BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150014992 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ __x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150014992 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150014992 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his request for correction of his entry grade credit and, in effect, correction of his record to show he was appointed as a captain (CPT)/O-3. 2. The applicant states: a. He submitted a request in 2014 for award of additional entry grade credit/practice experience as he was boarded 8 months prior to commissioning. This time lapse would easily provide additional practice experience credit and would have put him over the 7-year experience threshold to be appointed as a CPT under the "old policy." However, he did not have a waiver for the time lapse, which his Army Medical Department (AMEDD) recruiter did not know was required and to which the recruiter can testify. He was subsequently denied based on "board policy," not an actual regulation that could be cited, and he was not provided a copy of this policy. b. He only recently discovered the new AMEDD officer accession directive that the Secretary of the of the Army made effective immediately on 13 August 2015. He was in South Korea participating in an exercise from 14-28 August 2015 and had limited communications, which is why he is appealing now. c. The old policy basically provided that, for pharmacists, a new 23-24 year old graduate with a pharmacy degree entering active duty in the Regular Army would be commissioned as a CPT; however, he was an experienced pharmacist with the same degree and entered the Reserve Component as a first lieutenant (1LT). He is just finishing his first year as a CPT when he could be working on finishing his third year. The decision of his initial request has put him at a significant disadvantage as he has lost time in grade, pay, and possibly an earlier promotion. He could possibly be considered for below the zone promotion to major (MAJ) next year, but now he has another 3 years minimum for that to occur. d. He respectfully requests a review of the board's "policy" from the past based on the direction of the Secretary of the Army. Again, he reiterates his denial was based on unwritten policy – the board basically decided not to intervene/help a Soldier even though sufficient evidence in his favor was provided. e. He respectfully requests a review of his case or the initiation of a new one based on the Secretary of the Army's AMEDD officer equalization directive that was "effective immediately" on 13 August 2015. f. His original appeal provided sufficient evidence based on the old "directives" that he should have been commissioned a CPT; however, it was denied based on unwritten board policy. The board acknowledged his evidence and that he was essentially correct; however, he did not have a waiver stating a reason for the extended period of time between boarding and commissioning. His AMEDD recruiter was searching for a troop program unit slot for him and can attest to this if asked and was not aware a waiver was required at the time. g. This denial has adversely affected his career as he could possibly be below the zone for a MAJ selection board next year but, due to the board's denial and the government shutdown in 2013 he was not promoted until July 2014, meaning he has only just completed year 1 as a CPT. He was an experienced pharmacist at the time of his commissioning and he was commissioned at a lower rank than a freshly minted graduate with the same degree and no experience. 3. The applicant provides: * His request for a waiver of the one-year time limit to request reconsideration * Wilkes-Barre Medical Recruiting Center Memorandum for Record, subject: Board and Selection Information, dated 9 September 2015 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140003956 on 1 July 2014. 2. The applicant provides new evidence in the form of the Wilkes-Barre Medical Recruiting Center Memorandum for Record, subject: Board and Selection Information, dated 9 September 2015, for the Board to consider. 3. State of Maryland Board of Pharmacy records show the applicant has been licensed as a pharmacist in Maryland since 25 May 2006. Pennsylvania Department of State records show he has been licensed as a pharmacist in Pennsylvania since 9 June 2006. 4. On 5 January 2012, he signed a DA Form 61 (Application for Appointment) applying for appointment as a Reserve commissioned officer in the Medical Service Corps (MSC) in area of concentration (AOC) 67E (Pharmacist). 5. A memorandum, subject: Appointment as a Reserve Commissioned Officer of the Army, dated 22 March 2012, shows on 8 November 2012, he accepted an appointment as a Reserve commissioned officer of the Army in the rank of 1LT in AOC 67E. The memorandum further shows: * his scroll approval date (the date the Secretary of Defense approved his appointment as a Reserve commissioned officer) was 15 February 2012 * he was to be credited with 6 years, 10 months, and 17 days of service in an active status as of the date he accepted the appointment 6. On 8 November 2012, he took the oath of office as a Reserve commissioned officer in the grade of O-2. The available records do not show the reason for the delay between the issuance of his appointment memorandum and the date he accepted the appointment and took the oath of office. 7. His Official Military Personnel File contains a Security Clearance Application, dated 8 November 2012, in which the applicant indicated he had been employed as a "Community Student Pharmacist" in Maryland from July 2003 to July 2005 and in Pennsylvania from July 2005 to May 2006. He indicated he had been employed in various positions as a pharmacist subsequent to May 2006. 8. On 20 May 2013, a preparing official and authenticating official signed a DA Form 5074-1-R. This form shows he held a Pennsylvania pharmacy license. He was awarded: * 4 years of constructive service credit for his basic qualifying degree * 2 years, 10 months, and 17 days of constructive service credit for professional experience based on the period 9 June 2006 through 13 March 2012 * total entry grade credit of 6 years, 10 months, and 17 days, which qualified him for appointment as a 1LT 9. A memorandum, subject: Recommendation for Reserve of the Army Appointment, dated 21 May 2013, from the Director, Health Services, U.S. Army Recruiting Command (USAREC), shows the applicant was to be appointed in AOC 67E in the rank of 1LT with 6 years, 10 months, and 17 days of constructive service credit awarded as of 8 November 2012. The memorandum shows he had been recommended for appointment by a selection board on 13 March 2012. 