RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03445 INDEX CODE: 131.00 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO _______________________________________________________________ APPLICANT REQUESTS THAT: 1. His grade be changed from second lieutenant (2Lt) to captain effective 23 June 2007, with the appropriate back pay and entitlements. 2. All allowances he received prior to his permanent change of station (PCS) be adjusted from 15 November 2007 to 23 June 2007. ________________________________________________________________ APPLICANT CONTENDS THAT: He accepted his current logistics position with assurance he would be accessed as a captain. Prior to his PCS, this guarantee was revoked. His time in service, education, prior employment experience and his level of work collectively makes him eligible for the rank of captain. In support of his requests, applicant submits personal statements and copies of AFBCMR Docket Number BC-1996-01097. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 23 June 2003, the applicant was commissioned as a 2LT in the United States Air Force Reserve (USAFR), Medical Service Corps (MSC) for the purpose of attending an Air Force sponsored medical school program, Uniform Health University of the Health Sciences (USUHS). On 25 January 2006, he was appointed a regular officer in the MSC. He participated in the USUHS program from 2 July 2003 thru 26 April 2007. On 26 April 2007, he was disenrolled from the USUHS because he was unable to pass a mandatory licensure examination. On 15 November 2007, the applicant entered the Line of the Air Force (LAF) in the Logistics Readiness career field in the grade of 2Lt with a date of rank (DOR) of 6 August 2007. ________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPMAE recommends approval. DPMAE states he signed his USUHS contract 20 August 2003. Paragraph 15 of his contract states, "USUHS Reserve Officers will be subject to most of the same laws, regulations, and policies that apply to other Reserve officers on active duty. The service performed while in the program is used to compute DOR and grade upon original appointment in the medical corps.” The applicant's disenrollment from the USUHS does not affect the intent/contents of his USUHS contract. Contractually, the Air Force and the individual need to comply with the contents of the contract. On 24 July 2007, he was advised by DPSOO that his transfer to the LAF would be in the grade of captain. However, on 6 September 2007, he was advised his transfer would be in the grade 2Lt. The rules in effect at the time an individual signs his contract should be binding on both the Air Force and the individual. He indicated his decision to transfer to the LAF was influenced by his promotion to captain. Awarding grade credit is not in compliance with his USUHS contract. He disenrolled prior to completing his medical degree; however, his request should be fairly considered. The complete DPMAE evaluation, with attachment, is at Exhibit B. HQ AFPC/DPSOO recommends denial of his request for a grade change. DPSOO states on 26 April 2007, the applicant was disenrolled from the USUHS program for academic reasons. Students who are disenrolled from USUHS may apply to remain on active duty as an exception to policy thru the Competitive Category Transfer program. In July 2007, he was accepted into the logistics readiness career field. On 24 July 2007, DPSOO advised DPMAE and USUHS personnel he would be assessed as a LAF officer in the grade of captain. On 6 September 2007, both offices were advised he would not receive grade credit and would be assessed as a 2Lt. Although he was originally provided incorrect information, he had over 60 day’s notification he would not be assessed as a captain. At that time he could have chosen not to enter active duty and elected to be discharged. DPSOO does not believe his circumstances are any more unique than other USUHS disenrolled students who choose to come on to active duty and are assessed as a 2Lt. The complete DPSOO evaluation, with attachments, is at Exhibit C. HQ AFPC/DPAMF2 defers to the office of primary responsibility (OPR) to determine if the applicant is authorized to receive constructive service credit when entering the LAF. He is transferring from a MSC officer to a LAF officer. The complete DPAMF2 evaluation is at Exhibit D. HQ AFPC/DPSIV recommends denial. DPSIV states that under the statement of understanding for the USUHS program, upon completion of training, members are reappointed as MSC officers in the grade according to the amount of awarded constructive credit. The Department of Defense (DoD) Financial Management Regulation (FMR) states constructive credit is awarded upon completion of the USUHS program. Four years constructive credit is awarded for medical and dental corps officers. Since he was disenrolled