BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100018890 


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 he be promoted to first lieutenant (1LT), effective 10 December 2008 and captain (CPT), effective 10 July 2010, based on his academic disenrollment date from the Uniformed Services University of Health Sciences (USUHS), of 10 July 2010.

2.  The applicant states that he was academically disenrolled from the USUHS.  He continued his service in the Army and he was promoted to 1LT on 23 January 2010.  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 the 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 the 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)
* Record of Proceedings, Air Force Board for Correction of Military Record) (AFBCMR) and Record of Proceedings, ABCMR
* DA Forms 67-9 (Officer Evaluation Report (OER)) for the periods 24 July 2008 through 5 January 2009 and 23 April through 23 November 2009
* USUHS active duty orders
CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he graduated from the U.S. Military Academy in May 2007 with a Bachelor of Life Science degree.

2.  He was appointed as a Regular Army Air Defense Artillery commissioned officer in the rank of 2LT and executed an oath of office on 26 May 2007.  He entered active duty on the same date.

3.  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.  

4.  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.

5.  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.  

6.  His available records contain a memorandum, dated 8 August 2008, that shows in accordance with USUHS Instructions 1201, Subject: Student Promotions Committee, dated 19 December 2005, the Dean, School of Medicine, had concurred in the recommendations by the Committee at its meeting on 27 June 2008, that the applicant should be disenrolled from the School of Medicine, effective 23 July 2008.

7.  On 24 July 2008, he was appointed as a Regular Army Medical Services Corps (MSC) officer in the rank of 2LT.  He executed an oath of office on the same date.  He remained assigned to the USUHS.

8.  He received an OER that covered the rating period from 24 July 2008 through 5 January 2009 for his duties as a Course Administration Specialist for Continuing Health Education, while assigned to USUHS.

9.  He successfully attended and completed the AMEDD Officer Basic Leadership Course at Fort Sam Houston, TX, from 5 March 2009 through 22 April 2009.

10.  He was reassigned to Fort Bliss, TX, on or about 23 April 2009, and he received an OER that covered the rating period from 23 April 2009 through 23 November 2009 for his duties as an executive officer, Forward Surgical Medical Team, Fort Bliss, TX.

11.  He deployed to Afghanistan on or about 23 November 2009.

12.  On 17 December 2009, the U.S. Army Human Resources Command (HRC), Alexandria, VA, published Orders Number 351-069, promoting him to 1LT with an effective date and date of rank as 23 January 2010, 18 months after his addition to the ADL (24 July 2008).

13.  The AFBCMR case provided by the applicant involved an Air Force 2LT who was academically disenrolled from the USUHS and was given a 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.

14.  The ABCMR case provided by the applicant involved an Army 2LT who was also academically disenrolled from the USUHS and was given a DOR effective the day following his disenrollment.  In an advisory opinion, an HRC 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 they have prior creditable commissioned service time before they 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, as a matter of equity, 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.

15.  Title 10, U.S. Code (USC), 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.

16.  Title 10, USC, 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.  

17.  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 (SA) under Title 10, 10 USC, 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 TIG to be promoted to 1LT and 2 years TIG to be promoted to CPT (10 USC 619).  

18.  Army Regulation 600-8-29 provides for special selection boards (SSB).  It states SSBs may be convened to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, including officers who missed a regularly scheduled board while on the temporary disability list and who have since been placed on the ADL (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

19.  Military Personnel (MILPER) Message 10-031, dated 21 January 2010, announced the Fiscal Year 2010 (FY10) CPT Medical Services Corps promotion Board.  The message stated this board would convene on 2 March 2010 to consider 1LTs on the ADL for promotion to CPT.  Above the zone officers eligible for consideration had an active duty date of rank (ADOR) of 31 March 2008 or earlier and promotion zone officers had an ADOR of 1 April 2008 through 31 March 2009. 

20.  MILPER Message 10-235, dated 13 September 2010, announced the FY 11 CPT Medical Services Corps promotion Board.  The message stated this board would convene on 1 December 2010 to consider 1LTs on the ADL for promotion to CPT.  Above the zone officer eligible for consideration had an ADOR of 31 March 2009 or earlier and promotion zone officers had an ADOR of 1 April 2009 through 31 March 2010. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his time spent as a student in the USUHS should serve as time in grade credit for his promotion to the rank of 1LT.  Accordingly, he should have been promoted to 1LT on 10 December 2008, the date he was academically disenrolled from the USUHS, and promoted to CPT effective 10 July 2010.

2.  The evidence of record shows he entered active duty as a student on 26 May 2007.  He was academically disenrolled from the USUHS on 23 July 2008.  He had completed 1 year, 1 month, and 27 days of active duty time.  He was added to the ADL one day after his disenrollment from USUHS and he was ultimately promoted to 1LT 18 months later, on 23 January 2010.  

3.  Although he 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 that 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 being paid 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 he served in uniform, was paid the pay and allowances of a 2LT prior to being disenrolled, and is now serving as an MSC 1LT on the ADL.  The normal requirement for promotion from 2LT to 1LT is 18 months.  Accordingly, as a matter of equity, he should be promoted to 1LT effective 26 November 2008, 18 months after his appointment in the RA on 26 May 2007, with entitlement to all back pay and allowances from that date.

5.  With respect to his promotion to CPT, with an adjusted DOR to 1LT as 26 November 2008, the applicant would have been eligible for "promotion zone" consideration for promotion to CPT by the FY 10 and "above the promotion zone" by the FY 11 AMEDD promotion boards.  Therefore, his records should be considered by the next scheduled SSB for consideration under the 2010 and 2011 criteria for promotion to CPT.
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.  promoting the applicant to the rank of 1LT effective 26 November 2008, with a DOR of 26 November 2008 and entitlement to all back pay and allowances that flow from that promotion.

	b.  following adjustment of his DOR to 1LT, his records be submitted to an SSB for promotion consideration to CPT under the 2010 and 2011 year criteria:

		(1)  if selected, his records be further corrected by showing he was promoted to CPT on his date of eligibility, as determined by appropriate Departmental officials, provided he was otherwise qualified and met all other prerequisites for promotion,

		(2)  if not selected, the applicant be so notified.

2.  The Board further determined that the evidence presented was 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 his promotion to CPT effective 10 July 2010.  


      _______ _  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)                                         AR20100018890



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ABCMR Record of Proceedings (cont)                                         AR20100018890



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