IN THE CASE OF:	  

		BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110020576 


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 records to show he was granted the appropriate amount of constructive credit upon entry in the U.S. Army, adjustment of the effective dates and dates of rank (DOR) for his subsequent promotions, and payment of all back pay due as a result of the corrections.

2.  The applicant states that he joined the U.S. Army as a Uniformed Service University of Health Services (USUHS) medical student on 30 May 2003 and he was appointed in the rank of second lieutenant (2LT)/pay grade O-1.

	a.  He did not complete the program and he was separated in January 2007. He adds that a DA Form 5074-1-R (Record of Award of Entry Grade Credit -Medical and Dental Officers) should have been completed and he should have received one-for-one credit for this time; however, this was not done.

	b.  He was assigned to the U.S. Army Public Health Command (USAPHC) on 15 June 2007 and promoted to first lieutenant (1LT)/pay grade O-2 with a back-dated DOR of 13 June 2007.  However, his 1LT DOR should have been
30 November 2004.

	c.  He was promoted to captain (CPT)/pay grade O-3 with a DOR of 16 May 2009.

	d.  In February 2011, through conversations with another officer, he discovered that he was not being paid for his grade and years of service.  He attempted to resolve the matter with his personnel and finance offices; however, he was given unacceptable answers to his inquiries.

3.  The applicant provides copies of his appointment documents, DA Form 4037 (Officer Record Brief (ORB)), reassignment orders, pay-related documents, and email messages.

CONSIDERATION OF EVIDENCE:

1.  U.S. Total Army Personnel Command (PERSCOM), St. Louis, MO,
Orders A-05-392297, dated 15 May 2003, ordered the applicant to proceed on temporary duty on 11 June 2003.  He was to report to the Academy of Health Sciences (AHS), Fort Sam Houston, TX, on 15 June 2003.

2.  U.S. Total Army PERSCOM, St. Louis, MO, Orders A-05-392298, dated
15 May 2003, ordered the applicant to active duty in the rank of 2LT (O-1) for a period of 4 years.

	a.  He was to report to USUHS, Bethesda, MD on 11 August 2003.

	b.  The additional instructions show "individual should insure the personnel service center submits a copy of the oath of office, active duty orders, and any other available documents to PERSCOM for DOR determination."

3.  A DA Form 71 (Oath of Office - Military Personnel) shows the applicant was appointed as a Reserve commissioned officer in the rank of 2LT effective
30 May 2003.

4.  U.S. Total Army PERSCOM, St. Louis, MO, memorandum, dated 30 May 2003, announced the appointment of the applicant as a Reserve commissioned officer in the Medical Service Corps (MSC) in the rank of 2LT effective 30 May 2003.  It shows in:

	a.  Section D:  no entry (is blank); and

	b.  in paragraph 4:  "If you have been credited with 'years of service in an active status' the number of years, months, and days is shown after D."

5.  A review of the applicant's records failed to produce any evidence of the date he was disenrolled from USUHS.

6.  U.S. Army Human Resources Command (USA HRC), Alexandria, VA, Order Number 282-012, dated 9 October 2007, promoted the applicant to 1LT effective and with a DOR of 13 June 2007.

7.  USA HRC, Alexandria, VA, Order Number 168-045, dated 17 June 2009, promoted the applicant to CPT effective and with a DOR of 16 May 2009.

8.  In support of his request the applicant provides the following documents:

   a.  his ORB, dated 4 October 2011, that shows his Basic Active Service Date is 14 June 2003 and that he was appointed as/promoted to:
   
* 2LT on 30 May 2003
* 1LT on 13 June 2007
* CPT on 16 May 2009

	b.  Headquarters, Walter Reed Army Medical Center, Washington, DC, Orders 149-02, dated 29 May 2007, that reassigned the applicant from the USUHS Student Detachment, Bethesda, MD, to the USA Center for Health Promotion and Preventive Medicine (CHPPM), Aberdeen Proving Ground, MD, on 15 June 2007;

	c.  DA Form 2142 (Pay Inquiry), dated 15 March 2011; Basic Pay Chart, effective 1 January 2011; and Defense Finance and Accounting Service (DFAS) printout, dated 15 March 2011, that show the applicant's basic pay entitlement and that his Pay Entry Basic Date (PEBD) is 30 May 2003; and

	d. 13 pages of email messages, dated 29 March through 19 September 2011, pertaining to his DOR and pay that show:

	 	(1)  the applicant initiated pay inquiries in an attempt to correct his service dates and DOR; and

	 	(2)  the Chief, MSC, Health Services Directorate (HSD), USA Recruiting Command (USAREC), Fort Knox, KY, advised the applicant to apply to the ABCMR due to the absence of a DA Form 5074 and the time lapse.

