IN THE CASE OF:	  

		BOARD DATE:	    22 July 2010

		DOCKET NUMBER:  AR20090017758 


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, and adjustment of his date of rank (DOR) to first lieutenant (1LT) and/or promotion to captain (CPT) with retroactive pay to the date of his appointment. 

2.  The applicant states he has been told that based on his education level he should have received constructive credit and been appointed as a 1LT, if not as a CPT.  

3.  The applicant provides copies his Bachelor of Science (BS) degree, Doctor of Physical Therapy degree, New York State license to practice as a physical therapist, appointment orders as a second lieutenant (2LT), Oath of Office as a 2LT, and college transcripts.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 6 April 2006 as an Army Reserve Officers' Training Corps cadet.

2.  He completed his BS on 14 May 2006, his doctorate on 18 May 2008, and was licensed to practice in the State of New York on 28 August 2008.

3.  Upon completion of his educational degree and ROTC requirements, he was appointed a 2LT in the Medical Specialist Corps and executed his Oath of Office, as a 2LT, on 17 May 2008.

4.  The applicant completed the Army Medical Department Officer Basic Leaders Course (Reserve Components) on 4 May 2009.

5.  He was promoted to 1LT with an effective date and DOR of 30 November 2009.

6.  In the development of this case an advisory opinion was obtained from the Army Recruiting Command, Health Services Directorate, Army Medical Specialist Corps Program Manager.  The program manager stated the applicant should have been granted 36 months of constructive credit and commissioned a 1LT with time in grade upon commissioning.   The program manager stated that a memorandum from the Army Medical Specialist Corps dated 7 December 2006 authorizes 36 months of constructive credit for individuals entering the Corps as a physical therapist upon completion of a Doctor of Physical Therapy.

7.  A copy of the opinion was forwarded to the applicant.  He concurred with the advisory opinion and stated that there is a minimum requirement of 2 years to be promoted from 1LT to CPT and by the time the correction is made to his records he will have 2 years time in grade as a 1LT with an additional 18 months constructive credit remaining.  Based on this, he requests that he also be promoted to captain with back pay.

8.  Army Regulation 600-8-29 (Officer Promotions) states that the time in grade (TIG) requirement for promotion from 2LT to 1LT is 18 months and to CPT 
2 years.

9.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) states that:

	a.  the entry grade and DOR in commissioned officer grades will be determined by the entry grade credit awarded on appointment, including the amount of constructive service credit allowed; and 

	b.  the DOR of an officer commissioned in the Reserve will be backdated by the period of commissioned service credit awarded in excess of that amount used to establish the officer's appointment grade.

10.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches (AMEDD)) provides the following:


	a.  the minimum educational requirement for appointment in the Physical Therapist section is a baccalaureate degree, basic master's degree, or a certificate in physical therapy with a baccalaureate degree in another area of study; and 

	b.  the grade and DOR upon original appointment and assignment to an AMEDD branch will be determined by the number of years of entry grade credit awarded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that based on his education level he should have received constructive credit and been appointed as a 1LT, if not as a CPT.  

2.  The applicant has an advanced degree in physical therapy; therefore, he is entitled to 36 months of constructive credit.  Based on this constructive credit he should have been appointed as a 1LT not a 2LT.  Therefore, it would be appropriate to correct his records to show he was appointed as a 1LT effective
17 May 2008.  

3.  By deducting the TIG required for promotion to 1LT from his constructive credit the applicant's adjusted DOR to 1LT should be 17 November 2006. 

4.  This correction of the applicant's DOR qualifies him to be eligible for consideration for promotion to CPT as of 17 November 2008.  

5.  The applicant has served in the rank of 1LT since 30 November 2009 which is approximately 8 months and he has not been considered by a CPT's promotion board as of this date.  While he has not been considered for promotion to CPT earlier creates an injustice it would not be appropriate to correct this injustice by directly promoting him based on his corrected eligibility date.  

6.  However, as a matter of equity, it would be appropriate to refer the applicant's records to a special selection board (SSB) to consider the applicant for promotion to CPT under the criteria established for 2008, 2009 and 2010.

7.  If selected, the applicant should be promoted to CPT with entitlement to all retroactive pay and allowances to the appropriate effective DOR. 

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.  correcting the applicant's records to show he was appointed a 1LT effective 17 May 2008, with a DOR of 17 November 2006, and retroactively paying him based on these corrections; 

	b.  referring the applicant's records to an SSB for promotion consideration to CPT under the criteria established for 2008, 2009 and 2010 and promote him with the appropriate date of rank if selected; or 

	c.  notifying the applicant if he is not selected for promotion.

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 direct appointment to captain. 




      _______ _ 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)                                         AR20090017758



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ABCMR Record of Proceedings (cont)                                         AR20090017758



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