IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100015028 


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 15 December 2009, the date he was academically disenrolled from the Uniformed Services University of Health Sciences (USUHS), with entitlement to back pay and allowances. 

2.  The applicant states he was a direct commissionee at the USUHS School of Medicine and executed an oath of office on 6 June 2007.  He was enrolled as a second lieutenant (2LT) with a date of rank (DOR) of 10 June 2007.  He was disenrolled on 15 December 2009.  He served and continues to serve on active duty with 34 months of time in service.  While at USUHS, he accumulated 30 months of active duty.  He adds that the Army Board for Correction of Military Records (ABCMR) has already set precedent regarding another officer in that the Board considered time spent in USUHS is valid for eligibility toward promotion.  The statutes governing USUHS students address service credit and promotion eligibility while a student is in the USUHS Program; however, these statutes do not address promotion eligibility once a student is serving outside the USUHS Program.  He served on active duty while in USUHS and, since there is no provision to count this time at USUHS toward time in grade (TIG) for promotion to 1LT, he should be granted credit for the time he served.

3.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report)
* Air Force Board for Correction of Military Records (AFBCMR) Record of Proceedings and ABCMR Record of Proceedings
* letter of disenrollment from USUHS
* two DA Forms 71 (Oath of Office)
* permanent change of station (PCS) orders as a Medical Service Corps (MSC) officer
* DA Form 67-9 (Officer Evaluation Report (OER)) for the period 29 April 2010 through 31 August 2010
* USUHS active duty orders
* Officer Record Brief

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Regular Army MSC commissioned officer in the rank of 2LT and executed an oath of office on 6 June 2007.  He entered active duty on 10 June 2007.

2.  He successfully attended and completed the Army Medical Department (AMEDD) Officer Basic Leadership Course at Fort Sam Houston, TX, from 11 June 2007 through 21 July 2007.

3.  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.  His USUHS contract is not available for review with this case. 
However, he would have 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.  Additionally, in paragraph 16 he would have 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 incurred, when such service is determined to be in the best interest of the government.  He agreed to a 4-year active duty obligation.

4.  Accordingly, he was ordered to active duty in the grade of 2LT for a period of 4 years on or about 13 August 2007 to fulfill active duty requirements.  He was assigned to the Student Detachment, USUHS, Bethesda, MD.

5.  His available records contain a memorandum, dated 30 December 2009, that shows in accordance with USUHS Instructions 1201, dated 19 December 2005, subject:  Student Promotions Committee, the Dean, School of Medicine, directed the applicant's disenrollment from the School of Medicine effective 15 December 2009.

6.  On 16 December 2009, he was appointed as a Regular Army MSC officer in the rank of 2LT.  He executed an oath of office on the same date.  He remained assigned to USUHS as a staff officer pending PCS orders.

7.  On 24 March 2010, U.S. Army Garrison Walter Reed published orders reassigning him to Fort Lewis, WA, with a report date of 30 April 2010.

8.  He received an OER for his duties as a medical officer, Rear Detachment, Fort Lewis, WA, that covered the rating period 29 April 2010 through 31 August 2010.  His DOR is shown as 7 June 2007.

9.  The AFBCMR case provided by the applicant involved an Air Force 2LT who was academically disenrolled from USUHS and was given a DOR effective the day following his disenrollment.  During the processing of the case a Staff Judge Advocate 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.

10.  The ABCMR case provided by the applicant involved an Army 2LT who was also academically disenrolled from USUHS and was given a DOR effective the day following his disenrollment.  In an advisory opinion, a U.S. Army Human Resources Command official recommended disapproval of the applicant's request because, by law, the time spent as a student is not creditable active duty service time unless an officer completed the course of study.  An officer who does not complete the USUHS program is added to the Active Duty List (ADL) as a 2LT with a DOR of the date of disenrollment unless he or she has prior creditable commissioned service time before he or she entered the USUHS program.  However, the Board disagreed with this opinion and granted the applicant relief and argued that promotion to 1LT is accomplished on a fully-qualified basis.  The fact that the Army decided this applicant should serve on active duty is a clear indication that he had potential for continued service.  As such, the Board directed that the applicant should be promoted to the rank of 1LT effective an earlier date with entitlement to all back pay and allowances from that date as a matter of equity.

11.  Title 10, U.S. Code, section 2114(b), provides 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.

12.  Title 10, U.S. Code, section 2126, provides that USUHS and Health Professions Scholarship Program students are not entitled to count the medical student time for basic pay or retirement eligibility purposes.

13.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing the promotion of commissioned officers on the ADL.  Paragraph 1-10(c) states, as established by the Secretary of the Army under Title 10, U.S. Code, sections 573, 574, and 619, officers must meet the minimum TIG requirements to be considered for promotion.  For 2LT and 1LT, the law establishes no minimum TIG requirements for consideration for promotion; however, an officer must have at least 18 months of TIG to be promoted to 1LT and 2 years of TIG to be promoted to CPT (Title 10, U.S. Code, section 619).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his time spent as a student in the USUHS Program should serve as TIG credit for his promotion to the rank of 1LT.  Accordingly, he should have been promoted to 1LT on 15 December 2009, the date he was academically disenrolled from the USUHS Program.

2.  The evidence of record shows he entered active duty as a student on 6 June 2007.  He was academically disenrolled from the USUHS Program on 16 December 2009.  He completed 2 years, 6 months, and 9 days of active duty time.  He was added to the ADL one day after his disenrollment from USUHS.

3.  Although he was prohibited from being promoted while in the USUHS Program, there do 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 toward credit for promotion to the rank of 1LT once he was disenrolled from the program.  While a student, he was not on the ADL and would have served his entire USUHS student time as a 2LT.  Nevertheless, he was receiving the full pay and allowances that a 2LT on the ADL was being paid.

4.  Additionally, although he 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 received the pay and allowances of a 2LT prior to being disenrolled from the program and he is now serving as an MSC 2LT on the ADL.

5.  The normal requirement for promotion from 2LT to 1LT is 18 months.  If he were not a USUHS student, he would have been promoted to 1LT effective 5 December 2008 (18 months after his entry on 6 June 2007).  However, he was not added to the ADL until 16 December 2009, 1 day after his disenrollment.  Accordingly, he should be promoted to the rank of 1LT effective 16 December 2009 with entitlement to all back pay and allowances from that date as a matter of equity.

BOARD VOTE:

____X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 16 December 2009 with a DOR of 16 December 2009 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)                                         AR20100015028



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ABCMR Record of Proceedings (cont)                                         AR20100015028



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