IN THE CASE OF:	  

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090011111 


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 that he be promoted to the rank of first lieutenant (1LT) effective 23 July 2008, the date he was academically disenrolled from the Uniformed Services University of Health Sciences (USUHS).

2.  The applicant states that he received a regular commission as a second lieutenant (2LT) on 12 May 2006 through the University of Mississippi Reserve Officers’ Training Corps (ROTC).  After completing the Medical Service Corps (MSC) Officer Basic Course (OBC) in July 2006 and having been accepted into the USUHS, he began his education in August 2006.  After serving over 2 years on active duty, he was academically disenrolled on 23 July 2008 and continued to serve at the USUHS until he received orders for a permanent change of station to Fort Bliss, Texas as a health services officer.  He states that he is requesting promotion to the rank of 1LT effective the day of his disenrollment from the USUHS.  He also states that a precedent exists in an Air Force Board for Correction of Military Records (AFBCMR) case that time spent at the USUHS is valid for eligibility towards promotion.

3.  The applicant provides a copy of his orders to active duty as a 2LT, dated 30 May 2006; a copy of his USUHS contract; a copy of an Officer Evaluation Report (OER) covering the period from 23 July 2008 to 20 February 2009; and a copy of an AFBCMR case, dated 4 May 1998.




CONSIDERATION OF EVIDENCE:

1.  The applicant’s records, though somewhat incomplete, show that he was commissioned as a U.S. Army Reserve (USAR) 2LT on 12 May 2006. 

2.  The applicant attended the Army Medical Department (AMEDD) OBC at Fort Sam Houston, Texas on 11 June and 12 June 2006.  He entered into a Department of the Army Service Agreement to enter the USUHS Program that offered a medical education in return for an active duty service obligation.  He completed his OBC on 22 July 2006 and was transferred to the USUHS in Bethesda, Maryland.  He served as a 2LT while in the USUHS with full pay and allowances.

3.  The applicant was academically disenrolled on 23 July 2008 and remained assigned to the USUHS as a research assistant until 20 February 2009, when he was transferred to Fort Sam Houston to attend the Basic Officer Leaders Course (BOLC) from 27 April to 15 June 2009.  He successfully completed the BOLC and was transferred to Fort Bliss, Texas as an MSC officer in the rank of 2LT.

4.  The AFBCMR case provided by the applicant involved an Air Force 2LT who was academically disenrolled from the USUHS and was given a date of rank (DOR) effective the day following his disenrollment.  During the processing of the case a Staff Judge Advocate (SJA) review was conducted and the reviewing official opined, in effect, that while the statutes governing USUHS students preclude them from counting student time for basic pay or retirement eligibility purposes, they do not preclude the use of USUHS time for DOR and promotion eligibility purposes.  In that case the AFBCMR corrected the applicant’s records to show that he was promoted to the rank of 1LT the day following his academic disenrollment.

5.  In the processing of this case a staff advisory opinion was obtained from the Human Resources Command – Alexandria (HRC-ALEX), Deputy Chief of Promotions (Active Component) which recommended that his request be denied because time spent as a student is not creditable active duty service time (Title 10, U.S.C. section 2126) unless he completed the course of study.  Officers are added to the active duty list (ADL) as a 2LT with a DOR of the date they were disenrolled.

6.  The advisory opinion was provided to the applicant for comment and he responded to the effect that while the statutes governing USUHS students address service credit and promotion eligibility while in the USUHS Program, they do not address accrual of promotion eligibility once an individual is serving outside of the USUHS Program.  He goes on to state that he was serving on active duty while in the USUHS and since there is no provision against counting his time at USUHS towards time in grade for promotion to the rank of 1LT, he should be granted credit for the time he has served.  

7.  A review of the applicant’s USUHS contract shows that he acknowledged in paragraph 15 that notwithstanding any other provision of law, he understood and agreed that while in the USUHS Program, he would serve on active duty in pay grade O-1 with full pay and allowances of the grade.  In paragraph 16, he acknowledged he understood that if his status as a student was suspended or discontinued for deficiency in conduct or studies, or for other reasons, he would be required to perform active duty in an appropriate military capacity in accordance with the active duty obligation (ADO) incurred, when such service is determined to be in the best interest of the Government.  He agreed to a 4-year ADO.

8.  Title 10, U.S.C. section 2114 (b) provides in relevant part, that notwithstanding any other provision of law, USUHS students shall serve on active duty in pay grade O-1 with full pay and allowances of that grade. . .The service credit exclusions specified in section 2126 of Title 10 shall apply to students covered in this section.

9.  Section 2126 provides that USUHS and Health Professions Scholarship Program (HPSP) students are not entitled to count the medical student time for basic pay or retirement eligibility purposes.  

10.  Army Regulation 600-8-29 prescribes policies and procedures governing the promotion of commissioned officers on the ADL.  Paragraph 2-1 provides, in pertinent part, that for other than Regular Army (OTRA) 2LTs, the adjusted DOR will be the date the appointment is accepted, if all service as a 2LT before placement on the ADL was in an active status.  2LTs are normally promoted to the rank of 1LT after serving 18 months on the ADL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his time spent as a student in the USUHS should serve as time in grade credit for his promotion to the rank of 1LT and that he should be promoted to the rank of 1LT the day following his disenrollment from the USUHS has been noted and appears to have merit. 

2.  While the applicant was prohibited from being promoted while in the USUHS Program, there does not appear to be any statutory or regulatory provisions that would prevent him from using his active duty time as a 2LT in the USUHS Program towards credit for promotion to the rank of 1LT once he was disenrolled from the program.  While he was not on the ADL as a 2LT, he nevertheless was being paid the full pay and allowances that a 2LT on the ADL was being paid. 

3.  Although the applicant is not entitled to service credit for the time he spent in the USUHS Program, the fact remains that he served on active duty and was paid the pay and allowances of a 2LT for over 2 years before being disenrolled from the program and he is now serving as an MSC 2LT on the ADL.

4.  Accordingly, it appears that in the interest of equity, the applicant should be promoted to the rank of 1LT effective 23 July 2008, with entitlement to all back pay and allowances from that date.

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 promoting the applicant to the rank of 1LT effective 23 July 2008, with a DOR of 23 July 2008 and entitlement to all back pay and allowances that flow from that promotion.





      _______ _   _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)                                         AR20090011111



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ABCMR Record of Proceedings (cont)                                         AR20090011111



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