IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20100026866 


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 defers his request to counsel.

2.  The applicant defers his statement to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's records to show his rank as lieutenant colonel (LTC) with an effective date of grade and rank of 5 February 2009.

2.  Counsel states the applicant previously served on active duty as a major (MAJ)/O4.  Current regulations allow him to be accessed into the U.S. Army Reserve (USAR) as a MAJ/O-4, which was the highest rank he held on active duty.  Counsel adds that except for the applicant's prior active service, he would have entered the USAR as a LTC/O-5 based on his professional experience and academic credentials.  He further states in summary that if the applicant had joined the USAR with no prior military experience, he would have been accessed and assigned the grade of O-5 with an effective date of February 2009.  He also states the applicant requests an appearance before the Board and that both he and the applicant be informed of the date, time, and location of the Board.

3.  Counsel provides copies of:

* the applicant's letter to counsel
* a letter from Dr. C___d
* the applicant's officer evaluation report for the rating period 29 March 2010 through 27 August 2010
* an email from the applicant to MAJ J____, dated 22 June 2010
* an email to the applicant from LTC C___r, Army Medical Department (AMEDD) Medical Team Chief
* an email to LTC C___r from the applicant
* an email to the applicant from Dr. D____
* an email from MAJ P____ to the applicant
* an email to Brigadier General (BG) C___o from the applicant
* an email to the applicant from BG C___o
* an email from Captain (CPT) L____ to MAJ P____
* CPT F____'s memorandum for the applicant
* the applicant's letter to the Board
* a DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers))
* the applicant's 2007 curriculum vitae
* Orders 87-3, dated 5 May 1989
* the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 June 1989

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the USAR on 18 May 1974.

2.  He entered active duty in the rank of CPT on 8 June 1980 as a general medical officer.  He was promoted to the rank of MAJ with an effective date and date of rank of 8 June 1986 and he continued to serve on active duty until his voluntary release on 30 June 1989.  He was transferred to the USAR Control Group (Reinforcement) in the specialty of 62A9C (emergency physician) where he was assigned until his separation on 30 November 1993.

3.  The applicant's 2007 curriculum vitae, diplomas, and certificates show the following pertinent information.

	a.  He received a Bachelor of Arts in Chemistry at The Citadel, The Military College of South Carolina, on 18 May 1974.

	b.  He received a Master of Science in Textiles from the Institute of Textile Technology on 30 June 1976.



	c.  He received a Doctor of Medicine from the Medical University of South Carolina (1976-1980).  (His DA Form 5074-R shows he attended medical school from 1 September 1976 through 5 June 1980.)

	d.  He successfully completed internship in obstetrics-gynecology (1 July 1980-30 June 1981) at Tripler Army Medical Center.

	e.  He served as a general medical officer from 1981-1985.

	f.  He successfully completed emergency medicine residency at Brooke Army Medical Center (BAMC) from 1 July 1985-30 June 1987.

	g.  He received board recertification (most recent) for the period 18 December 2006-31 December 2016.

	h.  His professional experience is as follows:

* Emergency Physician, July 1989-May 1995
* Emergency Physician/Medical Director, May 1995-February 2001
* Emergency Physician/Medical Director, February 2001-February 2009

4.  On 5 February 2009, he was appointed in the USAR in the rank of MAJ/O-4 in the specialty of 62A.  Paragraph 6 of his appointment letter stated he would be appointed in his highest grade held and that his pay entry basic date and date of rank would be adjusted.  Records in the interactive Personnel Electronic Management System shows his date of rank to be 11 August 2001.

