BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150003538 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ____x_ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150003538 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150003538 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests reinstatement of the applicant’s previously held rank/grade of major (MAJ)/O-4 or, in the alternative, that she be granted a special selection board (SSB) for promotion to MAJ/O-4 or a waiver of her active duty service obligation (ADSO) so that she may retire under the Temporary Early Retirement Act (TERA). 2. Counsel states, in effect: a. The applicant was required to relinquish her rank of MAJ/O-4 when she was accepted into and began the 3 year Interservice Physician Assistant Program (IPAP). b. Upon completion of IPAP, she was in the primary zone (PZ) for promotion to MAJ/O-4 without an officer evaluation report (OER) in her new specialty as a physician assistant (65D). c. The applicant was an extraordinarily successful MAJ/O-4 in her previous career field of aviation, she had command experience in a combat and garrison environment. d. Prior to her decision to apply to IPAP, she was aware that she would have to accept a reduction in rank/grade based on the policy for constructive service credit. She was willing to do this because she believed she would be afforded the opportunity to earn her rank back in her new specialty. e. Due to the amount of constructive service credit she received for her previous aviation commissioned service, she found herself in the PZ for promotion to MAJ/O-4 only 8 weeks after graduating from IPAP. This put her at a disadvantage since she would not have an OER as a physician’s assistant (PA) prior to the MAJ/O-4 board convening for the Army Medical Specialist Corps. f. During this period, the promotion rate in the Army Medical Specialist Corps plummeted to a record low. Unlike her peers, all the promotion board members would see would be two academic evaluation reports (AERs) and her aviation OERs. When the promotion board results were released in December 2013, she had been passed over. g. She excelled in the IPAP and is filling a MAJ/O-4 billet in her current position as a PA with the 1st Brigade Combat Team, 1st Cavalry Division, Fort Hood, TX. However, before she could be rated in her current billet, she was again passed over for promotion to MAJ/O-4 in 2014. h. She had no realistic chance to be promoted to her previously held grade of MAJ/O-4 by virtue of the fact that she could not have received an OER by the time she met her PZ promotion board. This is a clear injustice and one the Army has since corrected by limiting the amount of previous commissioned service members entering into the IPAP may have on record. 3. Counsel contends: a. The applicant was subjected to a material injustice when she was accessed into the Army’s PA program with a date of rank (DOR) to CPT/O-3 (with 5 years and 10 months of constructive service credit) guaranteeing she would not have an OER as a PA when she met her PZ board for MAJ/O-4 8 weeks after she graduated from IPAP. b. She was placed at a severe and fatal promotion disadvantage compared to her peers in the PA program who had several OER’s as practicing PA’s prior to the MAJ/O-4 promotion board. c. The applicant was victimized by mismanagement of the Army’s PA career field and through no fault of her own finds her once promising Army career at a standstill and in serious jeopardy of an early and unfortunate ending. d. She was denied the option by the Medical Specialist Corps Branch Chief to transition to the U.S. Army Reserve (USAR). The USAR was short PA’s and if she were allowed to transfer, she would have had a fair opportunity for career advancement as a reservist and would have avoided becoming a two-time non-select. e. Although the Medical Specialist Corps Branch Chief told her after her non-select to MAJ/O-4 that she was a victim of a reduction in promotion rates driven by the current trend of the Army downsizing personnel, counsel contends that personnel downsizing and the natural reduction in promotion rates was not the real issue. The real issue was the injustice caused by accessing officers into a program knowing the officer would not have an opportunity for an OER as a PA and therefore would be at a fatal disadvantage for promotion. 4. In support of his arguments, counsel states: a. In 2011, after she entered the IPAP, the Army issued the fiscal year (FY) 2012 Update to Army Regulation 601-20 (The Interservice Physician Assistant Training Program) which now prohibits members with over 15 years total active Federal service (AFS) as well as members with more than 5 years of constructive service credit from entering into the program. b. The Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and Personnel) governs constructive service credit and has a provision in paragraph 6.2.3 which allows the Secretary of the Army to adjust an officer’s DOR to a later date to reflect an officer’s qualifications and experience. This regulation was not considered in her case. c. In 2011, the policy governing IPAP applications was updated (FY 2011 Message Update to Army Regulation 601-20 (The Interservice Physician Assistant Training Program)) changing the maximum amount of active federal commissioned service an applicant may have. The new policy states that applicants with more than 5 years of constructive service credit per DODI 6000.13 are ineligible for application. d. The Army’s corrective measures, as expressed in Military Personnel (MILPER) Message Number 13-257 and FY 2012 Update to Army Regulation 600-20, are a clear recognition of the inequities and injustice of past policies of accessing senior CPT’s into the IPAP. e. Even greater restrictions were imposed in 2013 as evidenced by MILPER Message 13-257 that states officers with greater than 7 years of commissioned service at the time of application are ineligible and that officers with greater than 5 years of commissioned service must request a time in service (TIS) waiver. Had the new policy been in effect, she would not have been eligible to apply to IPAP and she would have made other career choices that would have certainly resulted in a better outcome. 