DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

LCC
Docket No.5271-06
16 Aug 07

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 Usc 1552.

A three-member panel of the Board for correction of Naval Records, sitting in executive session, considered your application on 14 August 2007. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion furnished by NPC letter 5420 POOJ1/089 of 28 July 2006, a copy of which is attached.

After careful and conscientious consideration of the entire record, a majority of the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection, the Board substantially concurred with the comments contained in the advisory opinion. Your situation does not meet the same criteria that your two colleagues met. They received their Doctoral degree one and two years, respectively before you did. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is also important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

								W.DEAN PFEIFFER
								Executive Director

Enclosure

DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
					    MILLINGTON TN 38055-0000

					5420
											P00J1/0893
											 28 Jul 2006

From:	Office of Legal Counsel (Pers-00J1)
To:	Executive Director, Board for Correction for Naval Records

Via:	Assistant for BCNR Matters, Pers-3lC

Subj:	  CASE OF

	Ref:	(a)	SECNAVINST 5420.193
		(b)	10	U.S.C. ~ 2126
		(c)	37	U.S.C. § 205
		(d)	61	Comp.Gen. 461 (1982)

End; (1) BCNR File with cover memo dtd 19 Jun 2006

1.	I have reviewed enclosure (1)) in which applicant petitions the Board for the Correction of Naval Records for constructive service credit for basic pay for time enrolled in the Armed Forces Health Professions Scholarship Program (AFHPSP). Recommend denial of request for basic pay credit for reasons set forth below.

2.	Application for Correction is Untimely. Before addressing the merits of applicant’s petition, it must be noted that applicants petition is well beyond the prescribed time for filing a petition with the Board. Reference (a) provides the time limit is 3 years after discovery of the alleged error and injustice. This failure may only be excused if the Board finds it in the interest of justice to do so. Applicant provides no compelling justification to excuse the lateness of his petition.

3.	Basic (Longevity) Pay Credit: References (b) and (c) provide that service performed while a member of the AFHPSP is not creditable for determining basic pay credit. Reference (d) addresses basic or longevity pay credit and the Defense Officer Personnel Management Act (DOPMA), Public Law 96-513, approved 12 Dec 1980, 94 Stat. 2904. The DOPMA statutory savings clause preserved the longevity credit only for service members who on or before the enactment of DOPMA (15 Sep 1980) were already medical or dental officers or enrolled in AFHPSP or the Uniformed Services University of
Attorney-Client Communication and/or Work Product

Subj:	REQUEST FOR CONNENTS AND RECONNENDATIQNS IN CASE OF

the Health Sciences (USUHS). Applicant was not on the date of enactment of DOPMA already a medical officer or enrolled in AFHPSP. Applicant asserts relief should be granted based on the errors on the part of the recruiter. The law is clear that the Government is not bound by the mistakes of its agents or assigns. See Office of Personnel Management v.	Richmond, 496 U.S. 414, 434 (1990).

4.	Conclusion: Recommend denial of acceptance of petition in that it is untimely and it is not in the interests of justice to excuse applicant’s late filing. If accepted, recommend denial of claim on the merits for reasons discussed in paragraph 3.

5.	Please call me at DSN 882-3163 or (901) 874-3163 if you have any questions.

Assistant Legal Counsel

Attorney-Client Communication and/or Work Product

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