IN THE CASE OF:  	  

		BOARD DATE:  2 June 2015	  

		DOCKET NUMBER:  AR20140017950 


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 recalculation of his date of rank (DOR) to captain (CPT) after his transfer from the Chemical (CM) Branch area of concentration (AOC) 74A (CM, General), to the Medical Services (MS) Corps AOC 72D (Environmental Science).  

2.  The applicant states:

   a.  At the time of his reappointment in AOC 72D, he asked about applying for an exception to policy (ETP) for constructive service credit (CSC) calculations per Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and Personnel) under a new policy to allow officers under certain circumstances to have their prior commissioned time count fully instead of being given half credit.  Colonel (COL) VI, California Army National Guard (CAARNG) State Surgeon, composed a letter requesting the ETP.  Attached email shows he was told it would be looked at later; but he recently checked and discovered it had not been.  
	b.  His ETP request was not considered at the time he applied for reappointment from AOC 74A to 72D.  His ETP request should have been granted and he should have been given full credit instead of half credit.  In addition, his U.S. Army Reserve (USAR) commissioned time from 16 December 2002 to 13 March 2005 and his 4 years of relevant civilian experience were both omitted. 


	c.  There is fundamentally no difference between his duties and responsibilities as a CM officer and those of a nuclear medicine science officer (NMSO) on a civil support team (CST).  As a CM officer, his functions were to first advise the commander on training Soldiers to survive contaminated environments, and second to monitor, survey, and identify potential threats, and to combine that information with knowledge of environmental conditions, then advise commanders how to mitigate any residual risk to operations and personnel.  This is exactly what he did as an NMSO immediately following his transfer to AOC 72D.  The only difference is he was required some specialized training on a few pieces of civilian off-the-shelf analytical equipment.  

	d.  The initial training for the analytical equipment was managed and operated by the U.S. Army Chemical, Biological, Radiological, and Nuclear (CBRN) School and many of the instructors were current or prior enlisted NBC Soldiers.  Much of the equipment and technology he used in the CST was straight out of the normal CBRN inventory that he was familiar with from his time as a CM officer.

	e.  He served continuously as a commissioned officer in some status from 16 December 1999 to the time of his transition to AOC 72D on 10 November 2010 for a total of 10 years, 10 months, and 25 days of commissioned service.  He was seeking an appointment as a 72D to qualify for a fulltime Active Guard/Reserve (AGR) position; therefore, it was an active duty positions he was being appointed to.  He feels it would be more appropriate to use the constructive credit cutoffs [for DOR] for active duty [i.e. Regular Army (RA)] rather than the Reserves.  He believes it is 18 months for first lieutenant (1LT), 42 months for CPT, and 11 years for major (MAJ) for the RA vice the 18 months for 1LT, 84 months for CPT, and 14 years for MAJ for the Reserve.  There is fundamentally no difference between a fulltime AGR position and a fulltime RA active duty position.

	f.  He was employed fulltime as an environmental scientist throughout his time in college and was advised it would be added to his application later; he doesn't believe it ever was.  Instead of starting on May 1995, his employment as an environmental scientist stated on September 1991 and continued through October 1997.  Taking all of these factors into account, he should have been given 10 years, 10 months, and 25 days of constructive credit for prior commissioned time and the time should have been counted day for day vice one-half day.  He should have been given 6 years of credit for relevant civilian experience at one-half day credit, for a total of 13 years, 10 months, and 25 days of constructive credit.

	g.  In addition, he should have been held to the RA active duty standard for 3 years and 6 months for CPT and 11 years for MAJ which means he should have been initially appointed as a MAJ with 2 years, 10 months, and 25 days time in grade (TIG).  Going with the most stringent application of standards of his prior commissioned time counted with one-half day credit, he should be granted a total of 9 years, 11 months, and 15 days and granted day for day credit for his service in the 72D position from 1 December 2009 to 10 November 2010 for 11 months and 10 days, and granted one-day credit for 6 years of relevant service, for a total of 8 years and 11 months of construct credit.  With the Reserve requirements, he should have been reappointed as a CPT with 1 year and 11 months TIG.  Instead his reappointment to CPT was effective 10 November 2010 with a DOR to CPT of 29 September 2010.

