PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           23 September 1999
	DOCKET NUMBER:   AR1999015780

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Barbara J. Ellis 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of his previous appeal that he be awarded 4 years’ constructive service credit for longevity pay purposes based upon his graduation from the Uniformed Services University of the Health Sciences (USUHS), Class of 1987.  The USUHS is a medical doctor accession program that provides for the training and commissioning of doctors in the Medical Corps of the Armed Services.  In effect, the applicant’s request requires an administrative change in the date of his entrance into USUHS to 14 September 1981, the day before the effective date of the Defense Officer Personnel Management Act (DOPMA).

3.  The applicant states, in effect, that upon graduating from the United States Military Academy (USMA), he resigned his Regular Army (RA) appointment and accepted the USUHS agreement and a US Army Reserve (USAR) appointment with the understanding that he would receive 4 years of longevity credit for his 4 years at medical school, thereby remaining on par with his USMA peers.  This understanding was fostered through various USUHS briefings provided to selected USMA cadets by the then Acting Surgeon, USMA, and Chairman, Medical Program Advisory Committee.  The applicant adds that of 18 USMA second lieutenants selected for medical school, 12 attended the USUHS at Bethesda, Maryland (Class of 1987) from 15 August 1983 to 16 May 1987.  When he graduated from medical school, he was appointed a Regular Army captain in the Medical Corps on 16 May 1987, but did not receive longevity credit for his 4 years of training.  At least 20 Air Force officers—former US Air Force Academy (USAFA) cadets—who attended the same USUHS class from 1983 to 1987 did receive 4 years of longevity credit when the Air Force Board for Correction of Military Records administratively changed their dates of enrollment to 14 September 1981 (the day before the effective date of DOPMA).  The Air Force action was predicated upon the fact that these cadets had received USUHS briefings assuring them that they would receive such credit.

4.  On 29 August 1979, the Comptroller General (B-195242) ruled that payment could not be made to an Army member’s claim for reimbursement of costs not authorized by law and regulation, even though he was erroneously advised by Army officials;  and that, in the absence of specific statutory authority, the United States was not liable for the negligent or erroneous acts of its officers, agents or employees, and the member, therefore, gained no entitlement to the expenditures by reason of erroneous advice.  

5.  On 17 June 1985, the Office of The Judge Advocate General (OTJAG) advised the Board that, in order for USUHS graduates to receive longevity credit under Title 37, United States Code, section 205(a)(6), the provision of law which was repealed by DOPMA, they must have been enrolled in the USUHS as of 14 September 1981, the day before the effective date of DOPMA.  Accordingly, it was the opinion of OTJAG that the failure to credit periods of service while attending USUHS for individuals enrolled on or after 15 September 1981 did not constitute an error entitling the applicant to the relief sought as a matter of law.
6.  On 10 July 1985, the Office of The Surgeon General advised the Board that all interested USUHS matriculates were verbally informed of the change in law and that prior inaccurate or incomplete information received by prospective students from official/semi-official sources should not be relevant in determining appropriate relief.

7.  On 25 July 1997, the applicant’s Congressional representative, after corresponding with the Secretary of Defense on a similar case, submitted copies of his query to this Board (there is no record of the Board having received this correspondence).  It was requested that relief be granted since the applicant was incorrectly advised concerning longevity credit by officials at the USMA.  The Department of Defense response was that “in the absence of clear-cut evidence of miscounseling (sic), no reason exists to recommend relief.”

8.  The applicant submitted an 8 March 1996 statement by a Colonel, US Army (Retired) who certified that, in 1982, in his capacity as the Acting Surgeon, USMA, and Chairman, Medical Program Advisory Committee, he instructed the applicant and all other cadets selected for attendance at the USUHS regarding rules and regulations governing the USUHS program for medical students.  He stated that pertinent regulations in effect at that time directed longevity credit for pay purposes be awarded for time spent in medical school.  The applicant and all other selected cadets were so instructed by himself and the other members of the Advisory Committee.

CONCLUSIONS:

1.  In response to a Congressional inquiry which has not previously been seen by this Board, the Department of Defense stated that the plain and unambiguous language of DOPMA left no doubt that the Congress intended that, effective 15 September 1981, graduates from government-sponsored medical schools would no longer be entitled to longevity credit for basic pay computation purposes.  Furthermore, no reason exists to recommend relief without clear-cut evidence of improper counseling, and a reasonable belief that the individual still relied on such improper counseling years after the effective date of the law.

2.  The applicant submitted new evidence not previously seen by this Board in the form of a certificate from the former Surgeon, USMA, and Chairman, Medical Program Advisory Committee, stating that he specifically instructed the applicant (then a USMA Cadet) that regulations, then in effect, directed that longevity credit for pay purposes would accrue for students during time spent in medical school.  It, therefore, appears that the applicant was specifically misinformed by the responsible counselors at the USMA concerning the granting of longevity credit for pay purposes during time spent at the USUHS.

3.  The applicant made a detrimental career decision based on erroneous information from the Acting Surgeon, USMA, and Chairman, Medical Program Advisory Committee.  As a USMA graduate, the applicant would have most likely pursued other career options rather than lose 4 years’ service credit had he not been misinformed.

4.  The Air Force Board for Correction of Military Records has already granted relief to former USAFA Cadets who were similarly counseled and used such counseling as part of their decision process in enrolling in the USUHS Class of 1987.

5.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected to show:

     a.  That the individual concerned was enrolled in the Uniformed Services University of the Health Services on 14 September 1981; and

     b.  That he was awarded constructive service credit for basic pay purposes only while attending the Uniformed Services University of the Health Services at Bethesda, Maryland, from 15 August 1983 to 16 May 1987.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

CASE ID	AR1999015780	
SUFFIX		
RECON		
DATE BOARDED	19990923	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	102.08	
2.		
3.		
4.		
5.		
6.