IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100022139 


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, granting of additional constructive credit to ratify his rank as captain.

2.  The applicant states:

* He was accessed as a captain by the U.S. Army Recruiting Command (USAREC) on 8 February 2010 with 3 years of constructive credit
* The line for captain was 3 years and 1 month of constructive credit
* When USAREC realized the mistake, since he was only 1 month shy of making the line for captain, USAREC re-scrolled his record as captain

3.  The applicant provides:

* Orders A-02-004229, dated 4 February 2010, commissioning him as a captain
* A memorandum, from the Assignment Officer at the U.S. Army Human Resources Command (USAHRC), Fort Knox, KY, subject:  Advisory Opinion - (applicant's name), Rank Ratification, dated 17 August 2010
* A copy of the Secretary of Defense scroll to captain, Medical Service Corps, dated 25 March 2010


CONSIDERATION OF EVIDENCE:

1.  The applicant's DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)) is not available for review.

2.  His DA Form 71 (Oath of Office) shows he was appointed a captain in the Medical Service Corps on 8 February 2010 and ordered to active duty to fulfill his active duty requirement in a voluntary indefinite status.

3.  On 25 March 2010, the Secretary of Defense appointed him a captain in the Regular Army Medical Service Corps.

4.  A DA Form 1059 (Service School Evaluation Report) shows he completed the AMEDD (Army Medical Department) Basic Officer Leader Course (BOLC) on 
1 June 2010.

5.  His DA Form 67-9 (Officer Evaluation Report (OER)) for the period 8 February 2010 through 29 September 2010 shows he served as a captain and he was rated as "Outstanding Performance, Must Promote" by his rater and "Best Qualified" by his senior rater.  His senior rater recommended the applicant be promoted immediately.

6.  He provided an advisory opinion from the Assignment Officer at USAHRC, Fort Knox, dated 17 August 2010.  This opinion states:

* She is his current Assignment Officer and she was the officer who served him orders to come onto Regular Army active duty
* She concurs his entry rank into active duty should be captain
* USAREC submitted his request for orders to her at the rank of captain and based on that information she submitted his orders to come on active duty at the rank of captain
* When he submitted his DA Form 71 to USAREC for his record to be switched from Reserve status to active duty status the technician at USAREC realized he was supposed to be scrolled as a first lieutenant with 3 years constructive credit, not as a captain
* Subsequent conversations yielded that the phase point in Fiscal Year (FY) 2010 for captains in the Medical Service Corps was 3 years and 
1 month
* In the best interest of the applicant the recommendation was that USAREC approve the additional 1 month credit due to the error


* USAREC resubmitted his packet to be scrolled as captain and it was returned in March 2010 re-scrolled at the rank of captain
* In order for his rank to be changed in the active duty databases from first lieutenant to captain as it currently is, USAREC requested that the case be submitted to this Board for rank ratification

7.  His OER covering the period 30 September 2010 through 18 February 2011 shows he served as a captain, and he was rated as "Outstanding Performance, Must Promote" by his rater and "Best Qualified" by his senior rater.  His senior rater recommended that the applicant be promoted immediately.

8.  In the processing of this case, on 29 March 2011, an advisory opinion was obtained from the Director, Health Services Directorate, USAREC.  The advisory official recommends disapproval of the applicant's request and recommends the original constructive credit of 3 years with an active duty grade of first lieutenant stand for the record.  The advisory official states:

* After a review of his records it is determined his constructive credit was properly computed
* The documentation of his education verifying his qualifying degree for appointment as a 71E (Clinical Laboratory officer) is his bachelor's degree from Regents College, University of the State of New York
* Constructive credit was awarded based upon Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and Personnel), paragraph 6.1.2.2.5 that credit of 1/2 year for each year of experience, up to a maximum of 3 years of constructive credit, may be granted for experience in a health profession, if such experience is directly used by the Military Service concerned
* Therefore, the applicant was awarded 3 years for his professional experience

9.  On 29 March 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his response, dated 8 April 2011, he stated:

	a.  working through the Dallas recruiting station in the Fall of 2009, he was selected for commission as a 71E.  When he received his orders he was thrilled to see the rank of captain but he was concerned it could be wrong.  He did not know the intricacies of the constructive credit process and thought it could just as easily be correct.  He sent his orders off to his recruiter and asked if the rank was correct.  The recruiter assured him he had already double checked it with 


USAREC and it was indeed correct as captain.  He was sworn in and commissioned as a captain on 8 February 2010.

	b.  on 15 February 2010, USAREC informed him there was an issue with his rank and he was told he should have been commissioned a first lieutenant with 
3 years of constructive credit.  USAREC identified their mistake and concluded that the best way to resolve the issue in everyone's best interest was to re-scroll him as a captain and for him to submit an application to the Board for ratification.  USAREC then re-scrolled him as a captain on 25 March 2010 and he immediately applied to the Board for ratification.  He received numerous assurances that USAREC would support his application and, with the support of USAREC, ratification would not be an issue.  Branch and USAREC agreed and told him to continue to wear the rank of captain because that is what his orders show as well as his identification card and DA Form 71.

