IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100028363 


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 correction of his military records to show he was promoted to captain (CPT), pay grade O-3 effective 15 January 2008.  In the alternative he requests:

	a.  correction of his date of rank (DOR) for first lieutenant (1LT) to 15 January 2008 with retroactive adjustment of his DOR for CPT to 15 July 2009; or

	b.  any remedy the Board sees fit to approve based on the facts of the case.

2.  The applicant, in essence, states in a 4-page narrative that:

	a.   he received an Army commission as a second lieutenant (2LT) on 1 June 2002, upon graduation from the U.S. Military Academy (USMA);

	b.  he attended the Medical Service Corps (MSC) Officer Basic Course (OBC) from 17 June to 26 July 2002;

	c.  he was accepted to study medicine in an active-duty status at the Uniformed Services University of Health Sciences (USUHS) and attended from August 2002 until 9 March 2008 as a 2LT with full pay and allowances;

	d.  on 15 January 2008, he was academically disenrolled in his senior year and his DOR for 2LT was adjusted to the same date;

	e.  he continued as a research assistant until 9 March 2008;
	f.  he attended the Basic Officer Leaders Course from 9 March to 24 April 2008;

	g.  he attended the Army Medical Department (AMEDD) OBC from 29 April to 17 June 2008; and

	h.  he was promoted to 1LT on 15 July 2009.

3.  The applicant also argues:

	a.  As a lieutenant, he has been primarily assigned to duty positions requiring the rank and experience of a CPT.  A 2LT is normally promoted to 1LT at 18 months on the active duty list (ADL) and to CPT after an additional 18-21 months.

	b.  He acknowledges that Federal law omits USUHS students from the ADL and does not count student time for service credit.  However, it does not prohibit the Army from considering service as a medical student at USUHS for time in grade accumulation and promotion eligibility once released from the program.
	
	c.  He contends that Federal law should not cause him harm when he leaves USUHS without being commissioned as a captain in the Medical Corps, but is otherwise qualified for promotion in the Medical Service Corps.  He submits that it is unconscionable for the Army to pay and train a 2LT for almost 6 years without giving any credit for time in grade for determining promotion eligibility.

	d.  USUHS students are given 4 years of constructive credit upon graduation which allows them to catch up with their peers.  However, there is no provision for students who do not complete the USUHS graduate program.  The years at USUHS are erased even though they had put in the same time on active duty.  These students start over in the rank of 2LT.

	e.  This system is not fair.  In fact, based on the current system, there is no difference between a regular graduate program for medicine at another university and USUHS.  The applicant contends he chose USUHS because of the active duty status.
	
4.  The applicant provides copies of orders to active duty to attend USUHS; USAREC Form 1223 (Department of the Army Service Agreement F. Edward Hebert Armed Forces Uniformed Services University of the Health Sciences); AMEDD OBC diploma; permanent change of station orders to Fort Hood, Texas; DA Forms 67-9 (Officer Evaluation Report) for periods ending on 4 July 2009 and 23 April 2010; disenrollment letter from USUHS; DA Form 4037 (Officer Record Brief (ORB)); and a copy of a similar case, concerning a different Soldier, that was previously considered by this Board.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was 1LT, MSC, serving at Fort Hood, Texas.

2.  The evidence of record shows the applicant:

	a.  graduated from the USMA and was appointed as a 2LT, MSC, with an effective date and date of rank of 1 June 2002;

	b.  completed the AMEDD OBC course on or about 26 July 2002; and

	c.  completed the first year (July 2003) and second year (June 2005) of medical training at USUHS.

3.  On 15 January 2008, the applicant was academically disenrolled from USUHS.  At the same time, his DOR for 2LT was changed to this same date.

4.  Orders Number 168-069, U.S. Army Human Resources Command, Alexandria, VA, dated 17 June 2009, announced the promotion of the applicant to 1LT with an effective date and DOR of 15 July 2009.

5.  Orders Number 088-015, U.S. Army Human Resources Command, Fort Knox, KY, dated 29 March 2011, announced the promotion of the applicant to CPT with an effective date and DOR of 15 March 2011.

