IN THE CASE OF:	  

		BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20130005085 


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 as follows:  

* recalculation of his time in service for his current grade of captain (CPT)
* placement in the original Year Group 2002
* retroactive consideration for promotion with those in Year Group 2002
* retroactive promotion to major (MAJ) 

2.  The applicant states:

	a.  He applied for a branch transfer from Infantry to the Medical Services Corps in February 2008.  Upon submitting his application, the Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and Personnel), paragraph 6.1.1.2 was applicable without any waiver consideration.  Prior to the waiver, this paragraph stated that service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, but not in the corps or professional specialty in which being appointed, shall be awarded one-half day of credit for each day served in the case of individuals seeking an original appointment as a health professions officer.  

	b.  However, waiver consideration became available to DODI 6000.13 on 
24 April 2008.  DODI 6000.13 was revised and the waiver authorized a day-for-day credit for reappointment of commissioned officers of any Uniformed Services into the Army Medical Department (AMEDD) provided the member was previously on active duty or in an active status as a commissioned officer and the functions performed were not those unique to health services. 
   c.  He was not commissioned into the Medical Services Corps until
18 September 2008.  As such, he should have been afforded the opportunity to apply for a waiver and transfer into AMEDD with this waiver.  Had he been afforded this opportunity, there was chance the Surgeon General would have approved his request.  If that had happened, an approval of day-for-day credit would have added up to 7 years and 9 months. 

3.  The applicant provides:

	a.   Officer Record Brief (ORB); 

	b.  DA Form 4187 (Personnel Action), request for branch transfer with his chain of command's recommendation; 

	c.  Memorandum, dated 11 September 2008, Subject: Implementation Policy for Waiver of DODI 6000.13, paragraph 6.1.1.2 and Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) table 3-2 Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs (ASA (M&RA)); 

	d.  DA Form 71 (Oath of Office - Military Personnel); 

	e.  DA Form 4187, request for recalculation of service; and 

	f.  Waiver approval by the Surgeon General.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he was appointed as a Reserve commissioned officer with concurrent call to active duty on 20 December 2001.  He held an infantry area of concentration (AOC) and branch.  He was promoted to CPT on 1 June 2005. 

2.  On 12 February 2008, he submitted a DA Form 4187 wherein he requested a branch transfer from Infantry to the Medical Services Corps.  He acknowledged that upon his acceptance into the Medical Services Corps, he understood:

* he would be required to accept a new appointment which may reduce his rank
* a constructive credit formula would be applied and he would receive 1/2 credit of active federal service commissioned service
* the new appointment requirement is applied in accordance with DODI 6000.13 and there are no exceptions
3.  On 4 April 2008, a DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)) was prepared by an official of the U.S. Army Recruiting Command (USAREC).  This form reflects the applicant:

* Received 3 years, 1 month, and 22 days of constructive service credit for prior active commissioned service from 20 December 2001 to 4 April 2008
* Qualified for appointment as a first lieutenant (1 year and 6 months needed)
* Excess credit of 1 year, 7 months, and 22 days would be applied toward his date of rank

4.  On 18 September 2008, he executed an oath of office for appointment as a Regular Army Medical Services Officer in the rank of CPT.  His appointment memorandum is not available for review with this case.

5.  On 5 November 2008, the U.S. Army Human Resources Command, Alexandria, VA published Orders 310-002 adjusting his date of rank to 4 August 2008. 

6.  On 26 July 2012, he submitted a DA Form 4187 to the Office of the Surgeon General wherein he requested a waiver to the constructive service credit restrictions in DODI 6000.13 and Table 3-2 of Army Regulation 135-101.  He requested day-for-day credit be awarded for his appointment as a Medical Services Officer pursuant to the memorandum, dated 24 April 2008, and issued by the ASA (M&RA).

7.  On 25 February 2013, the Surgeon General approved the applicant's request for constructive credit waiver and stated in accordance with DODI 6000.13, she (The Surgeon General) waives the provisions of DODI 6000.13, paragraph 6.1.1.2 in the applicant's case.  He would receive day-for-day credit in his current grade of CPT. 

