IN THE CASE OF:	   

		BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20140003956 


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 entry grade credit and, in effect, correction of his record to show he was appointed as a captain (CPT)/O-3.

2.  He states:

	a.  The entry grade credit he received placed him at pay grade O-2 (first lieutenant (1LT)).  He believes an error occurred due to the fact that his DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Service Officers)) was not reviewed and adjusted appropriately prior to or after he was commissioned in the U.S. Army Reserve (USAR).  

	b.  He was commissioned after the end date of the professional experience shown on his DA Form 5074-1-R, which resulted in a miscalculation of his credit for professional experience.  He was awarded 2 years, 10 months, and 17 days of credit for professional experience for the period 9 June 2006 through 13 March 2012.  He states, in effect, that credit for professional experience should have been calculated using the period 25 May 2006 (the date he was licensed as a pharmacist) to 8 November 2012 (the date he was commissioned).  

	c.  He believes he should have received credit for professional experience based on a period of 6 years, 5 months, and 14 days.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) states officers may be credited with 1/2 year for each year of professional experience up to a maximum of 3 years.  He should have been awarded 3 years of credit for professional experience, which would have given him sufficient entry grade credit to be appointed as a CPT.  

3.  He provides:

* DA Form 5074-1-R
* State of Maryland pharmacist license
* e-mail
* Maryland Board of Pharmacy certificate
* printout of the results of a calculation from a time calculation website

CONSIDERATION OF EVIDENCE:

1.  State of Maryland Board of Pharmacy records show the applicant has been licensed as a pharmacist in Maryland since 25 May 2006.  Pennsylvania Department of State records show he has been licensed as a pharmacist in Pennsylvania since 9 June 2006. 

2.  On 5 January 2012, he signed a DA Form 61 (Application for Appointment) applying for appointment as a Reserve commissioned officer in the Medical Service Corps (MSC) in area of concentration (AOC) 67E (Pharmacist).  

3.  A memorandum, subject:  Appointment as a Reserve Commissioned Officer of the Army…, dated 22 March “2012”, shows that, on 8 November 2012, he accepted appointment as a Reserve commissioned officer of the Army at the rank of 1LT in AOC 67E.  The memorandum further shows:

* his scroll approval date (the date the Secretary of Defense approved his appointment as a Reserve commissioned officer) was 15 February 2012  
* he was to be credited with 6 years, 10 months, and 17 days of service in an active status as of the date he accepted the appointment

4.  On 8 November 2012, he took the oath of office as a Reserve commissioned officer in the grade of O-2.  The available records do not show the reason for the delay between the issuance of his appointment memorandum and the date he accepted appointment and took the oath of office.

5.  His Official Military Personnel File contains a Security Clearance Application, dated 8 November 2012, in which the applicant indicated he had been employed as a "Community Student Pharmacist" in Maryland from July 2003 to July 2005 and in Pennsylvania from July 2005 to May 2006.  He indicated he had been employed in various positions as a pharmacist subsequent to May 2006.  

6.  On 20 May 2013, a preparing official and authenticating official signed a DA Form 5074-1-R.  The form shows he held a Pennsylvania pharmacy license.  He was awarded:

* 4 years of constructive service credit for his basic qualifying degree
* 2 years, 10 months, and 17 days of constructive service credit for professional experience based on the period 9 June 2006 through 13 March 2012
* total entry grade credit of 6 years, 10 months, and 17 days, which qualified him for appointment as a 1LT  

7.  A memorandum, subject:  Recommendation for Reserve of the Army Appointment, dated 21 May 2013, from the Director, Health Services, U.S. Army Recruiting Command (USAREC), shows the applicant was to be appointed in AOC 67E in the rank of 1LT with 6 years, 10 months, and 17 days of constructive service credit awarded as of 8 November 2012.  The memorandum shows he had been recommended for appointment by a selection board on 13 March 2012.  

