PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           25 OCTOBER 2001
	DOCKET NUMBER:   AR2001054604

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. Raymond J. Wagner		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Ronald E. Blakely		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  In effect, the applicant requests that her record be corrected to show that she was ordered to active duty in the rank of lieutenant colonel, vice major; or barring that relief, that her date of rank (DOR) as a major be 4 January 1995 instead of her current DOR of 4 January 1996.

3.  The applicant states that there was a shortage of highly skilled, qualified pathologists, especially in her subspecialty field of Cytopathology, and that she was expressly recruited for the position of Medical Director, Cytopathology, Walter Reed Army Medical Center (WRAMC), a position that she currently occupies.  Prior to her entry on active duty, she specifically inquired into her promotion status and was informed by her recruiter that she had to be in an active status for one year before she could be promoted, but otherwise her promotion status would not be affected.  She was specifically concerned because she was currently eligible for promotion as a Reserve officer.  She noted an area on her application stating that only 3 years were awarded towards promotion upon entry on active duty, but was told that this did not apply to her as a special recruit, and was advised not to initial or sign.  She did not.

4.  She states that prior to her entry on active duty she was selected for promotion to lieutenant colonel with a DOR of 19 June 1999.  The Reserves  informed her that the promotion selection was transferable to the active Army; however, her personnel advisor has stated otherwise, and advised her to request relief from this Board.

5.  She states that she was brought on active duty with a DOR of                          4 January 1996, which gives her only 3 years time in grade as a major, delaying her eligibility for promotion to lieutenant colonel several years.

6.  She cites her medical experience, both on active duty and as a civilian, and states that other civilian recruits gained credit for their time as leaders or chiefs when they were recruited and their time was commensurate with their peer group; furthermore, a civilian cytopathologist with no military service, with experience similar to hers, was recruited after her and brought in as a lieutenant colonel.  She states that she did not receive constructive credit for her civilian experience. She never resigned her commission, but remained in the Individual Ready Reserve (IRR) for over two years, but received no credit for that time.  Her peers are all lieutenant colonels, as are many of her juniors.  Her rank compared with that of her peer group, makes her a less viable candidate for leadership positions.  She states that other physicians in similar situations have requested and been granted relief.

7.  She states that had she known that her promotion status would have been adversely affected, she would have waited and entered on active duty after she had been promoted to lieutenant colonel in the Reserves.  She states that she chose to return to active duty with the intent of making the Army a career, but promotion beneath one’s peers is humiliating and demoralizing.  She requests at least the time in grade (4 years) for promotion purposes that she had when she left active duty on 30 June 1996.  However, she prefers that her record show that she was ordered to active duty as a lieutenant colonel.

8.  The applicant’s military records show that she was appointed a captain in the Medical Corps on 1 June 1986 with concurrent call to active duty.  She was promoted to major effective and with a date of rank of 19 June 1992.  She was released from active duty on 30 June 1996 and transferred to the Army Reserve Control Group (Reinforcement).  She had 10 years and 12 days of active duty.

9.  A 2 July 1998 DA Form 61 (Application for Appointment) reflects that she applied for appointment as a Reserve officer in the Medical Corps.  On              24 July 1998 she applied for active duty.

10.  A 2 November 1998 DA Form 5074-R (Record of Award of Entry Grade Credit) shows that she was awarded a total of 15 years, 1 month, and 17 days of entry grade credit, which was 5 years, 1 month, and 17 days credit in excess of that required for the grade of major.  

11.  On 14 December 1998 the Total Army Personnel Command at St. Louis  issued a memorandum notifying the applicant that she had been selected for promotion to lieutenant colonel by a Reserve Components Selection Board, with a promotion eligibility date of 18 June 1999.  The results of that board were approved by the President on 10 November 1998. 

12.  On 18 December 1998 she was ordered to active duty for three years in the grade of major under the provisions of Title 10 U.S.C. section 12301(d), with a reporting date to WRAMC of 5 January 1999.  