5.  In an email, dated 28 March 2010, subject:  Follow Up to Fiscal Year (FY) 2010 LTC Promotion Board Military Personnel Message, he lists his formal civilian schooling and dates of that schooling.  He indicated he:

* attended the Citadel, The Military College of South Carolina on a 4-year scholarship from 1970-1974, he graduated, and he was commissioned into the USAR
* attended graduate school from 1974 to 1976 and he received his Master of Science degree
* attended the School of Medicine, Medical University of South Carolina from 1976-1980, when he received his medical degree
* entered the Army in an active duty status on 8 June 1980 and served until his release in 1989
* successfully completed the Medical Department Officer Basic Course on 16 September 1980
* successfully completed the Armed Forces Combat Casualty Care Course on 14 September 1984
* successfully completed the BAMC Emergency Medicine residency on 30 June 1987

6.  In the processing of this case, on 13 May 2011 an advisory opinion was obtained from the Health Services Directorate (HSD), Headquarters, U.S. Army Recruiting Command.  The HSD official stated it is their business practice to
re-access applicants at the highest grade held upon returning to military service regardless of work/educational experience that was earned after discharge.  In the applicant's case, if work experience is to be added after he was discharged constructive credit would be broken down as follows:

	a.  Medical Degree – 4 years, 0 months, and 0 days, obtained in 1980.  Per Department of Defense Instruction (DODI) 6000.13, section 6.1.2.2.1, 4 years of constructive credit shall be granted for completion of first degrees that include "M.D., D.O., D.D.S., D.M.D., O.D., Pod.D., D.V.M., and Ph.D."

	b.  Master's of Science – 2 years, 0 months, and 0 days, obtained in 1976.  Per DODI 6000.13, section 6.1.2.2.2.

	c.  Internship – 0 years, 0 months, and 0 days, conducted 1 July 1980-30 June 1981.  No credit is awarded due to dates overlapping with prior active duty service.

	d.  Residency in Emergency Medicine – 0 years, 0 months, and 0 days, conducted 1 July 1985-30 June 1987.  No credit is awarded due to dates overlapping with prior active duty service.

	e.  Work Experience – 3 years, 0 months, and 0 days.  Per DODI 6000.13, section 6.1.2.2.5, credit of one-half 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 Science concerned.

	f.  Prior Commissioned Service as a 62A – 9 years, 0 months, and 22 days.  Per DODI 6000.13, section 6.1.1.1, service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, in the corps or professional specialty in which being appointed, shall be credited on a day-for-day basis with any commissioned service performed before such appointment.

	g.  Prior Commissioned Service Non-Health Related – 3 years, 0 months, and 15 days.  Per the applicant's curriculum vitae, it states he was a Reserve Commissioned Office from May 1974 to June 1980.  This time was before he obtained his medical degree.  According to DODI 6000.13, section 6.1.1.2, service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, but not in the corps or professional specialty in which being appointed, shall be awarded 1/2 day of credit for each day served in the case of individuals seeking an original appointment as a health professions officer.

7.  The HSD official adds that the total constructive credit would be calculated at 21 years, 1 month, and 17 days.  HSD official further stated that per the Office of the Surgeon General's FY11 Promotion Phase-In Points for Entry Grade Determination Memorandum, this would equate to the rank of LTC in the USAR.  HSD indicated it would support a Board decision to grant the additional credit.

8.  On 16 May 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  No response was received within the allotted time frame.

9.  A member of the Board's staff contacted the HSD official that provided the above advisory opinion showing 2 years of credit for the applicant's Master of Science degree in Textiles since this degree does not appear to be a degree discipline that would add adjunctive skills to the applicant's primary specialty.  The point of contact agreed that this degree discipline does not appear to meet the requirement that the degree must add adjunctive skills to the primary specialty and must contribute directly to performance in the anticipated duty position.  Therefore, with this adjustment his total constructive service credit would be 19 years, 1 month, and 17 days.

10.  A written record of this discussion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He stated that he earned a Master of Science degree after a year of research in the University of Virginia hospital burn center studying the relationship of different flammable textiles on thermal burns.  He stated his clinical research was similar to that done at the Army Institute of Surgical Research (ISR), BAMC, Fort Sam Houston.  He stated his research was directly applicable to the care of burned patients in civilian and military settings.  He continued by reiterating his initial contention that if he had never worn a uniform before February 2009 he would have entered the Army Reserve in the rank of COL or at least LTC with rapid promotion to COL.  He stated the U.S. Army Recruiting Command's business practice to re-access individuals at the highest grade held upon returning to the military regardless of the work/educational experience that was earned after being discharged penalizes him for having prior service.  He stated his recruiter recognized his work/educational experience when he used a constructive credit formula to determine his rank and presented him LTC insignia to wear at his swearing in.  He stated that persons with no prior military service cannot be penalized by the highest grade held rule and constructive credit is appropriately considered in determining their rank.  