8.  An advisory opinion was obtained on 6 June 2013 from Headquarters, USAREC, Fort Knox, KY.  The advisory official stated that this opinion is in response to [the applicant's] belief that his rank should be corrected regarding constructive credit for service upon transferring from Infantry AOC 11A to Medical Service Corps AOC 70B.  

	a.  On 12 February 2008, the applicant signed a DA Form 4187 acknowledging that he understood he would lose rank upon reappointment into the Medical Service Corps.  On 24 April 2008, the Office of the Assistant Secretary of Defense published a memorandum that allowed the implementation of waiver of constructive credit provisions of 6000.13, paragraph 6.1.1.2 and related provisions of Army Regulation 135-101, Table 3-2.  The Assistant Secretary of the Army further delegated it down to the Surgeon General on 
11 September 2008.  The applicant signed his oath of appointment into the Medical Service Corps on 18 September 2008.  He requested a waiver to the provisions of DODI 6000.13, paragraph 6.1.1.2 and related provisions of Army Regulation 135-101, Table 3-2, in July 2012, which was granted by the Surgeon General on 26 February 2013.

	b.  Based upon the approval of the waiver provisions of DODI 6000.13, paragraph 6.1.1.2 and related provisions of Army Regulation 135-101, Table 3-2, the applicant's date of rank for CPT in the Medical Service Corps would have been effective the date he signed his oath of office on 18 September 2008, with full adjustment to 4 September 2008.  If his request is approved, his date of rank to CPT of 1 June 2005 would be restored and he would be placed in Promotion Year Group 2002.  The ramifications of this action could be far reaching upon factoring the potential considerable cost to the government.  Promotion Year Group 2002 went before the MAJ Board in August 2011 and those officers have been promoted to MAJ, many having a year for time in grade at this point.  The applicant would then have cause to request that a promotion review board look at his file.  If it is deemed that he was competitive for promotion and would have been selected had his file been reviewed with others in Year Group 2002, he could potentially be promoted to MAJ.  The Army would owe him at least 
40 months of back pay at the O-3-E rate, if his date of rank to CPT is readjusted to 2005 and 13 months of back pay as a MAJ, from 2012 to the present, depending upon when he would have pinned on the MAJ rank.  USAREC does not have the authority to grant such a request.  

	c.  This would also affect any change in the basic allowance for housing and cost of living rates during that time frame as well as any associated travel costs for permanent change of station moves that occurred after the effective date of his readjusted promotion.  The advisory official recommended that this action be disapproved because the applicant knowingly signed documentation stating that he understood his rank would be readjusted upon appointment as a Medical Service Corps Officer.  The fact that the waiver provision was available is not a guarantee that it would have been approved, if he had asked for it in 2008.  The applicant did not request a waiver to the provision until 4 years after he had been serving as a 70B officer.  

	d.  This could potentially set a precedent for future officers in similar situations to request waivers to the provisions of DODI 6000.13, paragraph 6.1.1.2 and related provisions of Army Regulation 135-101, Table 3-2, and essentially write new policy.  A time limit should be set for how much time may pass between an individual being accessed at a particular rank and requesting a waiver to the provision.  The advisory official recommended it be set at no more than 2 years after accession with exceptions granted only in extreme circumstances.

	e.  Additionally, the advisory official recommended that his date of rank be adjusted to reflect 4 September 2008, which is what it would be if a current grade held waiver would have been processed at the time that he signed his oath upon reappointment.  Further, the advisory official recommended that the government not try to recoup the funds due to his date of rank to CPT being adjusted a month too soon (currently listed on his ORB as 4 August 2008).  

	f.  Finally, the advisory official also recommends a DA Form 1506 (Statement of Service) be completed by Finance to ensure the applicant's computation for length of service for pay purposes is calculated correctly, and so that he does not incur any monetary debt to the government due to changes in his date of rank when transferring from one corps to another.

9.  On 19 June 2013, the applicant submitted a rebuttal to the advisory opinion.  He stated: 

	a.  Paragraph Number 2:  All statements in this paragraph are in truth as stated and he offers the following comments:

		(1)  On 24 April 2008 when the Office of the Assistant Secretary of Defense published the memorandum for the waiver implementation he had not been approved for transfer into the Medical Service Corps, and therefore, upon his learning of such a provision in 2012 (four years later), he was allowed the opportunity to retroactively apply for the constructive credit waiver when it was discovered the initial opportunity had not been extended to him when the provision became effective on 24 April 2008.

		(2)  At some point after the implementation of this provision officers who had applied for the transfer but did not receive an approval or disapproval of their transfer request were given the opportunity to request the constructive credit waiver via a DA Form 4187 and submit through the proper command channels for approval by the Surgeon General.  He never learned of this opportunity perhaps due to being deployed at the time with little to no internet connectivity and absent the notification of the Military Personnel Message pertaining to such matter.

		(3)  His transfer application was approved in June 2008 prior to his injury. However, on 20 June 2008, he was severely wounded in action and evacuated out of theater.  However, the implementation of the waiver request being available at this time was unknown to him.  While rehabilitating, he accepted his transfer into the Medical Services Corps in August 2008 and branched on 18 September 2013.  

