IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110022512 


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 active duty obligation (ADO).  

2.  The applicant states after completing 3 years and 2 months of a 5-year general surgery residency he was diagnosed with a vision problem that disqualified him from completing the internal medicine residency.  He completed this residency in June 2001, and proceeded to train in a hematology-oncology fellowship program which he completed in June 2004.  He states he has served as staff hematology-oncology provider through November 2011, at which time he became the Chief, Hematology-Oncology Service, Walter Reed National Military Medical Center (WRNMMC) and he was eventually found fit to serve in another Medical Corps Officer capacity.  He claims while transitioning to another medical specialty, he served as a general medical officer 5 months.

3.  The applicant provides the 8 attachments listed on the attachments list included with his application in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  On 17 June 1990, the applicant entered into a Department of the Army Armed Forces Health Professions Scholarship Program Service Agreement.  In the agreement he acknowledged he understood that the active duty obligation for those selected for further Graduate Professional Education beyond the first year graduate medical education would be based on the existing Department of Defense and Army Directives in effect when signing the graduate professional education contract accepting such training.  He also acknowledged he understood upon selection for the program he agreed to complete the requirements for an appointment as a commissioned officer.  He further acknowledged he understood that any subsequent changes in his marital or dependent status or in his physical condition would not be grounds for subsequent release from the terms of his contract unless specifically provided for by statute or applicable Army Regulations in effect at the time his status changes. 

2.  On 28 May 1994, the applicant was appointed a captain in the Medical Corps of the U.S. Army Reserve and on 17 June 1994 he entered active duty in that status.  

3.  On 21 January 2001, the applicant entered into a training agreement for Army Graduate Medical Education (GME) for training in a military facility in hematology/oncology at WRNMMC.  In this agreement, he confirmed he understood that he would remain a student in training during the 5-year program and incur an ADO for the entire period.  He also acknowledged that he understood the time spent during the research period did not count towards repayment of the ADO incurred for GME. 

4.  On 6 June 2011, the applicant entered into a 1-year Medical Additional Special Pay agreement for $15,000, effective 7 July 2011.

5.  In connection with the processing of this case, an advisory opinion was obtained from the Program Manager, GME Division, Office of The Surgeon General (OTSG).  This official recommends no change to the applicant’s ADO.  He states the facts are that the ADO resulting from the applicant’s partially completed general surgery residency, internal medicine residency, and hematology/oncology fellowship exceed his ROTC and Health Professional Service Program ADO which precludes him from being unobligated at this time.  He further states the governing Department of Defense (DOD) policy is clear in establishing that members will incur an ADO of one-half year for each half year or portion thereof, and the minimum obligation shall be no less than 2 years.  

6.  The OTSG advisory opinion further indicates the DOD policy states the ADO may be served concurrently with other ADOs or with obligations incurred for DOD sponsored pre-professional (undergraduate education or training or prior long-term health or health related education or training).  The policy allows no discretion for medical conditions.  This official further states the applicant owed an 8 year and 8 month obligation upon completion of his fellowship training and even serving as much ADO concurrently as allowed by the DOD policy, the end of his current ADSO is 5 February 2013.  

7.  On 18 January 2012, the applicant submitted a rebuttal to the OTSG advisory opinion.  He argues that the opinion is discriminatory and if adopted would act as a direct form of retribution for having acquired a medical problem while in a training status on active duty.  He claims that because the policy provides no provisions for exceptions based on medical conditions does not mean the Board does not have the discretion to make determinations based on medical conditions and physical limitations which in his case precluded a continuation of his surgical residency.  He claims the advisory opinion is discriminating because it unjustly penalizes him for a diagnosed medical condition, an acquired loss of visual activity that was discovered by the Department of the Army Medical Corps during his general surgery residency in 1997, and required his removal from the residency program.  

8.  The applicant further states the advisory opinion sets a harmful precedent.  He claims that simply because the DOD policy does not specifically and definitively account for medical conditions does not imply the policy must be interpreted to eliminate any such authority.  He states the opinion’s unreasoned determination could result in cases where active duty members find it necessary to conceal their medical conditions which could result in harm to themselves or ultimately to others.  For these reasons, the advisory opinion must be rejected.  

9.  The applicant finally indicates there are two aspects of his ADSO calculation for consideration or an adjustment.  He states that the advisory opinion indicates his ADSO should remain 5 February 2013; however, his general surgery training was considered neutral, neither added or subtracted from his training ADO, his education ADO would be 5 February 2012.  Second, if the Board decided his general surgery training ADO should be additive to his training but should not reflect any time spent not in training (subtraction of the rounding up) his training ADO would be 5 September 2012.  

10.  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.  Paragraph 6.6 provides minimum terms of service and ADO for Health Professions Officers.  

   a.  Paragraph 6.6.1 states the minimum term of service for first-term personnel shall be 2 years following internship for physicians and 3 years for other health professions officers.  The minimum term is not additive to ADOs incurred for education or training.  Prior active duty and internship or any other initial qualifying training program may not count towards fulfilling the minimum term of service.


   b.  Paragraph 6.6.2. states no portion of an ADO may be satisfied as follows:

   (1)  By prior military service;

   (2)  During any period of long-term health or health-related education or training;

   (3)  Concurrently with any other ADO or with an obligation
incurred for DOD-subsidized pre-professional (undergraduate) education or training, or prior long-term health or health-related education or training, unless otherwise specified in this DODI.

   c.  the minimum term is not additive to ADOs incurred for education or training.  

   d.  Paragraph 6.6.3.1 states for ADOs for graduate professional education for physicians, dentists, and veterinarians (includes only residencies and fellowships) in a military facility, a member shall incur an ADO of one half year for each one half year, or portion thereof, but the minimum ADO shall not be less than 2 years.  That ADO may be served concurrently with other ADOs or with
obligations incurred for DOD-sponsored pre-professional (undergraduate) education or training or prior long-term health or health-related education or training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to adjust his ADO has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By law and regulation, an ADO of one half year for each one half year of graduate medical education is incurred for physicians and this includes time in residencies and fellowships.  There are no provisions allowing for exceptions for the failure to complete these programs for medical reasons.  

3.  Although there may be equity considerations given the applicant’s removal from the general surgery residency was the result of a disqualifying medical condition, this consideration is not sufficiently mitigating to support an exception to the ADO policy. 

4.  The evidence fails to show an error or injustice related to the applicant’s removal from the general surgery residency which was accomplished in accordance with applicable law and regulation.  

5.  Further, the applicant was or should have been fully aware of the ADO rules applicable upon entry into the internal medical residency and hematology/oncology fellowship.  The applicant properly incurred the additional ADO based on the additional GME benefit resulting from these programs.

6.  In addition, the record confirms the applicant signed a GME agreement in which he confirmed that he understood he would incur an ADO for the entire period of his hematology/oncology fellowship training.  In view of the facts of this case, there is an insufficient evidentiary basis to support an exception to the ADO policy in this case.  

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)                                         AR20110022512



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ABCMR Record of Proceedings (cont)                                         AR20110022512



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