RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 July 2005
      DOCKET NUMBER:   AR20040007310


      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             |
|     |Mr. Edmund P. Mercanti            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Ms. Brenda K. Koch                |     |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, through counsel, that his Army Reserve
Officers’ Training Corps (ROTC) scholarship be reinstated, and that he be
allowed to attend Leaders Development and Assessment Course (LDAC) and
complete his remaining Military Science (MS) courses.

2.  In the alternative, the applicant requests, through counsel, that he be
reinstated in the ROTC program without a scholarship, that he be allowed to
attend LDAC and complete his remaining MS courses, and that his $43,200
scholarship debt be mitigated.

3.  As a second alternative, the applicant requests, through counsel,
mitigation of his entire ROTC scholarship debt plus his interest debt.

4.  The applicant states, through counsel, that when he passed the APFT in
the late spring, 2003, he opted to attend the next LDAC.  He had been told
that he could delay LDAC attendance until he had completed his senior year
of college in 2004.

5.  As such, the applicant believes that when he failed the APFT (which was
required for LDAC attendance) he should have been allowed to continue with
his ROTC classes and attend LDAC after graduation.

6.  The applicant attests that his ROTC instructors thought he would make
an excellent officer, so his APFT failure was in no way indicative that he
was a “dud.”

7.  Three months after he failed the APFT, he was diagnosed as having a
pilonidal cyst which was drained.  The surgeon who drained the cyst opined
that it could have adversely affected the applicant’s ability to run.

8.  The applicant contends that his disenrollment from the ROTC, and
recoupment of his scholarship, amounts to his being penalized for having a
medical condition which caused him to fail the run portion of the APFT.

9.  The applicant adds that his APFT failure was not intentional, so he was
erroneously determined to have wilfully evaded his ROTC contract.



10.  The applicant provides eight exhibits which he lists in his
application.  These exhibits include:

      a.  a statement from the applicant in which he reiterates the history
and contentions expressed by his counsel;

      b.  a statement from a physician who states that the applicant saw
him on 21 September 2003.  At that time he diagnosed the applicant as
having a “large, abscessed pilonidal cyst . . . at the base of his spine.”
He continues that “The severity of the infection suggested that the cyst
had been infected for some time, but an exact time frame would be
impossible to give.  Just as patients may experience different levels of
pain or discomfort, the course that these infected cysts may have run vary
widely by patient.”  The physician concludes that “Given [the applicant’s]
condition in September 2003, it is probable that the presence of the cyst
had an impact on his ability to perform physical activity to his fullest
capability during his fitness test in July;” and

      c.  a statement from an officer who was the applicant’s Assistant
Professor of Military Science (APMS).  He states that the applicant’s
attention to detail and level of analysis during the classroom instruction
was impressive.  However, the applicant’s “biggest hurdle was his physical
training.  From what I remember, he had significant problems meeting the
U.S. Army’s minimum standards for the Army Physical Fitness Test.  We had
numerous discussions on the need for him to improve his performance by
putting the necessary time and effort into his preparation.  He seemed
committed to improving when we spoke, but he didn’t seem to follow through
with the necessary work to get better.”  The APMS concluded that “I believe
that if [the applicant] met the necessary physical fitness standards, he
had the potential to be a quality Army ROTC Cadet and Army officer.”

CONSIDERATION OF EVIDENCE:

1.  On 1 June 2001, the applicant signed a DA Form 597-3, Army Senior
Reserve Officers’ Training Corps (ROTC) Scholarship Contract

2.  In paragraph 7 of that contract, it was stated that "I understand and
agree that if I am disenrolled from the ROTC program for:




      a.  Failing to complete the educational requirements specified in
this agreement or other educational requirements for ROTC cadets as
specified in Army Regulations, incorporated herein by reference;

      b.  Failing to comply with other terms and conditions of this
contract;

      c.  Misconduct; and

      d.  Other disenrollment criteria established now or in the future by
Army regulations . . . [If disenrollment under criteria outlined in this
paragraph occur, the Army will] order me to active duty as an enlisted
Soldier for a period of not more than four years or, in lieu of being
ordered to active duty, may require me to reimburse the United States
through repayment of an amount of money, plus interest, equal to the entire
amount of financial assistance paid by the United States for my advanced
education from the commencement of this contractual agreement to the date
of my disenrollment . . .“

3.  Paragraph 1 of the applicant’s DA Form 597-3 stated that: As the ROTC
cadet named above, I hereby agree to do the following:  “ . . . I must meet
the same requirements of the Army Weight Control Program and the Army
Physical Fitness Test as are required of active duty Soldiers prior to the
end of the last school term of my Military Science III year.  These then
become continuous requirements, and I agree to take whatever measures are
necessary continue to meet those standards until the date that I am
appointed as a commissioned officer.”

4.  The applicant’s DA Form 705, Army Physical Fitness Scordcard, shows
that on 23 Jan 2003, he scored 54 points on the run portion of his APFT.
On 6 February 2003, he scored 45 points.  On 24 March 2003, he scored 42
points.  On 1 May 2003, he scored 70 points.  On 3 July 2003, he scored 48
points.  On 7 July 2003, he scored 48 points.  On 9 July 2003, he scored 53
points.

5.  On 10 September 2003, a board of officers was convened to determine
whether the applicant should be disenrolled from the ROTC and, if he was to
be disenrolled, whether his disenrollment constituted willfull evasion of
his ROTC contract.

