IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20100029940 


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 promotion to major (MAJ) with a date of rank (DOR) as 1 October 2009. 

2.  The applicant states the reason cited on his prior Board (administratively closed) for denial of promotable status was a change in competitive category related to his inter-service transfer as a USPHS/USCG (U.S. Public Health Service, U.S. Coast Guard) physician assistant (PA).  He was given no opportunity to submit his request to the Secretary of the Army for inclusion onto the promotion list.   He was a PA in Special Operations AMIO (Alien Migrant Interdiction Operations) at USCG Sector Key West.  He attended the flight surgeon program while assigned to the USCG and he is currently serving as a flight surgeon/Aviation PA.   

3.  He states in accordance with paragraph 2-5 of Army Regulation (AR) 614-120 (Interservice Transfer of Army Commissioned Officers on the Active Duty List (ADL)), when a commissioned officer transferred to the Army is on a promotion list to the next higher grade in the losing Uniformed Service in a promotable status, the board should follow the guidance in AR 600-8-29 (Officer Promotions).  Paragraph 1-25(4)b of AR 600-8-29 provides for the integration on the promotion list.  It states that commissioned officers on a standing list for promotion in another service, including the USCG and NOAA (National Oceanic and Atmospheric Administration) or previously awarded constructive service credit in another service and transferring to the same or a comparable category in the Army may be integrated onto the corresponding APL.  Such determination will be made on a case-by-case basis and will be approved by the Secretary of the Army.  

4.  The applicant provides:

* Two Personnel Orders, U.S. Department of Health and Human Services, Commissioned Corps of the USPHS
* Previous advisory opinion, Headquarters, U.S. Army Recruiting Command (USAREC), Fort Knox, KY
* Extract of AR 600-8-29 and AR 614-120


CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the Regular Army (July 1985 to July 1989), U.S. Marine Corps (March 1991 to March 1995), North Carolina Army National Guard (October 1995 to October 1998), North Carolina Air National Guard (October 1998 to January 200), and the West Virginia Army National Guard (September 2001 to November 2004).

2.  He was commissioned in the USPHS, Commissioned Corps, and called to active duty on 11 September 2004.  He initially served as a PA and ultimately as a senior assistant health services officer in the Office of Health Services, Special Operations, USCG, Key West, FL.  He held the rank/grade of lieutenant/O-3.

3. On 30 June 2009, he was issued a Personnel Order - Temporary Promotion, detailing him to the Office of Infrastructure Protection, in the temporary rank/grade of lieutenant commander/O-4, as a Health Services Officer, effective 1 October 2009.  

4.  On 7 July 2009, he was issued a Personnel Order authorizing him an interservice transfer to the Department of the Army, effective 8 July 2009, under the provisions of Title 10, U.S. Code (USC), section 716.

5.  On 23 February 2009, he was appointed as a Reserve commissioned officer in the rank/grade of captain (CPT)/O-3, in area of concentration 65D (PA).

6.  On 20 March 2009, the U.S. Army Human Resources Command, (HRC), St. Louis published Orders A-030908816 ordering him to active duty in the rank/grade of CPT/O-3 to fulfill an active duty requirement in a voluntary indefinite status with temporary duty to complete the Army Medical Department Officer Basic Leader Course (AMEDD BOLC) and ultimate assignment to the 12th Aviation Brigade, Germany.  The orders stated:
Effective on the date of entry on active duty, you are appointed in the Reserve grade of CPT and placed on the ADL in the grade of CPT in accordance with Army Regulation 135-101 (Appointment of Commissioned Officers for Assignment to AMEDD Branches).  DOR is to be adjusted based on constructive service credit (CSC) of 4 years.  

7.  On 16 September 2009, he successfully completed the AMEDD BOLC at Fort Sam Houston, TX (15 July to 16 September 2009).

8.  On 5 November 2009, HRC-Alexandria published Orders 309-015 announcing a determination affecting his promotion status.  HRC determined his rank/grade to be CPT with a DOR as 9 July 2009.

