IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110009451 


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 his entry grade and date of rank be correctly applied to his records.

2.  The applicant states an incorrect form was used to calculate his entry grade and date of rank as a dental officer, thereby unjustly denying him the correct entry grade and date of rank. 

3.  The applicant provides:

* a self-authored statement 
* DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers))
* DA Form 71 (Oath of Office – Military Personnel)
* Official Transcripts
* DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers))
* Exhibit C, undated resume
* 33-page Provider Application
* Orders 211-019, dated 30 July 2009
* National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board)
* NGB 62E (Application for Federal Recognition as an Army National Guard (ARNG) Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the ARNG of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Memorandum, dated 30 June 2009
* Professional Insurance Exchange Policy Declaration
* State of Utah, Active License
* Nevada State Board of Dental Examiners License
* Controlled Substance Registration Certificate
* Workers Compensation and Employers Liability Policy
* Form W-9 (Request for Taxpayer Identification Number and Certification)
* Certificate for the Practice of Dentistry in the State of Nevada
* 2 Academy of General Dentistry Certificates of Membership
* Mid-America Orthodontic Society Post-Graduate Course completion certificate (Orthodontic Success Program)
* Mid-America Orthodontic Society Post-Graduate Certificate (Advanced Orthodontics)
* International Association for Orthodontics Associate Membership Certificate
* BECDEN Dental Laboratory, Inc., Advanced Training in Cosmetic Dentistry Certificate
* Functional Freedom Corporation Charter Membership Certificate
* American Association for Functional Orthodontics Membership Certificate
* Inline Orthodontics Certificate of Training
* Advanced Orthodontics and TMJ Course Training Certificate
* Essentials for Oral Sedation Completion Certificate
* University of Oklahoma College of Dentistry Affiliate Certificate
* Dental Organization for Conscious Sedation Certificate
* University of Oklahoma College of Dentistry John N. Miles Memorial Award
* Adult Oral Sedation Certificate
* Table Clinics Participation Certificate

CONSIDERATION OF EVIDENCE:

1.  Having prior honorable active enlisted service in the U.S. Army, the applicant further pursued his education and on 31 May 1997 he was awarded a Doctor of Dental Surgery Degree from the University of Oklahoma.  

2.  His record contains an NGB 62E which shows, on 14 May 2009, the applicant applied for Federal Recognition and appointment as a Reserve officer of the Army in the ARNG in the rank of captain (CPT) in the Dental Corps. 

3.  His record contains a DA Form 71 which shows he was appointed as a Reserve commissioned officer in the rank of CPT, effective 8 July 2009.
4.  On 9 July 2009, the applicant was appointed as a CPT in the Dental Corps of the Utah ARNG (UTARNG) and executed his oath of office.  

5.  On 11 November 2009, the applicant successfully completed the Army Medical Department (AMEDD) Officer Basic Leaders Course (Reserve Component).

6.  His record does not contain a properly constituted DA Form 5074-R or DA Form 5074-1-R.  The applicant did provide a copy of both forms; however, neither form is authenticated by an approving official.

7.  On 7 February 2011, in an advisory opinion that was obtained in the processing of this case, the Chief, Personnel Policy Division, NGB stated:

	a.  The applicant stated the UTARNG incorrectly calculated his constructive credit for appointment as a Dental Officer.  He believes if his credits were calculated on a DA Form 5074-R with additional credit for training or experience in unusual cases his initial appointment should be changed to the rank of major (MAJ).

	b.  In accordance with Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches), chapter 3-1, a Soldier must have more than 14 years and less than 21 years of entry level credit in order to be appointed to the rank of MAJ.  The applicant states he should have four credits for his qualifying degree, one credit for internship, two credits for professional education, three credits for professional experience, and six credits for training or experience in unusual cases.  The total amount of credits the applicant believes he has is 16, which would have qualified him for an appointment to the rank of MAJ.  Per Army Regulation 135-101, table 3-1 “credit in unusual cases based on special education or professional experience in the specialty in which assigned when experience is accrued after qualifying degree and licensure, if applicable.  Unusual case determination will be made by the Surgeon General or designee.”

   c.  The ARNG Office of the Chief Surgeon stated no additional credits should be awarded for his training or experience in unusual cases since the training was not an approved fellowship program.  In addition, the training certifications and documentation provided by the applicant did not equal 6 years of training and experience in unusual cases.  Finally, the applicant was fully aware prior to swearing into the ARNG that he was being appointed as a CPT.
   
   
   d.  Therefore, the six additional credits the applicant states he is owed is not justified.  The applicant's total amount of constructive credit equals 10 years.  In accordance with table 3-1 mentioned above, the applicant was appointed in the proper rank of CPT on 8 July 2009.  Recommend the applicant maintain the initial rank of appointment to CPT.  The State further concurred with this recommendation.

