IN THE CASE OF:	  

		BOARD DATE:	        5 May 2009

		DOCKET NUMBER:  AR20080016621 


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 that his date of rank (DOR) to first lieutenant be adjusted to 8 May 2006.

2.  The applicant states, in effect, that he was commissioned a second lieutenant in the Army National Guard as a Military Police Officer on 8 May 2004, that he was promoted to first lieutenant on 8 May 2006, and that he subsequently transferred to the U.S. Army Reserve (USAR) in September 2006 in order to serve as a military technician in the 399th Combat Support Hospital.  He states that as a condition of his employment as a dual status employee, he was required to become qualified in a position in the unit.  As such, he was required to branch transfer into the Medical Service Corps (MSC).  He indicates that he submitted a packet through the health care recruiter and was boarded into the MSC in January 2007.  He states that he was told he required a new commission and he executed a new DA Form 71 (Oath of Office) on 16 March 2007.  He was then reduced in rank to second lieutenant with a DOR of 4 November 2005.  He indicates that he was promoted again to first lieutenant on 4 November 2007.  He contends the MSC only provided half credit for his prior commissioned service.     

3.  The applicant also states that this is a grave injustice of an officer to be reduced in rank for merely wanting to continue to serve.  He claims that he was told by a different health care recruiter that a "highest grade held waiver" should have been done on him but his health care recruiter failed to do so.  He contends that he has attempted to correct this through the health care recruiters and the Human Resource Command but was told there was nothing they could do now.  He points out that Reserve officers are now promoted to first lieutenant after 
18 months, that nurses and other specialties are brought into the Army Medical Department (AMEDD) with no military experience as a senior first lieutenant, and that it seems his prior commissioned service as a military police platoon leader and company executive officer make him less of a Soldier and officer in the eyes of the MSC.  He states that he has more military service and commissioned service than any of his comparable peers or even some captains currently in his unit but he will have to wait two more years to be eligible for captain.  He further states that it "does not seem that entry grade or rank and DOR determinations for MSC officers are prejudicial toward those with prior commissioned service."   

4.  The applicant provides promotion orders; Federal Recognition orders; a memorandum, dated 2 June 2006; reassignment orders; a memorandum, dated 16 March 2007; a DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)); and two DA Forms 71 in support of his application.   

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant in the Army National Guard on 8 May 2004 as a Military Police Corps officer.  He was promoted to first lieutenant on 8 May 2006.  

2.  On 15 September 2006, the applicant was separated from the Army National Guard and transferred to the USAR.  On 21 September 2006, he was reassigned from the USAR Control Group (Reinforcement) to an Active Guard Reserve (AGR) status.  

3.  On 16 March 2007, the applicant was appointed a second lieutenant in the MSC with 1 year, 4 months, and 11 days of constructive credit.  His DOR was adjusted to 5 November 2005.       
  
4.  On 4 October 2007, the applicant was promoted to first lieutenant and given a DOR of 4 November 2007.

5.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army Promotions, U.S. Army Human Resources Command, St. Louis, Missouri.  The opinion states that the applicant was  appointed an MSC officer on 16 March 2007 with 1 year,              4 months, and 11 days of constructive credit, adjusting his DOR to second lieutenant to 5 November 2005.  Since he was credited with constructive credit as an MSC, he loses any time in grade in the former branch due to constructive credit.  The applicant was considered and selected by the Administrative Selection Board that was held on 1 September 2007, he was promoted to first lieutenant on 
4 October 2007 and given a DOR of 4 November 2007.  Therefore, an earlier DOR is not recommended by that office.    

6.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 8 March 2009, the applicant responded.  In summary, he stated that the advisory opinion is not reflective of the entire situation, that it contained errors, and that it failed to discuss the awarding of his constructive credit (how it was calculated and processed for consideration of a waiver for current grade held).  He contended that the awarding of his constructive credit was in error, that he failed to be considered for a waiver as authorized by Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches), and that his reduction in rank from first lieutenant to second lieutenant was a grave injustice. 

7.  The applicant states that when he was boarded and selected as an MSC officer, he had previously been serving in an MSC position as a 70B Field Medical Assistant and his position assignment date is listed as 1 November 2006 on his personnel qualification record.  He points out that this date is before he was boarded for consideration as an MSC officer and prior to his commission.  His Officer Evaluation Report for the period 16 September 2006 to 16 March 2007 reflects that he served as a Field Medical Assistant.  He indicates that his reassignment as a MSC officer assigned him to the same position to which he had previously been assigned.  He contends that during his processing for appointment, he should have been considered for a current grade held waiver in accordance with Army Regulation 135-101, paragraph 1-3a(1) as he was serving in the specialty to which appointed (70B).  He was eligible and should have been considered for appointment in his current grade and DOR.  He states that failure to be considered for a current grade held waiver resulted in his reduction from first lieutenant to second lieutenant.  He claims the MSC was the only branch that provided for 1/2 credit of prior commissioned service upon appointment.   

