IN THE CASE OF:	  

		BOARD DATE:	       21 January 2009

		DOCKET NUMBER:  AR20080010194 


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:

The applicant, in effect, defers all aspects of his request to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be afforded the following:

   a.  that the applicant’s records be corrected to provide him 4 years of additional constructive service credit for his Doctor of Optometry (OD) and his Master of Science (MS) in addition to the constructive credit that he received for his Doctor of Medicine (MD).  

   b.  that the constructive credit be effective on the date of his original appointment into the Medical Corps, and that he be authorized all back pay;

	c.  if appropriate, that he be considered by a special selection board for promotion to major, as if he had been given proper constructive service credit at the time of his original appointment into the Medical Corps; and

	d.  alternatively, if he has been selected by a regular promotion board prior to the ABCMR correcting his record, that his promotion to major be backdated to the date he would have been promoted to major if he had previously been given 
4 years of constructive service credit at the time of his original appointment into the Medical Corps.


2.  Counsel states the following:

   a.  The applicant is currently serving on active duty in a medical residency program to complete his training as an Ophthalmologist.  At the time of his appointment to the Medical Corps, the applicant received 4 years of constructive credit from the Army for his MD degree.  Although permitted by applicable statute and regulation, the applicant did not receive any constructive credit for his OD degree or for his MS degree in Physiological Optics.  The applicant seeks 
4 years of additional constructive credit for the time it took him to obtain his OD and MS degrees and that this additional constructive credit be applied from the time he accepted his original appointment as a captain in the Medical Corps;  

	b.  The applicant received an original commission as a captain in the Medical Service Corps as an optometrist in 2000.  If he had remained an optometrist and been promoted to major, he would have received a second commission reflecting his promotion, but his commission as a major would not have been his original commission within that corps.  In 2007, the applicant received an original commission as a captain in the Medical Corps as a physician.  These commissions are separate, and he has received an original commission within each corps both times.  He is permitted to receive constructive service credit each time he receives an original commission.  This point would be clearer if his second commission had been as a Navy officer.  It is unlikely anyone would suggest that the Navy could not have made a constructive service credit determination if the applicant had received the Navy’s original commission despite the fact he had previously served in the Army.  Finally, the Army also relied upon the fact that neither of these degrees will allow the applicant to complete his ophthalmology training or his medical boards any earlier.  This criterion is simply not applicable in this case and completely fails to address the dispositive and controlling question of whether the applicant’s OD and MS degrees add adjunctive skills to his primary specialty as an ophthalmologist; 

	c.  The Army should grant the applicant 4 years of additional constructive service credit so long as it is convinced the additional degrees (OD and MS) will add “adjunctive skills” to the primary specialty and contribute directly to his performance in the anticipated position within the Army, in his case, as an ophthalmologist;

	d.  The Accreditation Council for Graduate Medical Education (ACGME) is a private, non-profit council that evaluates and accredits all medical residency programs in the United States, including military medical residency programs.  The ACGME has published a document that describes the program requirements for OD residency training.  Optometry is a specialty that involves the entire spectrum of ophthalmic diseases and ocular surgery.  The applicant will encounter on a daily basis relevant subject matter from his optometry training and his training in physiological optics.  Each resident must have an adequate base for a comprehensive ophthalmic practice.  That base must include: optics, visual physiology, and corrections of refractive errors; retina, vitreous, and uvea; neuroophthalmology; pediatric ophthalmology and strabismus; external disease and cornea; glaucoma, cataract, and anterior segment; oculoplastic surgery and orbital diseases; and ophthalmic pathology; and 

	e.  Department of Defense (DOD) provisions were not uniformly applied as documented by the fact that the Air Force gave additional constructive service credit to two of the applicant’s fellow Uniformed Services University of the Health Sciences (USUHS) classmates in circumstances similar to the applicant’s.

3.  Counsel provides 121 pages of documents as follows:

	a.  a declaration from the applicant;

	b.  an Ohio State University Transcript Showing OD and MS degrees;

	c.  8 pages from the internet site www.mods.army.mil/medicaleducation;

	d.  e-mail between the applicant and Army referencing his request for additional constructive credit;

	e.  an excerpt from Title 10, United States Code (USC), section 533; 

	f.  an excerpt from Department of Defense Instruction 6000 (Medical Manpower and Personnel), dated 13 June 1997;

	g.  Accreditation Council for Graduate Medical Education Program Requirements for Graduate Medical Education in Ophthalmology;

	h.  an American Optometric Association Description of Optometrist’s Duties;

	i.  an Ohio Optometric Association Description of Optometrist’s Duties;

	j.  a description of the applicant's hospital privileges as an optometrist;

	k.  an Optometrist Medication Prescribing List;

	l.  an excerpt from Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches);
	m.  a copy of ABCMR Decision, Docket No. AC94-12834 of 13 September 1995;

	n.  Air Force decisions granting the applicant's classmates at USUHS constructive credit; and 

	o.  a memorandum of support for request for constructive credit from Colonel R___ A. M___, MD, Consultant in Ophthalmology to The Army Surgeon General.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant (2LT) (unassigned) in the United States Army Reserve (USAR) on 27 May 1997.

