ADDENDUM RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF DOCKET NUMBER: BC-2010-02313 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Date of Rank (DOR) to the grade of first lieutenant be changed from 1 Apr 12 to 17 Oct 09 (the date day after his disenrollment from the Uniformed Services University of Health Sciences (USUHS). 2. His Active Duty Service Commitment (ADSC) date be changed from 31 Mar 14 to 1 Feb 12. ________________________________________________________________ RESUME OF CASE: The applicant is currently serving on active duty in the grade of first lieutenant, having assumed that grade effective and with a date of rank of 1 Apr 12. From 2 Jul 07 to 16 Oct 09, the applicant was enrolled in Uniformed Services University of the Health Sciences (USUHS) as a medical student. On 16 Oct 09, he was disenrolled from medical school. Following his elimination from medical school, the applicant requested competitive category transfer from the Medical Services Corps (MSC) to the Line of the Air Force (LAF). His request was approved. He was separated from the MSC in student status while assigned to USUHS on 31 Mar 10, and accessed to active duty LAF as a direct accession on 1 Apr 10. In accordance with Chapter 104 of Title 10, United States Code (USC) and his USUHS contract page 4, paragraph 13b, he incurred an ADSC of 2 years, 3 months and 14 days for the time he was enrolled at USUHS as a medical student. He has been on continuous active duty since 17 Oct 09. On 1 Apr 10, he was transferred from the MSC to the LAF in the grade of second lieutenant. On 24 Feb 11, the Board considered and denied his request that: 1. He be given time in grade and service credit for the period he attended the Uniformed Services University of the Health Sciences (USUHS), from 31 May 07 to 31 Mar 10 2. Based on receiving the requested service and time in grade credit, he be promoted to the grade of first lieutenant with a date of rank (DOR) and effective date of 2 Jul 09 with appropriate back pay and allowances. The Board’s decision was based on the rationale and recommendations provided by AFPC/DPSIPV and AFPC/JA which stated that the applicant had not been the victim of an error or injustice (see Exhibit G, Record of Proceedings.) On 10 May 11, the applicant submitted a request for reconsideration via a new DD Form 149, with attachments (Exhibit H.) On 5 Aug 11, he was notified that his request did not meet the criteria for reconsideration (Exhibit I). In his most recent submission, dated 12 Mar 12, the applicant states that on 16 Oct 09, he was disenrolled from USUHS. On 17 Oct 09, he was assigned duties in an Air Force office and his OPR for this period proves he fulfilled his service commitment. The applicant’s complete submission, with attachments, is at Exhibit J. On 21 Dec 12, the Air Force office of primary responsibility administratively corrected the applicant’s ADSC to reflect 8 Jun 13. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPANE recommends adjusting the applicant’s ADSC to reflect 30 Jan 12. DPANE states that the applicant’s disenrollment from USUHS does not affect the intent/contents of his USUHS contract; therefore, the Air Force and the applicant need to comply with the contents of the contract. The complete DPANE evaluation is at Exhibit K. AFPC/DPSIP states that the applicant’s ADSC of 8 Jun 13 is correct in MilPDS. DPSIP’s remaining comments are summarized as follows: 1. The applicant’s Fiscal Year 07 USUHS contract agreement lists the requirement to serve an active duty obligation following elimination from the program as “one (1) day for each day of participation or one (1) year, whichever is greater, in addition to any active duty obligation imposed by any other provision of law.” DPSIP agrees that his ADSC associated with elimination from medical school is 837 days beginning on 17 Oct 09 and ending 30 Jan 12. Furthermore, in accordance with his USUHS contract, he began fulfilling his USUHS-related ADSC immediately following elimination from medical school; therefore, his ADSC associated with his elimination from medical school has been fulfilled. 2. He also incurred a 3-year ADSC for direct accession into the LAF as a result of his competitive category transfer. Effective, 1 Apr 10, his ADSCs for USUHS elimination and direct accession are concurrently served. Effective 1 Apr 13, his accession–related ADSC will be fulfilled, provided he continually serves on active duty. DPSIP notes the applicant’s accession ADSC was erroneously updated in MilPDS to reflect four (4) years from the date of accession with an expiration date of 31 Mar 14. Based on this analysis, his accession ADSC will be adjusted to 31 Mar 13. DPSIP notes it is possible for a USUHS participant to complete the ADSC associated with medical school elimination while assigned as a student in USUHS. Although elimination from medical school may precede action to transfer the officer from one competitive category to another, the request to do so is voluntary and the commitment associated with accession is distinct. DPSIP notes the applicant incurred a 1-year ADSC as a result of his overseas to CONUS PCS. Both his accession and PCS ADSCs run concurrently and if he remains on active duty, he will fulfill the ADSC associated with his PCS on 8 Jun 13. 