11.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to AMEDD Branches) prescribes policy, procedures, and eligibility criteria for appointment in the Reserve Components of the Army, with or without concurrent active duty, in the six branches of the AMEDD.  This regulation provides for granting constructive service credit for certain qualifying degrees.  Chapter 3 pertains to entry-grade credit for Reserve appointment grade determination.  Subparagraph 3-1b states that constructive service credit will be granted for periods of professional training and experience accrued after receipt of the basic qualifying degree.

12.  Grade and date of rank upon original appointment and assignment to an AMEDD 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 credit for prior active commissioned service.

13.  Army Regulation 135-101, paragraph 3-1a, states the maximum entry-grade credit for appointment in the Medical Corps is 14 years.  The Secretary of the Army or designee may waive the maximum credit limit in the situations when a manning shortfall exists in the specialty within medicine or dentistry or within the other AMEDD specialty to which the individual will be assigned or appointed or where serious inequities would otherwise result.  Constructive service credit will be granted for periods of professional training and experience accrued after receipt of the basic qualifying degree per the tables in paragraph 3 of this regulation.  Per table 3-2 of this regulation, credit for prior active commissioned service for Medical Corps officers in the specialty in which being appointed is 1 year for each year of prior active commissioned service.

14.  DODI 6000.13, dated 30 June 1997, paragraph 6.1 (Entry Grade Credit), states that a prospective health professions officer's entry grade and rank within grade shall be determined by the number of years of entry-grade credit awarded on original appointment, designation, or assignment as a health professions officer.  The entry-grade credit to be awarded shall equal the sum of constructive service credit and prior commissioned service credit (other than as a commissioned warrant officer), except in cases where the total exceeds the maximum credit allowed.  A period of time shall be counted only once when computing entry grade credit, and qualifying periods of less than one full year shall be proportionately credited to the nearest day.

15.  DODI 6000.13, dated 30 June 1997, states that constructive service credit may be awarded only if such advanced education or advanced degree is required as a prerequisite for original appointment as a commissioned officer in a particular officer category.

16.  Army Regulation 15-185, paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR or the Director of the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant indicates his desire to appear before the Board, there are sufficient records available for a fair and impartial review of this case without a formal hearing.

2.  While his actual master's degree is not contained in his records, based on the institution awarding his Master of Science degree it appears his degree was in textiles and it was not earned after his basic qualifying degree.  This degree is not a curriculum listed in Table 3-3 of Army Regulation 135-101 nor would it appear to add adjunctive skills to the emergency room physician specialty.  Based on all of this, his Master of Science degree does not meet the eligibility criteria for award of constructive credit.

3.  The advisory opinion had also indicated that the applicant might be eligible for constructive credit of 3 years, 0 months, and 15 days for his prior non-health related commissioned service from May 1974 to June 1980.  However, he began medical school on 1 September 1976.  He has already received 4 years of constructive credit for his attendance at medical school.  Therefore, only that portion of his Reserve commissioned officer service from 18 May 1974 to 31 August 1976 (1/2 credit, 1 year, 1 month, and 22 days) would be creditable since his attendance at the school of medicine must be deducted. 

4.  The above adjustments would make him eligible for a total of 17 years, 2 months, and 14 days of constructive credit, insufficient credit for appointment to LTC..

5.  The maximum constructive credit without a waiver due to existence of a manning shortfall in the specialty within medicine to which the applicant was assigned or where serious inequities would otherwise result, is 14 years.  There is insufficient evidence his situation would warrant a waiver of the 14-year maximum limitation.  In any case, a grant of a waiver would have made him eligible only for appointment as a MAJ, with 3 years, 2 months, and 14 days of excess credit.  However, his current MAJ date of rank is 11 August 2001.  This is much more favorable to him than the date of rank he would have received had he been accessed with constructive credit rather than at highest grade held.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ____________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)                                         AR20100026866



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ABCMR Record of Proceedings (cont)                                         AR20100026866



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