2.  The applicant attended Ohio State University (OSU) College of Optometry and received an OD degree.  He concurrently completed a MS degree in Physiological Optics with both degrees being awarded in June 2000.

3.  Department of the Army, U.S. Total Army Personnel Command, St. Louis, Missouri, Orders A-06-003935, dated 30 June 2000, ordered the applicant to active duty for 3 years to fulfill his active Army requirement as a Medical Service Corps (MSC) optometrist, in the rank of captain.  At this time the applicant received 4 years of constructive credit for the completion of the OD degree.  No credit was afforded him for his MS degree since it was obtained concurrently with his OD degree.

4.  After attending the MSC officer basic course, the applicant reported to his first duty station, Walter Reed Army Medical Center where he served as a captain and staff optometrist until 10 August 2003.  

5.  In 2003, the applicant applied for and was accepted to the USUHS to attend its school of medicine for 4 years.  

6.  On 10 August 2003, he was released from active duty as a captain.  The DD Form 214 prepared at this time does not show that he resigned his commission to accept attendance as a USUHS student.  

7.  Upon graduation from USUHS in May 2007, he received a MD degree and was accepted in the Army Internship and Ophthalmology Residency program at Madigan Army Medical Center, Tacoma, Washington.  

8.  Department of the Army, U.S. Total Army Personnel Command, St Louis, Missouri, Orders A-06-392806, dated 06 June 2003, ordered the applicant to active duty as a 2LT, Medical Corps.  He was assigned to the USUHS, Bethesda, Maryland with an active duty commitment of 4 years and directed to report for duty on 11 August 2003.

9.  Department of the Army, U.S. Army Human Resources Command, Alexandria, Virginia, Order Number 186-001, dated 5 July 2007, determined that the applicant's active date of rank as captain in the Medical Corps to be 3 June 2005.

10.  Department of the Army, U.S. Army Human Resources Command, Alexandria, Virginia, Order Number 218-009, dated 6 August 2007, amended his active date of rank to 3 November 2005.

11.  It appears the applicant was given 4 years of constructive service for his MD degree and 1 year, 6 months, and 2 days of prior service credit, for the period he served on active duty as an optometrist in the Medical Service Corps.  His total constructive service credit equals 5 years, 6 months, and 2 days. 

12.  In June 2007, the applicant reported to his first duty assignment as a medical officer and commenced the residency program. 

13.  On an unknown date, applicant questioned the total amount of constructive service credit he was afforded for his various degrees.  He was advised that he needed to have the Army’s Directorate of Medical Education, Office of the Surgeon General address the issue.  

14.  The Directorate of Medical Education notified the applicant that his request for additional credit was denied and he was informed that (1) the regulation prohibits credit for degrees earned concurrently and his MS degree was earned concurrently with his OD degree; (2) constructive credit is given only at the time of initial entry into a specific branch; and (3) neither the OD degree nor the MS degree would allow the applicant to complete his ophthalmology training any faster or sit for his boards any earlier, hence no additional credit was warranted.  He was informed in an email that his only option to pursue this issue was to apply to the ABCMR. 

15.  Counsel provided documents related to two Air Force Officers who allegedly graduated with the applicant.  These documents show the Air Force granted these officers as fourth year students additional constructive service credit.  One officer had completed a Master of Physical Therapy and the other a Master of 
Public Health.  Neither document specifies how much constructive credit they received for these degrees or if they retained that credit upon completion of their medical training. 
16.  A memorandum, dated 18 March 2008 was submitted by Colonel R___ A. M___, MD, Consultant in Ophthalmology to The Army Surgeon General.  In his memorandum the colonel voiced his support for awarding the applicant additional constructive service credit based on the applicant's award of his OD degree and his MS degree.  The colonel stated that these degrees were helpful to the applicant and the command during the residency course but they were not sufficient to warrant a shortening of the training program or consideration for an earlier board certification.

17.  The applicant withdrew from the Ophthalmology residency program on 12 September 2008 and is now serving as a general medical officer.

18.  In the development of this case an advisory opinion was obtained from the Chief, Graduate Medical Education Division, Office of the Surgeon General.  This opinion states, in part, that the regulation prohibits credit for more than one advanced degree in a single field or closely related field and the applicant's award of an OD degree is considered a closely related field to his MD degree.  It was recommended that no relief be granted.