10. During the processing of the previous case, on 4 April 2014, the Chief, MSC Branch, Health Services Directorate, USAREC, provided an advisory opinion. The advisory official stated: a. Credit for work experience is restricted to 1/2 year for each year of experience capped at 3 years as of the date the selection board convenes. The applicant was credited with 2 years, 10 months, and 17 days of constructive service credit. He also received 4 years of constructive service credit for his degree for a total of 6 years, 10 months, and 17 days of constructive service credit for the purpose of determining his rank. b. The "pin-on-point" to CPT for USAR Army Medical Department officers is 7 to 11 years. The applicant did not have enough constructive service credit to be appointed as a CPT, so he was accessed as a 1LT. c. Additional constructive service credit is not warranted or authorized for the applicant. 11. On 10 and 14 April 2014, the applicant responded to the advisory opinion. He reiterated the contentions he made in his application, and he stated: a. With 4 years of constructive service credit for education and with an adjustment of credit for his work experience (capped at 3 years), his total constructive service credit should be 7 years, and he should have been commissioned as a CPT. b. He found no mention in Army Regulation 135-101 of work experience being calculated as of the date the selection board convenes. 12. As new evidence the applicant provides Wilkes-Barre Medical Recruiting Center Memorandum for Record, Subject: Board and Selection Information, dated 9 September 2015, in which Sergeant First Class (SFC) J_____ T. S______ states: * the Selection Board originally reviewed the applicant's U. S. Army Reserve (USAR) application in March 2012 * the applicant's original result of this Selection Board was "Selected OML" * An Approved Waiver Scroll Release, dated 19 October 2012, authorized the applicant's commissioning into the USAR REFERENCES: 1. Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and Personnel) provides the policy for award of entry-grade credit for medical personnel. A prospective health professions officer’s entry grade and rank within grade shall be determined by the number of years of entry grade credit awarded on original appointment, designation, or assignment as a health professions officer. a. Four years of constructive service credit shall be granted for completion of first professional degrees that include medical (M.D.), osteopathy (D.O.), dental (D.D.S. or D.M.D.), optometry (O.D.), podiatry (Pod.D. or D.P.), veterinary (D.V.M.), and pharmacy (Ph.D.). b. Credit of one-half year for each year of experience, up to a maximum of three years of constructive credit, may be granted for experience in a health profession, if such experience is directly used by the military service concerned. Creditable experience cannot predate the receipt of licensure, registration, or certification. Accordingly, volunteer, or student status cannot be credited. 2. Neither DODI 6000.13 nor Army Regulation 135-101 provides that constructive service credit will be calculated as of the date a selection board convenes. 3. Army Regulation 135-101 states the entry grade credit required for appointment as a 1LT is 3 years or more, but less than 7 years. Entry grade credit required for appointment as a CPT is 7 years or more, but less 14 years. Excess credit is used to adjust the officer's date of rank in the appointment grade. 4. USAREC has consistently maintained that, in order to treat all applicants for appointment equitably, constructive credit is calculated up to the date of the appointment selection board. During the processing of this case, a USAREC staff member informed the Army Board for Correction of Military Records staff that an adjusted DA Form 5074 may be completed to account for additional periods of professional experience if an applicant has waiver or post-board actions that take an extended period of time. 5. Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, subject: Redelegation of Authority Under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U.S. Code (USC), in grades O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President's authority to appoint military officers. All military officer appointments under section 12203 of Title 10, USC, including original appointments in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense. 6. Title 10, USC, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President. This authority has been delegated to the Secretary of Defense via executive order. DISCUSSION: 1. The applicant contends he should receive credit for the 8-month period between being recommended for appointment by a selection board on 22 March 2012 and when he was commissioned on 8 November 2012. He contends that this situation has adversely affected his career. He could possibly be considered for MAJ below the zone next year, but due to the Board's denial he was not promoted to CPT until July 2014 and has only one year time in grade. He was an experienced pharmacist at the time of commissioning and he commissioned at a lower rank than a freshly minted graduate with the same degree and no experience. 2. The information provided in the memorandum the applicant provided as new evidence is noted. The memorandum indicates, in effect, that he could not take the oath of office until after a scroll was released on or about 19 October 2012. 3. Additionally, as explained in the original consideration of this case, the Board does not have the authority to appoint him as a CPT. That Presidential authority has not been delegated below the Secretary of Defense. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014992 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014992 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2