BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20150018783 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: 25 January 2018 DOCKET NUMBER: AR20150018783 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. Enclosure 1 BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20150018783 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: 1.  The applicant requests correction of his military records to show he was granted constructive service credit for a Master of Science (MS) degree in physiology in 1993. By separate correspondence he also requests correction of his active duty entry date of 9 March 2003 to an unspecified date. 2.  The applicant states that upon his graduation from the United States Military Academy (USMA) and entry on active duty on 1 June 1991, he proceeded to England for a 2-year course of study in physiology as a Marshall Scholar. During those 2 years, he was on active duty status. On 4 August 1993, he successfully defended his thesis for his MS degree. At the same time, diplomas could only be awarded by formal ceremony at Oxford. His follow-on orders to medical school at the Uniformed Services University of the Health Sciences (USUHS) precluded his attendance at the Oxford University ceremony. The absence of the official diploma on record in turn precluded his award of constructive service credit, despite a letter of attestation from the University. Recently, Oxford changed their policy to allow the distribution of the official diploma by post. He has since received his diploma and now desires that his military records reflect the constructive service credit for his advanced degree in physiology. 3.  The applicant provides: * DA Form 1059-1 (Civilian Institution Academic Evaluation Report) dated 15 October 1993 * MS Diploma, University of Oxford, dated 8 March 2014 CONSIDERATION OF EVIDENCE: 1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2.  A DA Form 71 (Oath of Office – Military Personnel), as filed in the applicant’s official military personnel file (OMPF), shows he was commissioned in the Regular Army on 1 June 1991, as a second lieutenant (2LT), pay grade O-1, Infantry branch. This date is shown on his Officer Record Brief (ORB) in Section III – Service Data as his basic date of appointment. 3.  Orders 148-00234, Fort Benjamin Harrison, Indiana, dated 28 May 1993, announced the applicant’s promotion in the Regular Army to first lieutenant (1LT), pay grade O-2, with an effective date and date of rank of 1 June 1993. 4.  Orders A-07-004204, U.S. Total Army Personnel Command (TAPC), St. Louis, Missouri, dated 28 July 1993, announced the applicant's order to active duty as a 2LT in the Medical Service Corps in the U.S. Army Reserve (USAR), with assignment to USUHS. His report date was 9 August 1993. His active duty commitment was 4 years as a volunteer officer. Further instructions show that if he successfully completed the program of instruction for which ordered to active duty, he would then incur another active duty commitment of 7 years. 5.  Order Number 307-009, TAPC, Alexandria, Virginia, dated 3 November 1997, announced the applicant’s promotion to captain (CPT), pay grade O-3, with a date of rank of 17 May 1997, in the Medical Corps (MC). 6.  A DA Form 71, dated 17 May 1997, shows the applicant was appointed as a Reserve commissioned officer in the rank of CPT, pay grade O-3. His ORB Section III – Service Data shows this date as his entry on active duty (current tour) date. 7.   A DA Form 71, dated 7 November 1997, shows the applicant was commissioned in the Regular Army as a CPT, pay grade O-3, in the Medical Corps. 8.  Order Number 099-036, TAPC, Alexandria, Virginia, dated 9 April 2003, announced the applicant’s promotion to major (MAJ), pay grade O-4, with an effective date and date of rank of 17 May 2003. 9.  Order Number 103-020, U.S. Army Human Resources Command (HRC), Alexandria, Virginia, dated 9 April 2009, announced the applicant’s promotion to lieutenant colonel (LTC), pay grade O-5, with an effective date and date of rank of 17 May 2009. 10.  Order Number 103-015, HRC, Alexandria, Virginia, dated 13 April 2015, announced the applicant’s promotion to colonel (COL), pay grade O-6, with an effective date and date of rank of 17 May 2015. 11. The applicant's ORB, dated 24 January 2018, shows in Section III – Service Data his basic active service date as 9 March 1995. Section VII – Civilian Education shows: * Bachelor of Science in Biology, USMA, 1991 * MS with discipline immunology, Oxford University, 1993 * Medical Degree (MD), USUHS, 1997 12.  The applicant provided a copy of his DA Form 1059 showing he attended Oxford University in a full-time active duty status. This academic evaluation covers the period from 1 October 1991 through 1 July 1993. It further shows he was a Marshall Scholarship recipient. 13.  In the processing of this case, an advisory opinion was obtained from the Director, Medical Education Directorate, Office of The Surgeon General (OTSG). a.  With regard to entry grade credit, a prospective health professions officer's (HPO) entry grade and rank within grade is determined by the number of years of entry grade credit awarded on original appointment, designation, or assignment as an HPO. The provisions for constructive service credit refer only to entry grade credit. The applicant has remained on continuous active duty and states in his request that he remained on active duty during completion of his Oxford studies. An academic evaluation report was received for this course of study. This raises the question of whether additional constructive service credit would be additive or "double counting" credit for the course of study. b.  