RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            14 April 2005
      DOCKET NUMBER:   AR20040006217


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Ann M. Campbell               |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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 his Reserve Officers' Training
Corps (ROTC) debt be waived and that his status be changed to disenrolled
for medical reasons.

2.  The applicant states that when he was filling out the paperwork to
enroll in ROTC he asked the cadre if he should indicate seasonal allergies
or occasional bronchitis.  They said, "no," because everyone in service had
that and it was not a chronic problem.  He had seasonal allergies as a
child but had never been diagnosed with asthma or treated for asthma.  The
word, "asthma," is never used in his complete medical records.  During his
year in ROTC, he had a bout with sinusitis and Lieutenant Colonel B___ gave
consideration to a medical release, but he subsequently changed his mind
and alleged breach of contract for not revealing he had asthma.  He made
the decision without seeing his medical records or requesting a medical
examination.  He was not afforded any due process.  He entered the contract
in "good faith," and he knows that the direction he had been given was
wrong.  If he is to repay any scholarship money, it should be money
received during the spring semester.  That was not money that was given to
him and he spent.  It was deposited with the university.

3.  Copies of the applicant's enlistment medical documents are available.
He states "medical records available."  It cannot be determined if he
provided the enlistment medical documents or if he meant other medical
records would be available if needed.

CONSIDERATION OF EVIDENCE:

1.  The applicant enrolled in the University of Mississippi in the Fall
semester of 1999.

2.  On 15 April 2002, the applicant completed a DD Form 2807-1 (Report of
Medical History) for reason of "ROTC Scholarship Program."  In item 10, he
checked that he never had or did not then have:  shortness of breath;
bronchitis; wheezing or problems with wheezing; been prescribed or used an
inhaler; a chronic cough or cough at night; or chronic or frequent colds.
He also checked that he never had or did not then have asthma or any
breathing problems related to exercise, weather, pollens, etc.  In item 17,
he checked that he never had or did not then have nervous trouble of any
sort (anxiety or panic attacks).  In item 24, he checked that he had not
consulted or been treated by clinics, physicians, healers, or other
practitioners within the past 5 years for other than minor illnesses.  Any
"yes" answers were to have been explained in item 29.

3.  On 22 May 2002, the applicant was found to be medically qualified for
an ROTC scholarship.

4.  The applicant enlisted in the Army National Guard on 19 September 2002.
 He signed a Simultaneous Membership Program Agreement on 24 September
2002.

5.  Apparently the applicant signed a DA Form 597-3 (Army Senior Reserve
Officers' Training Corps (ROTC) Scholarship Cadet Contract) on 21 October
2002.  His DA Form 597-3 is not available.  Paragraph 3a of the DA Form 597-
3, version dated July 2002, stated, "…I represent that I have disclosed or
will disclose any and all pre-existing medical conditions and non-medical
conditions that would make me ineligible for enrollment in the ROTC
program…If I am ineligible for contracting in ROTC based on a particular
medical or non-medical condition, but such ineligibility may be waived, I
must obtain an approved waiver before executing this contract.  Failure to
have disclosed or to disclose any disqualifying condition, including any
conditions I should have known about, will subject me to disenrollmlent
from the ROTC program and possible recoupment of scholarship benefits…"

6.  The applicant's disenrollment process apparently began around January
2003.

7.  A letter dated 29 January 2003 from Doctor T___, a staff physician at
the university, stated that the applicant was first prescribed an albuterol
inhaler in 1999.  The letter stated, "He was having difficulty breathing,
and had a history of childhood asthma."  It also stated that, in 1999, the
applicant was also experiencing anxiety, which was considered situational.


8.  On 24 February 2003, the applicant was discharged from the Army
National Guard and as a Reserve of the Army.

9.  By letter dated 18 June 2003, the Cadet Command Surgeon determined the
applicant was medically disqualified for continuation in ROTC due to
asthma, anxiety, and migraine.  His Professor of Military Science at the
university was directed to appoint an investigating officer to determine if
the applicant failed to disclose a disqualifying condition prior to
entering the ROTC program.