9.  In connection with the processing of this case, an advisory opinion was obtained from the Director, HSD, USAREC, Fort Knox, KY.  On 19 November 2011, the advisory official recommended that the applicant's total constructive credit be adjusted to 4 years, 0 months, and 13 days and that his 1LT DOR be adjusted to 30 November 2004.

	a.  The advisory official states that a review of the applicant's accession record reveals that his constructive credit towards his DOR to 1LT (O-2) was not properly computed at the time of his disenrollment from the USUHS.

	b.  He notes that Title 10, U.S. Code (USC), section 2126, does not clearly define that time spent as a USUHS student is not creditable towards promotion eligibility.

	c.  He concludes that the applicant's time spent as a medical student while in USUHS be credited as time in grade (TIG) towards promotion to 1LT (O-2).

10.  On 21 November 2011, the applicant was provided a copy of the HSD, USAREC, advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.

11.  On 29 November 2011, the applicant provided his response stating that he is not exactly sure what the advisory official means by granting 48 months and
13 days of total constructive credit.  He adds that there are two scenarios implied by USAREC, as follows:

	a.  Scenario 1:

* promotion to 1LT with a DOR of 30 November 2004 (with 18 months TIG as a 2LT)
* promotion to CPT with a DOR of 13 December 2008 (with 4 years and 13 days TIG as a 1LT)

	b.  Scenario 2:

* promotion to 1LT with a DOR of 30 November 2004 (with 18 months TIG as a 2LT)
* promotion to CPT with a DOR of 13 June 2007 (with 30 months and
13 days TIG as a 1LT [less the 18 months TIG as a 1LT]

	c.  The applicant requests:

* promotion to 1LT with a DOR of 30 November 2004 (with 18 months TIG as a 2LT)
* promotion to CPT with a DOR of 2 November 2006 (with 1 year,
11 months, and 3 days TIG as a 1LT (equates to his current period of TIG as a 1LT prior to promotion to CPT)

	d.  The applicant concludes that, regardless of the corrections made to his DOR to 1LT and CPT, he requests payment of all back pay he may be due as a result of the adjustments.

12.  USA HRC MILPER Message Number 10-235, subject:  Fiscal Year 2011 Captain Army Nurse Corps, Medical Service Corps, and Army Medical Specialist Corps Zones of Consideration, shows the board considered eligible MSC 1LTs with an active DOR of 1 April 2009 through 31 March 2010 for promotion to CPT.

13.  Department of Defense Directive (DoDD) Number 6000.12 (Health Services Operations and Readiness) and DOD Instruction (DoDI) Number 6000.13 (Medical Manpower and Personnel) prescribes policy and procedures in granting entry grade credit to any person appointed, assigned, or designated as a "health professions officer" in the Military Departments.  DoDI Number 6000.13 shows in:

	a.  paragraph 6.1.1 that credit for prior service as a commissioned officer shall be granted to recognize previous commissioned experience, while maintaining cognizance of the level of professional knowledge, skill, and experience required at specific rank levels of each health profession.  The Secretaries shall establish procedures to ensure the awarding of prior commissioned service credit is applied in an equitable and consistent manner.  It also shows that service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, in the corps or professional specialty in which being appointed, shall be credited on a day-for-day basis with any commissioned service performed before such appointment.

   b.  paragraph 6.1.2 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 DOR 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.  Periods of time spent on active duty or in an active status as a commissioned officer may not be counted when computing constructive service credit.

14.  Title 10,USC, section 2114(b), provides that notwithstanding any other provision of law, USUHS students shall serve on active duty in pay grade O-1 with full pay and allowances of that grade.  The service credit exclusions specified in section 2126 of Title 10 shall apply to students covered in this section.

15.  Title 10, USC, section 2126, provides that USUHS and Health Professions Scholarship Program (HPSP) students are not entitled to count the medical student time for basic pay or retirement eligibility purposes.  

16.  An Air Force Board for Correction of Military Records (AFBCMR) case, dated 4 May 1998, involved an Air Force 2LT who was academically disenrolled from USUHS and was given a DOR effective the day following his disenrollment.  During the processing of the case a Staff Judge Advocate review was conducted and the reviewing official opined, in effect, that while the statutes governing USUHS students preclude them from counting student time for basic pay or retirement eligibility purposes, they do not preclude the use of USUHS time for DOR and promotion eligibility purposes.  In that case the AFBCMR corrected the applicant's records to show that he was promoted to the rank of 1LT the day following his academic disenrollment.

17.  Army Board for Correction of Military Records (ABCMR) Docket Number AR20090011111, dated 18 February 2010, involved a 2LT who was academically disenrolled from USUHS.  The case noted there are no statutory or regulatory provisions to prevent him from using his active duty time as a 2LT in the USUHS Program towards credit for promotion to the rank of 1LT once he was disenrolled from the program.  The ABCMR corrected his records to show he was promoted to 1LT following his disenrollment from USUHS and he was entitled to all back pay and allowances from that date.

