RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            24 May 2005
      DOCKET NUMBER:   AR20040006593


      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:

|     |Ms. Margaret V. Thompson          |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 that his indebtedness of $128,637.41 be
cancelled.

2.  The applicant states that the U. S. Military Academy (USMA) released
him close to the end of his junior year in 2000 because he had been over
the weight limit for too long a period.  With the help of a liaison person,
he finished his junior year.

3.  The applicant states that the paperwork for his dismissal started in
January 2000.  His supervising officer gave him the Atkins' Diet to help
him lose weight and have enough energy for his body to function correctly.
His weight loss continued being monitored from January to April.  During
that time, he was under the impression that if he lost the weight they
would pull the paperwork.  In April, he successfully completed the weight
program and met all the requirements to stay at West Point.  One week
later, West Point completed the paperwork for his release.  The Judge
Advocate General's office did not give him legal assistance so he could
remain at West Point.

4.  The applicant states that football players at West Point have until
their senior year to lose their weight.  At West Point he played intramural
football and with his knowledge of the game helped many players.  He truly
thought he had until his senior year to achieve the weight [loss] necessary
to graduate from West Point.

5.  The applicant states that his chain of command told him if he reapplied
they would accept him back into the Corps of Cadets.  In December 2000, an
officer from the Pentagon told him he was not released from the Army and
West Point basically should not have released him because his weight
problem should have been handled internally.  So the Army asked West Point
to let him fulfill his contract with them by finishing his senior year.
His body fat was at 17 percent and the limit is 24 percent.  In April of
2001, West Point would not let him complete his contract so he received an
Honorable Discharge in April 2001.

6.  The applicant states that he is 26 years old with a minimal salary from
a job in a small factory.  The Treasury Department has taken his tax refund
the last two years and is planning to take his social security benefits and
to garnish his wages.

7.  The applicant provides a 9 March 2004 letter from a law office; a 27
April 2000 letter from a Military Academy Liaison Officer; a 28 January
2004 letter from the same Liaison Officer; a 1 May 2000 letter from the
Assistant to the Dean, USMA; an email dated 12 October 2000; an email dated
6 November 2000; a 21 January 2001 letter from Total Fitness Health Club;
an email dated  14 February 2001; an email dated 30 January 2001; an email
dated 29 January 2001; and his Honorable Discharge certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered the USMA from a civilian status on 30 June 1997.
At that time he weighed 209 pounds.  Paragraph IIg of his Oath of
Allegiance stated, "Further, that if I am separated from the United States
Military Academy for breach of this service agreement, as defined in
paragraph 1.g.(3), Statement of Policies on the next page (not available),
and the Army decides that I should not be ordered to active duty because
such service would not be in the best interests of the Army, I shall be
considered to have either voluntarily or because of misconduct failed to
complete the period of active duty and may be required to reimburse the
United States as described above."

2.  On 14 August 1998, the applicant was referred for medical evaluation by
his tactical officer, Major L___, to ensure there were no medical reasons
precluding enrollment in the Cadet Weight Management Program.  On or about
23 October 1998, the cause of the applicant's overweight condition was
determined to be not due to a medical condition and he was cleared for
enrollment in the Army Weight Control Program (AWCP).

3.  On 19 December 1999, the applicant was counseled by Major L___
regarding his physical performance.  It was noted his progress in the AWCP
had been minimal and he had been in the program for over one year.  It was
noted he had been on his last chance since August and by regulation he
could already have been processed for separation.  The holidays were coming
up and he was informed that if he had not made progress by 15 January 2000
separation paperwork would be initiated.

4.  On 15 January 2000, the applicant weighed in at 247 pounds, a gain of
       3 pounds over his 16 December 1999 weigh-in and a body fat
percentage (25.55) gain of 1.39 percent.  Separation action was initiated
on 15 February 2000 and the Commandant of Cadets recommended he be
separated from the USMA for failure to make satisfactory progress in the
AWCP.  His chain of command recommended separation.  On 20 March 2000, the
separation packet was forwarded to the Superintendent.

5.  On 14 April 2000, the applicant weighed in at 239 pounds with a body
fat percentage of 21.97 (maximum allowable 22 percent).

