for the time he spent in the civilian residency.  The Chief further opined that since the applicant continued his neurosurgery training consecutively, transferring from civilian training to military training in the same specialty (neurosurgery) should qualify him for an additional 6 months of CSC for the time he spent in the civilian residency.  The applicant was provided with a copy of the advisory opinion on 25 September 2008; however, he did not respond.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests CSC of 1 full year for the year he spent in the neurosurgical residency program the Oregon Health Sciences University, Portland, Oregon; and by extension, adjustment of his DOR as a CPT and MAJ, with all due back pay and allowances.

2.  CSC is established only for the purpose of determining grade, rank within grade, and eligibility for promotion.  The officer’s pay entry base date (PEBD) is not affected in any way and no arrears in pay or allowances will be authorized as a result of receipt of constructive service credit.  CSC recognizes the additional value to the Army of those officers who have pursued professional education independent of and prior to commissioning.  It provides such officers equal footing with their contemporaries as relates to time in grade and phase time for promotion.

3.  The evidence of record shows that the applicant entered AD as an obligated volunteer officer for a period of 4 years as a CPT in June 1997.  Therefore, this is the date the applicant was appointed in the Medical Corps.

4.  The applicant completed his internship from 1 July 1997 to 30 June 1998.  He subsequently requested separation from the Army for the purpose of completing a 5-year, non-Army funded, civilian GME (residency training) leading to specialty board certification in neurosurgery.  He only finished 1 year of that 5-year residency from 1 July 1998 to 30 June 1999, then reentered the Active Army on 18 July 1999.  He attended and completed the Brigade Surgeon’s Course, then was assigned to WRAMC where he finished years 2 through 5 of his residency program, thereby completing the program.

5.  The Graduate Medical Education Division, OTSG, in an advisory opinion, stated that although he did not complete his residency program in the civilian sector, the applicant returned to active duty, finished years 2-5 in the Army, and completed the program in March 2004.  Although the GME Division only awarded the applicant 6 months of CSC for that year, presumably based upon full-time experience as a practicing physician (in accordance with paragraph 5, Table 3-1, Army Regulation 135-101), they feel he should be given full credit for the year of training in the civilian sector.

6.  The applicant requested separation after 1 year on AD to seek civilian residency.  He did not complete his residency, finishing just the first year before he reentered active duty.  The DODI specifies that year-for-year credit shall be granted for the successful completion of GME.  The OTSG advisory opinion alludes to this fact in explaining why the applicant only received 6 months’ credit in 1999:  "Although [applicant] did not complete the Neurosurgery Residency in the civilian sector..."  The applicant is not entitled to CSC or the year spent undergoing training in the civilian sector.

7.  Notwithstanding the OTSG advisory opinion, in view of the foregoing, there is no basis for granting the applicant’s request.  Since there is no reason to grant the CSC, there is also no reason to address the applicant’s other issues concerning DOR as a CPT, his promotion eligibility date as a MAJ, or payment of any back pay and allowances.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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)                                         AR20080007986



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ABCMR Record of Proceedings (cont)                                         AR20080007986



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