IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090007450

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 his major (MAJ) date of rank (DOR) be adjusted.

2.  The applicant states, in effect, his record should be corrected to show he was awarded 5 years of constructive service credit to reflect 3 years of active duty service as a MAJ in addition to time served.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), promotion certificate, oath of office, accession order, and Honorable Discharge Certificate in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he served in the U.S. Army Reserve (USAR) in an enlisted status from 25 January 1975 through 10 April 1977 and he was initially appointed as a second lieutenant in the Infantry on 11 April 1977.  He served in a commissioned officer status in the USAR through 14 May 1981.  On 15 May 1981, he entered active duty in the Regular Army.  He was promoted to MAJ on 5 June 1987 and on 16 June 1990 he was honorably discharged by reason of unqualified resignation after completing 9 years, 1 month, and 2 days of active military service.


2.  On 7 November 2007, the applicant was appointed as a MAJ in the Medical Corps (MC) in the USAR and entered active duty in that status.  His MAJ DOR was established as the date of his appointment, 7 November 2007, under the highest grade held (HGH) provisions of the regulation.

3.  In connection with the processing of this case, an advisory opinion was obtained from the MC Program Manager of the Health Services Directorate, U.S. Army Recruiting Command (USAREC).  This official indicates the applicant’s entry grade at the time of his appointment in the MC was accomplished in accordance with the applicable regulation and no additional constructive service credit is warranted.  He states that the applicant’s entry grade was calculated as the HGH based on his prior service.  As such, the applicant was awarded the grade of MAJ at the time of his accession and appointment in the MC in 2007.  No constructive service credit was awarded the applicant because the rank determination was based on the HGH prior to separation from his previous service agreement.  He states it is important to note that the HGH determines the rank at time of entry, not the DOR and that the U.S. Army Human Resources Command (HRC) is responsible for establishing DOR, which they did in the applicant’s case based on the date of his appointment in the MC in 2007.

4.  On 24 September 2009, the applicant was provided a copy of the USAREC advisory opinion in order for him to have the opportunity to respond to or rebut its contents.  To date, he has failed to reply.

5.  In addition, a member of the Board staff contacted the Office of The Surgeon General (OTSG) seeking clarification on the applicability of constructive service credit in the applicant's case.  The OTSG response was, in effect, that the provisions of Department of Defense Instruction 6000.13 were applicable.  

6.  The applicant was provided a copy of the OTSG opinion and on 21 December 2009, he provided a response.  In his response, the applicant questions the information provided in the OTSG messages provided and indicates that he is due 8 years of credit.  

7.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) prescribes the policy, procedures, and eligibility criteria for appointment in the Reserve Components of the Army, with or without concurrent active duty, in the six branches of the Army Medical Department (AMEDD).  


8.  Chapter 3 of the same regulation provides guidance on grade determinations and states, in pertinent part, that the grade upon original appointment in the AMEDD will be determined by the number of years of entry-grade credit awarded and will be recorded on a DA Form 5074-R (Record of Award of Entry-Grade Credit – Medical and Dental Officers) and that the form will be forwarded to HRC for DOR determinations.  The entry grade of MAJ is authorized for members awarded 14 years or more but less than 21 years of entry-grade credit.  The regulation further stipulates that the grade and DOR upon appointment (as well as promotion procedures and criteria for such persons) will be determined in accordance with laws and regulations in effect on the date of appointment.  

9.  Army policy provides that grade and date of rank upon original appointment and assignment to an AMEDD 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 credit for prior active commissioned service.  

10.  DODI 6000.13 (Medical Manpower and Personnel) implements policy, assigns responsibilities, and prescribes procedures to carry out medical manpower and personnel programs.  Paragraph 6.1 provides guidance on awarding entry grade credit and states, in pertinent part, that a prospective health professions officer’s entry grade and rank within grade shall be determined by the number of years of entry grade credit awarded on original appointment, designation, or assignment as a health professions officer. The entry grade credit to be awarded shall equal the sum of constructive service credit and prior commissioned service credit.  A period of time shall be counted only once when computing entry grade credit, and qualifying periods of less than one full year shall be proportionately credited to the nearest day, except where noted otherwise.  

11.  Paragraph 6.1.1 provides guidance on awarding prior commissioned service credit.   It states, in pertinent part, that credit for prior service as a commissioned officer (other than as a commissioned warrant officer) shall be granted to recognize previous commissioned experience, while maintaining cognizance of the level of professional knowledge, skill, and experience required at specific rank levels of each health profession.  It further stipulates that the Secretaries shall establish procedures to ensure the awarding of prior commissioned service credit is applied in an equitable and consistent manner.  The total entry grade credit granted shall be no more than that required for an officer to be eligible for an original appointment in the grade of Major or Lieutenant Commander.  The Commander, U.S. Army Military Personnel Center, ATTN:  DAPC-POS-PD, Alexandria, VA  22332, will make date of rank determinations for members appointed based on highest grade held.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his DOR should be adjusted to account for his prior active duty service was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, entry-grade credit of 14 or more years but less than 21 years supports an entry grade of MAJ.  The governing policy also stipulates that the total entry grade credit granted shall be no more than that required for an officer to be eligible for an original appointment in the grade of MAJ.  

3.  The evidence of record confirms the applicant was awarded the entry grade 
of MAJ as a result of it being the highest grade he held, not as a result of constructive service credit, in accordance with the existing laws and regulations.  It further shows his entry grade was properly established by the appropriate USAREC medical accession officials and that his DOR was properly established as his appointment date by HRC in accordance with the applicable regulation and governing DODI policy in effect at the time, as confirmed by the USAREC advisory opinion.  Therefore, absent any evidence of an error or injustice related to the establishment of his entry grade and DOR, there is an insufficient evidentiary basis to grant the requested relief.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090007450



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007450


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1