BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090004900 


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 correction of her records as follows:

	a.  Award of 2 years, 10 months, and 4 days of constructive service credit (CSC) instead of 10 months and 4 days; 

	b.  The issuance of a new appointment memorandum showing she was appointed as a first lieutenant (1LT) in the Wisconsin Army National Guard (WIARNG) instead of a second lieutenant (2LT) effective 15 June 2005 and with a date of rank (DOR) of 11 August 2004; and 

	c.  Promotion to captain (CPT) with an effective date and DOR of 11 August 2006 instead of the current 12 January 2009.

2.  The applicant states the following:

	a.  Her initial Federal Recognition Board (FRB) was conducted on 14 June 2005 and she executed an oath of office on 15 June 2005.  She was subsequently awarded only 10 months and 4 days of CSC for her professional experience and that based on this credit, she was appointed as a 2LT in the WIARNG.  However, she did not receive timely Federal recognition for her initial appointment.  She was again considered by a second FRB on 30 March 2006 and executed a second oath of office on 13 March 2006.  She was ultimately issued Federal recognition orders for her initial appointment as a 2LT effective
30 March 2006. 
	b.  As a result of the untimely permanent Federal recognition for initial appointment, she petitioned the Army Board for Correction of Military Records (ABCMR) for correction of her records.  The ABCMR rendered a favorable decision on 20 March 2007 by recommending her Federal recognition orders be amended to show she was extended Federal recognition as a 2LT effective 15 June 2005.  As a result, on 28 September 2007, her Federal recognition orders were amended as such.

	c.  The initial CSC was incorrectly calculated because it failed to award her 24 months of CSC for completion of a Masters Degree as shown on the National Guard Bureau (NGB) memorandum, dated 30 March 2007.  Her total CSC should have been 2 years, 10 months, and 4 days which would have resulted in her initial appointment as a 1LT instead of a 2LT and an earlier subsequent promotion to CPT.

3.  The applicant provides the following additional documentary evidence in support of her request:

	a.  A copy of the original ABCMR Record of Proceedings, dated 20 March 2007.

	b.  A copy of the NGB memorandum, dated 30 March 2007, Subject: Guidance for Commissioning and Awarding Constructive Credit (CC) for Army Medical Specialist Corps (SP) Officers.

	c.  A copy of a DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)), dated 20 July 2005.

	d.  A copy of her DA Form 71 (Oath of Office-Military Personnel), dated 13 March 2006.

	e.  An NGB Form 337 (Oaths of Office), dated 13 March 2006.

	f.  Orders 126-700, issued by the Joint Forces Headquarters, WIARNG, on 6 May 2006.

	g.  An NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 14 June 2005.

	h.  Copies of NGB Special Orders Number 127 AR, dated 16 May 2006;
236 AR, dated 28 September 2007; and 12 AR, dated 14 January 2009.


CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show she submitted an application for Federal recognition as an ARNG officer on 3 November 2004. On her application, she indicated that she completed a Bachelors Degree in Micro-Biology at the University of Wisconsin, Madison, WI, on 21 May 200; and a Masters Degree as a Physician Assistant at Barry University, Miami, FL, on 14 December 2002.

2.  On 15 June 2005, the Director of Health Services sent a memorandum to the NGB stating that the applicant was selected by the 14 June 2005 Army Medical Department (AMEDD) Accession Board in AOC (Area of Concentration) 65D (Physician Assistant) without concurrent call to active duty.

3.  On 14 June 2005, an FRB was held by the WIARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated that the applicant was satisfactory in her physical qualifications, moral character, and general qualifications.

4.  On 15 July 2005, the applicant executed an oath of office in the WIARNG and on 19 July 2005, the Joint Forces Headquarters, published Orders 200-701, appointing the applicant in the WIARNG, effective 15 July 2005.

5.  On 20 July 2005, the applicant was issued a DA Form 5074-1-R awarding her 10 months and 4 days of CSC for her National Commission on Certification of Physician Assistants (NCCPA) License.  This form did not grant her credit for a Masters Degree.

6.  On 7 November 2005, a second DA Form 5074-1-R was issued, awarding her 10 months and 4 days of CSC for her NCCPA License.  This form did not grant her credit for a Masters Degree.

7.  On 3 February 2006, the applicant completed the AMEDD Officer Basic Course at Fort Sam Houston, TX, and on 15 March 2006, by memorandum, her servicing personnel office requested she be awarded SP branch and primary AOC (Area of Concentration) of 65D.

8.  On 27 March 2006, a second FRB was held by the WIARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated that the applicant was satisfactory in her physical qualifications, moral character, and general qualifications.  

