PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 September 2001                   
	DOCKET NUMBER:   AR2001059423

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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.  The applicant requests that the constructive service granted her upon appointment be creditable toward salary and promotion eligibility but not retirement.

3.  The applicant states that in the fall of 1999, she and several other civilian nurse practitioners were recruited by Captain O__.  Captain O__ informed them that they would receive constructive credit of 5 years time-in-service for pay purposes and enter as a captain with 5 years of constructive credit for promotion purposes, i. e., be eligible for promotion to major 1.5 years after entrance on active duty.  In July 2000, when she received her first Leave and Earnings Statement, she realized she was being paid as a captain with 0 years in service.  She and two others were told that their options were to be released from active duty (REFRAD) or remain on active duty.  The Judge Advocate General’s Office indicated that another option would be to appeal to the Board.  The other two nurse practitioners requested release; she did not.  She gave up a now higher paying job, sold her home, and displaced her family based on the good faith of what was told to her. 

4.  The applicant's military records are not available.  Information contained herein was obtained from alternate sources.

5.  The applicant entered active duty on 9 July 2000 in the rank of captain.  She was given 5 years of constructive credit and 1 year, 6 months of promotion credit toward the next higher grade.  She was authorized to draw an accession bonus of $5,000 upon presentation of an executed written bonus agreement at her first permanent active duty station.  She incurred a 4-year active duty service obligation (ADSO).  The facts of the erroneous information given her and others by her recruiter were verified by the Army Nurse Corps Branch, U. S. Army Recruiting Command.  

6.  Two of the other nurse practitioners requested REFRAD.  Around November 2000, the Assistant Secretary of the Army, Manpower and Reserve Affairs (ASA, M&RA) approved their request for waiver of their ADSO.  (The ASA, M&RA also directed that the U. S. Total Army Personnel Command ensure there is a proper mechanism to accomplish a discharge, rather than a REFRAD, in this type of case).

7.  Army Regulation 135-101 and Department of Defense Instruction 6000.13 provide policy for the appointment of reserve commissioned officers for assignment to service medical branches.  They provide that a prospective health professions officer’s entry grade and rank shall be determined by the number of years of entry grade credit awarded on original appointment, designation, or assignment as a health professions officer.

8.  The Department of Defense Financial Management Regulation, volume 7A, paragraph 10105, provides that some medical and dental officers are entitled to extra credit for longevity purposes to reflect the time spent in medical or dental school.  All cases involve officers who already had the constructive service credit on or before 15 September 1981 or on 14 September 1981 were participating in a program which led to an appointment as a medical or dental officer.

CONCLUSIONS:

1.  It is a rule of long standing that the government is not liable for incorrect information given by its officers, agents, or employees, and such misinformation cannot provide a basis for payment in excess of legal entitlements.  The applicant is not entitled to relief as a matter of law.

2.  The applicant discovered the error within weeks of her entry on active duty. Normally, the appropriate relief would be to offer to release the soldier from his or her commitment.  In this case, however, the Board concludes that the level of detriment accompanying the applicant’s reliance tips the scale in favor of granting the requested relief.  The applicant had a good paying job that she quit to join the Army and a family that she uprooted with the sale of their home.  It would be more difficult for her than for the average enlistee to again uproot her family and find comparable civilian employment and this most likely acted as a disincentive to accept the Army’s initial offer to separate.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing, as an exception to policy due to the highly unusual circumstances, that all the constructive service granted the applicant upon her appointment be creditable for all administrative calculations, including pay and allowances, with the exception of retirement eligibility.

BOARD VOTE:  

__jhl___  __mhm___  __kah___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Joann Langston
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001059423	
SUFFIX		
RECON		
DATE BOARDED	20010918	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	102.08	
2.		
3.		
4.		
5.		
6.