MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           27 June 2000                  
	DOCKET NUMBER:   AR1999026687

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning 		Chairperson	
	Mr. Walter T. Morrison 		Member	
	Mr. Curtis L. Greenway 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Three years constructive service credit for his advanced degree in law and four years constructive service credit for professional experience in medical law, both achieved prior to entry on active duty.    

APPLICANT STATES:  That his record should reflect the above constructive service credit and applied to his date of rank of 18 May 1996.  He provides a copy of his original request for constructive service credit, letters in support of his request, evidence of his legal training and subsequent experience in medical law signifying how his law degree and experience has added adjunctive skills to his specialty.

He first applied for this constructive service credit in 1996 as a first year graduate medical education (FYGME) applicant, stating that his law degree was earned previous to and not concurrently with his primary medical education, and that he had four year of experience in health care law as a licensed attorney prior to entering on active duty.  Army Regulation 135-101, chapter 3, table 3-1, provides for constructive service credit for advance degrees and professional experience associated with that degree that add adjunctive skills to a soldier’s primary specialty, provided they contribute directly to performance in the anticipated duty position.  They did add to his primary specialty of medicine and in particular his anticipated duty position as a psychiatry intern, resident, and staff member in the Army.  

He was informed that his request for constructive service credit had been denied since he was a psychiatry intern and not yet a member of the psychiatry department, and that he would need to request reconsideration from this Board once he became a resident in the Department of Psychiatry at Walter Reed Army Medical Center.  He requested formal written notification and clarification of the denial of his request, but was not provided one.  He is currently in residency in psychiatry and his evaluation reports, the fact that he received the Army Achievement Medal, and the fact of his tenure as Intern Class President in 1997, attest to the reality that his law degree and experience as a health care attorney provides him adjunctive skills which enhanced his effectiveness as a psychiatry intern and resident.  He anticipates using both his legal and psychiatric training in the specialty training and practice of forensic psychiatry, which by definition is the application of psychiatric principles and techniques in questioning areas of law.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant submits transcripts showing that he was awarded a law degree in 1991 and a medical degree in 1996.  He submits a curriculum vitae that shows his medical education, his legal education, undergraduate education, legal and military experience, language experience, activities, associations, awards, etc.
The applicant submits an extract from Army Regulation 135-101 concerning constructive service credit.

He provides at attachment 4, a memorandum showing how his law degree and subsequent experience added adjunctive skills to his primary specialty of medicine.  This memorandum was provided with his FYGME application for training in psychiatry.  He stated in this memorandum that he received his law degree as a participant in a unique program specifically combining both law and medicine.  He stated that he intended to pursue forensic psychiatry as his primary specialty in the Army and both general psychiatry and forensic psychiatry are primary medical specialties recognized by the Army, which require a great knowledge of the law and legal profession.  The Army specifically trains psychiatrists at Walter Reed to perform forensic tasks.  The applicant goes on to provide information concerning his education and experience, to include his publications, his licensure as an attorney, projects completed, use of his specialized training and adjunctive skills in legal medicine at the local and state level, his associations, and so forth.

In a 20 September 1995 memorandum to the FYGME program coordinator, a professor and chairman of the School of Medicine at Southern Illinois University stated that he supported the applicant’s request for constructive credit, based on his possession of an advanced degree which would add adjunctive skills to his primary area of medical specialty training in the field of forensic psychiatry.  He stated that the dual degree program at the university was designed for students who were primarily committed to a career in medicine but who felt that a complete legal education would augment their primary career path.  The professor provided a brief description of the academic experience in the law school, to include course work in medical malpractice law, health policy law, and mental health law.  He continued by providing a short discourse of the applicant’s achievements, the reasons for legal expertise in the practice of psychiatry, and stated that the applicant’s law degree and experience as an attorney prior to and during his medical school training would be invaluable to the Army, and help educate both residency program faculty and fellow residents regarding issues at the interface of psychiatry and law.  He stated that the applicant represented the most outstanding example of any student he has yet encountered, and his observations were made not only in his capacity as an official at the university, but also as a retired lieutenant commander in the Navy Reserve (JAG Corps).

The applicant received a letter of support from the director of psychiatry residency training at Tripler Army Medical Center in Hawaii, who stated that the Army goes to considerable time and expense to train its own forensic psychiatrists, and it was a boon to receive one already half trained at no expense to the government, particularly one who received his legal education in a setting that was so uniquely geared to medical issues as the nationally recognized integrated medical/law degree program at Southern Illinois University.  He went on to say that the applicant’s selection of forensic psychiatry, is a specialty within his medical law background which would be central to his practice of his primary specialty.

