IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130000968 


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:

The applicant defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* the applicant be granted additional constructive credit based on her civilian experience as a dentist 
* the applicant's entry grade of captain (CPT)/O-3 be adjusted to major (MAJ)/O-4
* the applicant receive all back pay and allowances for adjustment of her entry grade to MAJ/O-4

2.  Counsel states:

	a.  the applicant had 24 years of civilian experience as a dentist prior to entering active duty.  She was inaccurately accessed as a captain (CPT)/O-3 when she should have entered active duty as a MAJ/O-4.

	b.  the applicant received a memorandum on 9 May 2008, Subject:  Appointment as a Reserve Commissioned Officer of the Army under Title 10, U.S. Code 12201 (Reserve Officers:  Qualifications for Appointment) and 12203 (Commissioned Officers:  appointment; how made, term).  She was credited with 7 years of service based on her résumé and given the grade of O-3.

	c.  the applicant entered active duty on 5 August 2008.  She provided her résumé to the U.S. Army Human Resources Command (HRC).  She had graduated from dental school and received her license in 1983.   At that time, the applicant had been a dentist for 24 years.  She joined the Army because she felt a call to duty and wanted to do something "bigger" and to serve her country.  

	d.  in calculating the applicant's constructive credit, the grade of O-3 does not accurately reflect that she should have received the grade of O-4.  Based on Table 3-1 of Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches), the applicant's 16.5 years of experience should have been accessed as an O-4.

	e.  the regulation has an exception that someone in HRC should have told the applicant about and she should have been allowed to decide if this was something she wanted to pursue.  This process lacked initiative on the part of HRC.  

	f.  the applicant was 56 years old when she came on active duty and was admittedly naïve about rank so when she was told that she would come in as a CPT, she didn't question the Army.  Since she has been on active duty, countless individuals have questioned why she entered active duty in the grade of O-3 based on having 24 years of experience.  

	g.  in addition to adjusting to a military career and covering her workload as an Army dentist, she had several shoulder surgeries and underwent a PCS [permanent change of station] to Germany.  

3.  Counsel provides:

* Army Regulation 135-101, Table 3-1 (Constructive Service Credit)
* Applicant's Officer Record Brief
* Memorandum, Subject:  Appointment as a Reserve Commissioned Officer of the Army under Title 10, U.S. Code 12201 and 12203
* Applicant's Affidavit
* Applicant's Résumé

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted her application, she was serving in the Regular Army in the rank of MAJ.  

2.  The applicant was awarded a Doctor of Dental Surgery (D.D.S.) Degree in 1983 at the University of the Pacific in San Francisco, CA.  
3.  On 26 February 2008, she was appointed as a Reserve commissioned officer in the rank of CPT.  Her DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers) Is not present In her records.

4.  Her appointment letter, dated 9 May 2008, indicates she was granted 7 years of constructive service credit.  

5.  She entered active duty on 28 July 2008.  On 3 August 2008, she was appointed in the Regular Army in the rank of CPT.

6.  Orders Number 339-005, dated 4 December 2008 published by HRC, Alexandria, VA gave her the rank of CPT in the Dental Corps with an ADOR [active date of rank] of 28 July 2005.  

7.  She was promoted to MAJ on 1 October 2012.  

8.  In the processing of this case, an advisory opinion was obtained from the Program Manger, Specialist Corps/Dental Corps Branch, Health Services Directorate, Headquarters, U.S. Army Recruiting Command, Fort Knox, KY.  The advisory official stated:

	a.  the applicant received the appropriate constructive credit and rank.

	b.  per Department of Defense Instruction (DODI) 6000.13, the entry grade is determined based on constructive service credit received for education, work experience, and prior military commissioned service.  Although the applicant may have had over 24 years of work experience as a dentist, the DODI 6000.13, paragraph 6.1.2.2.5 limits credit for work experience to a maximum of 3 years.

	c.  according to documents provided, the applicant correctly received 7 years of constructive credit upon her entry into the Reserve (4 years for dental degree plus 3 years for professional civilian experience).

	d.  Army Regulation 135-101, dated 15 February 1984, Table 3-1, number 6 ("Additional credit in unusual case…"), Constructive Service Credit is referenced.  DODI 6000.13, section 6.1.2.2.6 requires the exercise of human judgment to determine what constitutes special education and professional experience or unique qualifications that are beyond normal requirements for appointment as commissioned officers.  At the time of the applicant's curriculum vitae review, the Dental Corps elected not to award additional constructive credit.  

