MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  30 November 2000
	DOCKET NUMBER:  AR2000037811

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Celia L. Adolphi		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:  That his Pay Entry Basic Date (PEBD) be revised from 29 November 1981 to 21 March 1978 or, in effect, that he be allowed service credit for pay purposes for his commissioned officer inactive Army Reserve time while he was enrolled in the Health Professional Scholarship Program (HPSP), 2 September 1987 through 12 May 1991.  He states that 
United States Code (USC), Title 37, Section 205, allows credit for pay purposes for inactive Army Reserve time but he did not get this credit for the period
2 September 1987 through 12 May 1991 (while he was enrolled in the HPSP).

The applicant provides copies of the referenced USC; Public Law (PL) 96-513, Section 703; Department of Defense (DoD) Financial Management Regulation (FMR) Volume 7A, Section 010102; his DD Forms 214 (Certificate of Release or Discharge from Active Duty) for three periods of service in the U.S. Coast Guard (USCG) from 31 August 1978 to 14 August 1987 prior to entering the HPSP, his Army Reserve Officer Oath of Office dated 15 August 1987, letter of appointment and order to the inactive Army Reserve dated 15 August 1987, orders to active duty in the Army Reserve on 28 March 1991; and a copy of his DA Form 1506 (Statement of Service for Computation of Service for Pay Purposes).

The applicant also provides copies of two Army Board for Correction of Military Records (ABCMR) proceedings, one from a Board on 26 October 1988 and the other from a Board on 23 September 1999.  The 26 October 1988 Board granted four years constructive service credit to all graduates of the HPSP and Uniformed Services University of Health Service (USUHS) classes of 1985 and 1986 due to proven evidence of incorrect counseling and information given to members of those classes between 1981 and 1982 to the effect that they would receive service credit for pay purposes while enrolled in the HPSP and USUHS.  This incorrect counseling and information was caused by confusion on the newly enacted DOPMA provisions initiated on 15 September 1981 near the beginning of the 1985 and 1986 classes.  The 23 September 1999 Board granted three years nine months constructive service credit to a graduate of the USUHS class of 1987 where it had been proven that he had been given incorrect information by the U. S. Military Academy Surgeon in 1982 that he would be given service credit for pay purposes during the time he was in the USUHS.

APPLICANT STATES:  In effect, that he has not been given service credit for the time that he was a commissioned officer in the inactive Army Reserve while he was enrolled in the HPSP, 2 September 1987 through 12 May 1991.  He states that his service time, which began on 21 March 1978 when he enlisted in the USCG, has been unbroken to the present.  Based on this fact and the provisions of Title 37, USC, Section 205a(2); the grandfather provisions of PL 96-513; and the DoD FMR, the applicant asserts that he should be given service credit for the period 2 September 1987 through 12 May 1991 as a commissioned officer in the 

inactive Army Reserve while he was also enrolled in the HPSP.  He clarifies that he is not asking for constructive service credit for attending medical school but is asking for service credit for his commissioned officer inactive Army Reserve service while he was enrolled in the HPSP.

He states, in effect, that he was led to believe by his HPSP medical recruiter that he would receive service credit for pay purposes for his inactive Army Reserve time while in the HPSP.  The medical recruiter had arranged for continuous service from the USCG to the Army Reserves so that there would not be a break in service.

He states that he has received unfair treatment in view of the fact that the HPSP and USUHS medical school graduation classes of 1985, 1986, and some members of the class of 1987, all who entered the service between 1981 and 1982, had their PEBDs revised (some by Boards of Correction of Military Records) to show they started medical school prior to 15 September 1981.  This was the effective date of changes made in service credit for members of the HPSP and USUHS by the Defense Officer Personnel Management Act (DOPMA) as enacted by PL 96-513.  (The applicant is from the HPSP graduation class of 1991.)  He states that he entered the service prior to the passage of PL 96-513 and five years prior to medical students who had their PEBD adjusted.  In the interest of fairness, his PEBD should be restored to the original date of entry into military service on 21 March 1978.

The applicant asserts that the general savings provisions (grandfather provisions) of PL 96-513, Section 703, indicates that all action taken prior to passage of the law would remain in effect after the effective date of the law.  Since his PEBD was established when he entered the Coast Guard in 1978, prior to the passage of the law, and since he has had continuous service without a break, the PEBD should be unaffected by the law and restored to 21 March 1978.

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

That he served honorably in the USCG from 31 August 1978 through 14 August 1987.  He achieved the rank and grade of Lieutenant 0-3 in the USCG.  He was commissioned as a Captain in the Army Reserve on 15 August 1987.  He was in the HPSP from 2 September 1987 through 12 May 1991 to obtain his medical degree.  He was ordered to active duty as an Army Medical Corps Captain on 
22 June 1991.  He has continued on active duty to the present.  He is currently a Lieutenant Colonel on active duty in the Army Medical Corps with a date of rank of 1 October 1998.

The HPSP is a medical scholarship program offered to medical students in exchange for their obligated service in the military after graduation from a medical program and completion of an internship.  The medical student must be accepted in an accredited graduate medical program at a school of their choice.  The HPSP pays for tuition, books, fees, reimbursables, a monthly stipend of over $973 a month for 10½ months of the year, and six weeks of full pay and allowances of an officer in the U.S. Army Reserve during the summer.  At the beginning of participation in the HPSP, the student is commissioned in the U.S. Army Reserve and placed on inactive reserve duty.  After completing the graduate medical program, HPSP students are promoted to the rank of Captain.  After completion of an internship or residency training program, the HPSP recipient is obligated to serve in the Army one year for each year they received HPSP financial assistance.

