RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 December 2005
      DOCKET NUMBER:  AR20040011234


      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. Robert J. McGowan             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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 his educational assistance debt in the amount of
$101,878.00 be forgiven and the recoupment action cancelled.

2.  The applicant states he did not voluntarily, or through misconduct,
fail to graduate from the US Military Academy (USMA), West Point, New York.

3.  The applicant provides documents related to his attendance at the USMA
from June 1997 to March 2001.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel's request is as stated above by the applicant.  Counsel further
requests unspecified attorney fees.

2.  Counsel states, in effect, the applicant did not voluntarily breach his
contract with the USMA.  The applicant demonstrated a history of failure to
satisfactorily complete the timed, 2-mile run during the Army Physical
Fitness Test (APFT).  He also demonstrated a good-faith effort to complete
the 2-mile run, but simply could not meet the standard.

3.  Counsel cites 10 U.S.C. 2005, subsection (a)(3) which states: "…that if
such person, voluntarily or because of misconduct, fails to complete the
period of active duty specified in the agreement, or fails to fulfill any
term or condition [as the Secretary concerned may prescribe to protect the
interest of the United States], such person will reimburse the United
States in an amount that bears 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…."

4.  Counsel also states legal precedent and previous action by the Army
Board for Correction of Military Records (ABCMR) support granting the
relief requested by the applicant.

5.  Counsel provides, in addition to USMA attendance document, the decision
in United States v. Gears, 835 F. Supp. 1093 (ND. Ind. 1993), and ABCMR
Record of Proceedings AR2003094057, 4 August 2004.

6.  Counsel provides:

      a.  Portions of the applicant's USMA records.

      b.  An 11 October 2004 letter from the National Personnel Records
Center (NPRC), St. Louis, Missouri stating the applicant's records could
not be located.

      c.  An 18 October 2004 NPRC letter stating that the US Army Human
Resources Command (HRC), St. Louis, Missouri may have records pertaining to
the applicant.

      d.  A 7 May 2004 letter from counsel to the Defense Finance and
Accounting Service (DFAS), Denver, Colorado disputing the applicant's debt.

      e.  A 24 May 2004 letter from counsel to Headquarters, Department of
the Army (HQDA), Office of the Deputy Chief of Staff, G-1 requesting
reconsideration of the Army's decision to separate the applicant from the
USMA.

      f.  A copy of United States v. Gears and the keycite to United States
v. Gears.


      g.  A 15 December 2000 memorandum from the applicant's USMA tactical
officer recommending recoupment action not be taken against the applicant.

      h.  A copy of an undated, unaddressed letter written by the
applicant.  The letter appears to be directed to the Army Regulation (AR)
15-6 investigating officer (IO) conducting an investigation to determine
whether recoupment action should be initiated against the applicant.

      i.  A copy of Army Board for Correction of Military Records (ABCMR)
Record of Proceedings Docket Number AR2003094057 wherein a former USMA
cadet was relieved of his scholarship debt caused by recoupment action.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s cadet records are not available to the Board.  This
case is being considered using only those records provided by the applicant
and his counsel.

2.  The applicant entered the USMA as a cadet on 30 June 1997 as a member
of the Class of 2001.  At that time, he signed an Oath of Allegiance and
Agreement to Serve.  Also at that time, he was 69 inches tall and weighed
over 200 pounds. Army standards permitted a maximum weight of 175 pounds or
a body fat level of not more than 20 percent.

3.  During his plebe year (freshman year, 1997-1998), the applicant was a
member of the football and strength (weightlifting) teams.  Although he
participated in Corps athletics, he was not a good runner and never passed
the 2-mile run during his plebe year.  However by his own admission, he did
pass the run portion of the APFT during a 90 day (3rd) retest in the Fall
Semester of his yearling year (sophomore year, 1998-1999).  His early
scores for the 2-mile run are not part of the record; however, a passing
score would have been 15:54 minutes or less.

4.  On 16 January 1998, the applicant received a memorandum counseling him
on his weight.  At that time, his weight was 211 pounds and his body fat
composition was 19.23 percent, within 2 percent of the maximum allowable
body fat content of 20 percent.  The memorandum cautioned the applicant to
control his weight or he would be enrolled in the Army Weight Control
Program (AWCP).