The applicant provides a certificate showing he received a law degree, a certificate showing he was a student editor, licenses showing he could practice law in Ohio and Illinois, pages of articles that he has had published, a student evaluation report, a copy of his officer record brief, a copy of his graduate professional education (GPE) training agreement, and a copy of a certificate showing that he was awarded the Army Achievement Medal.  His GPE training agreement, which he executed on 3 February 1997, shows that his active duty service obligation upon successful completion of the GPE training, would terminate on 30 June 2004. 

In a 14 April 1998 memorandum, an Air Force lieutenant colonel, the program director of the National Capital Military Psychiatry Residency Program, provided support for the applicant, stating that psychiatry is one specialty area of medicine that has the closest affiliation with the law and that there are specific forensic psychiatry training programs that prepare general psychiatrists to serve as expert witness.  Forensic psychiatry, however, does not equate with having an additional law degree in terms of personal expense, scope of practice, and knowledge and skills of the practitioner, but the applicant possesses that additional law degree that has been highly adjunctive in his residency training.  He states that there had been a number of cases during the applicant’s psychiatry residency training where legal issues were paramount in the clinical treatment of the patient, and that the applicant’s unique expertise allowed appropriate completion of documents and protected the patient and the Army health care system from legal actions and adverse clinical outcomes.  He stated that the applicant would be an actual practitioner in psychiatry and law, which would greatly facilitate his own scope of practice as well as significantly benefit the Army.  

In a 1 June 1999 memorandum a Navy commander from the Department of Psychiatry at the National Navy Medical Center in Bethesda voiced similar support for constructive service credit for the applicant based upon his law degree and his experience in law school in medical malpractice law, health policy law, and mental health law.  He stated, that as department chairman, he had observed the need for forensic expertise increase dramatically over the past five years, and the Army and Navy were now funding the additional training of psychiatrists to meet the need.  The applicant already had the training and more, and by granting him constructive service credit he would receive concrete confirmation of his value to the Army and would positively influence his decision to remain in the Army beyond completion of his obligated service.

The applicant provides a copy of two evaluation reports, one which covered the period when he was a psychiatry intern, and the other showing his performance as a psychiatry resident, both of which are outstanding.

In the processing of this application, an advisory opinion (COPY ATTACHED) was obtained from the Office of The Surgeon General.  That office indicated that it did not support the applicant’s request, and that it originally had reviewed and denied his request prior to his entry on active duty.  It went on to say that the Medical Education Directorate consistently has not granted entry grade credit for various degrees, based on its interpretation of DOD Directive 6000.13, which states that “Additional credit in unusual cases, based on special education or experience, can be granted by the Secretary of Military Department.  As determined by the Service needs, the additional credit applies to individuals with unique qualifications that are beyond normal requirements for appointment as commissioned officers.”  It further stated that it did not believe that entering medical school and residency graduates meet the criteria under the DOD directive.  It listed other considerations which supported denying entry grade credit for other health care degrees.

The applicant was provided a copy of the advisory opinion on                             29 September 1999 for his information and possible rebuttal.  He failed to respond. 

DOD Directive 6000.13 provides policies concerning constructive service credit and states that four years constructive service credit shall be granted for completion of first professional degrees that include medical, osteopathy, dental, optometry, podiatry, veterinary, and pharmacy.  Credit for master’s and doctorate degrees in a health profession other than medicine and dentistry shall be awarded based on actual full-time equivalent education of up to two years for a master’s degree and up to four years for a doctorate.  The additional degree must add adjunctive skills to the primary specialty and must contribute directly to performance in the anticipated position in the military service concerned. 

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.  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.
 
Additional credit in unusual cases, based on special education or experience can be granted by the Secretary of a Military Department or designee.  As determined by Service needs, the additional credit applies to individuals with unique qualifications that are beyond normal requirements for appointment as commissioned officers.  The amount of credit shall be one year for each year of special education or experience.  Maximum credit for experience in a health profession must be earned before earning any experience credit for unique qualifications.

Army Regulation 135-101 prescribes the 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 the Army Medical Department (AMEDD).  