9.  On 13 March 2006), the applicant executed a second oath of office, and on 6 May 2006, the Joint Forces Headquarters, WIARNG, published Orders       126-700, appointing the applicant in the WIARNG as an SP 2LT effective 30 March 2006.

10.  On 16 May 2006, the NGB published Special Orders Number 127 AR extending the applicant Federal recognition for permanent initial appointment as a 2LT effective 30 March 2006 and with a DOR of 11 September 2004.

11.  On 20 March 2007, subsequent to the applicant's petition, the ABCMR rendered a favorable decision of her petition and recommended her records be corrected to show her initial Federal recognition orders should be amended to show she was extended Federal recognition effective 15 June 2005 in the grade of second lieutenant.

12.  On 4 January 2007, prior to executing the ABCMR's recommendation, the NGB published Special Orders Number 2 AR extending the applicant Federal recognition for promotion to 1LT with an effective date and DOR of 11 September 2006.

13.  On 28 September 2007, the NGB published Special Orders Number 236 AR amending the effective date of her initial appointment from 30 March 2006 to 15 June 2005.

14.  On 18 December 2008, an FRB was held by the WIARNG to determine if the applicant was qualified to be awarded Federal recognition for promotion to CPT.  The proceedings indicated that the applicant was satisfactory in her physical qualifications, moral character, and general qualifications.

15.  On 14 January 2009, the NGB published Special Orders Number 12 AR extending the applicant Federal recognition for promotion to CPT effective 12 January 2009.

16.  In the processing of this case, an advisory opinion was received on
17 September 2009.  The Chief of Personnel Division, NGB, recommended approval of the applicant’s request to adjust her DORs and corresponding retroactive payment be awarded commensurate with rank and appointment/
promotion dates. The advisory official adds that the applicant's initial DOR should have been 11 August 2004.  The recommendation is supported by the email, dated 25 August 2009, from the Chief, Surgeons Division, Office of the Surgeon General (OTSG).  The email states that at the time the applicant was appointed, she had completed her Masters Degree in Physician Assistant Studies and in 
accordance with the NGB memorandum, dated 30 March 2007, she should have received 24 months of constructive credit for her civilian education and
10 months and 4 days for her professional experience, for a total of 2 years,
10 months, and 4 days.  The phase line for appointment as a 1LT is 2 years and, as a result, the applicant should have been appointed as a 1LT with a DOR of
11 August 2004 with subsequent promotion to CPT with a DOR of 11 August 2006.

17.  On 17 September 2009, the applicant was provided with a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  However, to date, she has not responded.

18.  NGB Memorandum, dated 30 March 2007, Subject: Guidance for Commissioning and Awarding Constructive Credit (CC) for Army Medical Specialist Corps (SP) Officers, provided guidance and clarification on the OTSG commissioning guidance for SP officers to ensure the appropriate constructive credit is awarded for education.  It states that CSC will be awarded to officers for AOC education completed prior to their accession.  CSC will be awarded based on the graduate degree held by the applicant at the time of appointment.  Based on the current force structure of the ARNG, this memorandum is predominantly applicable to Physical Therapists (65B) and Physician Assistants (65D).  For Physician Assistants (65D), Inter-service Physician Assistants Program (IPAP), the following guidance is provided:

	a.  Enlisted Soldiers who graduate from Phase 2 of IPAP will be awarded 24 months of CSC for successful completion of IPAP Masters Degree and passage of the Physician Assistant National Certifying Examination.

	b.  Officers will be awarded CSC for advanced degree attained before appointment on a case-by-case basis only if in conjunction with this guidance, but CSC will not exceed 24 months for a Masters Degree, 36 months for a Clinical Doctorate Degree, or 48 months for a PhD (Doctor of Philosophy).

19.  The effective date for implementing the SP CSC policy guidance was 1 October 2001 based on prior direction from the OTSG to implement Department of Defense Directive (DODI) 6000.13, including CSC for education.  IPAP Class 1-03 with a graduation date of 14 June 2005 was the first IPAP class affected by this guidance.  The NGB Office of the Surgeon General will assist SP Corps officers who entered the ARNG on or after 1 October 2001 with correction of their records if they were not given appropriate CSC in accordance with this guidance and DODI 6000.13 at the time of commissioning.

20.  DODI 6000.13 (Medical Manpower and Personnel), paragraph 6.2.2, states that a former Regular or Reserve commissioned officer may, if otherwise qualified, be appointed or reappointed as a Reserve officer.  If so appointed, he or she may be (paragraph 6.2.2.2) credited, for determining date of rank under section 741(d) of Title 10, U.S. Code, with service in grade equal to that held by that person when discharged or separated.

