RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 JULY 2005
      DOCKET NUMBER:  AR20040006218


      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. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Shirley Powell                |     |Member               |
|     |Mr. Stanley Kelley                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that she not be required to repay
the government the cost of her ROTC (Reserve Officer Training Corps)
scholarship.

2.  The applicant states that the recoupment of $15,476.00 from her is
“unjust, unfair, and inappropriate.”  She states that she had “physical
difficulty” at the time she entered the ROTC program at Southwest Missouri
State University in Springfield, Missouri.  She maintains that the “people
running the program learned of [her] physical difficulty concerning [her]
knees and let [her] enroll and kept [her] in the program even after it was
clear that [she] could not make it.”

3.  The applicant states that she initially began having problems with her
knees when she was in the 6th grade.  She states her condition was labeled
as “growing pains and Osgood-Schlauter’s Disease” and was told she would
outgrow the problem.  She notes she would experience knee pain for a few
months; it would then stop, and then return in approximately 2 years.

4.  When she joined the military, she states her “entrance physical” never
asked about, or noted, any problems with her knees.  She also states that
there “was obviously never a thorough review of [her] medical history or
medical records.”  She states she was “deemed” physically fit to “serve in
the Army Reserves, and again in the Army Reserve Officer Training Corps.”

5.  The applicant states that after joining the ROTC program in January
2001 she began running two miles three times a week in addition to other
exercises and after “a couple of months” began having knee pain again.  She
states she saw a doctor, was placed on rest and “a short cessation of
exercise” and had the physician write a note to that effect, which she gave
to her ROTC instructor.  When the pain continued she again went to the
doctor, was referred to other physicians, and ultimately her “period of
exercise cessation was extended.”  She notes she again informed her ROTC
instructor.  She states her battalion commander told her that if her knees
did not show signs of improvement by the next semester they would be forced
to drop her from the ROTC program.

6.  The applicant notes that when she returned to school the following
August (2001) her knees had healed but she was having difficulty passing
the run portion of the Army’s physical fitness test.  By the beginning of
the January 2002 school semester she was still unable to pass the run
portion of the test and was receiving a lot of pressure from her
instructors to pass.  She also states that she was warned that her
scholarship was in jeopardy unless she successfully completed a physical
fitness test.
7.  The applicant also notes that during that same semester (January 2002)
she was “having difficulty with [her] coursework” and was “failing Anatomy
and Physiology 1, and making a “D” in [her] Nutrition course.”  She states
that with the pressure of her schoolwork and requirement to pass the
physical fitness test she began having pain in her hands, which she
described as “similar to carpal tunnel pain.”

8.  Ultimately she states she completed the semester, but failed the
anatomy course and received a “D” in nutrition.  She states that she was
told that if she did not pass the first physical fitness test during the
next semester her scholarship money would be withheld until she did pass,
or she would be dropped from the program altogether.

9.  She states that the carpal tunnel-like pain became so severe that she
moved home with her parents and was “unable to drive and do more than the
basic self-care duties.”  She states she saw many doctors and finally her
hand problems were diagnosed as “a stress reaction.”

10.  She maintains that it would be “completely unfair for [her] to be
required to reimburse the Army ROTC program the monies…under these
circumstances.”

11.  The applicant provides an August 2004 statement from a “Legal Nurse
Consultant” which summarizes information contained in the applicant’s
medical file.  She also submits a copy of a 3 February 2003 memorandum
informing her that action was being initiated to disenroll her from the
ROTC program “for failure to meet the required standards for the Nursing
Program at Southwest Baptist University, and not maintaining a full time
student status.”  She submits a copy of an 11 July 2003 memorandum
notifying her that she had been disenrolled from the ROTC program, and a
copy of her separation orders.

CONSIDERATION OF EVIDENCE:

1.  Documents available to the Board indicate that the applicant signed a 4
year Army ROTC Scholarship in February 2001 and that tuition/fee payments
were made under the contract for the Spring 2001, Fall 2001, and Spring
2002 school terms.  “Books/Supplies” funds in the amount of $300.00 were
disbursed in October 2001 and again in January 2002.  A final
“Books/Supplies” fund, amounting to $600.00 was disbursed in August 2002
for the Fall 2002 semester, but there is no indication that any
tuition/fees were ever paid for that semester.

2.  On 16 September 2002 the applicant’s records were certified showing
that $15,476.00 in ROTC scholarship benefits had been paid on behalf of the
applicant as of 14 September 2002.

