IN THE CASE OF:	  

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20090001318 


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 a conditional release from the Individual Ready Reserve (IRR) so he may serve the remainder of his Armed Forces Health Professions Scholarship Program (AFHPSP) contractual obligation on active duty in the commissioned corps of the U.S. Public Health Service (USPHS).  

2.  The applicant states that the U.S. Army Human Resources Command (HRC)-St. Louis unjustly denied his request for a conditional release from the IRR.  He adds that he is unfairly bound to a contract that essentially requires nothing of him or his professional services except to remain in a static role for the next three years.  He also adds that a release from the IRR would permit him to volunteer his services, medical experience, and training for the greater good of the nation and his own professional development.  He further states that he realizes that he signed a contract obligating him to remain in the IRR until 2012; however, the Board should weigh in the fact that he intends to serve in an active status as a commissioned officer in the USPHS.  He also states that the applicable regulation expressly states that officers may submit a conditional release for the purpose of entering the Regular or Reserve component of the USPHS and that in anticipation of what should have been a routine matter and after consulting with HRC officials, he relocated his family at his own expense to Alaska.  He concludes that if he had any doubts that his request would not have been approved, he would not have relocated his family.  

3.  The applicant provides a copy of a DD Form 368 (Request for Conditional Release), dated 31 July 2008; copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 23 August 2000 and 1 July 2008; a copy of an email, dated 16 July 2008; a copy of a letter of support, dated 28 November 2008, from an optometry staff officer at the Office of the Surgeon General (OTSG); a copy of an HRC-St. Louis, undated disapproval memorandum; a copy of his USAREC Form 1131-R-E (Department of the Army Service Agreement), dated 24 August 2000; and a copy of an undated self-authored appeal memorandum, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was appointed as a second lieutenant in the Adjutant General Corps of the Regular Army and executed an oath of office on 3 June 1995.  He subsequently completed the Adjutant General Officer Basic Course and served in various command and staff assignments, including foreign service in Germany and Italy.  He was honorably discharged for miscellaneous reasons in the rank of captain (CPT)/O-3 on 23 August 2000.

2.  The applicant’s records further show that he was appointed in the USAR and executed an oath of office on 24 August 2000.  He subsequently executed a service agreement in which he agreed to enter the AFHPSP leading to a degree in optometry in exchange for an eight-year service obligation, a portion of which is an active duty obligation (ADO).  He acknowledged that he understood that in return for his 4-year scholarship in the AFHSPS, he would serve 4 years on active duty and 4 years in the IRR, unless it is mutually agreed that the portion of service in the IRR shall be served on active duty or in the Selected Reserve.  

3.  The AFHPSP is a program that offers full financial support in exchange for future service as a physician, dentist, nurse practitioner, or other specialty.  Following verification of eligibility for a commission including physical and academic qualifications, an applicant is placed on inactive Reserve status while under fully-funded training at the student's university.

4.  The applicant’s records further show he successfully completed a Doctor of Optometry degree at the New England College of Optometry on 6 June 2004 and was subsequently ordered to active duty as a CPT/O-3, Medical Services Corps (MSC), on 2 July 2004 for a period of 48 months as an obligated volunteer officer to fulfill active Army requirements.  He was assigned to the 32nd Medical Battalion, Fort Bragg, NC.  

5.  The applicant’s records also show he served in Iraq in support of Operation Iraqi Freedom from 26 November 2004 to 8 November 2005.  He also completed the Army Medical Department Captains Career Course and was promoted to major (MAJ)/O-4 on 1 August 2007.  He was honorably discharged on 1 July 2008.
6.  On 2 July 2008, the applicant was appointed as a MAJ/O-4, MSC, in the USAR Control Group (IRR).  He executed an oath of office on the same date.  

7.  On 2 July 2008, the applicant requested a conditional release from the IRR to process for entrance into another component of the Military Service.  He acknowledged that if he was a member of the National Guard or Reserve, he understood that he must attend all scheduled training until such time as he enlisted or was appointed into another Service.

8.  On 31 July 2008, by letter, HRC-St. Louis, MO, notified the applicant that his request for a conditional release was disapproved.  He was also notified that his AFHSPS contract specifically states that he would serve four years on active duty and four years in the IRR or the Selected Reserve (SELRES), unless mutually agreed that a portion of the service in the IRR would be served on active duty or in the SELRES and that his contractual agreement expires on 1 July 2012.  The letter also notified him that HRC does not approve a conditional release for contractually-obligated officers going into different services because his obligation is to the Army and not to another service.