3.  The applicant provides:

* DA Form 5074 (Record of Award of Entry Grade Credit (Health Services Officer)), dated 28 January 2010 
* seven pages of email, dated between 30 June 2010 and 10 January 2011
* three memoranda, dated between 2 February 2006 and 5 November 2010
* ARNG Retirement Points History Statement, dated 27 September 2005
* seven orders, dated between 1 November 1999 and 11 January 2011
* a resumé, undated

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 graduated from Occidental College, Los Angeles, CA, on 7 May 1995 with a Bachelor of Arts Degree and a major in Geology.  He enlisted in the RA on 4 November 1997 and he was honorably discharged on 15 December 1999 to accept a commission as an officer.    

3.  On 16 December 1999, he was appointed as a USAR 2LT in the CM Branch with a concurrent call to active duty.  He attended and successfully completed the CM Officer Basic Course from 13 February to 28 June 2000 and was subsequently awarded AOC 74A.  On 16 June 2001, he was promoted to the rank of 1LT.

4.  He was honorably released from active duty on 16 December 2002 in the rank of 1LT and he was transferred to the USAR Control Group (Reinforcement).  He completed 3 years and 1 day of creditable active duty service during this period of service.

5.  On 14 March 2005, he was appointed as a 1LT in the Oregon ARNG (ORARNG) in the CM Branch in AOC 74D.  He attended and successfully completed the Infantry CPTs Career Course - Reserve Component from 14 to 26 August 2005.  

6.  On 11 July 2006, he was promoted to the rank of CPT in the ORARNG.  On 13 February 2007, was assigned as the public affairs officer (PAO) to the 115th Mobile Public Affairs Detachment (MPAD), Salem, OR.

7.  He was ordered to active duty in support of Operation Iraqi Freedom as a member of his ORARNG unit and he entered active duty on 21 May 2007.  He served as the 115th MPAD's PAO/Executive Officer (XO) and served in Iraq from 3 August 2007 to 3 June 2008.  He was honorably released from active duty on 3 August 2008 to the control of his ORARNG.  He completed 1 year, 2 months, and 13 days of creditable active service during this period of service.  

8.  He continued to serve in the 115th MPAD as the PAO/XO until he was released from the ORARNG on 30 November 2009. 

9.  On 1 December 2009, he transferred to CAARNG and was assigned to the 95th CST, Hayward, CA, in an overstrength position in AOC 72D as the Nuclear Medicine Science Officer.  On 15 December 2009, he was ordered to active duty as a member of the CAARNG as an Active Guard/Reserve (AGR).  

10.  He attended and successfully completed the:

* Civil Support Skills Course from 5 April to 26 May 2010
* ALS Operator Course from 12 July to 13 August 2010
* Operational Safety Course from 1 to 5 November 2010

11.  The applicant provides a DA Form 5074-1, dated 28 January 2010, wherein it shows, in part, he received a Bachelor of Arts degree in Geology on 7 May 1995 and would be awarded credit for:

* professional experience from 8 May 1995-1 October 1997 and from 1 December 2002-13 March 2005 of 2 years, 4 months, and 3 days
* prior active commissioned service from 16 December 1999-30 November 2002 and 14 March 2005-22 June 2010 of 4 years, 1 months, 11 days
* he was granted a total entry grade credit of 6 years, 5 months, 14 days
* he qualified for reappointment in the rank of 1LT, the required credit was 1 year and 6 months, and he had 4 years, 11 months, and 14 days of excess credit
* the date of entry on active duty and DOR was blank on this form

12.  He also provides a memorandum, dated 5 November 2010, wherein COL VI, State Surgeon, CAARNG, stated, in part:

	a.  He was requesting an ETP for the applicant to maintain his current rank of CPT and DOR of 9 June 2006 [i.e. 11 July 2006] for his branch transfer to the MS Corps in AOC 72D.  The functions that he performs as the Environmental Science and Engineer Officer are not unique to the health care profession.  He had been assigned as an Environmental Science and Engineer Officer since December 2009.  

	b.  His prior assignment as a brigade chemical officer substantiates the ETP and should be considered sufficient to meet the criteria for an exception to DODI 6000.13, paragraph 6.1.1.1

13.  On 19 November 2010, he was reappointed as a 1LT in the CAARNG in the MS Corps in AOC 72 D.  On 1 February 2011, orders were published to show he was reappointed on 19 November 2010 as a CPT in the CAARNG MS Corps with a DOR of 29 September 2010.  