United States Code, Title 37 (Pay and Allowances of the Uniformed Services), Chapter 3 (Basic Pay), Section 205 (Computation: service creditable), subsection (a) states, “Subject to subsections (b) and (c), for the purpose of computing the basic pay of a member of a uniformed service, his years of service are computed by adding - (2) all periods during which he … held an appointment as an officer of, (B) the Regular Army Reserve - or - (J) the Army without specification of component.”  (Subsections (b) and (c) concern avoiding double counting years of service and service before 18 years of age.)

United States Code, Title 10, Chapter 105 (Armed Forces Health Professions Financial Assistance Programs), Subchapter 1 (Health Professions Scholarship and Financial Assistance Program for Active Service), Section 2126 (Members of the Program: service credit), subsection (a) (Service Not Creditable) states, “Except as provided in subsection (b), service performed while a member of the program (HPSP) shall not be counted - (2) in computing years of service creditable under section 205 of title 37.”  (Subsection (b) refers to service creditable only for specialties determined by the Secretary to be critical during time of war and then creditable for retirement points only.)

The DoD FMR, Volume 7A, Chapter 1 (Creditable Service) defines what service is creditable or not creditable for pay purposes.  Paragraph 010102 (Computation of Creditable Service) states, “For most members who enter and serve on active duty without a break in service, the basic pay date is the date the member enters active or inactive service.”  “Also, there are statutory periods when service in a particular component may not be counted.”  Paragraph 010103 (Creditable Service Periods) states, “Include active and inactive service in any of the following components without restriction:  B.  Army … Reserve.”  However, paragraph 010201 (Service Not Creditable) states. “The following list includes a few types of service that are not creditable: … H.  The time a member serves while enrolled in the Armed Forces Health Professions Scholarship and Financial Assistance Programs.”
Public Law 96-513 (Defense Officer Personnel Management Act), Section 703 (General Savings Provision), states, “Except as otherwise provided in this Act, the provisions of this Act and the amendments made by this Act do not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before the effective date of this Act.”  This public law was approved 12 December 1980.

The Directorate of Medical Education, Office of the Surgeon General of the Army, provided an advisory opinion that the applicant’s inactive Army Reserve time while in the HPSP is not creditable service for pay purposes nor is the time he was a student in the HPSP creditable as constructive service credit.  Inquiry was made to the applicant’s medical recruiting officer concerning the applicant’s assertion that he had been misinformed by her that he would be given service credit while in the HPSP.  The medical recruiting officer, “indicated that she did not specifically recall but does not believe she misinformed any of her recruits and added that the service agreement (signed by the applicant) specifically indicates the credit was not authorized.”  The Directorate of Medical Education informed this office that service credit was granted to HPSP graduates of the class of 1985, 1986, and in some cases, 1987, due to confusion over the DOPMA changes.  These classes had started between 1981 and 1982 when DOPMA was initiated.  However, the applicant was from the graduation class of 1991 and began HPSP in 1987, five years after the confusion and consequent errors were corrected.

The applicant rebutted the advisory opinion stating that he was not asking for constructive service credit, but that he was asking for service credit for pay purposes authorized by USC, Title 37, Section 205(a)(2), and Chapter 7A of the DoD FMR, Section 10102, because he served concurrently in the Army Reserve from 15 August 1987 through 22 June 1991 while he was in medical school without any breaks in service.

Constructive service credit is granting service credit for periods of time where service credit is not otherwise specifically authorized.

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 applicant is not authorized service credit for inactive Army Reserve time while enrolled in the HPSP and, therefore, there is no error, injustice, or unfairness in his current PEBD of 29 November 1981.  The applicant bases his claim for service credit for this period of time on the DoD FMR, Volume 7A, Chapter 1 (Creditable Service), paragraph 010102 (Computation of Creditable 

Service), which states, “For most members who enter and serve on active duty without a break in service, the basic pay date is the date the member enters active or inactive service.”  Paragraph 010103 (Creditable Service Periods) states, “Include active or inactive service in any of the following components without restriction: A.  Air Force, Army, Naval Marine Corps and Coast Guard Reserves.”  However, paragraph 010201 (Service Not Creditable), subparagraph H, states that the time a member serves while enrolled in the Armed Forces Health Professions Scholarship and Financial Assistance Programs (UPSP) is not creditable service.  Accordingly, the almost four years the applicant was in the inactive Army Reserve while he was enrolled in the HPSP is not creditable time-in-service and does not add to his PEBD.

2.  There is no evidence that the applicant was misinformed about receiving service credit while enrolled in the HPSP.

3.  The PL 96-513 (Defense Officer Personnel Management Act), Section 703 (General Savings Provision), does not prohibit changes to a soldier’s PEBD as otherwise required by USC, Title 37 (Pay and Allowances of the Uniformed Services), Chapter 3 (Basic Pay), Section 205 (Computation: service creditable); USC, Title 10, Chapter 105 (Armed Forces Health Professions Financial Assistance Programs), Subchapter 1 (Health Professions Scholarship and Financial Assistance Program for Active Service), Section 2126 (Members of the Program: service credit); and DoD FMR, Volume 7A, Chapter 1 (Creditable Service).

4.  In view of the foregoing, finding no error or injustice, 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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__js___  __tl_____  ___ca_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000037811	
SUFFIX		
RECON		
DATE BOARDED	20001130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.112.09	BPED	
2.		
3.		
4.		
5.		
6.