IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090003377 


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.  recalculation of the constructive credit on his DA Form 5074-4R (Record of Award of Entry Grade Credit (Medical and Dental Officers)), dated 13 April 
2000 to show additional commissioned officer service for the period 
7 November 1992 through 4 March 1994; and 
   
   b.  correction of his date of rank (DOR) to major (MAJ) to reflect the additional service credit.

2.  The applicant states that at the time his DA Forms 5074-4R was completed his appointment to MAJ erroneously omitted his prior commissioned officer service for the period 7 November 1992 through 4 March 1994.  The applicant further states that his DOR should be earlier than originally calculated.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 March 1994 and his DA Form 5074-4R, dated 13 April 2000 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.  On 8 June 1979, the applicant was appointed as a Reserve Commissioned Officer of the Army at the rank of second lieutenant (2LT) in the Military Intelligence Branch.  He entered active duty on 23 September 1979.  He was promoted to the rank of captain (CPT) on 1 August 1983.

3.  The applicant was accepted to attend the Uniformed Services University of the Health Sciences (USUHS) as a student.  On 18 July 1988, he relinquished his captaincy and he was appointed as a 2LT in the Medical Service Corps (MSC) on 19 July 1988 for a period of 4 years.

4.  The applicant's military records contain:

	a.  a DA Form 1059 (Service School Academic Evaluation Report) shows his first year at the USUHS course began on 24 June 1989.  He achieved course standards for the period 24 June 1989 through 3 August 1990;

   b.  a DA Form 1059 shows that in his third year in the USUHS course he failed to achieve course standards for the period 19 June 1991 through 6 November 1992;  

   c.  a memorandum from the Dean of Military Medicine Education Institute, USUHS, dated 13 November 1992, notified the applicant that he was being disenrolled from the USUHS course; and 

   d.  two DA Forms 67-8 (Officer Evaluation Report) for the periods
7 November 1992 through 6 November 1993 and 7 November 1993 through 
14 February 1994 show that after the applicant's disenrollment from the USUHS, he was assigned to Walter Reed Army Medical Center (WRAMC) where he performed duties in the medical center G-2/3 section.


5.  On 4 March 1994, the applicant was honorably released from active duty under the provisions of Army Regulation 635-100 (Personnel Separations - Officer Personnel), Chapter 3 (Release from Active Duty of Non-Regular
Commissioned and Warrant Officers) by reason of miscellaneous/general reasons in the rank of 2LT.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his Reserve obligation.

6.  Item 11 (Primary Specialty) of the applicant's DD Form 214 for the period ending 4 March 1994 shows he served as a 67B (Field Medical Assistant).  Item 12c (Net Service This Period) shows the entry "05" Year(s), "7" Month(s), and "16" Day(s).

7.  On or about 29 December 1995, the applicant received his medical degree.

8.  Part I – Constructive Service Credit of the applicant's DA Form 5074-4R, dated 13 April 2000, shows the following:

   a.  Section A - Credit for Basic Qualifying Degree shows the applicant was awarded 4 years credit for the period 1 August 1988 to 29 December 1995;

	b.  Section B - Credit for Internship shows the applicant was awarded 1 year credit for the period 1 July 1996 to 30 June 1997;

	c.  Section C - Credit for Graduate Professional Education shows the applicant was awarded 3 years credit for the period 1 July 1997 to 30 June 2000 

9.  Part II - Prior Active Commissioned Service Credit of the DA Form 5074-4R, shows in Section B - Credit for Service as Other Than Medical or Dental Officer that the applicant was awarded 4 years, 4 months, and 28 days credit for the period 23 September 1979 to 18 July 1998.

10.  Part III - Computation of Entry Grade and Date of Rank shows the applicant was awarded a total of 12 years, 4 months, and 28 days of constructive credit for entry grade determination (2 years, 4 months, and 28 days in excess of that required for his grade).  His DOR to MAJ was determined to be 18 February 1998 (2 years, 4 months, and 28 days prior to his appointment date).  He was not awarded constructive credit for commissioned service after his disenrollment from the USUHS for the period 7 November 1992 through 14 February 1994
(1 year, 3 months, and 8 days) [totaling 7 months and 19 days of 1/2 day credit].



11.  U. S. Total Army Personnel Command, Alexandria, VA, Orders 250-002, dated 6 September 2000, show that the applicant was promoted to the rank/
grade of MAJ/O-4, Medical Corps (MC).  His adjusted DOR to MAJ was
18 February 1998.

