IN THE CASE OF:	  

		BOARD DATE:	10 April 2012

		DOCKET NUMBER:  AR20110013329


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 credit for his 4 years of service in the Health Professions Scholarship Program (HPSP) toward his years of service for retired pay.

2.  As a secondary issue, he requests service credit for his active Reserve service from 26 April 1982 through 18 May 1984 while he was a nursing student at Northern Michigan University.

3.  The applicant states:

* he went to medical school at the University of Michigan under the HPSP from 1993-1997
* he graduated from medical school in 1997 and was transferred to Brooke Army Medical Center for internship and residency
* he was told that as long as he completed 20 years of active duty, his time spent in the HPSP would count for longevity in the calculation of retired pay
* he is not currently being paid for his HPSP service – he is requesting constructive credit for his time spent in the HPSP
* even though he does not have his original contract, he has orders ordering him to active duty for HPSP rotations at Fitzsimons and Brooke Army Medical Centers
* it is also apparent to him that he did not receive the bonuses after graduation from residency until he paid back the time he owed from taking the HPSP
* he was told on at least two separate occasions that the time he spent in medical school would count in the calculation of retired pay
* his retired pay is being reduced as a result

4.  On an additional DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), the applicant further states:

* after serving 4 years and 1 month on active duty, he transferred to the U.S. Coast Guard (USCG) Reserve
* on 26 April 1982, he transferred from the inactive Reserve to the active Reserve
* he served in the active Reserve for the next 2 years until he joined the Army
* the Army Retirement Services Officer did not award him any of his active Reserve time for retired pay purposes, even though she was shown various orders and leave and earnings statements
* he has not received full retired pay since he retired as he has not been awarded all of the constructive credit due for the USCG Reserve assemblies he attended while attending nursing school at Northern Michigan University

5.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* USCG endorsement, unsigned and undated
* USCG letter, dated 26 April 1982, subject:  Assignment to Inactive Duty Training; Orders
* USCG Small Arms Target Practice Report (4 pages)
* USCG Personnel Security Record
* USCG Active Duty Training Orders
* U.S. Army Reserve (USAR) Personnel (DARP) Form 249-2-E (Chronological Statement of Retirement Points)
* Orders T-11-525468, USAR Personnel Center, St. Louis, MO, dated 1 November 1995
* DARP Form 249-2-E, dated 18 June 1996
* Office of the Surgeon General (OTSG) Form 120-R (U.S. Army Health Professions Scholarship and Reserve Officers' Training Corps Student Performance Evaluation


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  It appears the applicant is requesting correction of his Chronological Statement of Retirement Points to properly account for his USCG Reserve service.  Correction of the Chronological Statement of Retirement Points is the function of the U.S. Army Human Resources Command (HRC).  Since the applicant has not exhausted his administrative remedies regarding this portion of the requested relief, he should contact HRC for further action.  Accordingly, this portion of his request will not be discussed further in this Record of Proceedings.

3.  Following previous enlisted service in the USCG, the applicant was appointed as a Reserve commissioned officer of the Army in the Army Nurse Corps (ANC) in the rank/grade of second lieutenant (2LT)/O-1 effective 19 May 1984.

4.  On 15 July 1984, he entered active duty, served in multiple positions of increased responsibility within the ANC, attended numerous professional development courses within the medical field, and attained the rank/grade of captain (CPT)/O-3E (the E denotes previous enlisted service).

5.  On 12 November 1992, he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement).  Item 12c (Net Active Service This Period) of his DD Form 214 shows he was credited with completion of 8 years, 3 months, and 28 days of service during this period of active duty, and item 12d (Total Prior Active Service) shows he was credited with the completion of 4 years and 2 months of active service prior to this period of active duty.

6.  In 1993, the applicant began his doctoral studies at the University of Michigan under the HPSP.  His DA Form 4629 (Service Agreement – Department of the Army – Armed Forces HPSP) is not available for review.

7.  On 6 June 1997, he graduated from the University of Michigan and was awarded his doctorate degree in general medicine.

8.  On 9 June 1997, he entered active duty as a USAR Medical Corps CPT at Brooke Army Medical Center, Fort Sam Houston, TX, for the purpose of completing his transitional year internship and 3-year residency program.  On 30 June 2001, he completed his residency in anesthesiology.

9.  On 10 October 2001, he was promoted to the rank/grade of lieutenant colonel (LTC)/O-5.

10.  On 31 October 2007, he was honorably retired in the rank/grade of LTC/O-5. 
Item 12c of his DD Form 214 shows he was credited with completion of 10 years, 4 months, and 22 days of net active service during this period and item 12d shows he was credited with completion of 12 years, 6 months, and 27 days of prior active service.  He did not receive credit for time spent in medical school.