		(4)  His reason for not applying for the waiver is that he did not become knowledgeable of its existence until July 2012.  From there, his U.S. Army Human Resource Command (HRC) Assignments Officer assisted him in preparing the waiver request.

	b.  Paragraph Number 3:  he signed his oath of office into the Medical Services Corps on 18 September 2008 and at that time his service time was recalculated with an adjusted date of rank of 4 August 2008.  That recalculation was not made in error as stated in the advisory opinion. 

	c.  Paragraph Number 4:  In response to the advisory opinion statement "Promotion Year Group 2002 went before the MAJ Board in August 2011 and those officers have been promoted to MAJ, many having a year for time in grade at this point.  [Applicant] would then have cause to request that a promotion review board look at his file.  If it is deemed that he was competitive for promotion and would have been selected had his file been reviewed with others in Year Group 2002, he could potentially be promoted to MAJ."

		(1)  He would have undoubtedly been competitive for promotion in the Promotion Year Group 2002 had he had an approved waiver by the Surgeon General in 2008 when he was not afforded the opportunity to request such waiver.

		(2)  In support of his feeling that he would have been selected to MAJ on the 2011 Selection Board, he submits to his last 5 officer evaluation reports (2006-2011) as testament to his performance.  He also received his Bachelors and Masters of Science Degrees in Criminal Justice during this time.  Additionally, he has held a command position and served as a Small Group Leader for the AMEDD Officer Advanced Course.  Both were nominative positions within the Army's competitive categories.

	d.  Paragraph Number 5:  In response to statement "[The advisory official] recommend that this action be disapproved because [the applicant] knowingly signed documentation stating that he understood that his rank would be adjusted...The fact that the waiver provision was available is not a guarantee that it would have been approved, if he had asked for it in 2008."  This is the main point of all of this.  Assuredly there was no guarantee that his waiver request would have been approved.  However, the mere fact that he was unknowledgeable of an existing waiver and not afforded the opportunity to fill out the waiver request is the premise of why he was retroactively allowed to submit the request for waiver upon learning of its existence in July 2012 (4 years later).

	e.  His waiver request was approved by the Surgeon General on 25 February 2013.  Therefore, he requests that paragraphs 5-8 of the USAREC advisory opinion not be considered at all and that the ABCMR consider the following Courses of Action (COA) to resolve his request:

		(1)  Restoration of his original date of rank to CPT to 1 June 2005 and that he be placed in his original Year Group of 2002.  He then would like for his records to go before the 2011 MAJ Selection Board for a determination.

		(2)  COA 2:  Partial approval of his ABCMR application would entail his record going before the Fiscal Year (FY) 2013 MAJ Promotion Selection Board in accordance with MILPER Message Number 13-118.  If accepted, he would be considered for promotion in the primary promotion zone instead of below the zone category.  He would eagerly accept this decision by the ABCMR as partial approval of and disposition of his case.

10.  DODI 6000.13, dated 30 June 1997, Subject:  Medical Manpower and Personnel, provides the policy on awarding constructive credit.  Paragraph 6.1 states that a prospective heath profession officer’s entry grade and rank shall be determined by the number of years of entry grade credit awarded on original appointment, designation, or assignment  as a health professions officer.  The entry grade credit to be awarded shall equal the sum of constructive service credit and prior commissioned service credit except in cases when the totals exceed the maximum credit allowed.   

11.  Paragraph 6.1.1 provides guidance on prior commissioned service credit.  It states, in pertinent part, that credit for prior service as a commissioned officer (other than commissioned warrant officer) shall be granted to recognize previous commissioned experience.  It states the Secretaries shall establish procedures that ensure the awarding of prior commissioned service credit is applied in an equitable and consistent manner.  Paragraph 6.1.1.2 states service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, but not in the corps or professional specialty in which being appointed, shall be awarded 1/2 day of credit for each day served in the case of individuals seeking an original appointment as a health professions officer.

12.  On 11 September 2008, the ASA (M&RA) approved the implementation of the waiver of the constructive credit provisions of DODI 6000.13, paragraph 6.1.1.2 and related provisions of Army Regulation 135-101, table 3-2.  The ASA (M&RA) further delegated the authority to implement the waiver policy to The Surgeon General.  The waiver policy states The Surgeon General is the approval and disapproval authority for granting a waiver to the constructive service credit restrictions in DODI 6000.13, paragraph 6.1.1.2, and awarding day-for-day credit for reappointment of commissioned officers under the provisions of this guidance. The policy applies to eligible officers applying for reappointment after 24 April 2008.  Waiver is authorized provided the following conditions are met:

* Prior commissioned service must be on active duty or in an active status as a commissioned officer
* The functions to be performed by the officers are not those unique to the healthcare profession or those performed by only healthcare professional officers. 