12.  U.S. Army Human Resources Command, St. Louis Orders B-09-805984, dated 18 September 2008, show that the applicant was promoted to the rank/
grade of lieutenant colonel (LTC)/O-5, MC.  His DOR was 20 August 2008.

13.  In the processing of this case, on 21 April 2009, an advisory opinion was obtained from the Program Manager, Graduate Medical Education Division, Office of The Surgeon General (OTSG), Falls Church, VA who recommended approval of the applicant's request.  The advisory official stated, "LTC D------ has provided an additional DD [Form] 214 that was not provided when the original DA Form 5074-4R calculation was made upon his entry onto Active Duty as a Medical Corps Officer upon completion of his residency training in the Financial Assistance Program (FAP) in June 2000.  The additional DD [Form] 214 indicates time spent in the Medical Service Corps from 1988 to 1994 (5 years,
7 months).  DoD [Department of Defense] Instruction 6000.13 is the governing Directive.  Paragraph 6.1.1.2 states that "Service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, but not 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."  "Based on the additional information, it is the recommendation that LTC D------ be granted an additional
2 years and 10 months of credit towards his date of rank."

14.  On 3 June 2009, a copy of the advisory opinion was emailed to the applicant for information and to provide him the opportunity to submit comments or a rebuttal.  On 8 June 2009 the applicant concurred with the advisory opinion.

15.  DOD Instruction 6000.13, dated 30 June 1997, implements the policies, assigns responsibilities, and prescribes procedures to carry out medical manpower and personnel programs.  Paragraph 6.1 states that the entry grade credit to be awarded shall equal the sum of constructive credit and prior commissioned service (as allowed in the Instruction) credit except in cases where the total exceeds the maximum credit allowed.  A period of time shall be counted only once when computing entry grade credit.




16.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) states, in pertinent part, that a special selection board (SSB) will convene to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records through error, were not submitted to a mandatory promotion selection board for consideration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the constructive credit on his DA Form 5074-4R, dated 13 April 2000, should be recalculated to show additional prior commissioned officer service for the period 7 November 1992 through 4 March 1994 and adjustment of his DOR to MAJ to reflect the additional service credit.

2.  Notwithstanding the favorable recommendation submitted by the OTSG that the applicant be granted an additional 2 years and 10 months of constructive credit towards his DOR to MAJ, DOD Instruction 6000.13, paragraph 6.1 states that a period of time shall be counted only once when computing entry grade credit.  Dual credit for the same period of time is not authorized.  The applicant's DA Form 5074-4R shows he was awarded constructive credit for the period
1 August 1988 through 29 December 1995 towards receiving his medical degree.

3.  Evidence of record shows that the applicant was awarded a total of 12 years, 4 months, and 28 days of constructive credit for entry grade determination 
(2 years, 4 months, and 28 days in excess of that required for his grade).  His DOR to MAJ was determined to be 18 February 1998 (2 years, 4 months, and 
28 days prior to his appointment date).  However, he was not awarded prior commissioned service credit for the period 7 November 1992 through
14 February 1994 (1 year, 3 months, and 8 days) after his disenrollment from the USUHS course, but before he began his internship.  There is sufficient evidence to show he performed duties in an active status from 7 November 1992 through 14 February 1994.  Therefore, the applicant's DA Form 5074-4-R should be corrected to add an additional 7 months and 19 days of constructive credit, totaling his prior commissioned service to 3 years and 17 days.  Additionally, his DOR to MAJ should be adjusted to 30 June 1997.

4.  Evidence of record shows that the applicant was promoted to LTC with a DOR and effective date of 20 August 2008.  Due to the applicant's adjusted MAJ DOR he would have been eligible for promotion consideration to LTC at an earlier date.  Therefore, he should be considered by an SSB for promotion consideration to LTC as a result of his adjusted DOR to MAJ.



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:

	a.  correcting his military records to show he was awarded 3 years and 
17 days of additional constructive credit, thereby, adjusting his DOR to MAJ to
30 June 1997; and

	 b.  after determining when he would have been eligible promotion to LTC based upon his new MAJ DOR, submitting his records to a duly constituted SSB for promotion consideration to LTC under the appropriate criteria.



      ___________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)                                         AR20090003377



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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