8.  The applicant also states that the Department of the Army and the Surgeon General's Office appear to concur that this is an injustice.  On 11 September 2008, the Assistant Secretary of the Army approved a new policy that abolished the half credit penalty for branch transfer into the MSC.  An information paper published by the Surgeon General's Office, dated 1 July 2008, discusses this new policy.  While only retroactive to 24 April 2008, it highlights the injustices of the previous policy and provides that previously reappointed officers "seek relief" through the Army Board for Correction of Military Records.

9.  The applicant asks the Board to first consider the fact that he was eligible to be appointed in his current grade in accordance with Army Regulation 135-101, paragraph 1-3a(1) and failed to be considered for such.  If the Board fails to find that administrative error sufficient to grant relief, he hopes the Board will consider the injustice of losing half of his commissioned service and being reduced in rank, especially since that policy was rescinded a year later.  He claims that if he had been retained in his current grade and DOR, he would have been eligible for the Captain Board that met on 7 January 2009.  He indicates that without relief granted he must wait until 2011 to be eligible for consideration to captain.

10.  In support of his rebuttal to the advisory opinion, the applicant provided a letter of support from the Commander of the 399th Combat Support Hospital; a letter from an AMEDD recruiter of the Boston Medical Recruiting Station who states that the applicant should have been considered for a current grade held waiver in accordance with Army Regulation 135-101, paragraph 1-3a(1); his personnel qualification record; three Officer Evaluation Reports; reassignment orders; an excerpt from Army Regulation 135-101; an information paper on entry grade credit policy; and a memorandum, dated 11 September 2008, from the Office of the Assistant Secretary of Manpower and Reserve Affairs implementing the waiver of constructive credit provisions.     

11.  Paragraph 6.1.1.2. of Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and Personnel), dated 30 June 1997, states that service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, but not in the corps or professional specialty in which being appointed, shall be awarded one-half day of credit for each day served in the case of individuals seeking an original appointment as a health professions officer. 

12.  Paragraph 1-3a of Army Regulation 135-101 states that commissioned officers of any Reserve Component of the Army who have served satisfactorily in the specialty for which they are applying may be appointed and/or called to active duty under either (1) or (2) below, whichever selection would result in a higher grade or greater promotion service on the date of appointment.  Paragraph 
1-3a(1) of this regulation states that commissioned officers may be appointed or called to active duty in the grade currently held if serving in the specialty for which applying.

13.  The applicant provided a memorandum, dated 11 September 2008, from the Office of the Assistant Secretary of Manpower and Reserve Affairs which implemented the waiver of constructive credit provisions of DODI 6000.13, paragraph 6.1.1.2 and related provisions of Army Regulation 135-101, Table 3-2.  The implementing guidance states, in pertinent part, that pending revision of DODI 6000.13 and Army Regulation 135-101, The Surgeon General is authorized to waive constructive credit restrictions in DODI 6000.13, paragraph 6.1.1.2, and Army Regulation 135-101, Table 3-2, and to award day-for-day credit for reappointment of commissioned officer of any Uniformed Service into the AMEDD provided the following conditions were met:  (1) prior commissioned service must be on active duty or in active status as a commissioned officer; or (2) the functions to be performed by the officer are not those unique to the healthcare profession or those performed by only healthcare professional officers.  This policy applies to eligible officers applying for reappointment after 24 April 2008.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were considered.  However, the applicant has not been treated any differently than any other MSC officer with regard to his entry grade credit or constructive credit.  Evidence of record shows he was credited with constructive credit for his prior commissioned service as a Military Police Corps officer during the period 8 May 2004 to 16 March 2007 and his second lieutenant DOR was therefore adjusted to 5 November 2005 at the appropriate rate of one-half day for each day served.  Based on the foregoing, there is no basis for granting his request.      

2.  The applicant's contention that he should have been considered for appointment in the highest grade he previously held was carefully was considered.  However, evidence of record shows the applicant's original branch of service was the Military Police Corps and he applied for and was reappointed in the MSC.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that he served in the MSC specialty prior to his reappointment into the MSC Branch and as such, he is not entitled to appointment at the highest grade held.  Additionally, the applicant was awarded constructive credit for his previous service and awarding him the highest grade held would give him credit for promotion purposes that he did not earn.  Based on the foregoing, there is no basis to grant the applicant's request for amendment of his records to show the highest grade held.

3.  The applicant's contention regarding the new policy that abolished the half credit penalty for branch transfer into the MSC was also considered.  However, this policy applied to eligible officers applying for reappointment after 24 April 2008 and his circumstances are no different from anyone who was similarly reappointed before the effective date of the new policy.  






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)                                         AR20080016621



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016621



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1