IN THE CASE OF:	  

		BOARD DATE:	  24 September 2015

		DOCKET NUMBER:  AR20140014121 


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 time in grade (TIG) and constructive service credit to include his period of prior active service, which included 4 years of dental school, 15 years of clinical experience, and his Specialty Board Certification, and adjustment of his date of rank (DOR) to 
31 October 2009.

2.  The applicant states, in effect:

* he held the rank of lieutenant colonel (LTC)/O5 for 4 years before leaving active duty as a Regular Army Officer
* he is now in the U.S. Army Reserve (USAR) serving as a Drilling Individual Mobilization Augmentee Officer
* he returned to Reserve duty on 31 October 2013 and received a DOR of 31 October 2013, which basically gives him no TIG 
* during the recruiting process, he was led to believe he would return with a DOR of 31 October 2009 and this weighed heavily on his decision to return to service
* through an appeal to the Accessions Branch at Ft. Knox, KY he has received 1 year TIG
* he believes he should be returned to duty in the USAR with a minimum of  4 years TIG 
* he was repeatedly told his constructive service credit was 23 years,
0 months, and 4 days  
* he received a copy of a DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers)), completed on 26 November 2013, showing in item 36 (Total Entry Grade Credit) 23 years, 0 months, and 4 days of constructive credit, but item 37 (Adjusted Total Entry Grade Credit) only shows 21 years
* he believes additional credit may be applicable in his situation considering he is a board certified surgeon in a critical military occupational specialty
* he has an additional 15 years of clinical experience, he has maintained Specialty Board Certification, and he has completed Command and General Staff College, the Combined Arms and Staff Services School, the Army Medical Department (AMEDD) Officer Advanced Course, AMEDD Officer Basic, and the Combat Casualty Care Course 
* his special circumstances should have allowed him to return to active duty in the rank of colonel (COL)/O-6 

3.  The applicant provides:

* 21 pages of email
* his Officer Record Brief (ORB)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* DA Form 5074-R, dated 26 November 2013 and 10 April 2014
* two memoranda, subject: Recommendation for Reserve of the Army Appointment
* sixteen Officer Evaluation Reports

CONSIDERATION OF EVIDENCE:

1.  On 8 August 1981, the applicant was commissioned in the USAR under the Medical, Optometry, Dental, Veterinary program.  He completed dental school and he was accessed into the Regular Army on 21 June 1982 in the rank of captain.  

2.  He spent a year in the Advanced Education in General Dentistry (AEGD) internship, completing his internship in 1983.  

3.  He completed his residency in oral and maxillofacial surgery at the U.S. Army Dental Activity, Fort Gordon, Georgia on 30 June 1994.

4.  He was promoted to LTC with a DOR of 22 June 1994.

5.  The applicant was discharged on 16 June 1998 with 15 years, 11 months, and 26 days of active service and 10 months and 13 days of prior inactive service.

6.  A DA Form 5074-R shows he had a private dental practice from 31 June 1998 through 23 April 2013.
7.  The applicant received a USAR commission, as a LTC, effective on 31 October 2013.  

8.  An Army Human Resources Command Letter of Appointment, dated 22 October 2013, shows he received constructive credit in the amount of 21 years.

9.  The DA Form 5074-R dated 26 November 2013 shows in: 

* item 22, prior service inclusive dates as 31 June 1998 through 23 April 2013
* item 30, prior service credit awarded – 11 years and 4 days
* item 34, total constructive credit – 12 years 
* item 35, total prior service credit – 11 years and 4 days 
* item 36, total entry grade credit – 23 years and 4 days 
* item 37, adjusted total entry grade credit – 21 years 
* item 39, credit required for grade – 21 years
* item 40, credit in excess of that required for grade – 0 years
* item 41, date of entry on active duty – 20131031 (31 October 2013)
* item 42, less excess credit – 0
* item 43, DOR – 20131031 (31 October 2013)

10.  The DA Form 5074-R dated 10 April 2014 (CORRECTED COPY) shows the same data above except in:

* item 30, credit awarded – 11 years and 14 days
* item 40, credit in excess of that required for grade – 1 year
* item 42, less excess credit – 1 year
* item 43, DOR – 20121031 (31 October 2012)

11.  His ORB, dated 6 February 2014, shows his:

* pay entry base date as 8 August 1981
* DOR to LTC as 22 June 1994

12.  An advisory opinion was obtained from the Director, Health Services, USAR Recruiting Command, dated 5 January 2015, that stated the applicant's adjusted total entry grade credit of 21 years is correct in accordance with Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and Personnel).  However, it was recommended that an exception to policy be afforded the applicant by crediting him with the 3 years, 11 months, and 24 days he had previously served in the rank of LTC towards his TIG only.  The following DODI 6000.13 citations and comments were provided:

