IN THE CASE OF:	  

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080011756 


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 she be awarded additional constructive service credit and that her appointment orders be adjusted to show she was appointed in the Army Nurse Corps as a captain as opposed to a first lieutenant.

2.  The applicant states, in effect, that she was informed that she would enter into the Army Nurse Corps as a captain.  When she received her appointment orders, they indicated her rank as first lieutenant.  When this was questioned, she was told there was a question regarding her registered nurse time credit for the period 1999 through 2003.  She states, in effect, she was not given full time credit in order to come on active duty as a captain.

3.  In support of her request, the applicant provides a copy of her North Carolina Board of Nursing Licensure verification; a copy of her college/university transcript; a copy of her appointment memorandum, dated 2 June 2004; a copy of the DA Form 71 (Oath of Office – Military Personnel) that  was executed on 14 April 2004; a copy of her orders to active duty, with amendment; and a copy of orders announcing her grade determination and date of rank.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 


Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show she was appointed a first lieutenant in the Army Reserve, on 14 April 2004, in the Army Nurse Corps branch.

3.  Transcripts provided by the applicant show she was awarded a Bachelor of Science in Nursing degree by Western Carolina University, Cullowhee, North Carolina, on 7 May 1988.

4.  The copy of the North Carolina Board of Nursing Licensure verification the applicant submitted in support of her request shows she was originally granted licensure as a registered nurse on 27 March 1989.

5.  On 14 April 2004, the applicant executed the oath of office.  The DA Form 71 that was completed to document the execution of the oath of office shows she was appointed in the rank of first lieutenant.

6.  On 2 June 2004, Orders A-06-491218 were published by the US Army Human Resources Command, St. Louis, Missouri.  The applicant was ordered to active duty on 1 October 2004 for 36 months to fulfill her active Army requirement.  The additional instructions in these orders include the following statements, "The officer was boarded, selected and is being accessed onto active duty with the Area of Concentration (AOC) 66H." and "You are appointed in the Reserve Grade of 1LT and placed on the active duty list in the grade of 1LT in accordance with (IAW) AR 135-101.  DOR is to be adjusted based on constructive credit of 03 years, 00 months, 00 days and phase point of 01 years, 06 months, 00 days.  (DOR TBD after EAD IAW AR 624-100.)"

7.  A search of the applicant's records did not contain, and she did not submit, a copy of a DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)) [the applicable DA form for the applicant's appointment as an Army Nurse] to show the source of her constructive service credit.


8.  In the applicant's copy of the Memorandum, Subject:  Appointment as a Reserve Commissioned Officer of the Army Under Title 10 United States Code 12201 and 12203, dated 2 June 2004, she was advised she was being appointed in the rank of first lieutenant.  She was further advised she had been credited with 3 years, 00 months, and 00 days of constructive credit.  This constructive service credit, she was further advised was not valid for pay entry basic date and is not the result of prior military service.

9.  On 3 November 2004, Orders number 308-001 were published by the US Army Human Resources Command, Alexandria, Virginia.  These orders announced the applicant's grade of rank determination and established her date of rank as 1 January 2003.

10.  In the processing of this case, an advisory opinion was requested of the US Army Recruiting Command, the Medical Recruiting Brigade, Fort Knox, Kentucky.

11.  On 14 October 2008, the US Army Recruiting Command, the Medical Recruiting Brigade, Active Duty Nurse Program Manager, provided an advisory opinion.  The program manager, stated that the applicant had been board selected for the Regular Army Nurse Corps on 24 February 2004 in the rank of first lieutenant with constructive credit awarded for her registered nurse experience in the amount of 3 years, 00 months, and 00 days.  She did not meet any of the conditions to receive constructive credit for prior commissioned service or possess a nursing degree higher than a bachelor of science in nursing.

12.  The Active Duty Nurse Program Manager added that registered nurse work experience is earned for full-time employment from the date of initial licensure up to the board selection date at a ratio of one day for each two days up to a maximum of three years credit.  The applicant had stated she had 15 years of registered nurse experience; however, she could not earn any more than three years work experience constructive service credit in accordance with Army Regulation 135-101.

13.  The advisory opinion was forwarded to the applicant for acknowledgement or rebuttal on 1 August 2008.  On 29 December 2008, the applicant acknowledged the advisory opinion and stated she understood the recommendation was unfavorable toward her case but did not plan to submit a rebuttal.

14.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches), prescribes the policies, 


procedures, and eligibility criteria for the appointment of commissioned officers in the Reserve in the six branches of the Army Medical Department (AMEDD).  This regulation specifies that 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.  Individuals appointed in the Army Nurse Corps may receive two years constructive service credit for a master's degree in nursing.  No credit is authorized for a bachelor's degree in nursing.  Individuals may also receive one half year credit for each year of education or experience up to a maximum of 3 years credit.  Constructive service credit will be granted for periods of professional training and experience accrued after receipt of the basic qualifying degree.  Entry grade credit of 3 years or more, but less than 7 years, provides the entry grade of first lieutenant.  Authorized credit in excess of the minimum required for appointment to the appropriate grade will be used to adjust the date of rank within the grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should have been awarded 7 1/2 years constructive service credit and appointed in the rank of captain as opposed to first lieutenant; however, the applicable regulation imposes a limitation on the constructive service credit that can be awarded for professional experience to individuals appointed in the Army Nurse Corps.  The regulation states that individuals may receive one half year credit for each year of education or experience up to a maximum of 3 years credit.

2.  Constructive service credit will be granted for periods of professional training and experience accrued after receipt of the basic qualifying degree.  Entry grade credit of 3 years or more, but less than 7 years, provides the entry grade of first lieutenant.  

3.  It appears from all available evidence, including the advisory opinion received from the Active Duty Nurse Program Manager, the applicant was awarded the maximum allowable constructive service credit for her professional work experience and as such was correctly appointed in the Army Nurse Corps in the rank of first lieutenant.

4.  In view of the circumstances in this case, the applicant is not entitled to award of additional constructive service credit and an adjustment of her appointment rank from first lieutenant to captain.


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)                                         AR20080011756





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ABCMR Record of Proceedings (cont)                                         AR20080011756



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