	c.  he attended the Officer Basic Course during the period March through June 2010.  His DA Form 1059 is as a captain, he received two OERs as a captain, and he has been paid as a captain.  He has regularly attended countless events as a captain and all of the Soldiers he has interacted with have been as a captain.  All of the people involved in his case are aware of his situation but the vast majority of his superiors, subordinates, peers, and associates are not.  If his application is unsuccessful, questions about his integrity will be raised in their eyes and it will have a negative shadow over his career.  He lives the Army values and integrity is important to him.

	d.  if his application is unsuccessful and USAREC's actions are not ratified, finance will conclude he has been overpaid as a captain and proceed to recoup the difference between first lieutenant and captain ranks (approximately $15,000.00).  This would have a dire consequence to his military, financial, and family life.  He has fought hard to receive a commission in the Army but never dreamed he would find himself in this kind of situation.  It is his strongest desire to continue to serve on active duty for at least the next 10 years and hope to put all of this behind him.

	e.  his constructive credit gave him 3 years credit.  The requirement for captain was 3 years and 1 month constructive credit.  When USAREC realized the mistake, since he was only 1 month shy of meeting the requirement for captain, USAREC re-scrolled his record as captain on 25 March 2010 that was signed by Secretary Gates.  By the time USAREC re-scrolled his name as captain on 25 March 2010 he had already been commissioned on active duty for 


1 1/2 months.  The 3 years constructive credit, plus his 1 1/2 months of commissioned active duty time meets the requirement of 3 years and 1 month for captain.

	f.  he is requesting the Board ratify the rank re-scrolled by USAREC.  If this action is in his favor, he can continue to serve the Army in his current capacity and preserve his honor.  His financial standing will be preserved and his family life will remain positive.  His Assignment Officer has an extensive email chain documenting all of the communication about his case stretching back over a year.  Since the beginning, USAREC has advised the actions taken by him and his Assignment Officer and they have followed those instructions without deviation.

	g.  the Director of Health Services Directorate has reconfirmed his strong support of his case via telephone with his Assignment Officer.  His Assignment Officer has maintained her strong support of his case.  

10.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) provides policy for the appointment of Reserve commissioned officers for assignment to Army medical branches.  Chapter 3 provides that grade and date of rank upon original appointment and assignment to an Army Medical Department 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 the credit for prior active commissioned service.  Additional credit may be granted in unusual cases based on special education or professional experience in the specialty in which assigned when experience is accrued after qualifying degree and licensure, if applicable (Medical Service Corps officers are granted 1/2 year for each year of education or experience up to a maximum of 3 years of credit).

11.  DODI 6000.13, paragraph 6.1.2.2.5., states that credit of 1/2 year for each year of experience, up to a maximum of 3 years of constructive credit, may be granted for experience in a health profession, if such experience is directly used by the Military Service concerned.  Creditable experience cannot predate the receipt of licensure, registration or certificate.

12.  DODI 6000.12, paragraph 6.1.2.2.5., states additional credit in unusual cases based, on special education or experience, can be granted by the Secretary of a Military Department.

13.  Title 10, U.S. Code, Section 1552 (Correction of military records: claims incident thereto) states, in pertinent part, that the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.  

DISCUSSION AND CONCLUSIONS:

1.  It appears a Government error was made when Army officials informed him he would be scrolled as a captain with 3 years of constructive credit for his professional work experience.  

2.  He was appointed as a captain in the Medical Service Corps on 8 February 2010.  The Secretary of Defense appointed him a captain in the Regular Army Medical Service Corps on 25 March 2010.  He completed the AMEDD BOLC on 1 June 2010, his two favorable OERs during the period 8 February 2010 through
18 February 2011 show he served as a captain, and his senior raters recommended immediate promotion.

3.  His Assignment Officer at USAREC recommends the ABCMR ratify his rank to captain.  Her advisory opinion states phase points in FY10 for captains in the Medical Service Corps was 3 years and 1 month.

4.  Notwithstanding the USAREC advisory opinion, dated 29 March 2011, through no fault of the applicant, and due to an administrative error in the process for his direct accession by USAREC, he was scrolled as a captain.

5.  Based on the foregoing, it would be equitable to correct his records to show he was granted additional constructive credit to ratify his rank as captain.

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 


issuing an appropriate document to show he received an additional 1 month of constructive service credit under the provisions of paragraph 6.1.2.2.6. of DODI 6000.13, for a total of 3 years and 1 month of constructive credit.



      __________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)                                         AR20100022139



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ABCMR Record of Proceedings (cont)                                         AR20100022139



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