6.  At the hearing, the applicant was asked the question “On average, how
much physical training did you do on your own between 01 May and 02 July to
prepare for NALC (National Advanced Leadership Camp)?”  He answered “On
average


about once a week.  It was less than normal for a school year, but I was
taking it easy over the summer.”  The applicant was then asked “Why?”  He
replied that “I thought I would be fine for the pre-NALC APFT and I wasn’t
really concerned.  I was reasonably confident that before the Pre-NALC
APFT, I could hit it very hard and then pass and then be sent to camp.”

7.  During the hearing the applicant also acknowledged that he had been
counselled, in writing, that passing the APFT was mandatory and that his
failure to pass the APFT would constitute grounds for disenrollment and
termination of his scholarship.

8.  The board of officers found that the applicant:  Did enter into a valid
SROTC (Senior ROTC) contract; Did breach his ROTC contract by failing to
meet the physical requirements of the contract; Did receive advanced
educational assistance totaling $43,200; And did voluntarily fail to
complete the requirements of his ROTC contract, which constituted a breach
of his ROTC contract.

9.  The board of officers recommended that the applicant:  Not be retained
as a scholarship cadet; Not be retained as a non-scholarship cadet; Be
disenrolled from the ROTC for breach of contract; Be released from his ROTC
contract; Not be ordered to active duty in an enlisted status due to his
poor physical ability as a cadet; And be ordered to repay his advanced
educational assistance received in the form of scholarship benefits
totaling $43,200.

10.  On 7 October 2003, the applicant submitted a rebuttal to the findings
and recommendations of his board of officers.  In that rebuttal, he stated
that he had an abscessed pilonidal cyst drained on 21 September 2003.  He
believed that he had that condition when he failed the APFT and that
condition was the cause for his failure.  He then stated that “Further I
respectfully request that I be allowed to attend Military Science classes
in anticipation of the cancellation of my disenrollment.”

11.  On 20 January 2004, the applicant was notified that he was disenrolled
from the ROTC due to breach of contract based on his failure to pass the
APFT prior to the end of his MS III year.  He was also informed that, as a
result of the disenrollment, he would be required to repay the $43,200
scholarship he had received.




12.  On 20 February 2004, the applicant’s counsel submitted a rebuttal to
his disenrollment.  In that rebuttal, counsel stated that the applicant had
failed the APFT due to a large pilonidal cyst which he had drained on 21
September 2003.  Counsel continued that the applicant was confident that he
would be able to pass the APFT when he recovered from the surgical removal
of the cyst.

13.  On 9 March 2004, the applicant’s counsel was advised that legal
restrictions precluded Cadet Command from waiving properly established debt
for recoupment of scholarship funds arising from breach of the ROTC
contract.  The applicant’s counsel was advised to petition this Board.

14.  Pilonidal dimple is a small pit or sinus in the sacral area at the
very top of the crease between the buttocks.  During adolescence, the
pilonidal dimple or tract may become infected, forming a cyst-like
structure called a pilonidal cyst.  These may require surgical drainage or
total excision to prevent reinfection.  (MEDLINE PLUS)

15.  Field Manual 21-20, Physical Fitness Training, Army Standard, states
that all Army personnel who are not in initial entry training must attain a
minimum score of 60 points per event on the APFT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he would have passed the APFT if it was not
for the abscessed pilonidal cyst he had drained in September 2003.  The
applicant also states that he is confident that he could now pass the APFT.

2.  In this regard, the applicant’s physician stated that the applicant had
a “large, abscessed pilonidal cyst . . . at the base of his spine. . . The
severity of the infection suggested that the cyst had been infected for
some time, but an exact time frame would be impossible to give . . . Given
[the applicant’s] condition in September 2003, it is probable that the
presence of the cyst had an impact on his ability to perform physical
activity to his fullest capability during his fitness test in July.”

3.  MEDLINE PLUS places the location of a pilonidal cyst as the very top of
the crease between the buttocks, not the base of the spine.  As such, it is
not likely that a pilonidal cyst would physically impede a person’s ability
to run.




4.  Also noted in this regard is the applicant’s APFT history.  Out of the
seven APFTs that are recorded, the applicant failed all but one.  During
the applicant’s disenrollment board of officers, the applicant himself
stated that he was taking it easy over the summer and was exercising much
less than usual prior to the APFT in question.

5.  It would appear, therefore, that the applicant’s APFT failure was due
to a lack of time and effort given to exercising, not a medical defect.
This is further supported by the applicant’s APMS’s statement that “We had
numerous discussions on the need for him to improve his performance by
putting the necessary time and effort into his preparation.  He seemed
committed to improving when we spoke, but he didn’t seem to follow through
with the necessary work to get better.”

6.  The applicant contends that since he did not deliberately fail the
APFT, he was not attempting to willfully evade the terms of his ROTC
contract.  However, since the applicant was informed that he must pass the
APFT to maintain his scholarship and to be commissioned, he knew that he
was required to maintain his physical ability to pass the APFT.  His
failure to exercise sufficiently to pass the APFT, as evidenced by his
APMS’s statement and the applicant’s own statement at his disenrollment
hearing, then constitutes a willful evasion of the terms of his ROTC
contract.

7.  The applicant’s contention that he was told he could delay taking the
LDAC after he graduated cannot be proved or disproved.  However, it is not
germane to the case.  In the applicant’s DA Form 597-3 he acknowledged that
“I must meet the same requirements of the Army Weight Control Program and
the Army Physical Fitness Test as are required of active duty Soldiers
prior to the end of the last school term of my Military Science III year.”
Therefore, he was required to pass the APFT during his junior year of
college regardless of whether he delayed taking his LDAC or not.

8.  As such, the evidence supports the findings of the applicant’s
disenrollment board of officers, that the applicant did breach his ROTC
contract by failing to meet the physical requirements of the contract.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___bkk __  ____ji___  ___rjo___  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 Infante_____________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040007310                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050721                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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