13.  A 13 January 1999 statement of service shows her military service and indicates that after her separation from active duty in 1996, she served for           2 years, 2 months, and 2 days in the Army Reserve prior to her recall to active duty.  On  8 June 1999 the Total Army Personnel Command (PERSCOM) determined that her date of rank as a major was 4 January 1996.

14.  On 28 June 2001 this agency requested an advisory opinion from the PERSCOM concerning this case, stating that the applicant was selected for promotion by a USAR promotion board under 1998 criteria, and that the President approved the board on 10 November 1998.  This agency included with that request a copy of Title 10, U.S.C. section 14317 and DOD Directive 1310.1, which indicate that she was eligible to be placed on an active duty promotion list with an appropriate sequence number and promoted when that sequence number was reached.

15.  On 20 July 2001 in response to the request for an advisory opinion, the Chief of the Promotions Branch at PERSCOM stated that because she was ordered to active duty and placed on the active duty list in her Reserve grade of major, she was subject to the promotion rules governing officers on the active duty list.  Additionally, she received no additional constructive service credit upon entry to active duty.  That official stated that the governing regulation, Army Regulation 600-8-29, dated 30 November 1994, states in pertinent part that if an officer is ordered to active duty and placed on the active duty list in the Reserve grade currently held, the active date of rank (ADOR) will be the effective date of placement on the active duty list backdated by either 3 years or the period calculated for credit awarded, whichever is less.  He stated that her new ADOR to major was correctly computed to 4 January 1996, 3 years from the date she came on active duty.  She was considered and selected to lieutenant colonel and will be promoted in January 2002.  He then provided an explanation of the terms, “entry grade credit” and “constructive service credit.”  He recommended denial of the applicant’s request.  	     

16.  On 5 August 2001 the applicant provided a rebuttal to the advisory opinion, stating that she did not dispute the provisions of the Army Regulation stating that the maximum credit for a major reentering on active duty was 3 years, but stated that she was informed that the restriction did not apply to her situation, as she was not ordered to active duty but actively recruited because of the need.  She reiterated that she specifically inquired about the restrictions when she signed the Personnel Data Sheet (USAREC Form 524), was told that it was not applicable to her, and did not initial those statements of understanding on         page 2 of that form.  

17.  She stated that the Army was sorely in need of pathologists and the 6-month delay in processing her orders was acutely felt by WRAMC.  She stated that she could have delayed her entry on active duty until she was promoted to lieutenant colonel, and would have clearly chosen that option had she not been reassured that she would not sacrifice rank for returning to active duty sooner.

18.  The applicant cited examples of other officers, her peers who have already been promoted to lieutenant colonel, and her juniors who have been selected for promotion with her.  She stated that the consequences of her current rank and   3-year award for time in grade had been the reluctance of her superiors to place her in leadership positions over individuals who she has trained that have less experience than her, but more rank.  She stated that she was being penalized for returning to active duty and penalized precisely because she had prior time in service.  Had she known that her career progression would suffer, she would have insisted upon reentering active duty as a lieutenant colonel.  She stated that she has made every effort to be a model officer and is enrolled in the Command and General Staff College.  She stated that her record should show that she returned to active duty as a lieutenant colonel with the date of rank in July 1999, and although she would still remain behind her contemporaries in rank status, she would be in a more equitable position.  She stated that she believes that this was not an unreasonable request. 

19.  Title 10 U.S.C., section 12301(d) states that at any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member.  However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned.

20.  Title 10 U.S.C., Section 14317 states in pertinent part that a Reserve officer who is on a promotion list as a result of selection for promotion by a mandatory promotion board and who before being promoted is placed on the active duty list of the same armed force and placed in the same competitive category shall, under regulations prescribed by the Secretary of Defense, be placed on an appropriate promotion list for officers on the active duty list.