5.  The applicant did not participate in varsity athletics after his plebe
year.  By his own admission, he gained 40 pounds [to 250 pounds?] and his
recorded times in the 2-mile run worsened.  During his yearling year and
cow year (junior year, 1999-2000), the applicant was counseled and placed
in the Army Weight Control Program and in a remedial physical training
program.  Evidence of record shows the applicant worked at losing weight
and improving his running.  He lost considerable weight and reduced his
time in the 2-mile run event.  Records show the following test scores for
the 2-mile run during his yearling and cow years:  1 October 1999,
19:00 minutes; 19 November 1999, 17:13 minutes; 10 December 1999,
16:45 minutes; 21 January 2000, 16:25 minutes; 1 March 2000, 16:07 minutes.

6.  On 9 March 2000 following his 1 March 2000 APFT failure, the
applicant's tactical officer, an Army Captain, recommended his separation
from the USMA.  The tactical officer stated he provided the applicant
"additional time" because he showed signs of improving his run time.
However, the tactical officer came to realize the applicant would never
achieve the minimum standard and would fail the APFT in the Army if
appointed a Second Lieutenant.

7.  On 1 April 2000, the applicant was notified by memorandum that he would
be retested in the 2-mile run event on 28 April 2000.  He acknowledged
notification on 3 April 2000.  There is no record of the retest.

8.  On 12 April 2000, the applicant was notified that he was being
considered for separation from the USMA for failing to meet age and gender
specific minimums in the APFT.  On 6 November 2000, he was notified that an
investigating officer (IO) had been appointed pursuant to Army Regulation
(AR) 15-6 to investigate recoupment of his debt owed for educational costs.
 The debt was established at $101,878.00 for 3 years of schooling (plebe
through cow years).

9.  In a memorandum dated 15 December 2000, the applicant's tactical
officer recommended the applicant not be required to repay his educational
costs.  He stated that recoupment was normally sought against cadets who
willfully fail the APFT.  He said that the applicant tried very hard to
succeed, worked out on his own, participated in remedial physical training,
but simply was not a good runner. He said the applicant excelled in all
other aspects of cadet life, including being on the Dean's List for
academics, and participating in intramural athletics.

10.  On 1 March 2001, the AR 15-6 IO commenced a session at the USMA at
which he found:  the applicant's debt was "rationally based;" he signed an
agreement acknowledging he would incur a debt should he not complete his
education and agree to serve; and he failed to meet the terms of his
agreement.  The IO acknowledged the legal issue of voluntariness, but
stated it was outside the scope of his investigation.  The IO recommended
the applicant reimburse the United States the sum of $101,878.00 for
educational costs provided while attending the USMA.

11.  The AR 15-6 recommendation was accepted and the recoupment action was
forwarded to HQDA for final approval.  On 19 March 2001, the Acting
Secretary of the Army approved the applicant's separation from the USMA and
discharged him from the Army with an Honorable Discharge.  He was not
ordered to active duty or transferred to the US Army Reserve.  Recoupment
of his educational costs was directed.

12.  In similar cases, the USMA has opined that failure to meet physical
fitness standards did not permit graduation and constituted a breach of a
cadet's service agreement.  It was immaterial whether the failure was or
was not intentional or willful.  Failing to meet minimum fitness standards
necessary to serve as a Soldier breached the service agreement and required
recoupment of the costs of education pursuant to 10 U. S. C. 2005.

13.  In a similar case, an advisory opinion obtained from HQDA, Deputy
Chief of Staff, G-1 noted that the USMA affords cadets numerous
opportunities to pass the APFT and goes to great lengths to support cadets
to allow personal training to improve physical fitness.  The opinion added
that USMA cadets incur a military service obligation after starting classes
in their cow year.  Normally, cadets separated from the USMA after
incurring such an obligation are ordered to active duty as an enlisted
Soldier for two or three years to fulfill their obligation.  When cadets
cannot meet the minimum fitness standards necessary to serve as an enlisted
Soldier, they are normally required to repay the cost of education.
Failure to meet physical fitness standards constitutes a breach of a
cadet's service agreement.  A finding of voluntary conduct or misconduct is
not a predicate to recoupment when a cadet has breached his service
agreement by repeatedly failing the APFT.

14.  Title 10, U. S. Code, section 2005 reads in part:

      (a)(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 [other such
terms and conditions as the Secretary concerned may prescribe to protect
the interest of the United States], 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.

