RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04047 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: She be promoted to the grade of first lieutenant with back pay. _________________________________________________________________ APPLICANT CONTENDS THAT: On 25 Jun 10, she was disenrolled from the School of Medicine at the Uniformed Services University of the Health Sciences (USUHS). At that time, she was approximately two years from her date of rank of 30 Jun 08. She continued to work at USUHS. She should have met and been promoted by the Special Selection Board (SSB) which convened on 6 Sep 10. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 29 May 08, the applicant entered active duty service as a USUHS student. On 25 Jun 10, the applicant resigned from training and disenrolled from the USUHS. On 16 Jul 10, HQ AFPC/DPAME received notification of the applicant’s disenrollment from the USUHS for academic reasons. Officers entering the USUHS are accessed as second lieutenants in the Medical Service Corps (MSCs) with a regular appointment. Upon completing medical degree requirements they are reappointed as captains in the MSCs; their regular commission remains unchanged. Due to her disenrollment, the applicant’s seven-year contractual obligation changed to a two years minimum service obligation (MSO) for USUHS sponsorship from 1 Aug 08 to 25 Jun 10 (effective date of disenrollment). DPAME began the staffing process to the MSCs, Biomedical Sciences Corps (BSCs) and Line of the Air Force (LAF); however, it was determined the applicant would not be able to serve on active duty in another capacity to fulfill the MSO. On 12 Jan 11, a voluntary separation action was initiated by the applicant and was subsequently withdrawn. A command-directed separation action was initiated due to the applicant’s withdrawal of the voluntary separation request. She appealed the decision to separate. Her appeal was denied. On 22 Feb 12, the applicant was honorably discharged from service for unsatisfactory performance. She was issued a separation program code of GHJ (Involuntary discharge recommended by board/failed to properly discharge assigned duties). She served 3 years, 8 months and 24 days on active duty. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPAME recommends denial. DPAME states the applicant will remain a student until separation action is approved. Although she fulfilled her active duty service obligation from the date of disenrollment, she was not accepted into another Air Force career field to fulfill the educational Active Duty Service Commitment (ADSC) incurred through the USUHS sponsorship. DPAME notes the applicant is correct in regards to prior rulings by the AFBCMR adjusting the DOR for officers disenrolled from the USHUS; however, the officers in question were accepted into another active duty career field to serve their educational ADSC, unlike the applicant. DPAME notes the applicant was academically disenrolled from the USHUS. She incurred a two-year MSO for her USUHS sponsorship. She was staffed to the MSC and BSC. However, she was not accepted and therefore unable to fulfill her educational ADSC in another active duty capacity. By law, USUHS students are accessed as regular officers. Their status remains unchanged from the effective date of disenrollment until such time as the separation action is approved. The applicant fulfilled her MSO until discharged. She should not be afforded the opportunity to compete for promotion against an officer in another career field who will remain on active duty. The complete DPAME evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel states the comments provided by the Air Force office of primary responsibility are insupportable as there is no statute or regulation which allows for such distinction. He refers the Board to docket number 96-01097 previously decided by the Board for a complete analysis of this point. The counsel’s complete response is at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: USAF/JAA states officer students at USUHS are not included on the Active Duty List (ADL) because they are excluded from all statutory provisions in Chapter 36 of Title 10. As such, USUHS service is not creditable under 10 U.S.C. Section 619(a) for time-in-grade consideration upon disenrollment. JAA notes officers entering medical training at USUHS are accessed under the program’s statutory authorization in Chapter 104 of Title 10. If a student is disenrolled prior to graduation, his or her personnel status does not change when removed from the program. Rather, disenrolled students are considered for new positions in other competitive categories or processed for administrative separation if no suitable positions are available. During this assessment and transition, the personnel status of disenrolled officers does not change and they continue to service according to the statutory framework. As such, the service of disenrolled officers’ remains statutorily excluded from Chapter 36 of Title 10 provisions until they are reappointed or administratively separated from active duty. USUHS does not assign disenrolled officers to the ADL principally because USUHS does not maintain manpower positions