IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100028374 


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 date of rank (DOR) for first lieutenant and captain.  He also requests his pay grade to reflect O-2E and O-3E based on his previous enlisted service.

2.  The applicant states he was commissioned as a first lieutenant/pay grade 
O-2E based on his over 10 years nursing experience and his prior enlisted service.  He was being paid as an O-1 instead of an O-1E.  He was promoted to first lieutenant on 20 June 2007; however, his Defense Finance and Accounting Service (DFAS) Leave and Earnings Statement (LES) did not reflect his pay grade as O-2E until September 2007.  Although DFAS awarded him just over $200.00 for back pay from his O-1 pay grade for 15 days at the Officer Basic Course (OBC) and 25 days active duty at Itami, Japan, he did not feel that was correct.

3.  The applicant provides:

* his Registered Nurse certification, dated 28 September 1995
* 12 pages from his official military personnel file (OMPF)
* his DFAS LES from 20 September 2006 to 23 July 2010.

CONSIDERATION OF EVIDENCE:

1.  He is currently serving as a captain/pay grade O-3E in the Army Nurse Corps, U.S. Army Reserve.

2.  A Human Resources Command (HRC), St. Louis, MO memorandum, subject:  Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code, sections 12201 and 12203, dated 21 June 2006, appointed the applicant as a second lieutenant in the Army Nurse Corps, U.S. Army Reserve (USAR).  His date of acceptance is shown as 21 June 2006.

3.  A DA Form 71 (Oath of Office - Military Personnel) shows he was commissioned a first lieutenant in the USAR on 21 June 2006.  He had 6 years, 10 months, and 1 day of previous active service in an enlisted status.

4.  A DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Service Officers)), dated 1 August 2006, shows he was granted 3 years of constructive service.  The form shows 2 years were used for grade credit to first lieutenant and 1 year credit in excess of that required for grade.  His date of appointment was 21 June 2006 with a date of rank (DOR) of 21 June 2005.

5.  HRC Orders C-08-627103, dated 16 August 2006, reassigned him in the USAR as a first lieutenant with an effective date of 21 June 2006 and a DOR of 
21 June 2005.

6.  A DA Form 1059 (Service School Academic Evaluation Report), dated
16 December 2006, shows he completed the Army Medical Department (AMEDD) OBC (Reserve Component) on 16 December 2006.

7.  HRC Orders B-05-703872, dated 22 May 2007, promoted him to first lieutenant with an effective date and a DOR of 20 June 2007.

8.  He was selected for promotion by the 2010 Department of the Army (DA) AMEDD Captain Reserve Component Selection Board.  HRC Orders
B-07-005010, dated 30 July 2010, promoted him to captain with an effective date and a DOR of 26 July 2010.

9.  In the processing of this case, on 19 April 2011, an advisory opinion was received from Headquarters, U.S. Army Recruiting Command (USAREC).  The advisory official stated no further action was required.  The applicant was selected for the Army Nurse Corps, USAR on 16 June 2006 in the grade of first lieutenant.  His DA Form 71, dated 21 June 2006, indicates appointment in the grade of first lieutenant.

10.  On 22 April 1011, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.


11.  DOD Financial Management Regulation (DODFMR), paragraph 010103(A)(2) states "Effective May 20, 1958, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years (i.e., at least 4 years and 1 day) of prior active service as an enlisted member are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E."

12.  Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and Personnel) implements policy, assigns responsibilities, and prescribes procedures to carry out medical manpower and personnel programs.

	a.  Paragraph 6.1.2 states that constructive service credit provides a person who begins commissioned service after obtaining the additional education, training, or experience required for appointment, designation, or assignment as an officer in a health profession, with a grade and date of rank comparable to that attained by officers who begin commissioned service after getting a baccalaureate degree and serve for the period of time it would take to obtain the additional education.

	b.  Paragraph 6.2.1 states a person granted service credit under this instruction and placed on the active duty list or the reserve active status list of a military service may have an entry grade determined by comparing the entry grade credit with the currently-established promotion phase points of the military service and officer category concerned.  Entry grade credit in excess of the minimum years of entry grade credit required to establish a specific grade (but less than the amount necessary to justify the next higher grade) shall be used to adjust the date in the entry grade.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) specified that promotion reconsiderations by a special selection board (SSB) may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in the context or error such a nature that in judgment of the reviewing official, it caused an individual non-selection by a promotion board and, that had such error(s) been corrected at the time of the individual was considered, a reasonable change would have resulted that the individual would have been recommended for promotion.  The regulation also states that the boards are not required to divulge the proceedings or the reason for non-selection, except where an individual is not qualified due to non-completion of required military school.


DISCUSSION AND CONCLUSIONS:

1.  Based on his prior active service as an enlisted member he is entitled to the special rate of basic pay for pay grade O-1E, O-2E, and O-3E.

2.  The rank on his appointment memorandum is inconsistent with the rank on his oath of appointment, record of award credit, and orders for appointment as a first lieutenant.  Therefore, a corrected appointment memorandum should be issued to show he was appointed as a first lieutenant with an effective date of 21 June 2006 and a DOR of 21 June 2005.  He should be provided all back pay and allowances due as a result of this correction.

3.  The orders issued by HRC, dated 22 May 2007, were obviously in error because his initial appointment was to first lieutenant.  Therefore, these orders should be revoked and both the orders and the orders revoking them should be removed from his OMPF.

4.  Based on the above correction his records should be placed before an SSB for promotion consideration under the criteria used by the 2008 and 2009 DA AMEDD Captain Reserve Component Selection Boards.  
If he is selected for promotion by the SSB, his captain promotion effective date and date of rank should be established as if he had been originally selected, and he should be provided all back pay and allowances due as a result.  If not selected, he should be so notified.

5.  If he does not feel his reimbursement of pay due based on the correction of his pay grade from O-1 to O-1E was correct he should contact DFAS and request an audit of his pay record.

BOARD VOTE:

____X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  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 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 commissioned as a first lieutenant/pay grade O-2E with an effective date of 21 June 2006 and a DOR of 21 June 2005; 

	b.  issuing a corrected appointment letter showing he was appointed as a first lieutenant with an effective date of 21 June 2006 and a DOR of 21 June 2005; and

	c.  DFAS auditing the applicant's pay record and providing him any back pay and allowances due based on the above corrections

2.  The Board also recommends that based on the above corrections:

	a.  his record be placed before an SSB for promotion consideration to the grade of captain under the criteria followed by the 2008 and 2009 DA AMEDD Captain, Reserve Components Selection Boards;

	b.  if selected for promotion to captain by the SSB, by establishing his captain promotion effective date and date of rank as if he had been originally selected, and by providing any back pay and allowances due as a result;

	c.  if not selected for promotion he should be so notified; and

	d.  revoking HRC Orders B-05-703872, dated 22 May 2007, and removing both the orders and the revocation orders from his OMPF.



      ____________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)                                         AR20100028374



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ABCMR Record of Proceedings (cont)                                         AR20100028374



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