8.  During the processing of this case, on 4 April 2014, the Chief, MSC Branch, Health Services Directorate, USAREC, provided an advisory opinion.  The advisory official stated:

	a.  Credit for work experience is restricted to 1/2 year for each year of experience capped at 3 years as of the date the selection board convenes.  The applicant was credited with 2 years, 10 months, and 17 days of constructive service credit.  He also received 4 years of constructive service credit for his degree for a total of 6 years, 10 months, and 17 days of constructive service credit for the purpose of determining his rank. 

	b.  The "pin-on-point" to CPT for USAR Army Medical Department officers is 7 to 11 years.  The applicant did not have enough constructive service credit to be appointed as a CPT, so he was accessed as a 1LT.  

	c.  Additional constructive service credit is not warranted or authorized for the applicant.  

9.  On 10 and 14 April 2014, the applicant responded to the advisory opinion.  He reiterated the contentions he made in his application, and he stated:

	a.  With 4 years of constructive service credit for education and with adjustment of credit for his work experience (capped at 3 years), his total constructive service credit should be 7 years, and he should have been commissioned as a CPT.
	b.  He found no mention in Army Regulation 135-101 of work experience being calculated as of the date the selection board convenes.  

10.  Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and Personnel) provides the policy for award of entry-grade credit for medical personnel.  A prospective health professions officer’s entry grade and rank within grade shall be determined by the number of years of entry grade credit awarded on original appointment, designation, or assignment as a health professions officer.

	a.  Four years of constructive service credit shall be granted for completion of first professional degrees that include medical (M.D.), osteopathy (D.O.), dental (D.D.S. or D.M.D.), optometry (O.D.), podiatry (Pod.D. or D.P.), veterinary (D.V.M.), and pharmacy (Ph.D.).

	b.  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.  Creditable experience cannot predate the receipt of licensure, registration, or certification.  Accordingly, volunteer, or student status cannot be credited.

11.  Neither DODI 6000.13 nor Army Regulation 135-101 provides that constructive service credit will be calculated as of the date a selection board convenes.  

12.  Army Regulation 135-101 states the entry grade credit required for appointment as a 1LT is 3 years or more, but less than 7 years.  Entry grade credit required for appointment as a CPT is 7 years or more, but less 14 years.  Excess credit is used to adjust the officer's date of rank in the appointment grade.

13.  USAREC has consistently maintained that, in order to treat all applicants for appointment equitably, constructive credit is calculated up to the date of the appointment selection board.  During the processing of this case, a USAREC staff member informed the Board staff that an adjusted DA Form 5074 may be completed to account for additional periods of professional experience if an applicant has waiver or post-board actions that take an extended period of time.  

14.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, subject:  Redelegation of Authority Under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of 
Title 10, U.S. Code (USC), in grades O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President's authority to appoint military officers.  All military officer appointments under section 12203 of Title 10, USC, including original appointments in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense. 

15.  Title 10, USC, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via executive order.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for adjustment of his entry grade credit.  

2.  The applicant correctly notes that there are no regulatory provisions preventing award of constructive credit for work experience gained after being selected for appointment but prior to being appointed.  However, USAREC policy only provides for award of constructive credit for professional experience gained after the date of an appointment selection board if an applicant has waiver or post-board actions that take an extended period of time.  The record does not show what caused the delay between the issuance of the applicant's appointment memorandum and his acceptance of the appointment.  As such, there is no evidence that USAREC improperly applied its policy in this case, and there is an insufficient basis upon which to grant the requested relief.

3.  Further, there is insufficient evidence to show the applicant has been treated inequitably.  Although there are no regulatory provisions to prevent awarding constructive credit for work experience gained after being selected for appointment but prior to being appointed, USAREC uses that same policy for all officers selected for appointment.  

4.  The applicant has requested an increase in his total constructive credit that would qualify him for appointment as a CPT.  It is noted that, even if there were a basis upon which to grant relief in this case, the Board does not have the authority to appoint him as a CPT.  That authority has not been delegated below the Secretary of Defense.






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)                                         AR20140003956



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ABCMR Record of Proceedings (cont)                                         AR20140003956



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