10.  A board hearing was held on 17 October 2003.  The applicant was
present at the hearing.  The board found that the applicant had entered
into a valid ROTC scholarship contract on 21 October 2002 and received
advanced educational assistance in the amount of $4,516.  The board found
that he breached his contract due to misconduct by failing to disclose a
pre-existing condition of difficulty breathing, bronchitis, and use of an
inhaler.

11.  The board noted that the applicant's childhood medical records
contained no documentation of any medical treatment during the year 1999 or
any diagnosis of asthma; however, it also noted that he had enrolled in the
university in 1999, explaining the absence of [childhood] medical records
from 1999 to the present.  The board noted that a second letter from Doctor
T___ stated, "He never had a diagnosis of childhood asthma before January
of 2003…he did not know…that he had asthma prior to my review in January of
2003."  The board also noted that, in Doctor T___'s second letter, he never
retracted his initial statement that the applicant was "prescribed an
albuterol inhaler in 1999" or that "he was having difficulty breathing."
Whether the doctor got the information from the applicant's records or from
the applicant himself, the board stated that the doctor's statements
indicated the applicant had exhibited breathing problems and was prescribed
an albuterol inhaler prior to 15 April 2002.

12.  The board apparently had some medical records dated March 1995 for
review which indicated the applicant had been prescribed an inhaler.  Also
apparently available were medical records dated December 1997 which
indicated he had been prescribed an inhaler for bronchitis symptoms at that
time.

13.  The board recommended that the applicant not be retained in ROTC, that
he be disenrolled from ROTC and released from his ROTC contractual
obligation, that he not be ordered to active duty for 2 years, and that he
be ordered to repay his valid debt to the government comprised of advanced
educational assistance received in the form of scholarship benefits.

14.  The applicant was subsequently disenrolled from ROTC.

15.  In the processing of this case, an advisory opinion was provided by
the U. S. Army Cadet Command, which recommended the applicant be required
to reimburse the government for his advanced educational assistance because
he had failed to disclose a pre-existing medical condition.

16.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he asked the ROTC cadre if he should
indicate seasonal allergies or occasional bronchitis and they said, "no,"
because everyone in service had that and it was not a chronic problem.  He
contends that he had seasonal allergies as a child but had never been
diagnosed with asthma or treated for asthma and the word, "asthma," is
never used in his complete medical records.

2.  However, the applicant was not disenrolled from ROTC because he failed
to disclose he had asthma.  The board, at which he was present,
specifically found that he failed to disclose pre-existing conditions of
difficulty breathing, bronchitis, and use of an inhaler.

3.  It appears the board disregarded Doctor T___'s reference, in his 29
January 2003 letter, to childhood asthma; however, that letter also
referred to the applicant's difficulty breathing and being prescribed an
albuterol inhaler in 1999.  The board appears to have seen other evidence
that showed the applicant had been prescribed an inhaler in 1995 and in
1997.  Yet, when the applicant completed his DD Form 2807-1 on 15 April
2002, he checked that he never had or did not then have:  shortness of
breath, bronchitis, wheezing or problems with wheezing, or been prescribed
or used an inhaler.

4.  Doctor T___'s 29 January 2003 letter also referred to the applicant
experiencing anxiety in 1999.  Yet, on 15 April 2002, he also checked that
he never had or did not then have nervous trouble of any sort (anxiety or
panic attacks).

5.  The preponderance of evidence shows the applicant knew he had medical
conditions that he could have identified in items 10 and 17 of the DD Form
2807-1 and then explained in item 29.  His failure to disclose those
conditions resulted in the government disbursing over $4,000 for his
advanced education.  Whether the monies were given to him or to the
university, they were expended on his behalf because of his failure to
disclose.  The debt is valid and should be repaid.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jev___  __amc___  __mvt___  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.




            ____James E. Vick_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004006217                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050412                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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