19.  A copy of the advisory opinion was forwarded to the applicant and his counsel.  No response has been received from either of them.

20.  Title 10, USC, § 533 provides the following pertinent information:

	a.  For the purpose of determining the grade and rank within grade of a person receiving an original appointment in a commissioned grade (other than a warrant officer grade) in the Regular Army such person shall be credited at the time of such an appointment with any active commissioned service (other than service as a commissioned warrant officer) that he performed in any armed force before such appointment;

	b.  The Secretary of Defense shall prescribe regulations, which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps, to authorize the Secretary of the military department concerned to limit the amount of prior active commissioned service with which a person receiving an original appointment may be credited under paragraph or to deny any such credit, in the case of a person who at the time of such appointment is credited with constructive service;

	c.   Under regulations prescribed by the Secretary of Defense, the Secretary of the military department concerned shall credit a person who is receiving an original appointment in a commissioned grade (other than a commissioned warrant officer grade) in the Regular Army and who has advanced education or training or special experience with constructive service for such education, training, or experience as follows:

		(1) One year for each year of advanced education beyond the baccalaureate degree level, for persons appointed, designated, or assigned in officer categories requiring such advanced education or an advanced degree as a prerequisite for such appointment, designation, or assignment.  In determining the number of years of constructive service to be credited under this clause to officers in any professional field, the Secretary concerned shall credit an officer with, but with not more than the number of years of advanced education required by a majority of institutions that award degrees in that professional field for completion of the advanced education or award of the advanced degree;

		(2) Credit for any period of advanced education in a health profession (other than medicine and dentistry) beyond the baccalaureate degree level which exceeds the basic education criteria for appointment, designation, or assignment, if such advanced education will be directly used by the Armed Force concerned;

		(3) Credit for experience in a health profession (other than medicine or dentistry), if such experience will be directly used by the armed force concerned; 

		(4)  Four years credit shall be granted for completion of first professional degrees that include medical (MD), osteopathy (DO), dental (DDS) or (DMD), optometry (OD), podiatry (Pod.D. or DP), veterinary (DVM), and pharmacy (Ph.D);

	d.  Additional credit, in unusual cases, based on special experience in a particular field may be granted;

	e.  Constructive service credited an officer under this subsection, in addition to any service credited, shall be credited at the time of the original appointment (in a specific Officer Corps) of the officer is to be used only for determining the officer’s initial grade; rank in grade; and service in grade for promotion eligibility;

	f.  No constructive credit may be given for more than advanced degree in a single field or closely related field; and

	g.  that the Department of Defense (DOD) regulation must be applied uniformly among the services.

21.  Department of Defense Instruction 6000.13 (Medical Manpower and Personnel), dated June 30, 1997 provides:

	a.  that the entry grade credit to be awarded shall equal the sum of constructive service credit and prior commissioned service credit;

	b.  a period of time shall be counted only once when computing entry grade credit;

	c.  Prior commissioned service credit is for service on active duty or in an active status;

	d.  Credit for active service, but not in the corps or professional specialty in which being appointed, shall be awarded at the rate of one-half day of credit for each day previously served; 

	e.  A first professional degree is defined as:  Professional degree such as medicine, osteopathy, dental, optometry, podiatry, veterinary, chiropractic, or pharmacy (Ph.D.) for which the length of post high school education must be at least 6 years; and

	f.  Credit for doctorate degrees in a health profession other than medicine and dentistry, whether it is the primary degree or an additional advanced degree, be awarded based on actual full-time equivalent education of up to 4 years for a doctorate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he should receive 4 years of additional constructive service credit for his completion of an OD degree in addition to the 4 years he has received for his MD and the 1 year, 6 months, and 2 days of prior commissioned service credit.

2.  The applicant’s MS degree was obtained concurrently with his OD degree and as such cannot be used to afford him additional constructive credit. 

3.  At the time of his initial appointment as a Medical Service Corps officer, the applicant received 4 years of constructive credit for having completed an OD degree.  He resigned his commission to accept additional training as a medical officer.

4.  Upon completion of his MD degree and initial appointment as a Medical Corps officer, the applicant was credited with 4 years for completion of his MD degree and 1 year, 6 months, and 2 days for his prior military commissioned service.  

5.  The documentation provided referencing the Air Force officers does not demonstrate a different application of the DOD constructive service credit regulation since the awards were made prior to their completion of their MD degrees.

6.  It does appear that the applicant's OD and MD degrees are related fields for which no additional credit is warranted beyond the 4 years for the completion of the MD degree. 

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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.




      _______ _ 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)                                         AR20080010194



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ABCMR Record of Proceedings (cont)                                         AR20080010194



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