from USUHS, no constructive credit was earned. The USUHS contract states while in the program, officers are not on the active duty roster of any service and consequently are not eligible for promotion. Since he did not complete the USUHS program, he should not be granted four years constructive credit to have the rank of captain. The complete DPSIV evaluation, with attachment, is at Exhibit E. HQ AFPC/JA recommends denial. JA states that the applicant has cited a number of reasons to support his requests. The first is he relied on assurances from the Air Force that if he were to serve on active duty in a career field other than the MSCs he would be granted the rank of captain. He argues this guarantee was improperly revoked prior to his 15 November 2007 PCS transfer to the LAF. It is true he was initially misinformed he would serve on active duty as a captain. However, DPSOO corrected this error and informed him of the correction in July 2007 well before his November 2007 PCS date. Thus, he had time to request a different course to repay his USUHS obligation if this news rendered him unwilling to serve on active duty as a 2Lt. While his statement that his advance academic degrees, work experience and present duties are more commensurate with the rank of captain rather than a 2Lt, he does not offer further articulation of this argument nor does he offer any supportive evidence or authority. Nevertheless, his argument could be interpreted as a contention he should be awarded constructive service credit to attain the rank of captain upon his entrance into the LAF. Air Force Instruction (AFI) 36-2106, Competitive Category Transfers provides that in order to be awarded constructive service credit in conjunction with the competitive category transfer, the officer must resign and be reappointed in the Air Force in the new competitive category. This was not done in his case. The real crux of his argument to support his claim to be promoted to the grade of captain seems to be his reliance on a 1997 advisory to the AFBCMR written by JA. JA has carefully reviewed the 1997 opinion and the authorities cited therein and determined the conclusion reached in the advisory was based on a faulty premise and is wrong. The complete JA evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 2 July 2009 for review and comment within 30 days. As of this date, this office has received no response (Exhibit G). _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. Although the record substantiates the applicant was initially miscounseled regarding the grade he would be granted upon his competitive category transfer, the error was corrected and the applicant was sufficiently placed on notice that he would only be awarded the grade of second lieutenant. Notwithstanding the original error, the applicant has not provided sufficient evidence that the later determination of the grade he would be awarded is contrary to prevailing policy and statute or he was treated any differently than other similarly situated officers. Although the applicant argues that a precedent has been established in a similar case decided by this Board and in how constructive credit is awarded to USUHS participants by the Navy, we note AFPC/JA’s comments that the earlier case decided by this Board was based on erroneous advice provided by their office and that they have no way of knowing what the Navy has done in similar cases. JA has provided what appears to be a thorough and cogent explanation of how service credit is to be awarded and the applicant has not provided sufficient evidence to overcome the rationale for their recommendation. Since the applicant’s requests regarding pay and allowances are linked to granting him the higher grade, based on the above we also find no basis to grant this part of his request. Therefore, we reject the recommendation of AFPC/DPAME and accept the recommendations of AFPC/DPSOO, AFPC/DPAMF2, AFPC/DPSIV, and AFPC/JA to deny relief and we adopt the rationale provided as the primary basis for our determination the applicant has not been the victim of an error or injustice. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of an error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with the application. _________________________________________________________________ The following members of the Board considered Docket Number BC- 2008-03445 in Executive Session on 17 September 2009 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 2 September 2008, w/atchs. Exhibit B. Letter, HQ AFPC/DPAME, dated 22 October 2008, w/atch. Exhibit C. Letter, HQ AFPC/DPSOO, dated 2 February 2009, w/atchs. Exhibit D. Letter, HQ AFPC/DPAMF2, dated 31 March 2009. Exhibit E. Letter, HQ AFPC/DPSIPV, dated 10 April 2009, w/atch. Exhibit F. Letter, HQ AFPC/JA, dated 1 July 2009. Exhibit G Letter, SAF/MRBR, dated 2 July 2009.