6.  In the processing of this case, an advisory opinion was obtained from the Health Services Directorate, U.S. Army Recruiting Command, Fort Knox, KY.  The opinion stated:

	a.  that the applicant's constructive credit towards his date of rank to 1LT was improperly computed at the time of his disenrollment from USUHS;

	b.  that the statute does not clearly define that time spent as a USUHS student is not creditable towards promotion eligibility; and

	c.  that the applicant should be given constructive credit of 5 years, 5 months, and 2 days towards 1LT resulting in an effective date and DOR of 13 February 2004.

7.  On 11 May 2011, the applicant responded to the advisory opinion.  He simply acknowledged its content and expressed his confidence that this Board would be fair.

8.  Title 10, U.S. Code, section 2114, provides that medical students at the USUHS shall be commissioned officers of a uniformed service.  Notwithstanding any other provision of law, they shall serve on active duty in pay grade O-1 with full pay and allowances of that grade.

9.   Army Regulation 600-8-29 (Officer Promotions) states:

	a.  	Appropriate field promotion authorities will conduct promotions from 2LT to 1LT.

	b.  2LT and 1LT: The law establishes that an officer must have at least 
18 months Time-In-Grade to be promoted to 1LT and 2 years TIG as a 1LT to be promoted to CPT.

	c.  Officers must be in a promotable status.

	d.  Rules for processing newly assigned 2LT for promotion provide for the processing of DA Form 78 (Recommendation for Promotion to 1LT/CW2).  Promotion to 1LT may be delayed until the recommending authority has had the opportunity to evaluate the officer for 90 days; however, it may be completed before then if desired.

	e.  The effective date and DOR will be the date the 2LT becomes eligible, unless the officer is promoted after a period of delay resulting from being in a non-promotable status.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was promoted to captain (CPT), pay grade O-3 effective 15 January 2008.  In the alternative he requests:

	a.  correction of his DOR 1LT to 15 January 2008 with retroactive adjustment of his DOR for CPT to 15 July 2009; or

	b.  any remedy the Board sees fit to approve based on the facts of the case.

2.  The available evidence clearly shows that the applicant graduated from USMA and was commissioned as a 2LT, MSC, with a DOR of 1 June 2002.  He then completed AMEDD OBC and was subsequently enrolled as a medical student at USUHS.

3.  On 15 January 2008, the applicant was academically disenrolled from USUHS.  At that time, his DOR for 2LT was changed to the date of his disenrollment.  However, there is no authority in regulation or law that permitted or required his DOR to be so changed.

4.  Law clearly states that medical students will serve in pay grade O-1.  This requirement simply puts them in a non-promotable status while a student.  They still accrue time in grade as an O-1.

5.  In the applicant's case, when he was disenrolled, he should have then been considered for promotion to 1LT based on his DOR of 1 June 2002.  Instead, he was required to serve an additional 18 months before receiving his promotion on 15 July 2009.  This error was an injustice to the applicant that should be corrected.

6. Notwithstanding the advisory opinion, the applicant's records should be corrected to show that:

	a.  he was disenrolled from USUHS on 15 January 2008 in the rank of 2LT with a DOR of 1 June 2002;

	b.  he was properly considered via the processing of a DA Form 78 and subsequently recommended for promotion to 1LT;

	c.  his promotion recommendation was approved on 16 January 2008;

	d.  he was promoted with an effective date and date of rank on 16 January 2008; and

	e.  upon attaining the minimum qualifying TIG as a 1LT, that his records be submitted for consideration by a special selection board (SSB) 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.  showing he was disenrolled from USUHS on 15 January 2008 in the rank of 2LT with a DOR of 1 June 2002;

	b.  showing he was recommended for promotion to 1LT and so promoted with an effective date and date of rank of 16 January 2008;

	c.  upon attaining the minimum qualifying TIG as a 1LT, that his records be submitted for consideration by a duly-constituted SSB for promotion to CPT;

	d.  showing his records are further corrected, if selected for promotion to CPT on his date of eligibility, as determined by appropriate Departmental officials, under the appropriate year criteria, provided he was otherwise qualified and met all other prerequisites for promotion;

	e.  notifying him, if he is not selected; and

	f.  auditing his military pay records and paying him any monies due him as a result of these corrections.








2.  The Board further determined that the evidence presented is 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 showing he was automatically promoted to 1LT on the date of his disenrollment or promoting the applicant to CPT at the time of his disenrollment from USUHS.




      _______ _  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)                                         AR20100028363





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ABCMR Record of Proceedings (cont)                                         AR20100028363



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