* Section 6.1.1.1 states "service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, in the corps or professional specialty in which being appointed, shall be awarded a day-for-day credit"
* Section 6.1.2.2.1 states "four years of constructive service credit shall be granted for completion of first professional degree that includes dental (DDS)"  
* Section 6.1.2.2.4 states "year for year credit shall be granted for the completion of internship, residency…etc."
* Section 6.1.2.2.5 states "credit of one-half year for each year of experience, up to a maximum of 3 years"  
* Section 6.2.2.2, states "credited, for determining [DOR] under [Title] 10 U.S. Code (USC), section 741[d], with service in grade equal to that held by the person when discharged or separated"
* the applicant received constructive service credit of –

* 4 years for his DDS
* 1 year for his AEGD internship
* 4 years his oral and maxillofacial residency
* 3 years for his civilian experience from 1998 – 2013, the maximum allowable

* the applicant served on active duty as a dental officer from 21 June 1982 – 16 June 1998, giving him 15 years, 11 months, and 26 days that was rounded to 16 years
* this office supports an exception to policy which would result in a credit of the applicant's total time in grade equal to his previous time as an LTC: 3 years, 11 months, and 24 days 

13.  The advisory opinion was forwarded to the applicant and no additional comments have been received.  

14.  DODI 6000.13 implements policy, assigns responsibilities, and prescribes procedures to carry out medical manpower and personnel programs.  It provides the following:

	a.  Section 6.1 (Entry Grade Credit) – 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.  The entry grade credit to be awarded shall equal the sum of constructive service credit and prior commissioned service credit (other than as a commissioned warrant officer), except in cases where the total exceeds the maximum credit allowed, as stated in paragraph 6.1.3, below.  A period of time shall be counted only once when computing entry grade credit, and qualifying periods of less than one full year shall be proportionately credited to the nearest day, except where noted otherwise.  Credit shall be awarded in accordance with this instruction and sections 533 and 12207 of 10 USC.

	b.  Paragraph 6.1.1.1 – Service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, in the corps or professional specialty in which being appointed, shall be credited on a day-for-day basis with any commissioned service performed before such appointment.

	c.  Paragraph 6.1.1.3  Commissioned service on active duty or in an active status while participating in an educational program leading to appointment in a specialty in which constructive service credit is awarded shall be awarded 
day-for-day credit for service performed.

   d.  Paragraph 6.1.2 (Constructive Service Credit) – This credit 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 serve for the period of time it would take to obtain the additional education. Constructive service credit shall be determined according to the following guidelines:

		(1)  Paragraph 6.1.2.1 – Periods of time spent on active duty or in an active status as a commissioned officer may not be counted when computing constructive service credit, except as in subparagraph 6.1.1.3. 

		(2)  Paragraph 6.1.2.2.1 – 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.).

		(3)  Paragraph 6.1.2.2.4. – 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 (i.e., clinical psychology internship or dietetic internship, etc.) required by the Military Service concerned.  Training must be approved by the appropriate accrediting agency, and may not exceed that required for certification in the specialty.  Day-for-day credit shall be awarded for approved programs of less than one year in duration.
		(4)  Paragraph 6.1.2.2.5 –  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.

	e.  Paragraph 6.1.3 – (Maximum Entry Grade Credit) The total entry grade credit granted shall be no more than that required for an officer to be eligible for an original appointment in the rank of major or lieutenant commander.
   
   f.  Paragraph 6.2.1 – A person granted service credit under this Instruction and placed on the active duty list or the reserve active status list of a Military Service may have an entry grade determined by comparing entry grade credit with the currently established promotion phase points of the Military Service and officer category concerned.  Entry grade credit in excess of the minimum years of entry grade credit required to establish a specific grade (but less than the amount necessary to justify the next higher grade) shall be used to adjust the date in the entry grade.
   
   g.  Paragraph 6.2.22 – A former Regular or Reserve commissioned officer may, if otherwise qualified, be appointed or reappointed as a Reserve officer.  If so appointed, he or she may be, as follows:
   
        (1)  Paragraph 6.2.2.1 – Placed on the reserve active status list of a reserve component of the Army, Navy, or Air Force in the grade equivalent to the permanent Regular or Reserve grade, and in the same competitive category, in which the person previously served satisfactorily on active duty or in an active status.

        (2)  Paragraph 6.2.2.2 – Credited, for determining DOR under section 741(d) of 10 USC, with service in grade equal to that held by that person when discharged or separated.
   