5. Counsel provides: * FY 2012 Update to AR 601-20 * MILPER Message 13-257 * DODI 6000.13, paragraph 6.2.3 * OER, dated 1 July 2014 * Colonel (COL)/O-5, Medical Specialist Corps Branch Chief analysis * character and support letters * Self-authored letter CONSIDERATION OF EVIDENCE: 1. On 23 August 1993, the applicant applied for and received a 4-year Army Reserve Officers’ Training Corps Scholarship. On 16 May 1997 she accepted a commission in the Regular Army (RA) as a Signal Corps (SC) Officer in the rank of second lieutenant (2LT)/O-1. 2. In 1999, she was promoted to first lieutenant (1LT)/O-2, and on 1 September 2001, she was promoted to captain (CPT)/O-3. 3. On 31 October 2002, she applied to transfer to the aviation field. She was accepted and graduated in 2003. 4. Counsel notes that, after various assignments in aviation, on 1 February 2007, she was promoted to MAJ/O-4 and offered a Battalion S-3 position. However, job satisfaction diminished due to lack of flight time. To keep up her flying skills, she maximized her time in the UH-60 (Black Hawk) simulator. She also paid out of pocket for a civilian fixed-wing flight-training program and earned her single-engine land and commercial instruments rating. 5. In 2008, after nearly 2 years of constant temporary duty, she volunteered for a Worldwide Individual Augmentation System assignment in Afghanistan. 6. On 11 March 2009, she was notified she had been appointed as a Reserve warrant officer of the Army effective upon her acceptance. She accepted the appointment on 27 July 2009. 7. On 1 July 2009, she resigned to go back to school full-time to complete the prerequisite courses to apply to the IPAP. Her IPAP application is not filed in her official military personnel record. 8. The applicant has acknowledged that she was aware that, if accepted for IPAP, she would be reduced in rank to CPT/O-3. 9. In August 2010 she was notified that she was accepted into the IPAP. 10. An DA Form 5074-4-1-R (Record of Award of Entry Grade Credit (Health Service Officers), dated 16 September 2010, shows in item 28 (Total Entry Grade Credit) she was awarded 5 years, 10 months, and 26 days of entry grade credit for the rank/grade of CPT/O-3. 11. On 21 October 2010, she was issued Orders A-10-030070 to report to active duty for training/schooling no later than 1 November 2010 in the rank of CPT/O-3. 12. A DA Form 71 (Oath of Office – Military Personnel), shows she executed an Oath of Office and was appointed in the RA as a Medical Specialist Corps officer in the rank/grade of CPT on 1 November 2010. 13. Orders Number 152-006, dated 31 May 2012, issued by the U.S. Army Human Resources Command (HRC), adjusted her DOR to CPT/O-3 to 5 January 2008. 14. The applicant’s record contains a DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 14 June 2013, wherein it shows she attended IPAP from 27 May 2010 to 14 June 2013. She graduated from the Academy of Health Sciences, Fort Sam Houston, TX, and from the Womack Army Medical Center, Fort Bragg, NC. On the day she graduated, she took and passed the PA National Certification Exam. 15. Due to the amount of constructive service credit she received for her previous commissioned service, she was in the PZ for promotion to MAJ/O-4 8 weeks after graduating from IPAP. 16. In December 2013, the results of the MAJ/O-4 board that considered her for promotion were released and she was not selected for promotion. 17. On 15 May 2014, she became the Senior Brigade PA at the National Training Center, Fort Irwin, CA. 18. The applicant submitted a copy of her OER for the period ending 14 May 2014 in which her senior rater ranked her one out of nine CPTs he currently senior rated and in the top 5 percent of Army Medical Department (AMEDD) officers. 19. On 13 November 2014, MAJ/O-4 promotion board results were again released and she was not selected for promotion for a second time (two-time non-select). HRC notified her of her mandatory retirement and advised her that, since she had over 15 years of active service, but less than 20, she could volunteer for retirement under the Temporary Early Retirement Act (TERA); however, she had 3 years remaining on her ADSO. She was involuntarily placed in Selective Continuation until the completion of her ADSO on 31 December 2017. She was advised that she could opt to retire on her ADSO date, or, since she will be over 18 years of service at the completion of her ADSO, elect to remain on active duty until completion of 20 years of AFS at which time she will be involuntarily retired. 20. Counsel presents several Army regulations and DODI, arguing that Army policies have now changed to prevent what happened to his client. At the time Army policies allowed for service members to enter IPAP with too much time in service or too much constructive service credit. This policy allowed service members to be promotion eligible without any relevant OERs in their military specialty. The regulations and DODI counsel provides regarding changes in the IPAP are not retroactive. 