or billets into which disenrolled officers may be assigned. By law, USUHS students are not accounted for on the ADL and transitioning a disenrolled officer to a billet on the ADL would require a manpower authorization and position to which the officer could be assigned. Without such authorizations, USUHS cannot transition disenrolled officers to the ADL. JAA states requiring disenrolled officers to continue to work in an administrative capacity for a limited period while their case is resolved is appropriate; however, it is important to recognize that the officers are being processed out of the organization, not serving as members of the USUHS staff. Disenrolled officers should not be retained for lengthy terms after they are disenrolled and appointing them to an interim status is not necessary so long as their transition out of the program is executed quickly and managed effectively. The complete JAA evaluation is at Exhibit F. _________________________________________________________________ APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: On 18 Mar 13, applicant’s counsel requested the case be withdrawn and administratively closed until a response to the JAA advisory could be provided. On 20 Mar 13, he reopened the case and stated that, in his view, the applicant did receive a defacto appointment to the MSC as evidenced by her OPRs for the period in question. He believes equity suggests credit for promotion be given. The counsel’s complete response is at Exhibit I. _________________________________________________________________ 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. The applicant contends that she should be eligible for promotion consideration by a Special Selection Board based on precedent that has been established in similar cases decided by this Board in BC-1996- 01097 and the Army Board for Correction of Military Records (ABCMR) in AR20090011111 and AR20100025905. We disagree. In this respect, we have reviewed the cases cited by the applicant and are not persuaded they support her assertion that she has been the victim of an error or an injustice. In the cited cases, unlike the applicant, the USUHS disenrollees were transferred to other competitive categories to fulfill their educational ADSCs. Moreover, in BC-1996-01097, the decision of the Board was founded upon the erroneous advice provided by AFPC/JA, who opined, based on their incorrect interpretation of the governing statute, that although USUHS student service could not be credited for basic pay calculations under 10 USC § 2126, it could be credited for date of rank and promotion eligibility purposes, since it was not specifically precluded by statute. We also note the decisions reached in the two cited ABCMR cases are not founded upon additional distinctive and independent findings, but rather a consequence of this Board’s decision in BC-1996-01097 and the underlying inaccurate statutory interpretation. The applicant’s contentions regarding her continued service until her separation are noted; however, in accordance with the governing statutes, students participating in the USUHS program serve on active duty, but are not on the active duty list (ADL); are excluded from earning credit for promotion, separation, and retirement and; service performed while a member of the program is not to be counted in determining eligibility for retirement other than by reason of physical disability incurred while on active duty as a member of the program or in computing years of service credible under 37 U.S.C. § 205. This is further sustained in the governing DoD Financial Management Regulation that precludes the period a student is at USUHS from being credible towards pay. Although the applicant was eliminated from medical school on 25 Jun 10, she remained assigned to USUHS on active duty in a student status until such time as she was discharged. During this period, she performed administrative duties as a continuing health education activity manager. She applied for separation which she later withdrew. Subsequently a command-directed separation was initiated. During the time in question, she was not transferred to another competitive category and was never placed on the ADL, as it was determined her accession was not appropriate, since she would not be able to serve on active duty in another capacity to fulfill her MSO. The applicant has provided no evidence to indicate the determination that she could not fulfill her MSO in another active duty career field was in error. As such, we find no evidence of an error in this case. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04047 in Executive Session on 28 Mar 13, under the provisions of AFI 36-2603: _________________________________________________________________ The following documentary evidence was considered in AFBCMR BC- 2011-04047: Exhibit A. DD Form 149, dated 14 Jan 11, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, HQ AFPC/DPAME, dated 14 Nov 11. Exhibit D. Letter, SAF/MRBR, dated 2 Dec 11. Exhibit E. Letter, Counsel, dated 10 Dec 11. Exhibit F. Letter, USAF/JAA, dated 5 Feb 13. Exhibit G. Letter, SAF/MRBC, dated 14 Feb 13. Exhibit H. Letter, Counsel, dated 18 Mar 13. Exhibit I. Letter, Counsel, dated 20 Mar 13.