One year of constructive service credit is awarded for each year of graduate level education toward the first professional degree completed when that degree is required for appointment in the professional specialty being entered. The maximum number of years of constructive service credit that may be awarded under this provision is the number of years of graduate level education required by a majority of institutions that award degrees in that professional field. A MD is MC qualifying. An MS or Doctor of Philosophy (PhD) degree is not qualifying. The applicant reached the maximum of 4 years constructive service credit with completion of his MD degree at USUHS. c.  Credit is to be awarded for any period of advanced education in a health profession, other than medicine and dentistry (DO), beyond the baccalaureate degree level that exceeds the basic education level required for the appointment, if such advanced education is directly used by the Military Department concerned. While advanced non-MD/DO professional degrees, such as MS and PhD, often add to the skill set of Army medical officers, they are not required for MC eligibility or identified as a requirement for execution of staff physician or Army medical doctor leadership duties. The applicant's documentation does not provide evidence that he was sent for his course of study in physiology for a specific duty related purpose upon completion, nor does the documentation definitively demonstrate a requirement for execution of duty assignments. 14.  On 14 December 2016, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. On 18 January 2017, he provided a one-page reply wherein he stated: a.  The applicant opines his military records are incorrect and have been for some time. His prior attempts to have his record corrected resulted in his being referred to this Board; however, a morass of regulations have only clouded the situation. He contends that after 23 years, his records are still incorrect and he has never received credit for his first 2 years of active duty service. b.  The applicant states he graduated from the USMA in 1991 and was commissioned as an infantry officer. His first assignment was temporary duty to Fort Benning, Georgia, where he attended the U.S. Army Pathfinder Course and worked at the Test and Evaluation Command. In October 1991, he reported to Washington, D.C., where he joined thirty-one other Marshall Scholars in ceremonial festivities prior to traveling to Great Britain. He was the only military officer in the group, which presumably was why he was appointed as the group leader. They reported to Oxford University located in Oxford, England. c.  The applicant completed all requirements for an MS in Physiology and went on leave in August of 1991. He made a decision to transfer into the Medical Corps and was given a report date to the USUHS. However, his report date precluded him from attending graduation ceremonies at Oxford. d.  The applicant did not realize at the time just how important his inability to be a part of the graduation would prove to be, and he is still amazed at how much difficulty it has caused. When he attempted to get his diploma from Oxford, he was informed that policy required the graduate to walk the stage in order to receive it. However, the policy has since been changed and he has now received his diploma. e.  The applicant contends that he first became aware there was a problem when he learned that a fellow officer who was a year junior to him at the USMA, attended civilian medical school and was promoted to major a year before him. It seemed to indicate to him that the 2 years he spent in Oxford had not been counted for promotion. f.  He concludes by stating his ORB supports his conclusion that he is missing 2 years since his active duty entry date is 9 March 2003. REFERENCES: 1. Department of Defense Instruction (DODI) Number 6000.13 (Accession and Retention Policies, Programs and Incentives for HPOs) provides: a.  It is DOD policy that the award of service credit to a prospective HPO’s entry grade and rank within grade will be determined by the number of years of entry grade credit awarded on original appointment, designation or assignment as an HPO. b.  The entry grade and date of rank or promotion service credit in grade of a commissioned officer (other than an officer in the health professions) shall be determined by the entry grade credit awarded upon appointment. The entry grade credit that is awarded shall be the sum of the prior commissioned service allowed and the amount of constructive service credit allowed. A period of time shall be counted only once when computing credit. c.  Credit for prior service as a commissioned officer will be granted to recognize previous commissioned experience, will maintaining cognizance of the level of professional knowledge, skill, and experience required at specific grade level of each health profession. Credit will be awarded equitably and consistently. (1)  Credit on a day-for-day basis for active commissioned service as an HPO in the professional specialty in which the person is being appointed. One-half day credit for each date of active commissioned service as a commissioned officer, but not in the profession in which the person is being appointed. The Secretary concerned may grant an exception to this provision and grant day-for-day credit on a case-by-case basis. (2)  Credit on a day-for-day basis for any commissioned service while participating in an educational program leading to appointment in a specialty in which constructive credit is awarded, regardless of whether the service is in the professional specialty in which the person is being appointed. d.  