21. The applicant offers several character and performance letters from previous supervisors, fellow officers, and colleagues who have worked with her that attest to her outstanding qualities as a PA: * she is an absolutely indispensable asset to the Army * she is an outstanding officer with impeccable character and superior abilities * she has made many sacrifices to the Army and just wants the ability to be fairly treated in relations to promotion * she is an officer with a track record of proven performance; although there are a lot of talented and brilliant officers within AMEDD, they often lack tactical or operational experience needed to be most effective in field/deployed environments, she has it all 22. In the processing of this case an advisory opinion, dated 17 August 2015, was obtained from the Chief, Officer Promotions Management, HRC. The advisory official recommended disapproval of the applicant's request and opined: a. The applicant's rank determination and DOR were the result of her appointment as a Medical Specialist on 1 November 2010. She was granted constructive service credit of 5 years, 10 months, and 26 days, of which 3 years and 1 month were used to grant her the rank of CPT. The residual constructive service credit of 2 years, 9 months, and 26 days was applied toward awarding her a retroactive DOR to CPT of 2 years, 7 months, and 26 days. b. Title 10, United States Code (USC), section 628(b)(1) and Army Regulation 600-8-29 (Officer Promotions) chapter 7, require evidence of material unfairness with respect to the officer’s promotion file in order for an SSB to be granted. c. A review of her FY 2013 and FY 2014 MAJ, Medical Specialist Corps Promotion Selection Board (PSB) files determined all documents prescribed in the Department of the Army Memorandum 600-2 were considered by the Boards; therefore, HRC could not grant an SSB. 23. The applicant responded to the advisory opinion stating: a. Although there was no material error in her case, she believes there is an injustice. Through no fault of her own, she was placed at a marked disadvantage for promotion as compared to her peers. b. She was twice not selected for promotion to MAJ/O-4, a rank she previously held as an active duty aviator. She believes her non-selection was a direct result of a lack of OER’s as an Army PA. c. Due to the fact that she was a former MAJ/O-4, she was granted so much constructive service credit that she was up for promotion again immediately after graduating from IPAP. The Army has since stopped allowing officers with her time in service to apply to the IPAP for that very reason. d. The promotion selection rate for MAJ/O-4 for PA was healthy when she entered the program but sharply dropped at the time of her completion from IPAP 3 years later. e. The only evaluations that the promotion board got to see were AERs vice OERs which do not address promotion potential or enumerate her standing compared to her peers as a PA. f. She currently occupies an MAJ/O-4 billet as the Senior Brigade PA. She was selected over several more tenured PAs for this position due to her previous leadership experience. g. She has already demonstrated success as a field grade officer and leadership experience as a forward deployed company commander, Battalion S-3 and executive officer in combat arms units that nearly all of her PA peers lack. h. She made the decision to become a PA because it was a great way for her to continue to take care of Soldiers. Inadvertently, it has brought about the premature end of her Army career. She has the skills, leadership, and combat experience to offer the Army and a strong desire to continue to advance her career. i. She is requesting an SSB to consider the OERs she has received since her IPAP graduation as though they were present in August 2013 when she was in the PZ. j. If that is not possible, she requests reduction of her constructive service credit and adjustment of her DOR so that she can meet the promotion board at a more appropriate point on her PA career timeline as opposed to immediately following graduation from the IPAP. k. If none of these remedies are possible, she is requesting to be released from the Medical Specialist Corps to return to the Aviation Branch where she may have a better opportunity for continued service; or to be released from her ADSO and be allowed to retire immediately under the TERA. 24. On 31 March 2016, a second advisory opinion was obtained from the IPAP Manager, at Headquarter, U.S. Army Recruiting Command (USAREC). The advisory official recommended disapproval of the applicant's request and opined: a. After careful review of the record pertaining to the applicant, it is the opinion of this office that she was given the correct half-day service credit for her prior active commissioned service and no adjustment to her entry grade credit is necessary pursuant to DODI 6000.13, section 6.1.1.2. b. Upon her acceptance in the IPAP and appointment into the Medical Specialist Corps, she was granted half-day constructive service credit for her commissioned service from 9 September 1997 through 1 July 2009. Credit of one-half was calculated at 5 years, 10 months, and 26 days, which is what her 5074-R (Record of Award of Entry Grade Credit) reflects. She was qualified for the rank of CPT in the Medical Specialist Corps on 1 November 2010 with 2 years, 9 months, and 26 days