IN THE CASE OF: 

		BOARD DATE:	    23 January 2014

		DOCKET NUMBER:  AR20130013378 


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, in effect, correction of his DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers)) to change his date of rank (DOR) to major (MAJ) from 2 May 2012 to 1 March 2007.

2.  The applicant states he served in the rank of MAJ over 4 years prior to his departure from active duty in 2001.  When he returned to military service in 2012, he was under the impression that he would receive credit for his previous time in grade (TIG) as a MAJ; he thought he would be eligible for the lieutenant colonel (LTC) promotion board within 1 or 2 years of his return to military service.  With his current DOR he will not be eligible for promotion to LTC until 2017 or 2018.  

	a.  He received his initial commissioning from the Ohio Army National Guard (OHARNG) in 1990.  He then entered the Health Professions Scholarship Program (HPSP) and began his surgical residency in 1991.  When he finished his residency in 1996 he entered active duty.  He served in Wuerzburg, Germany and was promoted to MAJ in October 1997.  He reached his expiration term of service in 2001 and was honorably discharged in 2002.

	b.  In 2011, he began the process of returning to the Army and was finally commissioned in 2012.  During the recruiting process he was left with the impression that he would receive credit for the time in grade he had previously served and would likely be promoted within a few years of his reentry into military service.  


3.  The applicant provides:

* Orders Number 259-031, dated 16 September 1997
* DA Form 67-9 (Officer Evaluation Report (OER)) for the period 3 April 1999 through 2 April 2000
* DA Form 67-9-1 (OER Support Form), dated 30 March 2001
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 July 2001
* DD Form 215 (Correction to DD Form 214), dated 11 July 2003
* Orders Number D-09-236698, dated 11 September 2002
* Memorandum, dated 2 May 2012
* DA Form 71 (Oath of Office-Military Personnel), dated 7 May 2012
* OER for the period 7 May 2012 through 6 May 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant's record contains a DA Form 71, dated 16 November 1991, showing he was appointed as a Reserve commissioned officer in the Medical Service (MS) Corps on 16 November 1991.

2.  His record contains a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) showing:

* his period of service began on 18 September 1990
* he was promoted to captain (CPT) on 7 June 1991
* he was honorably discharged from the OHARNG on 1 August 1992 by reason of resignation

3.  His record contains a certificate from Richmond Heights General Hospital showing he successfully completed his training as a general surgery resident from 1 July 1991 to 30 June 1996.

4.  His record contains a DA Form 5074-R, dated 31 March 1996, showing:

	a.  He received a total of 9 years of constructive credit:

* 4 years for his Doctor of Osteopathy degree (1987 to 1991)
* 1 year for his internship (1 July 1991 to 30 June 1992)
* 4 years for his residency (1 July 1992 to 30 June 1996)

	b.  He required 4 years of credit to qualify for CPT and had an excess of 
5 years constructive service credit.

5.  His records show he entered active duty as a Medical Corps (MC) officer on
28 June 1996.

6.  Orders Number 259-031, issued by the U.S. Total Army Personnel Command (Currently known as the U.S. Army Human Resources Command (HRC)), dated 16 September 1997, promoting him to MAJ with a DOR and effective date of 1 October 1997.

7.  His record contains a DD Form 214 showing he was honorably released from active duty in the rank of MAJ on 14 July 2001 and transferred to the U.S. Army Reserve (USAR).  He was discharged from the USAR on what appears to be 13 September 2002; however, there is no discharge order to confirm this date. 

8.  His record contains a DA Form 61 (Application for Appointment), dated 
18 April 2012, showing he wished to reenter military service in the USAR as a commissioned officer.

9.  His record contains a DA Form 71 showing he was appointed as a Reserve commissioned officer in the MC on 7 May 2013.  His rank was listed as MAJ.

10.  His record contains a DA Form 5074-R, dated 15 May 2012, showing:

	a.  He received a total of 14 years of constructive service credit:

* 4 years for his Doctor of Osteopathy degree (14 September 1987 to 7 June 1991)
* 1 year for his internship (1 July 1991 to 30 June 1992)
* 4 years for his residency (1 July 1992 to 30 June 1996)
* 3 years for professional experience/medical practice (14 September 2002 to 14 September 2008)
* 2 years of credit for training or experience in unusual circumstances for his board certification (15 September 2008 to 17 April 2012)
* he received no constructive credit for his prior active commissioned service as a medical officer in the rank of MAJ (1 July 1996 to
13 September 2002)
* he received no constructive credit for his prior service other than as a medical or dental officer in the ARNG as an MS CPT (7 June 1991 to
1 July 1991) and (1 July 1992 to 1 August 1992)

	b.  He required 14 years of constructive service credit to qualify for MAJ and he had an excess of 0 years of constructive service credit; his DOR was annotated as 7 May 2012.