Constructive service credit is awarded to a person who begins commissioned service after obtaining the additional education, training, or experience required for appointment, designation, or assignment as an HPO. The designation will be to the same grade and date of rank comparable to that attained by officers who begin commissioned service after getting a baccalaureate degree and serve for the period of time it would take to obtain the additional education. Constructive service credit will only be used to determine initial grade, rank in grade, and service in grade for promotion eligibility. (1)  Periods of time spent on active duty or in an active status as a commissioned officer may not be counted when computing constructive service credit. (2)  One year of constructive service credit will be granted for each year of graduate level education toward the first professional degree completed when that degree is required for appointment in the professional specialty being entered. (3)  Credit for master’s and doctorate degrees in a health profession other than medicine and dentistry, whether it is the primary degree or an additional advanced degree, shall be awarded based on actual full-time equivalent education of up to 2 years for a master’s degree and up to 4 years for a doctorate. Credit may not include time spent in attainment of baccalaureate or other lower degrees. No additional credit may be given for more than one advanced degree in a single field, or closely related field. The total credit allowed for having both a master’s and a doctorate degree may not exceed the maximum allowed for a doctorate. The maximum for a MD is 4 years. 2.  Army Regulation 600-8-24 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It supports the objectives of the Army’ officer promotion system by filling authorized spaces with the best qualified officers. It also provides for career progression based upon recognition of an officer’s potential to service in positions of increase responsibility. For centralized promotions, eligibility is based on an officer’s active date of rank (ADOR) and time in grade. a.  Promotion boards make recommendations to the President of the United States. The President has delegated authority to the Secretary of Defense to approve or disapprove promotion board results. Medical Corps and Dental Corps officers selected for promotion will be promoted from promotion lists in order of seniority. Officers will be promoted when additional officers in the next higher grade are needed but not before the sixth anniversary of their ADOR. b.  The ADOR for USMA graduates will be the date of their appointments as Regular Army second lieutenants. Their ranks among themselves will be in order of the USMA class standing. c.  If the officer, is at the time of appointment, a Regular Army officer and the new original appointment will effect a change in the officer's status from a basic branch to a special branch, the ADOR will be recomputed by HRC. DISCUSSION: 1.  The applicant contends that his military records are incorrect in that he did not receive constructive service credit for his MS degree in physiology in 1993. 2.  A review of the applicant’s military record shows that he graduated from the USMA and was immediately commissioned into the Regular Army in the Infantry on 1 June 1991. His ADOR was established based on his graduation date and ranking among his USMA classmates. He attended military training at Fort Benning and afterwards was enrolled at Oxford where he completed an MS in physiology on a Marshal Scholarship. He asserts this 2-year period in an active duty status was not counted for the purpose of promotion (presumably as a MC commissioned officer). 3.  Constructive service credit is awarded to a person who begins commissioned service after obtaining the additional education, training, or experience required for appointment, designation, or assignment as an HPO. Constructive service credit will only be used to determine initial grade, rank in grade, and service in grade for promotion eligibility. 4.  The Office of the Surgeon General opines that the applicant's MS does not appear to have been a requirement for appointment as an HPO. The applicant initially was a Regular Army commissioned officer. While in medical training, he was a Reserve commissioned officer on active duty pursuing a medical degree in the MC. He successfully completed training and then was reappointed a Regular Army officer in the MC on 17 May 1997. 5.  The evidence of record (ORB) shows the applicant's date of (initial) appointment was 1 June 1991, the date he graduated from USMA. On 9 August 1993 he was ordered to USUHS, in an active duty status, to pursue a doctorate of medicine. The time in service from his basic date of appointment and initial entry onto active duty and his date of entry to USUHA is 2 years, 2 months, and 8 days. During these 2 years he completed his MS at Oxford University. 6.  The applicant graduated from USUHS and was appointed as a MC Officer on 17 May 1997. At the time of his new appointment it appears he received 2 years, 2 months, and 8 days of entry grade credit (previous commissioned service in the Infantry) as his basic active service date (in MC) was established as 9 March 1995. The period of time between his basic active service date and his new appointment date is 2 years, 2 months, and 8 days. Therefore, it appears he received the correct credit (one day of credit for each day of active service) for his previous active commissioned service in accordance with DOD instructions. 7.  There is no regulatory provision authorizing credit for active service and completion of a MS degree while concurrently on active duty. The maximum years authorized for constructive service credit for MD/DO Officers first entering commissioned active duty service is 4 years with no credit authorized for master's degrees. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018783 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2