9.  On an unknown date in 2008, the applicant appealed the decision to disapprove his conditional release.  He stated that his original request did not sufficiently highlight his desire to continue his service or divulge the financial hardships resulting from this disapproval.  He restated his original request to be released so he may transfer back to active duty as a member of the Commissioned Corps of the USPHS and that his decision to submit the request was based on substantial reliance on a career manager at HRC-St. Louis that his request would be approved.  As a result of this reliance and his own research, he accepted a position in Anchorage, AK, and relocated his family at a significant cost in anticipation of what he thought was a routine administrative request.  He also added that the governing regulation stipulates that a release is permissible and concludes that he intends to serve and utilize his expertise in the USPHS rather than staying idle in the IRR.  

10.  The applicant submitted a letter of support, dated 28 November 2008 and authored by a staff officer of the OTSG in which he recommends approval of the applicant’s conditional release.  He adds that the applicant has served honorably and completed a combat tour in Iraq.  He also states that he is fully aware of the importance of the IRR and the need to draw officers from the IRR during severe national crisis; however, he is not aware of any other optometrist who had been called to active duty from the hundreds of optometrists who have served in the IRR and that OTSG currently has 23 optometrists in the IRR who are readily available should they be needed. 

11.  The Department of Health and Human services (HHS) is the U.S government's principal agency for protecting the health of all Americans and providing essential human services, especially for those who are least able to help themselves.  Some of the Department's agencies are the National Institutes of Health (NIH), the Food and Drug Administration (FDA), the Center for Disease Control and Prevention (CSC), the Indian Health Service (IHS), and the USPHS Commissioned Corps.

12.  The USPHS Commissioned Corps is an elite team of more than 6,000 full-time, well-trained, highly-qualified public health professionals dedicated to delivering the Nation's public health promotion and disease prevention programs and advancing public health science.  Driven by a passion for public service, these men and women serve on the frontlines in the Nation's fight against disease and poor health conditions.  As one of America's seven uniformed services, the Commissioned Corps fills essential public health leadership and service roles within the Nation's Federal Government agencies and programs.  The Corps has officers in many professions, including physicians, dentists, nurses, pharmacists, engineers, dieticians, mental health specialists, psychologists, and clinical social workers.

13.  Army Regulation 135-175 (Separation of Officers) provides policy, criteria, and procedures for the separation of officers of the Army National Guard of the United States (ARNGUS) and the USAR, except for officers serving on active duty or active duty training exceeding 90 days.  Chapter 6 of this regulation prescribes the means and procedures governing the submission of resignations which may be submitted by Reserve officers of the Army.  

14.  Paragraph 6-4 of this regulation states that officers may submit a conditional resignation to obtain a conditional release for any one of the following purposes:  to apply for appointment in a regular component of another Armed Force, the Regular or Reserve component of the U.S. Public Health Service, or the Environmental Science Services Administration; or to apply for enlistment in a Regular or Reserve Component of another Armed Force. 

15.  Paragraph 6-6 of this regulation states that an obligated officer who has performed his required period of active duty or ADT may be granted a conditional release under the following conditions to apply for enlistment or appointment in a Regular component of another Armed Force, appointment in the Regular component of the U.S. Public Health Service or in the Environmental Science Services Administration, appointment in the Reserve component of the U.S. Public Health Service provided the officer has special experience or professional, educational, or technical background which is clearly of greater use to the gaining service and which outweighs the value of his previous training.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his conditional release from the IRR should be approved so he may serve his AFHPSP contractual obligation on active duty in the commissioned corps of the USPHS.

2.  The evidence of record shows that on 24 August 2000, the applicant executed a contractual agreement in which he agreed to serve four years on active duty and four years in the IRR in return for his AFHPSP scholarship.  He successfully completed his four years active duty obligation; however, he has not completed his IRR obligation.  

3.  Nevertheless, the applicant has shown a willingness to use his expertise and serve in a different capacity as a commissioned officer of the USPHS.  Additionally, the applicant had incurred a financial hardship in relocating his family to Alaska, a high-cost area.  In view of the expression of support for favorable consideration given by the OTSG staff officer, and since the applicant has already completed 4 years of active Army service, including a one-year deployment to Kuwait/Iraq, the applicant should be allowed a release from the IRR to be effective upon his acceptance into the USPHS. 

4.  The applicant has a 4-year contractual obligation to the IRR.  Therefore, as a matter of equity, his acceptance into and service as a commissioned officer of the USPHS for a period of not less than 4 years would be considered to have met the contractual obligation required by his AFHPSP contractual agreement. 

BOARD VOTE:

____x___  ____x___  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant's DD Form 368 was approved on 31 July 2008.




      _______ _   __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)                                         AR20090001318



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ABCMR Record of Proceedings (cont)                                         AR20090001318



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