11.  In the processing of this case, an advisory opinion was obtained from the Chief, Health Services Division, HRC, who recommended denial of applicant's request based on his status as a Regular retiree (20 years of active duty service). 
This official further stated:

* Federal law expressly provides that time spent in the HPSP does not qualify as creditable service for determining Regular retired pay
* Title 10, U.S. Code, section 2126 (Members of the Program:  Service Credit), paragraph (b), and the Department of Defense Financial Management Regulation (DODFMR) allow for crediting HPSP service toward non-Regular retirement only
* the applicant is receiving Regular retirement so the time he spent participating in the HPSP is statutorily excluded from consideration when determining years of creditable service for pay

12.  On 21 March 2012, the applicant was provided an opportunity to respond to the advisory opinion.  On 22 March 2012 in his rebuttal to the advisory opinion, the applicant stated:

* at the time he was recruited at the University of Michigan Medical School, he had already completed 13 years of active service and he was told he merely needed to complete 20 years of active service to qualify for retirement
* at no time was he told he would have to serve 20 years as a physician
* the Army benefited from his previous active service as he was able to excel in medical school and assume leadership roles immediately upon graduation
* after returning from Iraq in 2006, he was again assured by the chief of the retirement center at Fort Carson, CO, that his time spent in the HPSP would be counted in calculating his retired pay
* part of his military service was performed in the USCG, he feels his service was not properly accounted for and he was "short changed"
* he has been told numerous times that his years of service were incorrectly calculated

13.  He provides:

* numerous documents that show he performed duty as a member of the USCG Reserve
* two DARP Forms 249-2-E, dated 4 June 1993 and 18 June 1996
* Orders T-11-525468, USAR Personnel Center, St. Louis, MO, dated 1 November 1995, which order him to report for 45 days of active duty for training as a member of the HPSP effective 18 November 1995
* OTSG Form 120-R that documents his evaluation as a member of the HPSP during the period 29 July through 23 August 1996

14.  Title 10, U.S. Code, section 2126, provides statutory provisions for the Health Professions Scholarship and Financial Assistance Program for Active Service.

	a.  Subparagraph (a)(2) (Service Not Creditable) states service performed in the HPSP will not be counted in computing years of service creditable under Title 37, U.S. Code, section 205.

	b.  Subparagraph (b)(1) (Service Creditable for Certain Purposes) states the Secretary concerned may authorize service performed by a member of the program in pursuit of a course of study under this subchapter to be counted in accordance with this subsection if the member completes the course of study, completes the active duty obligation imposed under section 2123(a) of this title, and possesses a specialty designated by the Secretary concerned as critically needed in wartime.

	c.  Subparagraph (b)(2) states service credited under subparagraph (b)(1) counts only for the award of retirement points for computation of years of service under section 12732 (Retired Pay for Non-Regular Service – Entitlement to Retired Pay:  Computation of Years of Service) of this title and for computation of retired pay under section 12733 (Retired Pay for Non-Regular Service – Computation of Retired Pay:  Computation of Years of Service).

15.  DODFMR 7000.14-R consists of 15 volumes, including volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay) and volume 7B (Military Pay Policy and Procedures – Retired Pay).  This regulation provides statutory provisions for entitlements, deductions, and collections, and establishes Department of Defense policy on pay and allowances of military personnel.

	a.  Volume 7A, paragraph 010102A.8 (Service Not Creditable) of the November 2011 version (current), states that subsequent to 14 September 1981, a member's service while enrolled in the Armed Forces Health Professions Scholarship and Financial Assistance Program or while a student at the Uniformed Services University of the Health Sciences will not be counted as creditable service.

	b.  Volume 7B, paragraph 010301B.4.c (Service Creditable for Percentage Purposes – Service for Percentage Multiple – Voluntary Retirement Commissioned Officers) of the September 2009 version (current), states that years of service not included in subparagraphs 010301.B.1, 2, or 3 with which the member would be entitled to be credited under Title 10, U.S. Code, section 12733, including service in the HSPS, may be used as a percentage multiple in the computation for non-Regular retired pay.

DISCUSSION AND CONCLUSIONS:

The applicant contends his 4 years of service in the HPSP should be credited toward his years of service for retired pay.  As stated in Title 10, U.S. Code, section 2126, and the DODFMR, service in the HPSP will not be counted in the computation of retired pay under Title 37, U.S. Code, section 205, but may be counted in the computation of service for non-Regular retirement.  The applicant received a Regular retirement; therefore, his HPSP service is statutorily excluded from consideration when determining years of creditable service for pay.  Accordingly, he 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 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)                                         AR20100011932



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ABCMR Record of Proceedings (cont)                                         AR20110013329



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