9.  A copy of the advisory opinion was forwarded to the applicant to allow her to provide comments or a rebuttal.  However, she did not respond within the allotted timeframe.

10.  Counsel provided an affidavit from the applicant who stated:

	a.  she graduated from dental school and received her license in 1983.  Since that time she has worked as a dentist.

	b.  she decided to join the Army at the age of 53 because she wanted to be part of something bigger and to serve her country.  She read an article in the Philadelphia Inquirer that reported the Army needed dentists and was offering age waivers which led her to inquire in 2005.  She was initially told she would come into the service as an O-5.  

	c.  she has been questioned by dentists of all ranks regarding why she was an O-3 and not an O-4 or O-5.  Once the process started with HRC she was told she would not be an O-5 but rather an O-3.  When she questioned this she was told she couldn't be an O-4 because she needed a one-year residency program.  She states this made no sense to her because she had so many years of practical experience.  

	d.  she wasn't aware of any "exception" or that she could have requested to be considered to be an O-4.  During her Army experience she has accepted responsibilities in all venues - patient care, staff, and worked with colleagues to accomplish our mission.  On the average, she is 25 years older than the other 
O-3s.  Her professional peer group is that of O-5s.  She was promoted to O-4 on 1 October 2012.

	e.  she injured her left shoulder in March 2009 which required surgery in August 2009.  She was diagnosed with bilateral damage to her right shoulder because she had a tear that required another surgery on her right shoulder in August 2010.  On 1 November 2011, she PCS'd to Germany that further took up a great deal of her time as she moved and was still in rehabilitation.  She didn't realize an agency could remedy her situation until she approached the Conormon Law Firm in 2012.  



11.  References:

   a.  Army Regulation 135-101 prescribes policy, procedures and eligibility criteria for appointment in the Reserve Components of the Army in the six branches of the Army Medical Department.  Table 3-1 of this regulation indicates 4 years of constructive service credit is granted for a D.D.S.  Additional credit of 1 year of each year of special experience is granted in unusual cases based on special education or professional experience in the specialty in which assigned when experiences is accrued after qualifying degree and licensures, if applicable.  Unusual case determination will be made by The Surgeon General or designee.
   
   b.  DODI 6000.13 is the governing directive in granting constructive service credit.  
   
   (1)  Paragraph 6.1.2.2.5. states credit of one-half year for each year of 
experience, up to a maximum of three years of constructive credit, may be granted for experience in a health profession, if such experience is directly used by the Military Service concerned.  
   
   (2)  Paragraph 6.1.2.2.6. states additional credit in unusual cases, based 
on special education or experience, can be granted by the Secretary of a Military Department, or designee.  As determined by Service needs, the additional credit applies to individuals with unique qualifications that are beyond normal requirements for appointment as commissioned officers.  The amount of credit shall be one year for each year of special education or experience.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant was inaccurately accessed as a CPT instead of a MAJ.  However, the evidence of record does not indicate the determination of the applicant's entry grade was in error or unjust.

2.  The applicant was appointed in the Reserve on 26 February 2008 in the rank of CPT.  At that time, she was granted 7 years of constructive credit.  

3.  She was granted 4 years of constructive credit for her qualifying degree for her D.D.S. and 3 years of constructive credit for her professional civilian experience.  Based on 7 years of constructive service, her entry grade was determined as CPT.  



4.  Based on DODI 6000.13, a maximum of 3 years of constructive credit may be granted for experience in a health profession if such experience is directly used by the Military Service concerned.  The applicant is not a specialist and does not qualify as an unusual case.  

5.  The evidence of record does not indicate the Secretary of a Military Department or designee determined the applicant was eligible for additional credit for her civilian professional service as a dentist.  She received the maximum amount of constructive credit for her civilian professional service.  Therefore, there is no basis for correcting her records to show she is eligible for additional constructive credit, adjusting her entry grade to MAJ or paying her back pay and allowances.

6.  There is no error or injustice that exists in this case regarding the applicant’s current DOR to CPT or constructive credit awarded to her.  Therefore, there is no basis for granting his request.

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)                                         AR20130000968





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130000968



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1