IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100027822 


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 his date of rank (DOR) as a second lieutenant (2LT) be changed to 13 June 2004, that his DOR as a first lieutenant (1LT) be changed to 15 January 2004 and that his DOR for promotion to the rank of captain (CPT) be changed to 15 July 2009.

2.  The applicant states, in effect, that he was commissioned as a second lieutenant (2LT) on 13 June 2004.  After completing the Medical Service Corps (MSC) Officer Basic Course (OBC) in July 2004 and having been accepted into the USUHS, he began his education in August 2004.  After serving over 3 1/2 years on active duty, he was academically disenrolled on 15 January 2009 and continued to serve at the USUHS until he received orders for a permanent change of station to Kuwait.  He states that he is requesting promotion to the rank of 1LT effective the day of his disenrollment from the USUHS.  He also states that a precedent exists in an Air Force Board for Correction of Military Records (AFBCMR) case and the Army Board for Correction of Military Records (ABCMR) case (AR20090011111) that time spent at the USUHS is valid for eligibility towards promotion. 

3.  The applicant provides a list of supporting documents on his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that he was commissioned as a U.S. Army Reserve (USAR) 2LT on 13 June 2004.

2.  The applicant attended the Army Medical Department (AMEDD) OBC at Fort Sam Houston, Texas on 14 June 2004.  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.  He completed his OBC on 23 July 2004 and was transferred to the USUHS in Bethesda, Maryland.  He served as a 2LT while in the USUHS with full pay and allowances.

3.  The applicant was academically disenrolled on 15 January 2008 and took his oath of office as a Regular Army 2LT on the same day.  He remained assigned to the USUHS as a research microbiologist until 28 October 2008, when he was transferred to Fort Sam Houston to attend the Basic Officer Leaders Course (BOLC) from 2* October to 19 December 2008.  He successfully completed the BOLC and was transferred to Kuwait.  He was promoted to the rank of 1LT on 15 July 2009.  

4.  He completed his tour in Kuwait and was reassigned back to the USUHS.  He was promoted to the rank of CPT on 15 March 2011.

5.  The AFBCMR case provided by the applicant involved an Air Force 2LT who was academically disenrolled from the USUHS and was given a date of rank (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.

6.  The ABCMR case provided by the applicant is an identical case involving an Army 2LT who was academically disenrolled and requested that he be promoted to the rank of 1LT effective the date he was academically disenrolled from the USUHS.  The Board granted relief in that case on 18 February 2010.  

7.  A review of the applicant’s USUHS contract shows that he 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.  In paragraph 16, he 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 (ADO) incurred, when such service is determined to be in the best interest of the Government.  He agreed to a 4-year ADO.

8.  Title 10, U.S.C. 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.

9.  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.  

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his time spent as a student in the USUHS should serve as time in grade credit for his promotion to the rank of 1LT and that he should be promoted to the rank of 1LT the day following his disenrollment from the USUHS has been noted and appears to have merit.

2.  While the applicant 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 the program.  While he was not on the ADL as a 2LT, he nevertheless was being paid the full pay and allowances that a 2LT on the ADL was being paid. 

3.  Although the applicant 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 was paid the pay and allowances of a 2LT for over 2 years before being disenrolled from the program and he is now serving as an MSC CPT on the ADL.

4.  Accordingly, it appears that in the interest of equity, the applicant should be promoted to the rank of 1LT effective 16 January 2008, the day after his disenrollment, and then promoted to the rank of CPT effective 16 July 2009, with entitlement to all back pay and allowances from that date.
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 promoting the applicant to the rank of 1LT effective 16 January 2008, with a DOR of 16 January 2008, promoting him to the rank of CPT effective 16 July 2009 with   entitlement to all back pay and allowances that flow from those promotions.



      	_______ _  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)                                         AR20100027822



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ABCMR Record of Proceedings (cont)                                         AR20100027822



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