18.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing the promotion of commissioned officers on the active duty list (ADL).  Paragraph 2-1 provides, in pertinent part, that for other than Regular Army 2LTs, the adjusted DOR will be the date the appointment is accepted, if all service as a 2LT before placement on the ADL was in an active status.  2LTs are normally promoted to the rank of 1LT after serving 18 months on the ADL.

19.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the U.S. Army Reserve.  Chapter 3 (Board Schedules and Procedures), Section III (Promotion Reconsideration Boards), paragraph 3-19 (General), provides that officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or a special selection board (SSB).  Special selection boards will reconsider commissioned officers who were wrongly not considered and/or those who were considered, but not selected by mandatory promotion boards that convened on or after 1 October 1996.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was appointed as a Reserve commissioned officer in the MSC in the rank of 2LT effective 30 May 2003 and his pay records show 30 May 2003 as his PEBD.

2.  The applicant was assigned to the AHS, Fort Sam Houston, TX, on 15 June 2003, with a follow-on assignment at the USUHS Student Detachment, Bethesda, MD, through 12 June 2007.  The available evidence shows he was disenrolled from USUHS in January 2007.

	a.  He was reassigned to the USA CHPPM, APG, MD and promoted to 1LT with a DOR of 13 June 2007.  He was not credited with any years of service in an active status at this time.

	b.  The evidence of record fails to show that a DA Form 5074 was prepared at this time to determine the applicant's entry-level military service credit.

	c.  A calculation of the applicant's military service credit shows the following:

	2007  06  13  promotion date to 1LT (O-2)
         - 2003  05  30  PEBD (for basic pay purposes)
         =    04  00  13  total amount of military service credit upon reentry date

3.  The governing regulations show that constructive service credit provides a person who begins commissioned service after [emphasis added] obtaining the additional education, training, or experience required for appointment credit and is only applied to the individual's entry grade [emphasis added].  Records show the applicant began his commissioned service before obtaining the additional education, training, or experience required for appointment.  In the applicant's case, constructive credit was not authorized and he is not entitled to constructive service credit.

4.  The governing regulation shows the TIG requirement for promotion to 1LT was 18 months.

5.  The evidence of record shows that the applicant was prohibited from being promoted while in the USUHS Program (10 USC 2114(b)).  However, there does not appear to be any statutory or regulatory provisions that would prevent him from using his active duty time as a 2LT in the USUHS Program towards credit for promotion to the rank of 1LT once he was disenrolled from the program.  While he was not on the ADL as a 2LT, he nevertheless was being paid the full pay and allowances that a 2LT on the ADL was being paid. 

6.  Although he is not entitled to service credit for the time he spent in the USUHS Program, the fact remains that he served on active duty and was paid the pay and allowances of a 2LT for more than 3 years before being disenrolled from the program and he is now serving as an MSC CPT on the ADL.

7.  Accordingly, it appears that in the interest of equity his records should be corrected to show he was promoted to 1LT effective and with a DOR of
2 January 2007, the date following his disenrollment from USUHS, with entitlement to all back pay and allowances from that date.

8.  Additionally, given the recommendation to correct the applicant's DOR for 1LT to 2 January 2007, it would also be appropriate to refer his records to an SSB for consideration under the appropriate FY CPT MSC promotion criteria.

9.  Based on the foregoing, it would be appropriate to correct the applicant's records as recommended below.

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 showing he was promoted to the rank of 1LT (O-2) effective and with a DOR of
2 January 2007.

2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination and to remit all back pay (i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of the corrections.
3.  As a result of this correction, the applicant's records should be considered by an SSB for promotion consideration to captain under the appropriate FY DA CPT MSC Promotion Board selection criteria based on his DOR of 2 January 2007.

   a.  If selected, the applicant shall be promoted to CPT with a DOR/eligibility and effective date, as determined by the appropriate Departmental officials, that is consistent with that of other officers selected under that FY DA CPT MSC Promotion Board criteria, along with entitlement to all back pay and allowances, provided he was otherwise qualified and met all other prerequisites for promotion.

   b.  If not selected, based on his adjusted 1LT DOR of 2 January 2007, the applicant's DOR/eligibility and effective date to CPT shall also be adjusted, as determined by the appropriate Departmental officials, to a date that is consistent with that of other officers selected under that FY DA CPT MSC Promotion Board criteria the applicant was previously selected under, along with entitlement to all back pay and allowances.

   c.  Additionally, if not selected by an SSB, the applicant shall be so notified of his non-select for promotion to CPT under the SSB process and also of his adjusted DOR to CPT.

4.  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 granting constructive service credit.




      _______ _   _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)                                         AR20110020576



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ABCMR Record of Proceedings (cont)                                         AR20110020576



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