6.  By memorandum dated 17 April 2000, the Superintendent forwarded his
recommendation to separate the applicant for failing to make satisfactory
progress in the AWCP to Headquarters, Department of the Army (HQDA).

7.  By memorandum dated 4 May 2000 for the Superintendent, Major L___ noted
that the applicant could have been separated for failure to show
satisfactory progress in the AWCP after six months or after any two
consecutive months without satisfactory progress.  The applicant had been
given three times that amount of time to demonstrate he could meet the
standard.  Out of 18 months in the program, there were only two consecutive
months where he lost weight.  He was examined three times by the Brigade
Surgeon and no underlying medical condition was found.  He did meet the
body fat standard for his age three months after his separation paperwork
was submitted.  The applicant did not demonstrate that he cared about
maintaining standards.  In fact, by drinking beer at the club the night
before the weigh-in which was to determine his future, he truly
demonstrated that his weight and the standards of the AWCP were not a
priority.

8.  By letter dated 23 May 2000, Major L___ responded to an inquiry from
the applicant's father.  He informed the applicant's father that, prior to
the initiation of separation, the Brigade Surgeon examined the applicant
for a third time and no underlying medical condition was found to be cause
of his weight problem.  The applicant eventually met the body fat
standards, but only (emphasis in the original) when he told the applicant
that the paperwork was submitted.  He informed the applicant's father that,
as a former college football lineman and someone who had personally dealt
with those very issues through his career, he knew the AWCP and how
difficult it could be for bigger Soldiers.  He gave the applicant every
benefit of the doubt throughout his time in the company.

9.  Major L___ told the applicant's father that in December [1999] he
counseled him in writing that if he did not make significant progress on
the next weigh-in he would initiate the separation paperwork.  In January
2000, the applicant was three pounds heavier and had spent the night before
at the Officer's Club consuming alcohol.  He, Major L___, had been in the
situation where a weigh-in was critical and he spent the night before at
the gym, not the club.  The fact the applicant did eventually meet the
standard further demonstrated to Major L___ that he had the ability to meet
the standard and chose not to.  It was the lack of caring that really
disappointed Major L___ as someone who truly wanted the applicant to
succeed.  The applicant made decisions for 18 months and also chose to go
to the club before the weigh-in that he knew was critical.

10.  By memorandum dated 24 May 2000, the applicant's recoupment of
educational assistance costs were determined to be $101,878.  By memorandum
prepared on or about 16 June 2000, an investigating officer was appointed
to determine whether the basis and amount of the applicant's alleged debt
was valid.  The applicant indicated on 25 July 2000 that he disputed the
validity of the debt.

11.  By memorandum dated 28 July 2000, the applicant was informed that an
informal investigation found that the debt, and the amount of the debt,
were legitimate and rationally based.  It was also found that he was aware
of the reimbursement requirement, based upon his signed oath.

12.  By letter dated 11 August 2000, the applicant responded that he
understood the investigating officer's findings and did not have anymore
evidence or statements at that time.  He noted that he was currently losing
weight so he could meet the Army weight standard and [was] developing the
means to keep the weight off.  He requested information about the
application process for reinstatement.

13.  In an undated letter, the applicant stated that, under the terms of
the service agreement he signed, to owe the Army the calculated sum of
money he would have had to intentionally have gained weight and kept that
weight on with the intent of breaching his contract.  That was not the
case.  When he entered the Academy, he was part of the Cadet Basic Training
Program which involved a mandatory physical training program.  The program
helped him to lose more weight and maintain his weight loss.  After Cadet
Basic Training, the mandatory physical training stopped.  Since his
knowledge of physical training and nutrition was inadequate, he started to
gain weight.  After he was enrolled in the AWCP, he received little
assistance in creating a program which would help him lose the weight.

14.  In the undated letter the applicant went on to state that he was never
given formal instruction on how to set up a physical program in order to
lose weight.  The Academy offered no special physical training program for
cadets who are on the AWCP.  In the Regular Army, a time limit is given for
a task to be accomplished.  He was never given a deadline to get the weight
off.  He was just told that the paperwork would be started.  At the
beginning of 2000, his tactical officer took a personal interest in him and
introduced him to a diet on which he had lost 30 pounds.  His tactical
officer understood his situation as they had the same body structure.  He
was officially taken off the program on 14 April 2000 and his tactical
officer tried to get the paperwork stopped but the Superintendent signed it
on 17 April 2000.  He intended to do all he could do to be reinstated and
have a successful career.