11.  An advisory opinion was obtained from the Health Services Division (HSD) Operations, Headquarters, U.S. Army Recruiting Command (USAREC) through the Officer Promotions Branch at HRC during the processing of this case.

	a.  The advisory opinion from HSD Operations, Headquarters, USAREC, dated 19 September 2013, stated:

		(1)  In review of the documents provided to correct the applicant's constructive service credit, his record reveal that he was not awarded constructive service credit for his prior service time when he received his Reserve commission in 2012.  The advisory official stated the appropriate constructive credit, using his prior service, education, and work experience should credit him with 19 years, 6 months, and 2 days of constructive service credit.

		(2)  In accordance with Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches), paragraph 3-1a, the maximum entry grade credit for appointment in the MC is 14 years.  The MC consultant at USAREC recommended the 14-year cap be waived prior to the applicant's appointment.  The 5 year, 6 month, and 
2 day difference in excess of the 14-year cap qualifies as a serious inequity which will allow the 14-year cap to be waived.

	b.  The advisory opinion from HRC, dated 20 September 2013, stated the officer promotions branch at HRC coordinated with HSD Operations, USAREC and concurs with USAREC's advisory opinion.  A draft copy of a DA Form 
5074-R shows the maximum credit the applicant could be awarded, if the constructive credit limit was waived.  The draft DA Form 5074-R shows:

		(1)  He received a total of 19 years, 2 months, and 6 days of constructive credit:

* 4 years for his Doctor of Osteopathy degree (14 September 1987 to
7 June 1991)
* no constructive credit for his internship (1 July 1991 to 30 June 1992)
* no constructive credit for his residency (1 July 1992 to 30 June 1996)
* 3 years for professional experience/medical practice (14 September 2002 to 14 September 2008)
* 1 year of credit for training or experience in unusual circumstances for his board certification (15 September 2008 to 17 April 2012)
* he received 11 years, 2 months, and 5 days of constructive credit for his active commissioned service as a medical officer as a MAJ (7 June 1996 to 13 September 2002)
* he received no constructive credit for his prior service other than as a medical or dental officer in the ARNG as an MS second lieutenant 
* (18 September 1990 to 6 June 1991)

		(2)  The computation of entry date and DOR shows he received total constructive credit of 8 years, a total prior service credit of 11 years, 2 months, and 6 days, and a total entry grade credit of 19 years, 2 months, and 6 days.

* the constructive credit awarded qualified for the rank of MAJ
* 14 years of credit was required for the rank of MAJ
* 5 years, 2 months, and 6 days of credit were in excess of that required for the rank of MAJ
* his date of entry on active duty/appointment was listed as 7 May 2012
* his DOR was listed as 1 March 2007

12.  On 31 October 2013, the applicant responded to the advisory opinion by stating that he agreed with the advisory officials and with having his DOR adjusted to 1 March 2007.

13.  Army Regulation 135-101 states that the maximum entry grade credit for appointment in the MC or DC as a MAJ is 14 years and the minimum credit for appointment to LTC is 21 years.  The Secretary of the Army or designee may waive the maximum credit limit in the situations where serious inequities would otherwise result.  

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the USAR.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration or material error that existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The minimum time-in-grade requirements for promotion from MAJ to LTC is 4 years in the lower grade and the maximum time in grade requirements is 7 years in the lower grade.


DISCUSSION AND CONCLUSIONS:

1.  The HRC officer promotions branch and HSD Operations, Headquarters, USAREC concur that the applicant was not awarded constructive credit for his prior service when he received his Reserve commission in 2012.  The advisory officials stated the appropriate constructive credit, using his prior service, education, and work experience should credit him with 19 years, 6 months, and
2 days of constructive service credit.

2.  He should have been credited with 19 years, 2 months, and 6 days of constructive credit; however, due to the 14-year cap applicable to MC officers he was only given credit for 14 years.

3.  Army regulations stipulate that MC officers may only receive a maximum of   14 years of constructive credit; however, these same regulations also state the 14-year cap may be waived in situations where serious inequities would otherwise result.

4.  The advisory officials at the HRC officer promotions branch and HSD Operations, Headquarters, USAREC both feel that capping the applicant at 
14 years of constructive credit would create a serious inequity.  He should be granted the full amount of his constructive service credit.

5.  Therefore, as a matter of equity, his record should be corrected to show he was credited with 19 years, 2 months, and 6 days of constructive credit and his DOR should be corrected to 1 March 2007.

BOARD VOTE:

__X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* granting him a waiver for the 14 year cap on constructive credit and awarding him a total of 19 years, 2 months, and 6 days of constructive credit
* adjusting his DOR to 1 March 2007
* correcting his DA Form 5074-R, dated 15 May 2012, to reflect the changes on the draft DA Form 5074-R submitted by HRC officer promotions branch and HSD Operations, Headquarters, USAREC



      ___________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.
* ssional experien-
* ce/medical practice (14 September 2002 to 14 September 2008
ABCMR Record of Proceedings (cont)                                         AR20130013378



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ABCMR Record of Proceedings (cont)                                         AR20130013378



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