IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120003386 


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 brought on active duty in the rank of major with an active date of rank (ADOR) of 
24 September 2008.  If unable to approve his request then he requests his Reserve date of rank (DOR), 7 August 2006, for captain pay grade/O3 be reinstated as his ADOR for captain.

2.  The applicant states U.S. Army Recruiting Command (USAREC) did not evaluate his experience for prior active commissioned service, civilian work, or education.  He researched Army regulations, Department of Defense instructions, and past relevant Army Board for Correction of Military Records (ABCMR) decisions and believes he should have been brought onto active duty in the rank of major with an ADOR of 24 September 2008.  He requests that all back pay and allowances be paid.

3.  He references multiple paragraphs in Department of Defense Instruction (DODI) 6000.13 and states he was not given appropriate constructive credit for his education, prior commissioned service, and civilian experience when he was placed on the active duty list (ADL) on 1 March 2010.

4.  He states he informed his career manager at the U.S. Army Human Resources Command (HRC) of the problem with his ADOR.  HRC indicated that no DA Form 71 (Oath of Office, Military Personnel) (for his 1 March 2010 appointment) was ever placed in his official military personnel file (OMPF) on the integrated Personnel Electronic Records Management System (iPERMS).  HRC stated the provisions of paragraph 1-43b of Army Regulation 600-8-29 (Officer Promotions) should apply based on his having a new DA Form 71.

5.  He states his appointment letter to second lieutenant, dated 24 April 2008, indicates he was credited with 4 months of service in an active status, but his DOR was never adjusted for second lieutenant.

6.  The applicant provides a memorandum with 17 enclosures.

CONSIDERATION OF EVIDENCE:

1.  An email, dated 15 August 2012, from the Chief, Active Component Boards, Officer Promotions Branch, HRC stated the applicant's ADOR for captain has been administratively corrected to read 7 August 2006.  Therefore, his issue concerning reinstatement of his ADOR will not be discussed further in these proceedings.

2.  On 24 April 1998, he was commissioned a second lieutenant, Medical Services (MS) Branch, in the U.S. Army Reserve.  His appointment letter shows he was credited with 4 months of service in an active status.  He had previously completed 5 years, 1 month, and 1 day of enlisted service in the Ohio Army National Guard.

3.  On 30 May 2002, he was notified he had not been selected for promotion to first lieutenant by a Department of the Army Reserve Components Mandatory Selection Board convened on 7 January 2002.  The records reviewed by the board indicated he had not completed the required civilian/military education by the date the board convened.

4.  On 21 March 2003, he was promoted to first lieutenant.  A memorandum for the record, dated 1 May 2003, from HRC indicated he could not be promoted on his promotion eligibility date of 23 December 1999 because all promotion qualifications were not met.

5.  On 7 August 2006, he was promoted to captain with a DOR of 7 August 2006.

6.  HRC Orders A-02-003947, dated 2 February 2010, ordered him to active duty in the grade of captain, MS Branch, to report 1 March 2010.  The orders show his Reserve DOR as 7 August 2006.

7.  He provided a DA Form 71, dated 1 March 2010, showing he was commissioned a captain, MS Branch, in the Regular Army on 1 March 2010.

8.  An advisory opinion, dated 26 March 2012, was received from Headquarters, U.S. Army Recruiting Command (USAREC) regarding the applicant's belief that he should have been brought on active duty as a major.  USAREC recommended his status remain unchanged.  USAREC stated it is the policy of the Health Services Directorate (HSD) that all applicants, regardless of Army Medical Department Branch, who are currently serving in the USAR and are transferring onto active duty, will access onto active duty with their current rank held in the USAR.  Additional constructive credit is not added nor calculated in these cases.  HSD does not award additional constructive credit for applicants transferring from the USAR onto active duty with no break in service.  

9.  On 11 April 2012, the applicant submitted a rebuttal to the USAREC advisory opinion.  USAREC stated that additional constructive credit was not awarded for applicants from the reserves onto active duty with no break in service.  However, a fellow officer received constructive service based on an opinion from USAREC.  He cites ABCMR Docket AR20110015294 and states his case closely parallels this case and should be used as a reference.

10.  Additional advisory opinions, dated 18 April 2012 and 7 August 2012, were received from HRC and USAREC concerning his ADOR.  As previously mentioned this issue will no longer be discussed in these proceedings.  However, USAREC also addressed the applicant's contention that he should receive additional entry grade credit in accordance with DODI 6000.13.  Paragraph 2.2 of this instruction states this instruction does not apply to the original appointment of Reserve commissioned officers as Regular officers in the Regular Army.

11.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) prescribes policy, procedures, and eligibility criteria for appointment in the Reserve Components of the Army, with or without concurrent active duty, in the six branches of the Army Medical Department (AMEDD).  Paragraph 3–2 (Determination of entry grade for officers not ordered to active duty) states:

	a.  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.  Those with less than 3 years entry grade credit are commissioned as a second lieutenant.  Those with 3 years or more, but less than 7 years were commissioned as a first lieutenant.

	b.  Authorized credit in excess of the minimum required for appointment to the appropriate grade will be used to adjust the date of rank within that grade.

12.  Paragraph 2.2 of Department of Defense Instruction 6000.13 (Medical Manpower and Personnel) states this instruction does not apply to the original appointment of Reserve commissioned officers as Regular officers in the Regular Army under section 533(f) of Title 10 U.S. Code (USC).

13.  Title 10 USC, Section 533(f) states a Reserve officer (other than a warrant officer) who receives an original appointment as an officer (other than as a warrant officer) in the Regular Army shall:

 	a.  in the case of an officer on the ADL immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank held by the officer on the ADL immediately before the appointment; and

	b.   in the case of an officer not on the ADL immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank which the officer would have held had the officer been serving on the ADL on the date of the appointment as a regular officer.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was not given credit towards his DOR for second lieutenant as shown on his appointment letter dated 24 April 1998.  

2.  Only authorized credit in excess of the minimum required for appointment to his grade would have been used to adjust his DOR within that grade.  Because there was no minimum for appointment to second lieutenant, his 4 months service in an active status did not adjust his DOR when he was initially commissioned a second lieutenant.

3.  He contends ABCMR Docket AR20110015294 closely parallels his case.  However, AR20110015294 was not considered by the Board but was administratively closed.  Therefore, there is no further discussion concerning that case.

4.  He was a Reserve officer ordered to active duty and placed on the ADL with a concurrent appointment the Regular Army.  Paragraph 2.2 of DODI 6000.13 states that the provisions of DODI 6000.13, which includes entry grade credit, do not apply for officers in his status.  Therefore, there are no provisions for bringing him on active duty in the grade of major.

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)                                         AR20120003386



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ABCMR Record of Proceedings (cont)                                         AR20120003386



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