9.  On 27 January 2010, the applicant petitioned the Board to adjust his CPT DOR from 9 July 2009 to 1 October 2005.  He contended that in accordance with AR 135-101, an officer who is transferred from the ADL of another service to the ADL of the Army, that officer's grade and DOR would be the same as that held in the former service.  What follows was a series of memoranda and/or advisory opinions culminating in his adjusted CPT DOR to 1 October 2005:

	a.  The Deputy Chief, Promotions (Active Component), HRC-Alexandria, opined on 4 August 2010 that the ABCMR should forward the applicant's case to the U.S. Army Recruiting Command (USAREC), AMEDD Accessions Branch, Fort Knox, where his application was processed in accordance with paragraph  1-3 of AR 135-101.  Additionally, the AMEDD Accessions should issue a corrected DA Form 5074-1-R.  Based on the above, the official recommended denial. 

	b.  The Chief, Promotions (Active Component), HRC-Fort Knox, opined on 24 August 2010 that the applicant actually requested his CPT DOR be adjusted and he be integrated on the ADL as a MAJ.  His CPT DOR should be adjusted to 1 October 2005.  However, with respect to integrating him as a MAJ, it cannot be determined if his selection for temporary promotion to MAJ in the USPHS is subject to statutory requirements of Title 10, USC.  The official recommended the ABCMR case be returned to USAREC, AMEDD Accessions Branch, Fort Knox, where the applicant's application was processed.  The USAREC AMEDD Accessions Branch must determine if the applicant held a promotable status in accordance with Title 10 prior to his accession on active duty.

	c.  HRC-Fort Knox published Orders Number 236-001 on 24 August 2010 adjusting the applicant's CPT DOR to 1 October 2005. 

	d.  DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officer)) awarded him constructive service credit (CSC) for his USPHS service from 9 November 2004 through 28 October 2008 and qualified him to enter the RC as a CPT.

	e.  The Program Manager, Health Services Directorate, USAREC, Fort Knox, opined that upon review of the documents to adjust the applicant's CPT DOR, he concurred with HRC's determination that the applicant's adjusted DOR should be 1 October 2005.  However, the applicant was not requesting integration on the ADL as a MAJ nor would he be eligible.  A commissioned officer who was on a promotion list in one competitive category and, before promotion, transferred to a different category will not be integrated into the promotion list of the new category.  

10.  An advisory opinion was obtained on 17 May 2011 in the processing of this case.  An HRC-Fort Knox official stated that based on the information provided, HRC cannot support his request to change his grade from CPT to MAJ based on the temporary personnel promotion order.  HRC cannot determine the validity of or if the temporary promotion was completed in accordance with Title 10, USC, sections 211 and 737.  Additionally, the temporary promotion document does not reflect an ending termination date.  He was provided with a copy of this advisory opinion but did not respond. 

11.  AR 614-120 provides guidance on submitting applications for interservice transfer of Army commissioned officers on the active duty list.  It governs the determination of grade and date of rank when commissioned officers of other Uniformed Services are appointed as Army commissioned officers on the ADL because of interservice transfer.  

	a.  Paragraph 2-1e (transfer policy) states no officer will be transferred from one Uniformed Service and appointed in another Service with a precedence or relative rank higher than that held on the day before transfer. 

	b.  Paragraph 2-4 (grade determination upon transfer) states officers transferred to another Uniformed Service will continue to hold the same grade and component as that held in the Army on the day before transfer.  The officer will be placed in an appropriate position on the ADL of the gaining Uniformed Service in accordance with regulations of the gaining Service.  As an exception to paragraph a above, an officer who transferred from a professional category (such as Chaplain, AMEDD, or Judge Advocate) in the Army to other than the same or a comparable professional category in the gaining Uniformed Service, may lose constructive service credit granted under Title 10, USC, sections 533 and 12206 in accordance with the gaining Service’s regulations, and will be appointed in an appropriate grade based on total active Federal commissioned service and placed on the ADL of the gaining Uniformed Service in accordance with regulations of that Service.

	c.  Paragraph 2-5 (application of officers of other Uniform Services) states officers of other Uniformed Services may apply for interservice transfer to the Army in accordance with regulations of their respective Service.  Except for commissioned officers in the Public Health Service (PHS), a commissioned officer transferred to the Army under an interservice transfer will have his or her Army grade determined using the procedures as provided in paragraph 2-4 for officers transferring out of the Army.  Determination of date of rank and placement on the ADL of the Army will be according to AR 600-8–29 and AR 135-101 (for AMEDD officers).  A commissioned officer of the PHS transferred to the AMEDD will have the grade and date of rank as determined under AR 135-101 except that active commissioned service in PHS will be counted as active commissioned service under that regulation.  If a commissioned officer transferred to the Army is on a promotion list to the next higher grade in the losing Uniformed Service, see AR 600-8-29 for promotion status.  