3.  A 3 February 2003 memorandum, which the applicant included with her
application to this Board, informed her that under the provisions of Army
Regulation 145-1, paragraph 3-43a(1), action was being initiated to
disenroll her from the ROTC Program “due to failure to meet the required
standards for the Nursing Program…and not maintaining full time student
status.”  The memorandum placed the applicant on a leave of absence and
suspended her benefits.  Documents supporting the disenrollment action were
enclosed with the memorandum.  Those documents, however, were not available
to the Board.

4.  The memorandum provided the applicant with instructions for requesting
a hearing, submitting statements on her own behalf, and indicated that she
was required to sign and return a notification/acknowledgement statement
within 10 days or the disenrollment procedures would continue without her
input.  The memorandum also informed the applicant that she could be called
to active duty to fulfill her contractual obligation or could be required
to repay the scholarship benefits in lieu of being called to active duty.
The amount of the debt was clearly identified in the memorandum and she was
informed regarding procedures for disputing the debt.

5.  An 11 July 2003 memorandum, a copy of which was also provided by the
applicant with her request to this Board, informed her that she had been
disenrolled from the ROTC Program.  The basis for the disenrollment was
once again cited and she was again informed that when the ROTC scholarship
contract was breached “any obligation to the Army must be satisfied….”  The
memorandum informed her that the contract could be satisfied via an order
to active duty or repayment of the educational assistance funds.  The
memorandum contained information regarding the amount of her education
assistance funds and asked her to complete and return an election form
within 14 days of receiving the notification memorandum.

6.  The election form indicated that the applicant could request to be
ordered to active duty, agree to pay in full the total amount owed, or
promise to make repayment of the total amount owed in monthly installments,
plus interest.

7.  According to information received in an advisory opinion from the
United States Army Cadet Command at Fort Monroe, Virginia, the applicant
returned an unsigned option form and a personal check for $25.00 to Cadet
Command in response to the 11 July 2003 memorandum.  The check was returned
to the applicant on 10 September 2003 and she was informed that personal
checks were not acceptable and that if she desired to repay the scholarship
funds through a monthly installment she was required to complete an
“addendum” and return it within 14 days of receipt of the 10 September
memorandum.  Officials at Cadet Command indicated that the applicant did
not respond to the
10 September 2003 memorandum and as such, a debt was established with the
Defense Finance and Accounting Service in Denver.

8.  On 9 October 2003 orders were issued discharging the applicant from the
ROTC Program effective 11 July 2003.

9.  When the applicant was given an opportunity to respond to the
information provided to this Board by Cadet Command in their advisory
opinion, she indicated that she had “no recall of having been served with
such a letter” informing her that she could repay the debt or be ordered to
active duty.  She stated that there was “no way” for her to serve on active
duty “either then or now” due to the “medical issues [she] faced at the
time (and continue[s] to face).”  She reemphasized that it would be
“completely unfair” to require her to reimburse the Army under these
circumstances.

10.  The August 2004 statement, submitted on the applicant’s behalf by the
Legal Nurse Consultant (LNC), recounts documents she reviewed from the
applicant’s medical records.  Those medical records were not available to
the Board.

11.  The LNC noted that the applicant’s medical records indicated that she
was evaluated for complaints of bilateral knee pain as early as 1995,
presented a “3-day history of right knee pain secondary to marching” in
September 1999, and in March 2001 was seen on several occasions with
complaints of severe pain in both knees.  Treatment in March 2001 included
medication and physical therapy referral.

12.  On 2 April 2001 she returned to her physician with continued
complaints of bilateral knee pain.  “Physical restrictions included no
physical therapy for 4 weeks with swimming allowed and biking at her own
pace.”  A 26 April 2001 bone scan showed “no abnormal uptake in the
patella” and the impression was normal nuclear medicine bone scan of the
pelvis and lower extremities.”  The LNC noted no additional medical records
for 2001.

13.  In April 2002 the LNC noted that the applicant began having
difficulties with left wrist pain and had medical treatment from April
through November 2002.  There was no record of any knee complaints or
problems in 2002.  By June 2003 the LNC noted that the applicant was again
evaluated for complaints of bilateral knee pain.  The LNC noted “Jumping
into an ambulance and landing wrong without any direct impact on her knees
aggravated her pain.”  She continued to seek treatment for her knee pain
throughout 2003 and in January 2004 she underwent arthroscopic surgery on
her right knee.  The LNC concluded that she believed that the applicant’s
knee pain and problems predated her entrance into the Army ROTC program and
that her increased activity during ROTC caused her problems to resurface.

