BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130015608 


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 reconsideration of his previous request for adjustment of his date of rank (DOR) to captain (CPT) to include his constructive service credit (CSC); in effect, his DOR should be adjusted to 17 September 1998, the DOR he held in the U.S. Army Reserve (USAR).

2.  The applicant states that when he asked for reconsideration of his previous request for adjustment of his DOR to CPT in July 2012, he was told he needed supporting documents.  He is now providing new evidence that was not previously considered by the Board.

3.  The applicant provides a letter, three memoranda, and nine pages of email.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070015923 on 29 May 2008.

2.  As new evidence the applicant provides:

	a.  A memorandum from the Chief, Medical Corps (MC) Branch, U.S. Army Human Resources Command (HRC), dated 26 April 2013, stating:

		(1)  The HRC MC Branch concurs that the applicant's DOR should have transferred with him onto active duty.  His USAR appointment letter, dated 22 April 2004, specified that his service credit was 9 years, 7 months, and 10 days.  Four years of credit are required for appointment in the MC as a CPT.  Upon acceptance of his appointment as recorded on his DA Form 71 (Oath of Office), dated 27 April 2004, his DOR should have been backdated 5 years, 7 months, and 10 days, giving him a DOR to CPT of 17 September 1998.  This is also in accordance with his DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers)), dated 5 May 2004.

		(2)  The applicant should have been ordered to active duty under his Reserve grade of CPT with a Reserve DOR (DORRES) of 17 September 1998.  His active duty DOR (ADOR) to CPT should be the same as his DORRES in accordance with Title 10, U.S. Code (USC), section 531(b)(2), specifying section 533(f) as the controlling subsection to determine entry grade for a USAR officer placed on the Active Duty List (ADL).  Section 533(f)(2) directed the adjusted ADOR to be the same as the one the officer held in the USAR immediately prior to appointment as a Regular Army officer and Army Regulation 600-8-29 (Officer Promotions), paragraph 1-40b(2), stated the same.

	b.  A memorandum from the Program Manager, Health Services Directorate (HSD), U.S. Army Recruiting Command (USAREC), dated 17 May 2013, stated that USAREC HSD concurred that the applicant's rank and DOR when brought onto active duty should have been the same as his Reserve rank and DOR.  He should have entered active duty in the current Reserve rank held of CPT with a DOR of 17 September 1998.  HRC cited several sections of Title 10 which clearly support this and USAREC is in complete agreement.

3.  The applicant's records show he was appointed as a commissioned officer in the aviation (AV) branch of the U.S. Navy on 9 May 1986.  He was promoted to the rank/grade of lieutenant (LT)/O-3 on 1 September 1990.  He was honorably discharged on 31 January 1996 in the rank/grade of LT/O-3 by reason of completion of required active service.  He completed 9 years, 8 months, and 23 days of creditable active service during this period.

4.  He attended the University of Santo Tomas Hospital, Manila, Philippines, from 1996 to 2000.  He was awarded a Doctor of Medicine and Surgery degree on 15 April 2000.

5.  He was appointed as a Reserve CPT in the USAR and he executed an oath of office on 27 April 2004.

6.  His records contain a DA Form 5074-R, dated 5 May 2004, wherein Part III (Computation of Entry Grade and DOR) shows he was granted 4 years of CSC for his medical degree; 8 months and 29 days for his residency from July 2003 to April 2004; and 4 years, 10 months, and 11 days of prior-service credit (1/2 day of credit for each day of active service in the AV branch of the U.S. Navy) for a total of 9 years, 7 months, and 10 days of CSC.  It also shows 4 years were required for his appointment as a CPT – and with 5 years, 7 months, and 10 days of excess credit, his DORRES was adjusted to 17 September 1998.

7.  HRC Orders A-04-609400, dated 20 April 2006, ordered him to active duty in the Regular Army for a period of 10 years effective 26 June 2006.  These orders stated, in part, "[Effective] on the date of entry on [active duty], you are appointed in the [Reserve grade] of CPT and placed on the ADL in the [grade] of CPT [in accordance with Army Regulation] 135-101 [Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department (AMEDD) Branches]."  These orders show his DORRES as 26 June 2006.

8.  HRC Order Number 341-003, dated 7 December 2006, shows his ADOR to CPT as 26 June 2006.

9.  He was assigned to Tripler Army Medical Center, Oahu, HI, for Army Graduate Medical Education (GME) residency training in general surgery.  He completed the GME in June 2009.

10.  He was assigned to the Ireland Army Community Hospital, Fort Knox, KY, as a general surgeon on or about 26 June 2009.  He is currently serving in Afghanistan.

11.  HRC Order Number 021-003, dated 21 January 2011, amended Order Number 341-003 and adjusted his DOR to CPT to 27 April 2004.

12.  HRC memorandum, dated 12 April 2011, subject:  Special Selection Board (SSB) Notification-Omission, notified him that he would be considered for promotion by a Department of the Army SSB under the 2009 and 2010 criteria due to his adjusted DOR to CPT of 27 April 2004.

13.  HRC Order Number 137-028, dated 16 May 2012, promoted him to the rank/grade of major (MAJ)/O-4 in the Regular Army with an effective date and DOR of 26 June 2012.