Chapter 3 provides for grade and date of rank upon appointment.  Paragraph 3-1 states that grade and date of rank upon original appointment and assignment to an AMEDD branch will be determined by the number of years of entry grade credit awarded.  Entry grade credit granted will be the sum of constructive service credit and credit for prior active commissioned service.  Entry grade credit upon appointment or assignment will be recorded on DA Form 5074-R for medical and dental officers.  A period of time will be counted only once when computing entry grade credit.  Constructive service credit will be granted for periods of professional training and experience accrued after receipt of the basic qualifying degree (See tables 3-1, 3-3, 3-4, and 3-5).

Table 3-1 provides for constructive service credit and states that periods of time spent as a commissioned officer either in an active status or on active duty will not be counted.  That table shows that 4 years of constructive service credit is awarded for a basic qualifying degree, i.e., M.D., and one year for each year limited by level of degree, for additional advanced degrees (see table 3-4).  Degree must add adjunctive skills to primary specialty and must contribute directly to performance in anticipated duty position.  Credit is awarded based on full-time equivalent education up to 24 months for a master’s degree or up to    36 months for a doctorate.  Additional degree must not have been earned concurrently with primary credential.  Credit includes time spent in attainment of lower degree.

That table goes on to state that a maximum of 3 years of constructive service credit may be awarded for full-time experience not otherwise credited as a practicing physician, osteopath, or dentist after qualifying degree. 

Table 3-1 also states that constructive service credit of 1 year for each year of special experience may be awarded in unusual cases based on special education or professional experience in the specialty in which assigned when experience is accrued after qualifying degree and licensure, if applicable.  Unusual case determination will be made by The Surgeon General or his designee.  Maximum credit must be earned for full-time experience as a practicing physician, osteopath, or dentist, before credit for special experience may be awarded.
Table 3-4 states that advanced degrees earned in the listed specialties may qualify for additional constructive credit.  Constructive service credit may not be awarded to MC and DC officers for some of those listed specialties, e. g.,  audiology, dietetics, psychology, veterinary medical specialties; and constructive service credit may be awarded only to MC and DC officers for advanced degrees in education and basic science.  Constructive service credit may be awarded to all Army Medical Department officers for earning advanced degrees in other listed specialties, such as anatomy, biochemistry, immunology, public health, and so on.  That table does not list law as a specialty which may qualify for additional constructive credit.  However, the table does indicate that other specialties may qualify as approved by The Secretary of the Army or his designee on a case-by-case basis. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The rules providing for constructive service credit promulgated by the Department of Defense, and implemented by the Department of the Army, appear to apply to granting of credit for advance degrees to persons in health professions, other than medicine and dentistry, although credit may be awarded to doctors for advanced degrees in education and basic science, as indicated in table 3-4 of Army Regulation 135-101.  Nevertheless, the Secretary of the Army, or his designee, may approve award of constructive service credit for other specialties.  The Secretary of the Army’s designee, The Surgeon General, has deigned not to do so in this instance. 

2.  The rules governing additional constructive service credit, in this case the applicant’s experience in medical law, allows for credit based on special education or professional experience to individuals who have unique experience. The Surgeon General or his designee makes this determination.  That experience, must be earned after earning the maximum credit for experience in a health profession.  Again, The Surgeon General has not allowed this constructive service credit.

3.  In the cited precedent case in the advisory opinion, there had been a disagreement between officials at the Total Army Personnel Command (PERSCOM) and the Office of The Surgeon General (OTSG).  The Board agreed with OTSG that relief should be granted based on OTSG’s professional opinion.

4.  The applicant in his request to this Board, is ably supported by the professional judgments of personnel experienced in their field, from officers of three different services and from a professor of the School of Medicine where the applicant received both his law and medical degrees, all who state that the applicant’s education and experience are unique, and whose adjunctive skills would significantly benefit the Army.  This Board respects their judgment.

5.  Nonetheless, The Office of The Surgeon General has also reviewed the applicant’s request, to include those statements of support, and the OTSG’s professional judgment is that relief not be granted.  The Board is reluctant to grant relief concerning medical qualifications contrary to those professional experts, despite the support he has received.

6.  In view of the foregoing, there is no basis for granting the applicant's request

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ___clg__  GRANT

________  ________  ________  GRANT FORMAL HEARING

___wtm__  ________  ___mdm_  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999026687	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000627	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  229	112.07	
2.		
3.		
4.		
5.		
6.