14.  A 15 April 2000 physical examination, apparently conducted as part of
the applicant’s entrance into the Army Reserve, made no mention of any knee
problems.  She was found medically qualified for entrance with a physical
profile of 1-1-1-1-2-1.  The “2” was associated with her vision.

15.  Army Regulation 145-1, paragraph 3-43a(16), provided for the
disenrollment of nonscholarship and scholarship cadets for breach of
contract.  Breach of contract is defined as any act, performance or
nonperformance on the part of a student that breaches the terms of the
contract regardless of whether the act, performance or nonperformance was
done with specific intent to breach the contract or whether the student
knew that the act, performance or nonperformance breaches the contract.

16.  Army Regulation 145-1, paragraph 3-43a(8), provided for the
disenrollment of cadets for failure to meet the Army Physical Fitness test
as required of active duty Soldiers prior to the end of the last school
term of the MS (military science) III year.

17.  Paragraph 3-38a(2)(b) of Army Regulation 145-1 also provides for a
leave of absence (LOA) of cadets who have a medical condition, including an
illness, pregnancy, injury, or for convalescence.  The Professor of
Military Science at the attending university is permitted to authorize a
LOA of one semester, while an absence that required more than one academic
term may be forwarded through appropriate command channel to Cadet Command
for approval.

18.  Army Regulation 145-1 states that ROTC scholarship cadets must
complete a contract as part of the scholarship acceptance process.
Although a copy of the applicant’s contract was not in files available to
the Board, that contract would have informed the applicant that after the
first day of her MS (military science) II year (sophomore year) she
incurred an active duty and/or reimbursement obligation if she were
“disenrolled from the ROTC program for breach of contractual terms or any
other disenrollment criteria established now or in the future by Army
regulations….”  Included under the terms of disenrollment was information
regarding the fact that by signing the contract she acknowledged that she
understood that she could be ordered to active duty, if qualified, or
“required to reimburse the United States government through repayment of an
amount of money, plus interest, equal to the entire amount of financial
assistance (to include tuition, educational fees, books, laboratory
expenses, and supplies) paid by the United States for [her] advanced
education from the commencement of this contractual agreement to the date
of [her] disenrollment or refusal to accept a commission.”

19.  That contract also would have included acknowledgement and agreement
that the scholarship cadet will “remain a full-time student in good
standing at the educational institution…until I receive my degree.”  A full-
time student is defined as one enrolled in sufficient academic courses to
obtain sophomore, junior, and senior academic status at the end of each
appropriate one-academic-year increment for the duration of the
scholarship.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that while the applicant may have been experiencing
problems with her knees during her initial semester of college (Spring
2001) there were no medical records supporting her contention that she
continued to have problems in the Fall of 2001 and the Spring of 2002.
Additionally, it is noted that the requirement to pass the Army physical
fitness test would not have occurred until the end of her last school term
of the MS (military science) III year.

2.  Had the applicant’s medical problems been the basis for her inability
to fulfill the requirements of her scholarship contract there were
provisions available which would have enabled her to take a LOA until her
medical problems resolved or until it was determined that those medical
conditions precluded continuation in the program.  Although the applicant
may not have been familiar which such provisions, members of her ROTC
leadership chain would have been.  Other than her own assertions, she has
presented no evidence which indicates that she was communicating with
members of her chain of command regarding her medical issues.

3.  The applicant’s contention that she was unaware of her obligations
regarding fulfillment of her ROTC scholarship contract are also not
supported by the evidence available to the Board.  The applicant provided
copies of letters, as part of her application to this Board, which informed
her that she was in breach of her contract, the amount of debt she had
incurred, measures for satisfying the debt, and avenues which were
available to her to appeal the debt.

4.  Additionally, the applicant’s submission of a personal check to Cadet
Command in response to her disenrollment notification is further evidence
that she was aware of the requirement to repay the debt.

5.  The evidence available to the Board indicates that the applicant was
disenrolled from the ROTC program not as a result of any medical
conditions, but rather, as a result of not maintaining her full-time
student, in good standing, status requirement.  She failed to return to
school in the Fall of 2002 thereby defaulting on her scholarship contract.

6.  The fact that the applicant may now be precluded from entering military
service because of her knee condition is not a basis to conclude that
repayment of her scholarship debt was erroneous or unjust.

7.  The applicant was properly disenrolled from the ROTC; there is no error
or injustice in her disenrollment.

8.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JS  ___  __SP ___  ___SK  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.



                                  ______ John Slone________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040006218                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050712                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |104.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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