IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100025905 


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 retroactive promotion to first lieutenant/pay grade O-2) effective the date of her disenrollment from the Uniformed Services University of the Health Sciences (USUHS) and that her time spent in USUHS be credited as time in grade for promotion purposes.  She also requests Special Selection Board (SSB) consideration for promotion to captain/pay grade O-3.

2.  The applicant states that while the statutes governing USUHS students address service credit and promotion eligibility while in USUHS Program, they do not address accrual of promotion eligibility once an individual is serving outside of the USUHS Program.  Since there is no provision against counting her time at USUHS toward time in grade for promotion to the rank of first lieutenant she should be granted credit for the time she served there which would grant a date of rank to first lieutenant of 1 November 2007 and a SSB for promotion to captain.  With the precedent that has been set with the two cases she is submitting, she believes that an inequity exists.

3.  The applicant provides:

* her Oath of Office
* her disenrollment letter, dated 6 November 2007, from USUHS
* active duty orders to USUHS
* orders for promotion to first lieutenant
* DA Form 1059 (Service School Academic Evaluation Report), dated 
* 22 July 2005, from the Army Medical Department (AMEDD) Officer Basic Course (OBC)
* DA Form 1059, dated 24 April 2008, from the Basic Officer Leadership Course Phase II (BOLC II)
* DA Form 1059, dated 17 June 2008, from AMEDD OBLC
* DA Form 67-9 (Officer Evaluation Report) for the period 1 March 2010 
to 1 August 2010
* her Officer Record Brief (ORB), dated 6 October 2010
* Air Force Board for Correction of Military Records (AFBCMR) case dated 4 May 1998
* Army Board for Correction of Military Records (ABCMR) case AR20090011111, dated 18 February 2010

CONSIDERATION OF EVIDENCE:

1.  She was commissioned a second lieutenant in the Regular Army Medical Service Corps (MSC) on 28 May 2005.  She completed the AMEDD OBC on 
22 July 2005.  She was ordered to USUHS effective 8 August 2005.  She served as a second lieutenant while in USUHS with full pay and allowances.

2.  On 1 November 2007, she was disenrolled from USUHS.  She remained assigned to USUHS as an administrative assistant.

3.  She completed the BOLC II Phase II on 24 April 2008 and AMEDD BOLC on 17 June 2008.

4.  She was transferred to Fort Hood, TX on 30 June 2008.  She was promoted to first lieutenant with an effective date and a date of rank (DOR) of 1 May 2009.

5.  She was promoted to captain with an effective date and a DOR of 
15 March 2011.

6.  The AFBCMR case provided by the applicant involved an Air Force second lieutenant 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 (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 first lieutenant the day following his academic disenrollment.

7.  The ABCMR case provided by the applicant involved a second lieutenant  who was academically disenrolled from USUHS.  The case noted there are no statutory or regulatory provisions to prevent him from using his active duty time as a second lieutenant in the USUHS Program towards credit for promotion to the rank of first lieutenant once he was disenrolled from the program.  The ABCMR corrected his records to show he was promoted to first lieutenant effective the date of his disenrollment from USUHS and he was entitled to all back pay and allowances from that date.

8.  In the processing of this case a staff advisory opinion was obtained from Headquarters, U.S. Army Recruiting Command, Fort Knox, KY, Director, Health Services Directorate which recommended that she be promoted to first lieutenant effective 1 November 2007.  The applicant concurred with the advisory opinion; however, she was concerned that it didn't address the issue of an SSB.

9.  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.

10.  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.  

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

DISCUSSION AND CONCLUSIONS:

1.  Her contention that her time spent as a student in the USUHS should serve as time in grade credit for her promotion to the rank of first lieutenant and that she should be promoted to the rank of first lieutenant after being disenrolled from the USUHS Program has been noted and appears to have merit.

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

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

4.  Accordingly, it appears that in the interest of equity, her records should be corrected to show she was promoted to first lieutenant with an effective date and DOR of 2 November 2007, the date following her disenrollment, with entitlement to all back pay and allowances from that date.

5.  Her records should then be placed before an SSB for promotion consideration under the 2009 Department of the Army (DA) Captain AMEDD Selection Board criteria.  If selected for promotion, her promotion effective date and DOR should be established as if she had been originally selected by the 2009 board and she should be provided all back pay and allowances due as a result of the promotion. If not selected, she should be so notified.

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.  changing the effective date and DOR of her promotion to first lieutenant to 
2 November 2007 and entitlement to all back pay and allowances as a result of the change.

	b.  submitting her records to an SSB for promotion consideration to captain under the criteria followed by the 2009 DA Captain AMEDD Selection Board.
2.  Additionally, the Defense Finance and Accounting Service should audit the applicant's pay records and provide the applicant any pay and allowances due her based on the above corrections.

3.  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 changing her effective date and DOR to first lieutenant to 1 November 2007.  





      _______ _  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)                                         AR20100025905



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ABCMR Record of Proceedings (cont)                                         AR20100025905



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