15.  Senate Report Number 96-850, 16 July 1980, noted that the purpose of
the legislation to add section 2005 to Title 10, U. S. Code was to
authorize the Secretary concerned to require an applicant for certain
advanced education sponsored by the Armed Forces to agree in writing to
serve on active duty for a specified period or reimburse the United States
for the cost of the education.  It noted that it was not the intent of the
proposed legislation to include situations where an individual was
discharged or his education was terminated because of academic failure not
deemed willful on the part of the individual, failure to meet physical
standards, or hardship.

16.  Senate Report Number 96-850 went on to note that the Secretary
concerned lacked the authority to recover, in whole or in part, the expense
of the education received by a person who failed to complete his course of
education or his active duty obligation.  That had led to situations in
which the United States did not receive a fair return on its investment.
Several examples were given, including:
A cadet or midshipman at a service academy, or enrolled in a Reserve
Officers' Training Program who, after completing a portion of his education
(which would be creditable toward a degree in another educational
institution) failed to complete his education for reasons not due to the
fault of the United States.

17.  United States v. Gears, 835 F. Supp. 1093 (N.D. Ind. 1993) involved a
midshipman who was recommended for disenrollment from the Naval Academy
because of his non-compliance with the Naval Academy's weight standards,
his inability to meet the Academy's minimum physical education
requirements, and his inability to conform to the Academy's physical
fitness standard.  He was discharged and reimbursement was demanded.

18.  The Court discussion of the case noted that neither Title 10, U. S.
Code, section 2005(a)(3) nor Mr. Gears' agreement called for reimbursement
of educational expenses based simply upon the failure to complete the
course of study at the Naval Academy.  His discharge from the Naval Academy
was not at issue; his obligation to reimburse turned on his discharge from
the service.

19.  Mr. Gears had argued that he did not fail to complete his period of
active duty because the Secretary of the Navy denied him the opportunity to
do so.  He maintained that to gain the benefit of the reimbursement
provisions of section 2005(a)(3), the Secretary must assign a "disenrolled"
Academy midshipman to active duty.  The Court noted there was only one
reported case to have interpreted section 2005(a)(3).  In that case, an Air
Force Academy cadet was denied active duty because he was disenrolled for
misconduct.  That cadet had argued that reimbursement should not be
required because he was eligible for enlistment at the time the Secretary
of the Air Force determined he should be discharged.  In the Air Force
Academy case, the Court found that the reimbursement provision was
triggered in cases where the nature of the cadet's misconduct acts as a bar
to enlistment and renders him ineligible to serve on active duty.  The
Secretary's policy to require reimbursement when he or she reasonably
believes a separated cadet was ineligible to fulfill the active duty
service commitment was also consistent with the intent of Congress when
section 2005 was added.

20.  The Court in the Gears case found the reasoning in the Air Force
Academy case to be persuasive even if not binding.  Congress could not have
intended that persons deemed unfit for military service be placed briefly
into the armed forces only as a prelude to discharge and reimbursement.
The Court was not
persuaded that Congress, by making that point explicit with respect to
Reserve Officers' Training Corps students, intended a contrary result with
respect to students at the military academies.

21.  Mr. Gears next challenged the Secretary of the Navy's decision on the
ground it was arbitrary and capricious.  Mr. Gears conceded that he did not
meet the Naval Academy's physical standards for midshipmen, but he met the
Navy's physical standards for enlisted men, which were lower than Naval
Academy requirements.  The Court noted that Mr. Gears had the right to
submit a "show cause statement" to the Secretary of the Navy.  The fact he
failed to do so because he claimed such an act would be futile was not a
defense because he presented no evidence that the Secretary would not have
considered the show cause statement before making a decision.  The Court
found that the Government had proved the first element for recovery of
educational expenses; i.e., Mr. Gears failed to complete the period of
active duty specified in his Agreement with the Navy.

22.  The Court noted that the second element for recovery under section
2005(a)(3) required the Government to prove either that Mr. Gears
voluntarily failed to complete his period of active duty or that his
failure to complete his period of active duty was because of misconduct.
The Court found that the Government had not satisfied that burden.

23.  The Court believed that the phrase "voluntarily…fails to complete the
period of active duty" required, at the least, either an intent to produce
a separation from the service or an awareness that a chosen course of
conduct would produce such a result.  The Court found that nothing in the
record indicated that Mr. Gears knew his weight threatened his active
service as well as his commission.