15.  By memorandum dated 2 November 2000, the informal investigation of the
recoupment action against the applicant was reviewed by the Chief,
Administrative and Civil Law Division, USMA and found to be legally
sufficient.

16.  Around January/February/March 2001, the applicant applied for
readmission to the Academy.  He received a letter of recommendation from
Major L___.

17.  On 9 April 2001, the Acting Secretary of the Army approved the
applicant's separation from the USMA and discharge from the service with an
Honorable Discharge and directed he not be ordered to active duty or
transferred to the     U. S. Army Reserve.

18.  By memorandum dated 25 April 2001, the applicant was notified that his
discharge was approved and that the Assistant Secretary of the Army,
Manpower and Reserve Affairs directed that he repay the cost of his
education in the amount of $101,878.00 in lieu of being called to active
duty.

19.  On 9 March 2004, the applicant was notified that his debt to the
Government (with interest) was $128,637.41.

20.  In the processing of this case, an advisory opinion was obtained from
the office of the Staff Judge Advocate, USMA.  That office noted that the
applicant was separated for failure to achieve Army weight control
standards.  Furthermore, recoupment is authorized because he had notice of
the pending separation and an opportunity to bring himself within standards
but voluntarily failed to do so.  That office opined that the applicant's
allegation that he met all of the requirements of the weight control
program and should not have been separated was without merit.  He was
allowed additional counseling and time to meet his goals.  He saw a
dietician twice, had two medical examinations, and had numerous counseling
sessions with his tactical officer.  His numerous failures to make
satisfactory progress resulted in his separation.

21.  The advisory opinion noted that the Department of Defense has long
viewed failure to achieve fitness and weight standards as a breach of the
active duty service commitment and thus a voluntary separation for purposes
of recoupment. Favreau v. United States, 49 Fed. Cl. 635, 643 (2001), which
held that the Department of Defense's interpretation of voluntary failure
must be upheld unless plainly erroneous or inconsistent with the
regulation, was cited.  In the applicant's case, his failure to meet weight
standards was a voluntary failure to complete his active duty service
commitment.  It noted that the applicant reapplied to the Academy on two
occasions, in March 2001 and March 2002.  In March 2001, his separation
action had not been signed by the Secretary of the Army and he could not be
considered for readmission.  He was told to reapply the following year.  In
March 2002, he started the re-admission process but did not submit all of
the necessary paperwork to be considered for readmission.

22.  The advisory opinion noted that the applicant's failure to make
satisfactory progress in the AWCP was a result of his volitional acts.
Meeting the body fat standard three months after a separation action was
initiated only illustrated the point.  He was put on notice and given
opportunities to make satisfactory progress in the AWCP for 18 months.  He
failed to do so, thereby breaching his service agreement.  Therefore, his
separation qualified for recoupment.  That office recommended denial of the
applicant's request.

23.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  The applicant responded by stating that Major L___
had initiated the separation paperwork because they had not found a weight
program that would work for his situation.  At that time, Major L___
recommended the Atkins' Diet and told him that he would pull the paperwork
if satisfactory progress was made. At the beginning of April [2000], he met
all the body fat standards and was taken off the AWCP.  He thought the
separation paperwork would be pulled but they released him about a week
later.  Major L___ stated that if he had known what the diet would do for
him he would not have started the paperwork.

24.  The applicant further stated that, in January 2001, he was contacted
by Lieutenant Colonel S___ of HQDA with some questions about his discharge
paperwork.  After hearing he was going to apply for readmission, Lieutenant
Colonel S___ told him he would hold on to his paperwork until West Point
decided they were going to take him back.  In April 2001, he received a
letter from West Point telling him his readmission application was
disqualified because he had not been discharged from the Army.  After that,
he decided that West Point was not going to take him back.  He stopped
believing.  He feels he tried to meet his obligation of service.  West
Point did not want him to fulfill his obligation of service so he should
not be forced to pay the debt.