of credit in excess of that required rank. 25. On 18 May 2016, the applicant was provided a copy of the second advisory opinion, she responded stating: a. She carefully read the advisory opinions from HRC and USAREC; however, neither of them addressed the injustice in her particular case. Through no fault of her own, she was unfairly disadvantaged for promotion to MAJ due to a lack of time/opportunity to receive an OER in her current branch prior to her PZ promotion board. b. She feels that a lack of OERs were a key element which directly led to her non-selection. The Medical Specialist Corps, more than any other branch has experienced a record low promotion rates for MAJ/O-4; promotion at the PZ for FY 2013 was 45 percent and for above the zone the following year was 9 percent. c. USAREC has since acknowledged the problem of career progression for senior officers entering IPAP and has now stopped allowing officers with her rank and length of commissioned service to apply for the program. d. Army Regulation 135-155 (Army National Guard and USAR – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) protects officers from facing a promotion board before having the opportunity to receive at least one OER. Unfortunately, there is no such provision for officers who branch transfer. e. She has strived for excellence, has combat experience, and has a solid record of performance and achievement free of any derogatory marks of any kind. She had 3 years of prior service as a MAJ in the Aviation Branch, was selected over several more tenured PAs to serve as the Senior Brigade PA, and received a rating of “above center of mass/best qualified” OER in this capacity. f. She would like, if possible, any of the following relief: * reinstatement to her former rank of MAJ in the aviation community * an SSB for MAJ as a PA * an adjustment of her DOR or a waiver of her ADSO allowing her to transfer immediately to the USAR or retire immediately under TERA 26. The applicant provides 12 letters of support, essentially stating: * she is one of the best officers in the clinic * she possesses the clinical skills and judgment of a PA with several years of experience, with a wealth of knowledge of military operations and doctrine that are uncommon in an officer of her grade * as a member of the Army team she is absolutely indispensable; to deny her promotion now would result in a terrible loss to the Army and would be a grievous injustice * hopefully this board will do everything in its power to right this wrong and see that the applicant is promoted and allowed to realize her full and deserving potential * although the Army’s promotion system is fair, the applicant’s case is a glaring exception * she has performed masterfully as a company commander, and has demonstrated impeccable moral standards and unparalleled intellect in the performance of her duties * by the time she was assigned to the brigade, there was no time for her to be evaluated prior to the board convening * without recent OERs, she was at a marked disadvantage * she is an outstanding officer and possesses rare qualities and experience REFERENCES: 1. Title 10, USC, section 533(a)(1) states a person receiving an original appointment shall be credited with any prior active commissioned service performed before such appointment; and DODI 1312.03, paragraph 6.1. states a person's entry grade credit for determining grade and DOR shall be the sum of prior commissioned service allowed and the amount of constructive service credit allowed. In cases of an original appointment to a basic branch in the Army, an individual may receive prior active commissioned service credit, but may not receive constructive service credit because an advanced degree or specialized experience is not required for the appointment. 2. Title 10, USC, section 101b, states in sub-paragraph b(10) the following definitions relating to military personnel apply in this Title: the term "original," with respect to the appointment of a member of the armed forces in a regular or Reserve Component, refers to that member’s most recent appointment in that component that is neither a promotion nor a demotion. 3. Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system. Paragraph 1-40 (Determining active date of rank for commissioned officers) states in sub-paragraph 1-40b, the ADOR of an officer receiving an original appointment as an RA commissioned officer, other than as stated in chapter 2, is the date the appointment is accepted unless: (1) The officer was, at the time of appointment, a Reserve officer on the ADL, in which case the ADOR is the same as that which the officer held immediately before his or her appointment as an RA officer. (2) The officer was, at the time of appointment, a Reserve officer not on the ADL, in which case the ADOR will be the one the officer would have had immediately before the appointment as an RA officer had the officer been placed on the ADL as a Reserve officer on that date. (3) The appointee was not, at the time of appointment, a Reserve officer, but was awarded entry grade credit under Title 10, USC, section 533, in which case the ADOR will be backdated to the extent that the entry grade credit awarded exceeds that required for the officer’s appointment grade under applicable Army regulations and circulars. (4) The officer was, at the time of appointment, a Regular officer in another service, and the officer is the subject of an interservice transfer, in which case the ADOR will be the same as the officer’s ADOR in the other service (officers who received constructive service credit see paragraph 1–25). (5) The officer is, at the time of appointment, an RA officer and the new original appointment will effect a change in the officer’s status from a special branch to a basic branch, from a basic branch to a special branch, or between special branches. In these cases the ADOR will be recomputed in accordance with paragraph 1–38 [sic] (1-39) above, except that in no event will the officer’s ADOR in the new original appointment be later than the ADOR held in the next precedent appointment. 