14.  In an email, dated 29 October 2013, an assignment officer for the HRC MC Branch stated:

	a.  Army Regulation 135-155 (Army National Guard and Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states to be eligible for consideration for promotion to the next higher grade, a USAR officer must have continuously performed service on either the Reserve Active Status List or the ADL (or a combination of both lists) during the 1-year period ending on the convening date of the promotion board.

	b.  When the applicant entered active duty on 26 June 2006, he would have been eligible for consideration by the next promotion board which convened on 20 March 2007.  Per Military Personnel (MILPER) Message 06-344 (Fiscal Year 2007 (FY07) MAJ, MC and Dental Corps Zones of Consideration), he would have been above the zone for promotion consideration based on his DOR of 17 September 1998.  Promotion to MAJ for MC officers is a "fully qualified" rather than "best qualified" board and MC officers selected above the zone are promoted on 1 October of the year in which the promotion list begins, so his DOR to MAJ should be 1 October 2007.

15.  Army Regulation 135-101, paragraph 1-3a, states commissioned officers of any Reserve Component of the Army who have served satisfactorily in the specialty for which they are applying may be appointed and/or called to active duty under either (1) the grade currently held if serving in the specialty for which applying or (2) the highest grade for which they can fully qualify by education and experience gained after becoming professionally qualified.  If transferred from an Reserve Component of the Army (not on the ADL) and then ordered to active duty for service in the ADL in the Army, the officer's active duty grade and DOR will be determined as indicated in a above.

16.  Title 10, USC, section 533(f)(2), in part, states a Reserve officer (other than a warrant officer) who receives an original appointment as an officer in the Regular Army shall, in the case of an officer not on the ADL immediately before the appointment, be appointed in the same grade and with the same DOR as the grade and DOR which the officer would have held had the officer been serving on the ADL on the date of the appointment as a Regular officer.

17.  DODI 6000.13, in part, states:

	a.  CSC provides a person who begins commissioned service after obtaining the additional education, training, or experience required for appointment, designation, or assignment as an officer in a health profession with a grade and DOR comparable to that attained by officers who begin commissioned service after getting a baccalaureate degree and serves for the period of time it would take to obtain the additional education.

	b.  Four years of CSC shall be granted for completion of first professional degrees that include a medical degree.  Year-for-year credit shall be granted for the successful completion of internship, residency, fellowship or equivalent graduate medical, dental, or other formal professional training required by the Military Service concerned.  Day-for-day credit shall be awarded for approved programs of less than 1 year in duration.

	c.  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.

18.  MILPER Message 06-344, dated 7 December 2006, stated a selection board would convene on 20 March 2007 to consider eligible CPT's on the ADL for promotion to MAJ.  MC CPT's would be considered above the zone with an ADOR of 30 September 2001 and earlier and in the zone with an ADOR of 1 October 2001 through 30 September 2002.

19.  MILPER Message 12-368, dated 20 November 2012, stated a selection board would convene on 25 February 2013 to consider eligible MAJ's on the ADL for promotion to lieutenant colonel (LTC).  MC MAJ's would be considered above the zone with an ADOR of 30 September 2007 and earlier and in the zone with an ADOR of 1 October 2007 through 30 September 2008.

20.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policies for managing SSB's.  Paragraph 7-2 stipulates, in part, an SSB may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when the Department of the Army discovers an officer was not considered from in or above the promotion by a regularly-scheduled board because of administrative error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR to CPT should be adjusted to his Reserve DOR was carefully considered and was found to have merit.

2.  In accordance with governing regulations and as confirmed by the advisory officials, the applicant was properly granted CSC of 9 years, 7 months, and 10 days upon his appointment as a CPT in the USAR on 27 April 2004.  As 4 years was required for his appointment as a CPT, his DOR was adjusted by the excess credit of 5 years, 7 months, and 10 days to 17 September 1998.

3.  When he was ordered to active duty on 26 June 2006, his DOR to CPT should have been adjusted to his DORRES of 17 September 1998.  Therefore, he is entitled to adjustment of his DOR to CPT to 17 September 1998.

4.  In addition, he would have been eligible for promotion consideration to MAJ by the FY07 MAJ MC Promotion Selection Board based on that DOR and should have been promoted to MAJ on 1 October 2007.

5.  Therefore, based on adjustment of his CPT DOR to 17 September 1998, his records should also be corrected to show he was promoted to MAJ with a DOR of 1 October 2007.

6.  In addition, based on his adjusted DOR to MAJ of 1 October 2007, he would have been eligible for promotion consideration to LTC by the FY13 LTC MC Promotion Selection Board convened on 25 February 2013.  Therefore, he should be considered for promotion by an SSB under the FY13 criteria.

BOARD VOTE:

___x_____  ___x_____  __x__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20070015923, dated 29 May 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* amending Order Number 341-003, dated 7 December 2006, to show his adjusted date of rank to CPT as 17 September 1998
* amending Order Number 137-028, dated 16 May 2012, to show he was promoted to MAJ with a DOR of 1 October 2007
* revoking Order Number 021-003, dated 21 January 2011


* submitting the applicant's records to a duly-constituted SSB for consideration for promotion to LTC under the FY13 LTC MC Promotion Selection Board criteria



      ___________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)                                         AR20130015608



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ABCMR Record of Proceedings (cont)                                         AR20130015608



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