14.  In the processing of this case an advisory opinion, dated 11 March 2015, was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommended denial of the applicant's request for recalculation of his DOR to CPT after his transfer from AOC 74A to 72D and opined, in part, that:

	a.  On 6 January 2011, the appointment date used in calculating the applicant's DOR on the DA Form 5074-1 was 19 November 2010.  This is the DA Form 5074-1 on file with the NGB Medical Logistics officer.

	b.  Per Army Regulation (AR) 135-101 (ARNG and USAR - Appointment of Commissioned and Warrant Officers of the Army) , chapter 3, he was given constructive credit for his professional experience from 1 December 2002 to 13 March 2005, calculated at one-half day of credit for each day of additional experience.  Because of this, he was not able to receive additional credit for his commissioned service during the same period of time.  

	c.  An Army Medical Department (AMEDD) officer is granted one half day of credit for each prior day of commissioned service.  Additionally, an officer may be granted one-half day of credit for each day of applicable experience in the medically related specialty to which they are being appointed.  In any case, an officer can only receive constructive credit once during a given period.

	d.  DODI 6000.13, paragraph 6.1.1.2 states "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 one-half day of credit for each day served in the case of individuals seeking an original appointment as a health professions officer."

	e.  The applicant also benefitted from an additional credit for serving in a 72D authorization for a year before his reappointment.  For the period 1 December 2009 to 18 November 2010 [353 days or 11 months and 18 days], he was given day for day credit for his prior commissioned service rather than the one-half day for each day authorized by AR 135-101.  There is no basis for this additional credit and the U.S. Army Recruiting Command did not provide this additional credit on their worksheet [dated 28 January 2010].  AR 135-101, paragraph 3-2, states a CPT should have an entry grade credit of 7 years or more but less than 14 years.  If his DA Form 5074 had to be recalculated using the rules in place at the time, his rank would be 1LT at the time of his appointment.  The NGB Medical Logistics Branch and the CAARNG concurred with the recommendation.  
15.  The NGB provides the DA Form 5074-1, dated 28 January 2010, wherein it shows, in part, he received a Bachelor of Arts degree in Geology on 7 May 1995 and he would be awarded credit for:

* professional experience from 8 May 1995-1 October 1997 and 1 December 2002-13 March 2005 of 2 years, 4 months, and 3 days
* prior active commissioned service from 16 December 1999-30 November 2002, 14 March 2005-30 November 2009, and 1 December 2009-November 2010 of 4 years, 9 months, 17 days
* he was granted a total entry grade credit of 7 years, 1 month, 20 days
* he qualified for reappointment in the rank of CPT, the required credit was 7 years, and he has 1 month and 20 days of excess credit
* the date of entry on active duty was 19 November 2010
* his DOR to CPT was 29 September 2010
16.  On 12 March 2015, the applicant was provided a copy of the advisory opinion for his information and comment or rebuttal; however, no response was received.

17.  DODI 6000.13, dated 30 June 1997, implements policy, assigns responsibilities, and prescribes procedures to carry out medical manpower and personnel programs.  

	a.  Paragraph 6.1 states that 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 CSC and prior CSC, except in cases where the total exceeds the maximum credit allowed.  A period of time shall be counted only once when computing entry grade credit.  

	b.  Paragraph 6.1.1.1 states credit for prior service as a commissioned officer shall be granted to recognize previous commissioned experience.  It states the Secretaries shall establish procedures that ensure the awarding of prior commissioned service credit is applied in an equitable and consistent manner. 

	c.  Paragraph 6.1.1.2 states 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 one half day of credit for each day served in the case of individuals seeking an original appointment as a health professions officer.

   d.  6.1.2.2.5. states 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 experience cannot be credited.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOR to CPT should be recalculated as it was not properly calculated upon his reappointment on 19 November 2010 in the CAARNG MS Corps in AOC 72D.  

2.  The evidence of record confirms the applicant's contention that his entry grade was not properly calculated upon his reappointment on 19 November 2010 in the MS Corps is valid.  However, as stated by the advisory official, the error resulted when he was improperly credited with day for day credit during the 353 days he served in the 72D position while still holding AOC 74A.  If he had received the proper credit in accordance with governing regulations, he would have received one-half day credit during this period or 5 months and 26 days credit vice the 11 months and 18 days credit he received.  As a result, his total entry grade credit would have been 6 years, 7 months, 24 days and his appointment grade would have been 1LT.

3.  However, no action will be taken to correct his appointment rank to 1LT as it is the practice of this Board to not disadvantage applicants by making them worse off for having applied for a correction to their record.

4.  His contentions on the various ways he should have been granted entry grade credit are noted; however, they are not valid as they are not supported by the governing regulations that clearly state what an ARNG service member can be credited with when computing entry grade credit.  

5.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20140017950



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ABCMR Record of Proceedings (cont)                                         AR20140017950



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