21.  Title 10, U.S. Code, section 741(d) states that the DOR of an officer of the Army, Navy, Air Force, or Marine Corps who holds a grade as a result of an original appointment shall be determined by the Secretary of the military department concerned at the time of such appointment.  The date of rank of an officer of the Army, Navy, Air Force, or Marine Corps who holds a grade as the result of an original appointment and who at the time of such appointment was awarded service credit for prior commissioned service or constructive credit for advanced education or training or special experience shall be determined also as to reflect such prior commissioned service or constructive service.  Determinations by the Secretary concerned under this paragraph shall be made under regulations prescribed by the Secretary of Defense which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps.

22.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department (AMEDD) Branches) prescribes policy, procedures, and eligibility criteria for appointment in the Reserve Components of the Army, in the six branches of the AMEDD.  Chapter 3 contains guidance on grade determinations.  Paragraph 3-2 provides the policy for determination of entry grade for officers not ordered to active duty.  It states, in pertinent part, that the grade of an individual appointed as a Reserve officer without concurrent call to active duty will be determined by comparing the entry grade credit awarded with the phase point shown in the Table ERR.  This Table shows that an individual appointed as a Reserve officer without concurrent call to active duty with less than 3 years grade credit, the entry grade would be a 2LT.  However, entry grade for medical officers is determined by an annual Department of the Army Circular and will be determined, in part, by the manning shortfalls in the specialty.  Authorized credit in excess of the minimum required for appointment to the appropriate grade will be used to adjust the DOR within that grade.  

23.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of both the ARNG and USAR.  It provides promotion eligibility and qualification requirements, board schedules and procedures, and procedures for processing selection board recommendations.  The regulation in 
effect at the time stated that Reserve Component 2LTs will be promoted to 1LT upon completion of 24 months time in grade and completion of the Basic Officer Leadership Course.

24.  Army Regulation 135-155 specifies that promotion consideration and/or reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.  An SSB is not used for officers promoted under a position vacancy promotion.

25.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal recognition.  Paragraph 2-1 states that commissioned officers of the ARNG are appointed by the several States under Article 1, Section 8 of the U.S. Constitution.  These appointments may be federally recognized by the Chief, NGB under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the ARNG of the United States if they have not already accepted such appointment.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she was awarded appropriate CSC, initially appointed as a 1LT, and timely promoted to CPT, with entitlement to back pay and allowances.

2.  The evidence of record shows that prior to her appointment as a 2LT in the WIARNG, the applicant was awarded 10 months and 4 days of CSC based on her experience.  Based on the phase line for initial appointment in effect at the time, she was appointed as a 2LT in the SP of the ARNG.  Furthermore, subsequent to adjustment of her DOR, she was promoted to 1LT and then to CPT.


3.  However, the applicant had completed a Masters Degree in Physician Assistant Studies prior to her appointment, but she was not awarded the proper 2 years of CSC for this advanced education.  Therefore, she is entitled to correction of her CSC to show she was awarded 2 years, 10 months, and 4 days of total CSC.

4.  Additionally, since the phase line for appointment as a 1LT is 2 years, the applicant should have been appointed as a 1LT instead of a 2LT with the excess service credit of 10 months and 4 days used to adjust her DOR from 15 June 
2005 to 11 August 2004.  

5.  Furthermore, with her original effective date and DOR as a 1LT, the applicant was extended Federal recognition for promotion to 1LT on 11 September 2006.  She was subsequently promoted to CPT on 12 January 2009 under a position vacancy.  Since position vacancy promotions are a function of the State and since an SSB is not authorized for a position vacancy promotion, regrettably, there is no effective relief that this Board may grant on this issue.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing the two DA Forms 5074-1-R, dated 20 July and 7 November 2005, and reconstructing a new DA Form 5074-1-R awarding her 2 years, 10 months, and 4 days of CSC and showing her initial appointment in the grade of 1LT;

	b.  revoking NGB Special Orders Number 127 AR (initial appointment), dated 16 May 2006; NGB Special Orders Number 2 AR (promotion to 1LT), dated
4 January 2007; and NGB Special Orders Number 236 AR (amendment of her initial appointment), dated 28 September 2007;
	c.  issuing her NGB Special Orders extending her Federal recognition for initial appointment as a 1LT, effective 15 June 2005 and with a DOR of 11 August 2004; and

	d.  paying her all back pay and allowances as a result of these adjustments.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adjustment of her effective date and DOR to CPT.



      ___________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)                                         AR20090004900



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ABCMR Record of Proceedings (cont)                                         AR20090004900



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