8.  On 7 February 2011, the applicant was provided a copy of the advisory opinion.  On 20 February 2011, the applicant responded by email to a staff member of the ABCMR and stated, in effect:

   a.  an injustice and inequality occurred as a result of an incorrect form being used to determine his rank as a dental officer.  Therefore, the correct form should be used to determine his rank;
   
   b.  he presented two examples of doctors and dentists who he claimed had less experience and training who received the rank of MAJ and were given credit for their time in the computation of their date of rank;
   
   c.  he claims to have over 5 years of post graduate fellowship training which could have and would have been used had the correct form been used to determine his rank;
   
   d.  he disagrees he was in agreement with his rank when he was sworn in and further states he can present the sworn testimony of 3 officers and a master sergeant who are aware that he raised the issue of his appointment rank prior to swearing in; and
   
   e.  the State of Utah is aware of the discrimination regarding his rank and many colonels have agreed and asked for this to be corrected on his behalf.  He further states the State of Utah has relieved the officer that handled his enlistment, but noted they do not have the power to correct the situation.

9.  Army Regulation 135-101, paragraph 3-1 (Entry grade credit for Reserve appointment grade determination), states grade and date of rank upon original appointment 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 will be the sum of constructive service credit and credit for prior active commissioned service.

10.  Army Regulation 135-101, paragraph 3-2 (Determination of entry grade for officers not ordered to active duty), provides that the grade of an individual appointed as a Reserve officer without concurrent call to active duty will be determined by comparing the entry grade credit awarded with the phase points shown in Table ERR (Entry Grade Table).

	a.  Table ERR shows, in part:

   Entry Grade Credit									Entry Grade
   
   less than 3 years									Second Lieutenant
   3 years or more, but less than 7 years			First Lieutenant
   7 years or more, but less than 14 years			CPT
   14 years or more, but less than 21 years  	      MAJ

	b.  Table 3-1 (Constructive Service Credit), 1.  Basic Qualifying Degree, provides for four years of credit for a basic qualifying degree for the Dental Corps.  

   c.  Table 3-1, 2.  Credit for successful completion of internship or first-year graduate medical education which is approved by the American Medical Association or American Osteopathic Association and is the functional equivalent of an internship is not applicable for the Dental Corps.

   d.  Table 3-1, 3.  Credit for Graduate Professional Education, shows for successful completion of approved postgraduate education in dentistry or dental specialty in which assigned and creditable toward certification, 1 year of credit is provided for each year.
   
   e.  Table 3-1, 5.  States full-time experience not otherwise credited as a practicing physician, osteopath, or dentist after qualifying degree, receive one-half year for each year of experience, up to a maximum of 3 years.
   
   f.  Table 3-1, 6.  States additional credit in unusual cases based on special education or professional experience in the specialty in which assigned when experience is accrued after qualifying degree and licensure, if applicable.  Unusual case determination will be made by The Surgeon General or designee.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct his entry grade and date of rank has been carefully examined. 

2.  In spite of the absence of a properly constituted DA Form 5074-R in the applicant’s official military personnel file, records show the applicant was appointed on 9 July 2009, as a CPT in the Dental Corps of the UTARNG.  
3.  Army officials conducted a review of the applicant's record and an advisory opinion was rendered which opposed any adjustment in the applicant’s entry grade constructive credit for training or experience in unusual cases.  As per Army Regulation 135-101, table 3-1, 6.  “unusual case determinations will be made by The Surgeon General or designee.”  

4.  The ARNG Office of the Chief Surgeon stated no additional credits should be awarded for his training or experience in unusual cases since the training was not an approved fellowship program and the training certifications and documentation provided by the applicant did not equate to 6 years of training and experience in unusual cases.  Therefore, the applicant’s combined total was 
10 years which did not meet the threshold of 14 years or more, but less than 
21 years to be appointed as a MAJ.  It is further noted the applicant erroneously received an additional year of credit for a 1-year internship which is not applicable towards credit for Dental Corps officers in accordance with Army Regulation 135-101, Table 3-1, 2.

5.  The applicant states he disagreed with his rank when he was sworn in and further stated he could provide corroborating statements to support this position; however, no statements of support were provided by the applicant.  Regardless, the applicant was fully aware prior to swearing into the ARNG that he was being appointed as a CPT.  Had he desired further clarification of his entry grade credit, it could have been completed prior to taking his oath appointing him as a Dental Corps officer.  

6.  Neither an injustice nor inequity occurred as a result of an incorrect form being used to determine his entry grade as a dental officer; therefore, the applicant is not entitled to the requested relief.

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 that 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)                                         AR20110009451



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ABCMR Record of Proceedings (cont)                                         AR20110009451



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