25.  Title 10, U. S. Code, section 2005 (Advanced education assistance:
active duty agreement; reimbursement requirements) subsection(a)(3) reads:

      (3)  that if such person, voluntarily or because of misconduct, fails
to complete the period for active duty specified in the agreement, or fails
to fulfill any term or condition prescribed pursuant to clause (4), such
person will reimburse the United States in an amount that be as the same
ratio to the total cost of advanced education provided such person as the
unserved portion of active duty bears to the total period of active duty
such person agreed to serve.

26.  Title 10, U. S. Code, section 2005(a)(4) reads:
      (4) to other such terms and conditions as the Secretary concerned may
prescribe to protect the interest of the United States.

27.  Army Regulation 210-26 (United States Military Academy), dated 26 July
2002, paragraph 6-24 states that a cadet, with no underlying or associated
disease process, who fails to make satisfactory progress in a weight
control program…may be separated from the Military Academy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he thought, as an intramural football
player, he had until his senior year to achieve the weight loss necessary
to graduate from West Point is contradicted by the evidence.  He was
enrolled in the AWCP in August 1998 and counseled in December 1999 that
failure to make satisfactory progress at his next weigh-in would result in
separation.

2.  In his response to the recoupment notification, the applicant contended
that as part of the Cadet Basic Training Program he was involved in a
mandatory physical training program which helped him to lose more weight
and maintain his weight loss.  After Cadet Basic Training the mandatory
physical training stopped and, since his knowledge of physical training and
nutrition was inadequate, he started to gain weight.  However, even if he
was never given "formal instruction on how to set up a physical program in
order to lose weight," it is not reasonable to believe that he (hoping to
soon join the ranks of the Army's officers) could not have continued the
physical training program as structured in the Cadet Basic Training Program
on his own initiative.

3.  As the applicant also stated in his response to the recoupment
notification, his tactical officer understood his situation as they had the
same body structure.  However, his tactical officer also stated, in his 4
May 2000 memorandum and also in his 23 May 2000 letter to the applicant's
father, that while the applicant did meet the body fat standard for his age
three months after his separation paperwork was submitted he did not
demonstrate that he cared about maintaining standards.  As Major L___
informed the applicant's father, the fact the applicant did eventually meet
the standard further demonstrated to Major L___ that he had the ability to
meet the standard and chose not to.

4.  It is admirable that Major L___ continued to support the applicant even
to the point of attempting to get the separation paperwork stopped three
days before the Superintendent signed it.  However, since the applicant was
recommended for separation for failing to make satisfactory progress
(emphasis added) in the AWCP for an 18 month period, it was not reasonable
to expect that a major could have prevented the Superintendent from signing
and forwarding the packet.
5.  The applicant addressed his March 2001 readmission request.  However,
the advisory opinion noted that he had also submitted a readmission
request, albeit incomplete, in March 2002.  He did not address that, only
stating that after the March 2001 denial he decided that West Point was not
going to take him back and he "stopped believing."

6.  The applicant stated, in his rebuttal to the advisory opinion, that he
feels he tried to meet his obligation of service but since West Point did
not want him to fulfill his obligation of service he should not be forced
to pay the debt.  However, had he been qualified for enlisted service, he
could have been ordered to active duty.  Because he had been separated for
failing to make satisfactory progress in the AWCP he was not qualified for
enlisted service.  Nevertheless, he states he had lost weight and was well
within the body fat standards by the time he applied for readmission.  Had
he been serious about trying to meet his service obligation, he could have
at least attempted to enlist after his readmission was denied.  Once
enlisted, had he not wished to remain in an enlisted status a request to
attend Officer Candidate School would have been an option.

7.  The applicant got a free education at the U. S. Army Military Academy
for three years.  As Major L___ informed the applicant's father, had the
applicant not spent the night before the 15 January 2000 weigh-in at the
Officer's Club consuming alcohol he might have passed the weigh-in or at
least not have had Major L___ initiate separation processing at that point.
 It appears that the debt is valid and should be recouped.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mvt___  __jtm___  __lgh___  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.




            _Margaret V. Thompson
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006593                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050524                                |
|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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