21.  DOD Directive 1310.1, dated 29 April 1996, pertains to rank and seniority of commissioned officer and implements section 14317 of Title 10 U.S.C.  That directive states in pertinent part that an officer on the Reserve Active Status List and on a promotion list as a result of selection for promotion by a mandatory promotion board or a special selection board and, who before being promoted is placed on the Active Duty List of the same Armed Force and placed in the same competitive category, shall be placed on an appropriate promotion list for officers on the Active Duty List under Section 14317(b) of Title 10 U.S.C.  The effective date of promotion and date of rank shall be the same as if the officer had been selected to the grade concerned by the promotion board for Active Duty List officers.     

22.  Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  It incorporates provisions of the Defense Officer Personnel Management Act as specified in sections 557 through 563 and 601 through 640, Title 10, United States Code.  Paragraph 1-41 pertains to grade and active date of rank of other than Regular Army commissioned officers assigned to an Army Medical Department Corps upon placement on the active duty list, and states that if an officer is ordered to active duty and placed on the active duty list in the Reserve grade currently held (without a concurrent new original appointment), the ADOR will be the effective date of placement on the active duty list backdated by either 3 years or the period calculated under paragraph 1-39b, whichever is less. 

23.  Information obtained from an official of the PERSCOM Promotions Branch on 17 August 2001 revealed that although that branch was aware of the provisions of Title 10, Section 14317, concerning placement on the active duty list, the advisory opinion failed to address that particular matter, but concentrated on the effect that entry grade and constructive service credit had upon her entry on active duty.  That official also stated that had she remained on active duty she would have been considered for promotion by the 1998 selection board, and if selected, promoted in June 1998, after having six years time in grade as a major. 

24.  In response to a query from a member of this agency, the Total Army Personnel Command (PERSCOM) provided another advisory opinion concerning the applicant’s case, stating on the one hand that the applicant came on active duty in the correct grade and received the maximum amount of constructive credit allowed, but on the other hand stating that upon her return to active duty, the appropriate promotion list for the applicant was the FY 98 LTC Army Competitive Category Medical Corps Promotion list, and that her effective date of rank to lieutenant colonel should be 18 June 1999 [the same promotion eligibility date that she had when selected for promotion by the Reserve Components Selection Board in 1998].  The PERSCOM recommended administrative relief for the applicant. 

25.  The advisory opinion was furnished to the applicant on 16 October 2001.  On 17 October 2001 she concurred with the opinion.

26.  Information obtained from an official of the PERSCOM Promotions Branch on 17 October 2001 revealed that the zones of consideration for the FY 98 LTC Army Competitive Category Medical Corps Promotion Board was              921001-930930 (primary zone) and 920930 and earlier (above the zone).  The board met on 3 March 1998 and adjourned on 10 March.  The board results  were confirmed by the Senate on 30 July 1998.  Promotion from the selected list began on 1 October 1998.  The list was exhausted on 30 September 1999.  

CONCLUSIONS:

1.  The applicant should have been placed on the promotion list for Medical Corps officers upon her entry on active duty on 5 January 1999, and promoted to lieutenant colonel on that date, notwithstanding the 27 September 2001 advisory opinion.  The rule is explicit – the effective date of promotion and date of rank shall be the same as if the officer had been selected to the grade concerned by the promotion board for active duty list officers.  Had she been on active duty her promotion would have been in June of 1998.  She was an above the zone officer. However, she did not come on active duty until January of 1999 at which time she should have been integrated into the FY 98 promotion list and immediately promoted.       

2.  Consequently, she should be promoted to lieutenant colonel effective and with a date of rank of 5 January 1999.  She should receive all due pay and allowances based on this promotion date.  

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was promoted to lieutenant colonel effective and with a date of rank of 5 January 1999, and that she receive all due pay and allowances as a lieutenant colonel effective on that date.

BOARD VOTE:  

__RJW__  __KAN __  __REB__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond J. Wagner___
		        CHAIRPERSON

INDEX

CASE ID	AR2001054604	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011025	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	310	
3.		
4.		
5.		
6.