4. Title 10, USC, section 2123 of chapter 105 (Armed Forces Health Professionals Financial Assistance Programs) states a member of the program incurs an ADSO. The amount of his or her obligation shall be determined under regulations prescribed by the Secretary of Defense, but those regulations may not provide for a period of obligation of less than 1 year for each year of participation in the program. 5. Army Regulation 350-100 (Training – Officer ADSO) establishes guidance on ADSO for officers, defines how service obligations will be computed and served, and established how officer will be notified of service obligations. ADSO are governed under multiple sections of Title 10, USC. An ADSO is intended to assist the Army in maintaining an experienced and well qualified officer force to complete its assigned missions. It ensures a reasonable return to the Army following the expenditure of public funds. Officers who attend military or civilian courses of instruction may incur an ADSO for up to 6 years on completion or termination of the course. The ADSO equals three times the length of schooling, computed in days, but not more than 6 years. 6. Army Regulation 601-20 provides for the rules and guidelines used in accessing individuals into the IPAP. It states that officers incur an ADSO of 4 years upon the successful completion of all training. Training at the time was projected to be 53 weeks in duration. In the application process for IPAP an individual is required to voluntarily acknowledge the ADSO requirement. DISCUSSION: 1. The applicant was commissioned in the SC on 16 May 1997. She was promoted to CPT on 1 September 2001. 2. In 2002, she transferred to the Aviation Branch, and on 1 February 2007 she was promoted to MAJ/O-4. 3. In 2008, she volunteered for an individual augmentation assignment in Afghanistan. Upon her return, she requested and was approved for an appointment as a warrant officer. 4. On 1 July 2009, she resigned with 11 years, 9 months and 23 days of net active duty service. 5. In August 2010, she applied and was accepted into the IPAP. She states she was aware that, if accepted, she would be reduced in rank to CPT. On 25 November 2012, she voluntarily signed a statement of understanding for the IPAP and concurred with the requirements of this program. 6. On 16 September 2010, she was given 5 years, 10 months, and 26 days of credit in the grade of CPT, executed an oath of office, was appointed in the RA as a Medical Specialist Corps officer, and reported to IPAP on 1 November 2010. 7. HRC adjusted her DOR to CPT to 5 January 2008 on 31 May 2012. 8. She graduated from IPAP on 14 June 2013 and passed her PA National Certification Exam on the same date. 9. Due to the amount of constructive service credit she received for CPT in the Medical Specialist Corps, she was in the PZ for promotion to MAJ 8 weeks after her graduation from IPAP. In December 2013, she was not selected for promotion. 10. In November 2014, after receiving an OER as a PA, she was again passed over for promotion making her a two-time non-selectee. 11. HRC notified her of mandatory retirement based on her two-time promotion non-selectee status, giving her two options since she had over 15 years of TAFS: a. She could volunteer for retirement under TERA; however she still had 3 years remaining on her ADSO and would be involuntarily enrolled in Selective Continuation until the completion of her ADSO on 31 December 2017. b. She could opt to retire on her ADSO or, since she will have over 18 years of AFS at the completion of her ADSO, she may elect to remain on active duty until her mandatory retirement date at 20 years of AFS. 12. Advisory opinions from both HRC and USAREC recommend disapproving her request essentially stating that she was granted constructive service credit in accordance with DODI Number 6000.13, and there has to be a material unfairness to support authorizing an SSB, which in her case was not seen. 13. The applicant stated that although there was no material error in her case, she believes her case is one of injustice due to unique circumstances. 14. Although the applicant and her counsel present several Army regulations and DODI, arguing that Army policies have changed to prevent what happened to her, these policies and DODI were put in place after the applicant was accepted into the program and are not retroactive. 15. Any correction by the ABCMR must comport with law. The Board may not ignore a requirement contained in, or outcome dictated by, another statute. Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute. There are no operative facts to correct in this case and the ABCMR does not have authority to waive her ADSO. She must comply with her ADSO and upon successful completion of her ADSO, she may retire under TERA or continue to serve until she completes 20 years of AFS. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003538 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003538 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2