IN THE CASE OF:	  

		BOARD DATE:  5 November 2013

		DOCKET NUMBER:  AR20130011500 


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 active duty service credit for the 5 years he spent completing his civilian residency.

2.  The applicant states, in effect, that in 1999 he completed the Army First Year Graduate Medical Education (FYGME) at Walter Reed Army Medical Center (WRAMC), Washington, D.C. and he was released and placed in the Individual Ready Reserve (IRR) while he completed a civilian residency program.  He did not receive credit for this service, although he was completing the training for his current specialty as an orthopedic surgeon.  It has since come to his attention that he should have been retained on active duty and placed in the student detachment at the U.S. Army Medical Department (AMEDD) Center and School during this portion of his training.

3.  He contends that he was sent to a residency training program by the military to obtain critical specialty training, yet he received no credit for this service.  The AMEDD Human Resources Command (HRC) representatives have suggested that this was highly unusual and questioned why he had not been placed into the student detachment like all the others in a similar situation.  He is not sure what caused this injustice.

4.  The applicant provides his DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes), dated 22 July 2001.



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is an active duty lieutenant colonel serving as a medical doctor at Keller Army Hospital, West Point, NY.

3.  On 27 July 1994, he completed a Health Professions Scholarship Program (HPSP) service agreement wherein he agreed to serve 8 years on active duty in exchange for an academic scholarship in the HPSP leading to a degree as a Doctor of Medicine.  He further acknowledged in this agreement that:

	a.  Residency training in a nonmilitary hospital was determined by the Army's projected requirements for specialists qualified in each specialty.  If selected by the Army for civilian specialty training, deferment from active duty would be for the purpose of performing the requested residency and for the period of time usually required to complete training in that specialty.  Upon completion of a civilian residency, he would be ordered to active duty.

	b.  he understood and agreed that service performed while a member of the Program would not be counted:

		(1)  In determining eligibility or retirement other than by reason of a physical disability incurred while on active duty as a member of the Program; or

		(2)  In computing years of service creditable under Title 37, U.S. Code, section 205.

4.  He attended Georgetown University School of Medicine, Washington, D.C. from 10 August 1994 to 23 May 1998 and earned his medical degree.


5.  He completed a Categorical First Postgraduate Year in General Surgery from 29 June 1998 to 30 June 1999 at WRAMC.  Upon completion of his training he was issued a DD Form 214 which shows he entered active duty on 15 June 1998 for the purpose of attending school and he was released from active duty on 
28 July 1999.

6.  He completed his civilian training at the University of Massachusetts Medical School Combined Orthopedic Residency during the period 1 July 2000 through 30 June 2004.

7.  On or about 18 July 2004, he was ordered to active duty to fulfill an active Army requirement.

8.  He provided a statement of service which shows that from 29 July 1999 to 
17 July 2004 (4 years, 11 months, and 19 days) he was in an inactive duty status as a member of the U.S. Army Reserve.

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Health Services Division, HRC, who recommended denial of applicant's request.  The official stated Army Medical Corps officers have two options when completing their residencies, which is to remain on active duty assigned to a military residency at a military medical treatment facility or be placed in the IRR and complete a civilian residency.  The applicant elected to complete a civilian residency.  He was fully aware of the requirements of Army Regulation 601-141 (U.S. Army Health Professions Scholarship, Financial Assistance, and Active Duty Health Professions Loan Repayment Programs) and Title X, chapter 105, section 2122 as acknowledged in his signed contract, dated 27 July 1994, that stated time served in the IRR would not be counted for retirement.

10.  On 30 July 2013, the applicant responded to the advisory opinion.  He stated that he has served in the U.S. Army since 1990, going from West Point directly to medical school.  After an internship at WRAMC he was selected for a civilian residency at an esteemed civilian institution.  Since 2004 at the completion of his residency, he has been on active duty as an orthopedic surgeon.  Unfortunately, as of 2013 he has only 10 years of service that is deemed creditable for retirement purposes despite some 23 years in uniform.  His 5 years in residency training is critical to his decision to remain on active duty until retirement.  If he received some credit for this time he would be able to continue to serve until retirement.  If not, it would be wisest for him to be released from active duty and seek civilian employment.

11. Title 10, U.S. Code, section 2126, provides statutory provisions for the Health Professions Scholarship and Financial Assistance Program for Active Service.

	a.  Subparagraph (a)(2) (Service Not Creditable) states service performed in the HPSP will not be counted in computing years of service creditable under Title 37, U.S. Code, section 205.

	b.  Subparagraph (b)(1) (Service Creditable for Certain Purposes) states the Secretary concerned may authorize service performed by a member of the program in pursuit of a course of study under this subchapter to be counted in accordance with this subsection if the member completes the course of study, completes the active duty obligation imposed under section 2123(a) of this title, and possesses a specialty designated by the Secretary concerned as critically needed in wartime.

	c.  Subparagraph (b)(2) states service credited under subparagraph (b)(1) counts only for the award of retirement points for computation of years of service under section 12732 (Retired Pay for Non-Regular Service – Entitlement to Retired Pay:  Computation of Years of Service) of this title and for computation of retired pay under section 12733 (Retired Pay for Non-Regular Service – Computation of Retired Pay:  Computation of Years of Service).

12.  DODFMR 7000.14-R consists of 15 volumes, including volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay) and volume 7B (Military Pay Policy and Procedures – Retired Pay).  This regulation provides statutory provisions for entitlements, deductions, and collections, and establishes Department of Defense policy on pay and allowances of military personnel.

	a.  Volume 7A, paragraph 010102A.8 (Service Not Creditable) of the November 2011 version (current), states that subsequent to 14 September 1981, a member's service while enrolled in the Armed Forces Health Professions Scholarship and Financial Assistance Program or while a student at the Uniformed Services University of the Health Sciences will not be counted as creditable service.

	b.  Volume 7B, paragraph 010301B.4.c (Service Creditable for Percentage Purposes – Service for Percentage Multiple – Voluntary Retirement Commissioned Officers) of the September 2009 version (current), states that years of service not included in subparagraphs 010301.B.1, 2, or 3 with which the member would be entitled to be credited under Title 10, U.S. Code, section 12733, including service in the HSPS, may be used as a percentage multiple in the computation for non-regular retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the 5 years he spent completing his residency should be credited toward his years of service for retired pay.

2.  The evidence of record shows the applicant signed an HPSP contract on 
27 July 1994 that clearly stated if he elected to complete a civilian residency his active duty commitment would be deferred.

3.  Further, as stated in Title 10, U.S. Code, section 2126, and the DODFMR, service in the HPSP will not be counted in the computation of retired pay under Title 37, U.S. Code, section 205, but may be counted in the computation of service for non-regular retirement.

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)                                         AR20130011500



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ABCMR Record of Proceedings (cont)                                         AR20130011500



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