24.  The Court also found that no misconduct on the part of Mr. Gears had
taken place.  Mr. Gears had sought an award of attorney fees, contending
that the suit was not substantially justified.  The Court disagreed and
believed that the Government's action was substantially justified.  The
Court noted that Mr. Gears' case ultimately turned on a question of
statutory interpretation, with both parties presenting reasonable
interpretations of the law, and the law as applied to the facts.  Although
the Court decided in Mr. Gears' favor, it was a close decision.

25.  Field Manual (FM) 21-20 (Physical Fitness Training) provides
guidelines for developing programs to improve and maintain physical fitness
levels for all Army personnel in order to prepare Soldiers to meet the
physical demands of war.
Chapter 14 outlines the events that comprise the APFT and establishes age-
related requirements.  Soldiers 17-20 years of age must complete the 2-mile
run in 15 minutes, 54 seconds or less to receive a passing score.

DISCUSSION AND CONCLUSIONS:

1.  The record shows that the applicant was 69 inches tall and weighed more
than 200 pounds when he entered the USMA.  It shows that he participated in
the varsity football and weightlifting programs during his plebe [freshman]
year at the USMA.  The applicant did not participate in intercollegiate
athletics after his plebe year.

2.  The record also shows that the applicant's weight became an issue.  In
January 1998, his weight was 211 pounds and he was cautioned that his body
fat content was approaching the maximum allowable 20 percent.

3.  The applicant admits that he passed the APFT 2-mile run in the fall of
1998; that means he ran 2 miles in 15:54 minutes or better.  He admits he
gained approximately 40 pounds and thereafter had serious problem passing
the 2-mile run event in the APFT.

4.  The record shows the applicant made an effort to pass the 2-mile run
event.  He lost weight; he worked out; he did formal remedial physical
training; and he trained on his own time.  He never passed the 2-mile run
event, but his times steadily improved from 19:00 minutes to 16:07 minutes.

5.  The applicant had an obligation to fulfill the terms and conditions of
his service agreement and not voluntarily breach any terms or conditions.
This agreement extended to such areas as physical fitness standards and
testing.  Cadets have a responsibility to adhere to weight and fitness
standards.  For the applicant, that meant maintaining his weight at 175
pounds or less and running 2 miles in a time of 15:54 minutes or less.

6.  The applicant's weight gain may be viewed as directly contributing to
his troubles in achieving a passing time in the 2-mile run event of the
APFT.  Indeed, he passed the test in the fall of 1998, before his rapid
weight gain.  When he weighed a maximum of approximately 250 pounds, his
run time was a maximum of 19:00 minutes.  When his weight dropped, his run
time dropped to 16:07 minutes.

7.  Had the applicant maintained the Army's weight standard, it could be
argued he would have passed the 2-mile run event.  There is no evidence the
applicant had a medical condition that caused him to gain weight;
therefore, it may be assumed he gained weight through his eating habits – a
voluntary action.  On
16 January 1998, the applicant was warned that his failure to control his
weight could result in his separation from the USMA.  Thus, he had an
awareness that a chosen course of conduct – not maintaining the proper
weight – would produce such a result [separation].  Therefore GEARS does
not apply.

8.  AR 15-185 (Army Board for Correction of Military Records) prescribes
the policies and procedures for correction of military records by the
Secretary of the Army, acting through the Army Board for Correction of
Military Records (ABCMR).  Paragraph 3-3 states, "The Army may not pay
attorney's fees or other expenses incurred by or on behalf of an applicant
in connection with an application for correction of military records under
10 U.S.C. 1552."

BOARD VOTE:

__tsk___  __rld___  __jbm___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board
determined during their review that the evidence presented was sufficient
to warrant a recommendation for relief.  As a result, the Board recommends
that all department of the Army records of the individual concerned be
corrected by showing that, on 19 March 2001, the Assistant Secretary of the
Army (M&RA) approved the recommendation to separate him from the USMA and
discharge him from the Army with an honorable discharge, not due to a
volitional act or act of misconduct on his part, and that no action would
be taken to recoup any amount of the cost of his USMA education.


                                        Ted S. Kanamine
                                  ______________________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011234                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051222                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.1000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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