PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 October 2002
	DOCKET NUMBER:   AR2002069163

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Charles Gainor		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, in effect, that he receive an adjustment to his constructive credit and an upgrade of his entry grade to major (MAJ) or 
lieutenant colonel (LTC).

3.  The applicant states, in effect, that based upon his 22 years of experience in the medical field, he should have entered the United States Army Reserve (USAR) either as a LTC or MAJ.  He claims that from his conversations with personnel officials at Fort Knox, Kentucky, he discovered that he was granted no constructive credit for the period 1980 to 1992.  He was granted the entry grade of captain (CPT) when he was appointed in the United States Army Reserve (USAR) based on his medical experience between 1992 and 2000.  

4.  The applicant further claims that he graduated from medical school in 1980, he is 59 years old, and that he actually has 22 years of experience in the medical field.  His superiors at his USAR unit have advised him to seek a higher rank based on this experience.  He claims that he was unaware of the ability to negotiate for a higher entry rank when he accepted his appointment as a CPT in the USAR in September 2001.  He also claims that based on a fair interpretation of the regulatory guidelines for awarding constructive credit, he believes that he should have received at least 11 years of constructive credit, which would have allowed his appointment in the rank of LTC.  In support of his application, he provides list of medical activities from 1980 through the present. 

5.  The applicant’s military records show that on 21 September 2001, he was appointed a Medical Corps (MC) CPT, in the USAR, and that he is still currently serving in that status.  A Record of Award of Entry Grade Credit, Medical and Dental Officers (DA Form 5074-R) on file, dated 1 October 2001, shows that the applicant was awarded a total of 8 years of constructive credit upon his appointment in the USAR.  Four years were applied toward his entry grade of CPT and the four years in excess of that required for his entry grade was awarded for time in grade and date of rank purposes.  

6.  In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Medical Corps Division, United States Army Recruiting Command (USAREC), Fort Knox, Kentucky, dated 2 September 2002.  It indicates that the applicant should be awarded some additional constructive credit for his professional experience as a physician from 1999 through 2001.  However, it also states that the applicant is not entitled to receive constructive credit for his experience as a Physician Associate from 1980 through 1992, because he was not a licensed physician, as is required by Department of Defense (DOD) policy.  

7.  In addition, the USAREC advisory opinion states that no credit should be awarded the applicant for the period between 1995 and 1998 and October 1999 through June 2000, because he was practicing medicine in New Zealand.  The constructive credit regulatory policy specifically stipulates that no constructive credit will be given for experience gained outside of the United States.  The opinion also indicates that the applicant should be denied constructive credit for the time he spent in preparation to take his certifications, August 1998 through February 1999, since that was not practice time nor was it an intensive program such as a residency or fellowship.  Finally, it states that he should be denied credit for the experience he gained after October 2001, because he had already been appointed and was receiving credit toward his next promotion. 

8.  The USAREC advisory opinion further states that after the applicant’s constructive credit was recalculated based on the information he provided, and it was determined that he should receive 9 years and 5 months of constructive credit, instead of the 8 years he was granted upon his appointment in the USAR.
Enclosed with the advisory opinion was a revised DA Form 5074-R, dated 
17 September 2002, which contained the breakdown of the constructive credit to which USAREC officials believe the applicant is entitled.  It confirms that he should receive the following constructive credit for the qualifications indicated:  
4 years, for his basic qualifying degree; 1 year, for his internship; 4 years, for the graduate professional education he completed in 1995 and 2001; and 5 months, for the professional experience he gained between March and October 1999 and between July and October 2001.  Finally, it shows that he should receive a total of 9 years and 5 months of constructive credit.  This qualified him for appointment as a CPT with 5 years and 5 months of time in grade.  

9.  On 19 September 2002, the applicant was provided a copy of the USAREC advisory opinion in order to be provided the opportunity to reply.  On 
30 September 2002, he submitted a rebuttal.  In it, he claimed that he continues to believe that he deserves more credit based on his 22 years of experience in the medical field.  He indicates that all the soldiers he works with in Hawaii, including the unit commander, as well as many colonels, could not believe or understand the reason he entered the Army as a CPT, instead of MAJ or LTC.  He claims that the rank of CPT is reserved for the junior doctors who recently completed their medical school upon their entry into a residency program, and who need work experience to become a MAJ.  He claims that he would like to appeal the case, and would voluntarily at his own expense travel to appear before the full Board.  

10.  Army Regulation 135-101 prescribes policy, procedures, and eligibility criteria for appointment in the Reserve Components of the Army, in the six branches of the Army Medical Department (AMEDD).  Paragraph 3-4 (Transition Credit) states, in pertinent part, that the grade and date of rank upon appointment will be determined by the law and regulations in effect on the date of the appointment.  

11.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-11 contains guidance on hearings.  It states, in pertinent part, that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the Board may grant a formal hearing whenever justice requires.

CONCLUSIONS:

1.  The Board notes the applicant’s contention that he was entitled to additional constructive credit upon his appointment as a CPT in the USAR, and it finds this claim has merit.  However, the Board finds insufficient evidence to support the applicant’s claim that he should have been appointed in the rank of MAJ or LTC. 

2.  By regulation, authorized constructive credit in excess of the minimum required for appointment to the appropriate grade will be used to adjust the date of rank within that grade.  The USAREC advisory opinion confirms that, in accordance with the applicable regulations and DOD policy, the applicant is entitled to receive a total of 9 years and 5 months of constructive credit for his basic qualifying degree, internship, residency, and professional experience.  Based on the policy in effect at the time of his appointment, this constructive credit would allow the applicant’s appointment in the rank of CPT with 5 years and 5 months of time in grade for date of rank purposes.  

3.  In the opinion of the Board, the DA Form 5074-R provided by USAREC accurately reflects the constructive credit and entry grade to which the applicant is entitled based on the existing law and regulation.  Therefore, the Board concludes that a formal hearing is not required to obtain a just outcome in this case.  

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by issuing the individual concerned the revised DA Form 5074-1-R that shows he was entitled to a total of 9 years and 5 months of constructive credit, the entry grade of CPT, and 5 years and 5 months of credit in excess of that required for his entry grade.  

2.  That the CPT date of rank of the individual concerned be adjusted based on his being awarded the 5 years and 5 months of constructive credit in excess of that required for his appointment rank, and that he be provided any back pay and allowances due as a result.  

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__INW__  __WTM__  __CG  __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		  ___Irene N. Wheelwright___
		           CHAIRPERSON

INDEX

CASE ID	AR2002069163	
SUFFIX		
RECON		
DATE BOARDED	2002/10/03	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  229	112.0700	
2.		
3.		
4.		
5.		
6.