13.  On 17 September 2007, OTSG issued a memorandum announcing the promotion phase points specified in a table to be used as benchmarks in determining the appropriate entry grade (first lieutenant through lieutenant colonel) for AMEDD officer appointments with concurrent call to active duty for FY08.  For appointment as a CPT in the Medical Services Corps, 
3 years of constructive service credit is needed. 

14.  On 17 September 2007, OTSG issued a memorandum announcing the FY08 promotion phase points specified in a table to be used as benchmarks in determining the appropriate entry grade (first lieutenant through lieutenant colonel) for AMEDD officer appointments with concurrent call to active duty for FY08.  For appointment as a CPT in the Medical Services Corps, 3 years and 
3 months of constructive service credit is needed. 

15.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions.  Special Selection Boards (SSB) may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers one or more of the following:  (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error (SSB required); (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

16.  The following MILPER Messages issued by HRC over the years announced zones of consideration for Medical Services Corps promotion selection boards to MAJ:

	a.  FY10 Promotion Selection Board, MILPER Message 10-030, dated 
20 January 2010, from 13 to 21 April 2010, above the zone date of rank 
1 February 2004 and earlier and in the zone date of rank from 2 February 2004 to 1 February 2005.

	b.  FY11 Promotion Selection Board, MILPER Message 11-172 and 11-252, from 7 to 16 September 2011, above the zone date of rank 20 June 2005 and earlier and in the zone date of rank from 2 February 2005 to 1 February 2006.

	c.  FY12 Promotion Selection Board, MILPER Message 12-149, dated 14 May 2012, from 21 to 29 August 2012, above the zone date of rank 1 December 2005 and earlier and in the zone date of rank from 2 December 2005 to 1 November 2006.

	d.  FY13 Promotion Selection Board, MILPER Message 13-118, dated 7 May 2013, from 19 to 28 August 2013, above the zone date of rank 1 November 2006 and earlier and in the zone date of rank from 2 November 2006 to 1 November 2007.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served as an infantry officer from 20 December 2001 to 17 September 2008, a period of 6 years, 8 months, and 27 days.  When he applied for reappointment as an AMEDD officer in February 2008, the DODI 6000.13 stipulated that service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, but not in the corps or professional specialty in which being appointed, shall be awarded one-half day of credit for each day served in the case of individuals seeking an original appointment as a health professions officer.  

2.  However, the ASA (M&RA) revised the requirements and authorized The Surgeon General to approve waivers for prior commissioned service.  The revised policy, beginning on 24 April 2008, authorized day-for-day credit in the case of prior commissioned service served on active duty or in an active status as a commissioned officer and the functions to be performed by the officers are not those unique to the healthcare profession or those performed by only healthcare professional officers.  The applicant fits these conditions. 

3.  The applicant then accepted his Medical Services Corps appointment in September 2008.  He was unaware of the above change.  When he became aware of it, he submitted a request for a waiver which was approved by the Surgeon General.  This approval should have triggered an amendment to the applicant's date of rank.  For unknown reasons, this did not happen.  The applicant is entitled to administrative corrections as follows:

	a.  The applicant's DA Form 5074-1-R should be reconstructed to show in Part II (Prior Active Commissioned Service Credit) a period of 6 years, 8 months, and 27 days which would have qualified him for an entry grade of CPT.  An entry grade to CPT required 3 years and 3 months of constructive service credit.  Therefore, the excess credit of 3 year, 5 months, and 27 days would be applied to his date of rank which should be adjusted to 21 March 2005. 

	b.  Based on this adjusted date of rank, the applicant would have been considered for promotion to MAJ as early as 2011.  As such, his records should be considered by an SSB using the 2011 and 2012 year criteria.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

	a.  voiding the current DA Form 5074-1-R, dated 4 April 2008, and issuing him a new form showing 6 years, 8 months, and 27 days of constructive service credit, an entry grade of CPT, and a date of rank of 21 March 2005.

	b.  Submitting the applicant’s records to a duly-constituted SSB (or SSBs) for consideration for promotion to MAJ under the appropriate MAJ Army Promotion List, Promotion Selection Board year(s) criteria and:

		(1)  if he is selected for promotion his records be further corrected by promoting him to MAJ based on his assigned promotion sequence number with the appropriate date of rank, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes. 

		(2)  if not selected, the applicant be so notified, and if twice not selected, he should be discharged in accordance with law and regulation. 

2.  The Board further determined 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 promotion to MAJ. 



      _____________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)                                         AR20130005085



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ABCMR Record of Proceedings (cont)                                         AR20130005085



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