3. DPSIP states that by law, students participating in the USUHS program serve on active duty; however, are not placed on the active duty list (ADL) which excludes them from earning credit for promotion, separation and retirement. Furthermore, in accordance with 10 USC, Chapter 105, Armed Forces Health Professions Financial Assistance Programs, “… service performed while a member of the program shall not be counted (1) in determining eligibility for retirement other than by reason of physical disability incurred while on active duty as a member of the program, or (2) in computing years of service credible under section 205 of title 37.” In addition, DoD Financial management Regulation (FMR) Volume 7A, Chapter 1, indicates the time a member serves while enrolled in the Armed Forces Health Professions Scholarship and Financial Assistance program or while a student at the USUHS is not credible towards pay. Lastly, AFI 36-2604, Service Dates and Dates of Rank, defines extended active duty (EAD) for the purpose of determining service dates as duty on the ADL of an armed service for 90 days or more. Students eliminated from medical school while participating in USUHS will remain assigned to USUHS (on active duty in student status) until such time as they are either discharged or transferred to another competitive category. DPSIP notes that although the applicant was eliminated from medical school on 16 Oct 09, he remained a student assigned to USUHS until his official elimination from the program on 31 Mar 10. The following day he was accessed to active duty in the LAF as a Logistics Readiness Officer. DPSIP agrees his active duty service from 16 Oct 09 through 31 Mar 10 are credible towards satisfying his ADSC for medical school elimination; however, the period was not served on the Active Duty List (ADL) and is not credible towards retirement, promotions, etc. Therefore, his Total Active Federal Military Service, Pay Date and Extended Active Duty service dates of 1 Apr 10 and his effective date of promotion to first lieutenant of 1 Apr 12, are correctly annotated on his current statement of service. 4. If eliminated from USUHS prior to graduation the officer may be discharged or seek a competitive category transfer into another non-line medical specialty or into the LAF. Since the applicant performed duties as an Administrative Officer for the Pathology Department Vice Chairman, he was entitled to have that duty documented on his final training report (AF Form 475); however, as a student, he was not entitled to receive an OPR. DPSIP defers to DPSID for analysis and recommendation focused on the validity of the applicant’s OPR which closed out on 16 Apr 10. DPSIP notes the applicant should apply for ADSC waivers in accordance with AFI 36-3206, Separations. The complete DPSIP evaluation, with attachments, is at Exhibit L. AFPC/JA concurs with the recommendation provided by AFPC/DPSIP. The complete JA evaluation is at Exhibit M. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: In an electronic message dated 4 Sep 12, the applicant states that he has no other concerns regarding the Air Force evaluations; however, he requests the contents of the OPR rendered for the period of 17 Oct 09 to 16 Apr 10 be transferred to his USUHS training record. He worked hard to receive the laudatory comments from the now retired colonel on his first OPR. The applicant’s complete submission is at Exhibit O. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: AFPC/DPSID recommends both the applicant’s OPR rendered for the period of 17 Oct 09 to 16 Apr 10 and the Training Report rendered for the period of 21 Aug 08 to 28 Jun 09 be removed from his records and replaced with an AF Form 77, Letter of Evaluation, which documents the comments in the aforementioned performance report as stated in the AIG 8106 MSG dated Jul 07 - “Evaluations on personnel in functional category L, to include those in casual status, will not be accomplished. The appropriate tool to capture their performance is the letter of evaluation (LOE).” The complete DPSID evaluation, with attachment, is at Exhibit P. ________________________________________________________________ APPLICANT’S REVIEW OF THE ADDITIONAL EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 19 Sep 12, for review and comment within 30 days. As of this date, this office has received no response (Exhibit Q). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: SAF/MRB Legal Advisor makes no recommendation. The MRB Legal Advisor states that the law in this area is complex and the Board has received conflicting advice in the past. However, they have since received definitive legal guidance from the Administrative Law Directorate of the Office of the Judge Advocate General of the Air Force (AF/JAA). The MRB Legal Advisor states that according to AF/JAA, if an officer is appointed in another competitive category, both the time spent as an enrolled student at the USUHS and time after disenrollment would count toward credit for promotion. However, if the officer is separated without an appointment in another competitive category, neither period could be counted. The MRB Legal Advisor notes that AFPC/JA in its 3 Aug 12 advisory, adopted the 20 Jul 12, advisory from AFPC/DPSIP. However, the MRB Legal Advisor has since confirmed that regarding credit for promotion, AFPC/JA has changed its position to align with that of AF/JAA. The complete MRB evaluation, with attachment, is at Exhibit R. ________________________________________________________________ APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: On 3 Jul 13, by electronic message the applicant states that he does not intend to provide rebuttal comments to the SAF/MRB Legal Advisors or AF/JAA evaluations. The applicant’s complete submission is at Exhibit T. ________________________________________________________________ THE BOARD CONCLUDES THAT: After careful reconsideration of all the facts and circumstances of applicant's case, along with the additional documentation provided it appears that relief is warranted. Although the Board has received conflicting information in the past regarding USUHS credit and previously denied the applicant’s request, we have since received definitive guidance on how to proceed. According to AF/JAA, if a disenrolled officer receives an original appointment to another competitive category, the USUHS service is creditable as prior-commissioned service for entry grade consideration. Based on the evidence of record, the applicant did in fact transfer to another competitive category and should receive the appropriate service credit. While the applicant requests his DOR to the grade of first lieutenant be changed to 17 Oct 09, we believe the more appropriate remedy, is to correct his records to show that his DOR to first lieutenant was changed to 31 May 09, (which includes all of his USUHS time) with an effective date of 1 Apr 10 (the date he was appointed in another competitive category). Additionally, we recommend that he be considered for promotion to the grade of captain by a Special Selection Board. Regarding his request that his ADSC be changed, we note that the applicant’s USUHS ADSC obligation has been fulfilled and his service dates are now correct in MilPDS, therefore, this portion of his request is moot. We note AFPC/DPSID recommends his OPR closing 16 Apr 10, and the Education/Training Report closing 28 Jun 09, be removed from his records; however, we note the applicant has not requested this action. Therefore, in view of the above, we recommend his record be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that he was placed on the Active Duty List in the grade of first lieutenant with a date of rank (DOR) of 31 May 09, and an effective date of 1 April 2010. It is further directed that he be considered for promotion to the grade of captain (0-3) by a Special Selection Board (SSB) for the Calendar Year 2010B (P0310B) Captain Promotion Process. The following members of the Board considered this application in Executive Session on 16 Jul 13 and 3 Sep 13, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered pertaining to AFBCMR Docket Number BC-2010-02313: Exhibit G. Record of Proceedings dated 8 Mar 11, w/Exhibits A through F. Exhibit H. Applicant’s DD Form 149, dated 10 May 11, w/atchs. Exhibit I. Letter, AFBCMR, dated 5 Aug 11. Exhibit J. Letter, Applicant, dated 12 Mar 12, w/atchs. Exhibit K. Letter, AFPC/DPANE, dated 1 Jun 12. Exhibit L. Letter, AFPC/DPSIP, dated 20 Jul 12, w/atchs. Exhibit M. Letter, AFPC/JA, dated 3 Aug 12. Exhibit N. Letter, SAF/MRBC, dated 14 Aug 12. Exhibit O. Email, Applicant’s Rebuttal, dated 4 Sep 12. Exhibit P. Letter, AFPC/DPSID, dated 17 Sep 12, w/atch. Exhibit Q. Letter, SAF/MRBC, dated 19 Sep 12. Exhibit R. Letter, SAF/MRB, dated 13 May 13, w/atch. Exhibit S. Email, SAF/MRBC, dated 28 May 13. Exhibit T. Email, Applicant, dated 3 Jul 13.