12.  AR 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the ADL.  

	a.  Paragraph 1-10 (promotion eligibility) states in sub-paragraph 1-10e that officers in the following categories (some not applicable in the applicant's case) are not eligible for consideration by a promotion selection board:  Commissioned officers with less than 1 year of continuous active duty (since their most recent placement on the ADL) before the board convenes (Title 10, USC, section 619c). The following are exempt from the 1–year rule (in pertinent part that applies to the applicant), an officer who received an inter-service transfer to an AMEDD competitive category from the medical department of another Armed Force of the United States, without a break in active duty service (for consideration to the next higher grade).

	b.  Paragraph 1-25b (inter-service transfer - integration on the promotion list) states commissioned officers on a standing list for promotion in another service (including the Coast Guard and National Oceanic and Atmospheric Administration) or previously awarded constructive service credit in another service and transferring to the same or a comparable category in the Army may be integrated into the corresponding Army standing promotion list.  Such determinations will be made on a case-by-case basis and approved by the Secretary of the Army or his or her designee.

	c.  Paragraph 1-25b (inter-service transfer - promotion eligibility) states officers transferring to the Army from another service without a break in service are immediately eligible for promotion consideration if their DOR places them within the promotion zone for a grade for which the selection board had not adjourned before the effective date of the transfer.  Their names will be submitted to a special selection board for consideration as prescribed in chapter 7 of this regulation.  If approved, their names will be placed on the promotion list according to their DOR; however, the effective date of promotion may not be before their entry on active duty in the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed in the USPHS on 11 September 2004.  His appointment was terminated on 7 July 2009.  He had applied for and received approval for an inter-service transfer to the Army as a Reserve commissioned officer.  Prior to termination of his USPHS appointment, he was issued a Personnel Order authorizing him temporary promotion to O-4 effective 1 October 2009. 

2.  He was appointed as a Reserve commissioned officer in the rank/grade of CPT/O-3 on 8 July 2009 and entered active duty to fulfill his service obligation on 9 July 2009.  His initial DOR was established as 9 July 2009.  However, having served in the USPHS, he was awarded CSC for this service and his DOR was adjusted to 1 October 2005.

3.  The applicant's CSC qualified him to enter as a CPT; it did not qualify him to enter as a MAJ.  USPHS promotion regulations are not available, and it is not known how his temporary promotion, to be effective 1 October 2009, compared to an Army promotion/selection for promotion.  In the absence of documentary evidence that shows he was selected for promotion, he would not be entitled to integration on the ADL promotion list and such promotion on 1 October 2009.  

4.  Nevertheless, as an AMEDD officer who had an approved USPHS inter-service transfer, he was exempt from the 1-year ADL rule upon his appointment in July 2009.  Additionally, with a CPT DOR as 1 October 2005, the earliest he would have qualified for consideration for promotion to MAJ would be the Fiscal Year (FY) 2011 MAJ APL Board which convened on 27 October and recessed on 19 November 2010.  

5.  The zone of consideration for CPTs on that board required CPTs to have a DOR between 1 March 2005 and 31 December 2005.  The applicant's DOR fell into that zone.  He could not have been considered by either the FY2009 or the FY2010 boards because his DOR did not fall within the zone of consideration for either the above the zone nor the promotion zone. 

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 submitting his records to an SSB for promotion consideration to MAJ under the 2011 year criteria:

	a.  if selected, his records be further corrected by showing he was promoted to MAJ on his date of eligibility, as determined by appropriate Departmental officials, provided he was otherwise qualified and met all other prerequisites for promotion, and

	b.  if not selected, the applicant be so notified.

2.  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 his promotion to MAJ with a DOR as 1 October 2009.



      _______ _  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)                                         AR20100029940



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ABCMR Record of Proceedings (cont)                                         AR20100029940



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