15.  The instructions for completion of the DA Form 5074-R state:

* item 22 – inclusive dates (for professional experience) 
* item 30 – prior active commissioned service credit awarded – no instructions provided
* item 34 – total constructive credit is the total of item 9 – credit for basic qualifying degree, item 12 – internships, item 16 – graduate professional education, item 20 – advanced education beyond qualifying degree, item 23 – professional experience, and item 26 – training or experience in unusual cases
* item 35 – total prior service is the total of item 30 – credit awarded for prior active and item 33 – credit for service as other than a medical or dental officer
* item 36 – total entry grade is the total of items 34 and 35
* item 37 – adjusted total entry grade credit is the smaller of item 36 or 14 years and 0 months unless a waiver of maximum entry grade has been granted.  If waive granted enter total amount of credit awarded.
* item 39 – credit required for grade
* item 40 – credit in excess, subtract item 39 from item 37 and enter result
* item 41 – date of entry on active duty
* item 42 – less excess credit, from item 40
* item 43 – DOR, subtract item 42 from item 41 and enter result, this is the adjusted DOR

16.  Army Regulation 135-101 (Army National Guard and Army Reserve Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) prescribes policy, procedures, and eligibility criteria for appointment in the Reserve Components of the Army, with or without concurrent active duty, in the six branches of AMEDD.  According to this regulation:

a. Officers having entry grade credit of 21 years or more, but less than 
23 years maybe appointed in the grade of major or lieutenant colonel.

   b.  Officers having entry grade credit of 23 years or more maybe appointed in the grade of colonel as determined by Headquarters Department of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was initially commissioned on 8 August 1981 while still in school.  The period 8 August 1981 through the date he entered active duty on 21 June 1982 is inactive service and should not have been included in item 29 (inclusive dates of active service).

2.  The applicant has an educational credit of 4 years for his DDS, 1 year for his internship, and 4 years for his residency.  His internship and residency were both completed while on active duty.  These periods cannot be used for both his constructive credit and his prior active service credit.  

3.  He received the maximum credit that can be granted for his civilian practice, which is 3 years.  This service combined with the above service granted gives him 12 years of constructive credit.  No change in this portion of his constructive credit is warranted.
4.  Further, this period of service is also included in the constructive credit granted for 4 years for completion of his DDS.  This period cannot be used for both his constructive credit and prior active service credit.  Therefore, item
29 on the DA Form 5074-R should read "19820621-19980616."

5.  Prior service is calculated on a day for day basis.  Subtracting his periods of internship and residency (5 years) from his active duty service time results in a credit of 10 years, 11 months, and 26 days.  Therefore, items 30 (prior active commissioned service credit – credit awarded) and item 35 (total prior service credit) should be shown as 10 years, 11 months, and 26 days.

6.  By adding item 34 (total constructive service) with the amended item 35 (total prior service credit), the entry in item 36 (total entry grade credit) should read 22 years, 11 months, and 26 days.

7.  A waiver is required in order to enter a figure greater than 14 years in item 37 (adjusted total entry grade credit).  Why the applicant is shown to have only 22 years is not stated in evidence.  It would be appropriate to show in item 37 (adjusted total entry grade credit) entry as 22 years, 11 months, and 26 days.

8.  In order to reenter the Army in the rank of LTC the applicant was required to have 21 years of combined constructive service and prior service credit.  After subtracting 21 years from item 37, he would have 1 year, 11 months and 26 days in excess.

9.  The applicant was commissioned on 31 October 2013.  Subtracting the excess credit of 1 year, 11 months and 26 days would give him an adjusted DOR of 5 November 2011.

10.  The advisory opinion recommended that an exception to policy be granted to back date his DOR based on his prior service as a LTC of 3 years, 11 months, and 24 days for the purpose of time in grade only.  

11.  The advisory opinion does not give any reason for granting the exception to policy except the applicant had previously served just shy of 4 years in the rank of LTC.  There is no provision in law or regulation for adjusting a DOR based solely on the fact that a service member had previous service in that rank.  Therefore, granting the applicant an exception to policy would not be appropriate.

12.  The available evidence does not show the applicant had sufficient constructive and prior service credit to reenter the Army in the rank of COL.

13.  In view of the foregoing findings and conclusions, it would be appropriate to rectify this injustice by correcting the applicant’s records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 issuing the applicant a DA Form 5074-R (CORRECTED COPY) showing in:

* item 29, inclusive dates – 19820621 – 19980616
* item 30, prior service credit awarded – 10 years, 11 months, and 26 days
* item 35, total prior service credit – 10 years, 11 months, and 26 days
* item 36, total entry grade credit – 22 years, 11 months, and 26 days 
* item 37, adjusted total entry grade credit – 22 years, 11 months, and 26 days
* item 40, credit in excess of that required for grade – 1 year, 11 months, and 26 days
* item 42, less excess credit – 1 year, 11 months, and 26 days
* item 43, DOR – 5 November 2011

2.  The Board further determined that the evidence presented was 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 corrections in excess of those listed above.  



      _______ _   __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)                                         AR20140014121



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ABCMR Record of Proceedings (cont)                                         AR20140014121



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