IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20080019209 


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 awarded additional constructive credit based on his professional experience and that his rank be adjusted accordingly.

2.  The applicant states that he entered the Reserves in 1990 and had been a Registered Nurse for 9 years.  He points out that he had a master's degree in education, had worked in the operating room for 8 years, and was appointed in the Army as a 66E (Operating Room Nurse).  

3.  The applicant provides a copy of his DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)); his Reserve appointment memorandum, dated 29 January 1990; his Bachelor of Science in Nursing diploma, dated 11 August 1980; and his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.  

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 was awarded a Bachelor of Science Degree in Nursing in 1980.  

3.  He was registered to practice as a Registered Nurse in the State of North Carolina on 17 March 1981.

4.  The applicant was awarded a Master of Arts Degree in Education Administration in May 1984.

5.  The applicant's DA Form 5074-1-R, dated 2 February 1990, shows he was awarded 3 years of credit based on his professional experience from June 1981 to January 1990.  His entry grade was determined to be first lieutenant based on a total of 3 years of constructive credit.  

6.  The applicant was appointed as a Reserve commissioned officer in the Army Nurse Corps on 20 April 1990 in the rank of first lieutenant.  His appointment memorandum from the U.S. Total Army Personnel Command, St. Louis, MO, shows his specialty as 66E and he was awarded 3 years of constructive credit.

7.  The applicant was licensed as a Registered Nurse in the state of Pennsylvania on 8 February 1991.  

8.  In the processing of this case, a staff advisory opinion was obtained from the Army Reserve Nurse Program Manager, Medical Recruiting Brigade, Fort Knox, KY.  The opinion stated that the applicant's original constructive credit awarded on 2 February 1990 was accurate based on Army Regulation 135-101, dated 15 February 1984 and Title 10, Department of Defense Instruction (DODI) 6000.13, dated 30 June 1997.  The opinion referenced DODI 6000.13, paragraph 6.1.2.2.5 which states "credit of one-half for each year of experience, up to a maximum of three years of constructive credit, may be granted for experience as a health professional.  Only full time work experience as a licensed registered nurse through the nurse selection board date is creditable."  

9.  A copy of the advisory opinion was forwarded to the applicant for possible rebuttal.  The applicant provided a rebuttal to the advisory opinion on 2 April 2009 with supporting documents.  He referenced Army Regulation 135-101 which states that entry grade credit of 7 years or more, but less than 14 years will be appointed as a captain.  He did not believe that DODI 6000.13 applied to him because it was dated 30 June 1997, which is after he entered the Army Reserves.  He stated that he was appointed under Department of the Army (DA) Circular 601 series, which indicated that operating room nurse (66E) positions would be appointed as a captain.  He was licensed as a Registered Nurse in 1981, which was 9 years prior to his commission.  He alleged that he was not given credit for having an advanced degree in a related subject.  He received a Master of Arts Degree in Education Administration in 1984.  This course of study included leadership, psychology, and education which are related to nursing.  Also, he stated that a major part of his job was orientation of nurses and interns to the operating room.  He alleged that he was not given credit for continued education beyond his Master of Arts and should have been appointed as a captain or a major.  

10.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches), effective 15 February 1984, 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 branch will be determined by the number of years of entry grade credit awarded.  Except as limited by maximum credit limits, entry grade credit granted will be the sum of constructive service credit and the credit for prior active commissioned service.  Additional credit may be granted in unusual cases based on special education or professional experience in the specialty in which assigned when experience is accrued after qualifying degree and licensure, if applicable.  

11.  Army Regulation 135-101 states, in pertinent part, that the grade of an individual appointed as a Reserve officer without concurrent call to active duty and awarded 3 years or more, but less than 7 years of entry grade credit will be appointed as a first lieutenant.  This regulation states the maximum entry grade credit for appointment in the Army Nurse Corps, Medical Service Corps, Veterinary Corps, or Army Medical Specialist Corps, entry grade credit granted (with or without concurrent active duty) will be more than the amount required for entry grade 04 as if the officer were to be concurrently called to active duty in the corps concerned.  Table 3-4 lists Education as an advanced degree that may qualify for additional constructive credit for Medical Corps and Dental Corps officers only unless approved by the Secretary of the Army or designee on a case-by-case basis.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statements were carefully considered.  However, the evidence of record shows he received the appropriate amount of constructive credit based on his professional experience as a Registered Nurse from 1981 to 1990.  

2.  The applicant is correct regarding his statement that DODI 6000.13 did not apply to him because it was dated 30 June 1997 after he entered the Army Reserves.  He also claimed that he was appointed under DA Circular 601 series.  In the absence of a copy of DA Circular 601 series in effect at the time, it is presumed that the applicant received the appropriate amount of constructive credit for his professional experience as a Registered Nurse.  

3.  The applicant stated that he was not given credit for having an advanced degree (Master of Arts Degree in Education Administration) in a related subject.  However, the governing regulation in effect at the time provided for additional constructive credit for advanced degree in Education for Medical Corps and Dental Corps officers only unless approved by the Secretary of the Army or designee on a case-by-case basis.  Therefore, there is no evidence of record which indicates he qualified for additional constructive credit for his master's degree in Education.  

4.  The applicant's DA Form 5074-1-R shows he was awarded 3 years of credit for his professional experience from 1981 to 1990.  As a result, his entry grade was determined as first lieutenant.  

5.  The applicant was appointed in the Army Reserve on 20 April 1990 in the rank of first lieutenant with 3 years of constructive credit.

6.  Based on the evidence of record, there is no error or injustice that exists in this case regarding the maximum amount of constructive credit to which the applicant was awarded.  Therefore, there is no basis for granting the applicant additional constructive credit or adjusting his rank.

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)                                         AR20080019209



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ABCMR Record of Proceedings (cont)                                         AR20080019209



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