RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2005
      DOCKET NUMBER:  AR20040011535


      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. David S. Griffin              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 recoupment action be cancelled
and that his New Specialized Training Assistance Program (STRAP) debt be
forgiven.

2.  The applicant states, in effect, that:

      a.  he joined the U.S. Army Reserves in 1992 as part of the STRAP,
completed his residency from 1992-1996, and in 1997, he did a fellowship in
Sports Medicine;

      b.  he underwent back surgery in February 1997 and in July 1997 he
was unable to pass a physical at the Military Entrance Processing Station
(MEPS) building because of the back surgery;

      c.  he was advised that before he could start his Reserve duty he
must complete his physical.  He was moving to North Carolina so he was told
that he would be contacted by the Army for further instructions;

      d.  he was at no time, between 1997 and 2003, told to drill with any
unit;

      e.  he repeated his physical in North Carolina in 1999 and was told
to wait  and a consult from an orthopedic surgeon would be arranged;

      f.  he corresponded several times with the STRAP manager in 2002
regarding recoupment action and that he informed the STRAP manager about
the medical problems and the lack of a completed physical;

      g.  he was mobilized for Operation Iraqi Freedom in 2003 and received
a physical and a consult by an orthopedic surgeon.  He stated that he was
given a Profile 3 and he was given the option of serving 90 days active
duty or have his records sent to a Medical Evaluation Board (MEB);

      h.  at no time was he told "to go to place 'x' and drill" or given a
person to contact to get further instruction; and

      i.  he has already suffered enough because he lost his medical
practice and lost a net income of $60,000 during his 90 day active duty
period.

3.  The applicant provides a copy of:

      a.  a medical report, dated 21 February 1997, wherein the examiner
states that the applicant's difficulties are related to a large disc
herniation at the L4-L5 which is associated with a neurological deficit.
The examiner further stated that due to the intensity of the applicant's
signs and symptoms and development of neurological changes he recommended
immediate surgery for decompression of the nerve root and excision of the
disc fragment;

      b.  a letter, dated 1 September 1997, from the applicant's insurance
company in response to his application for insurance.  The letter informs
the applicant that his insurance had been issued with an exclusion rider
due to his low back history;

      c.  a memorandum from U.S. Army Reserve Personnel Command (AR-
PERSCOM), dated 1 October 1999, that notified the applicant he was not in a
promotable status because he could not meet current Army Physical Fitness
Test (APFT) standards and he did not possess a current date for maximum
allowable weight for height and weight standards;

      d.  the applicant's letter, dated 6 April 2002, in response to a AR-
PERSCOM  letter, dated 4 March 2002, stating that to the best of his
knowledge he was not physically fit to serve in the Army;

      e.  a letter, dated 24 July 2002, from AR-PERSCOM to the Defense
Military Pay Office requesting the initiation of a recoupment action
against the applicant  due to his violation of his STRAP agreement by
failing to serve satisfactorily in the Selected Reserves.  The debt was
established at $51,457, the amount paid during the Stipend Phase of STRAP
beginning 1 July 1992 through 1 August 1997;

      f.  Headquarters, 81st Regional Support Command, Birmingham, Alabama,
Orders M-080-0001, dated 21 March 2003, ordering the applicant to active
duty for a period of 365 days for mobilization for Operation NOBLE EAGLE.
The applicant was to report on 23 March 2003;

      g.  an undated statement from the applicant that states his medical
condition as of 26 March 2003 and that he has had to limit his medical
practice; and

      h.  a medical consult, dated 6 April 2003, wherein the examiner
stated that the applicant had chronic back pain secondary to L4-S1
degenerative disc disease.  The examiner gave the applicant a P3 profile
for lower extremities and recommended a MEB.
CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was commissioned a
captain in the U.S. Army Reserve (USAR) on 1 July 1992 and signed a legal
and binding STRAP contract with the Army.  The contract states that if the
applicant does not maintain standards of fitness and satisfactory
participation in the assigned Selected Reserves (SELRES) that a recoupment
action will be initiated for the full amount received plus interest.

2.  On 9 April 1996, the applicant requested a deferment for a fellowship
that was granted on 3 May 1996.  This deferment extended his stipend end
date to
1 August 1997.

3.  The records contain a MEPCE-PHI Form 47-R (Applicant Medical Processing
Results), dated 23 July 1997, that showed the applicant's physical
examination was incomplete pending an x-ray and review of additional
records and consults.

4.  The records contain a letter, dated 29 December 1998, from the
applicant to AR-PERSCOM in which the applicant stated he was unable to
perform drill activities due to the condition of his back.  The applicant
also stated that he should be re-examined by an orthopedist or a physician
of the Army's choosing to reassess his profile.  There was no supporting
documentation enclosed with the letter.

5.  On 27 April 2000, the applicant was promoted to major with an effective
date of 1 April 2000.

6.  On 15 October 2000, the applicant requested a review of his reserve
status and requested discharge from the Individual Ready Reserve (IRR).
There was no documentation enclosed in support of his request for
discharge.

7.  On 15 December 2000, AR-PERSCOM notified the applicant that his
assignment in the IRR was in violation of his STRAP agreement.

8.  On 22 January 2001, the applicant was assigned to a Troop Program Unit
(TPU) effective 19 January 2001.

9.  On 4 March 2002, AR-PERSCOM notified the applicant that he was in
violation of his STRAP Agreement due to his failure to participate
satisfactorily in his USAR assignment.  Enclosed with the letter was a
SELRES Election Form containing the applicant's options for fulfilling his
contractual obligation.  In the letter, the applicant was directed to
complete the enclosure and return it to
AR-PERSCOM within 30 days to avoid the initiation of a recoupment action.
10.  On 6 April 2002, the applicant responded to AR-PERSCOM letter of 4
March 2002 with a written statement wherein he stated that he did not sign
the SELRES Election Form because "to the best of my knowledge I am not
physically fit to serve in the army (sic)."  The applicant also stated that
he had back surgery and had a weakness in this left leg.  There was no
medical evidence or documentation submitted with the letter.

11.  On 15 April 2002, the STRAP manager notified the applicant that he
should be boarded for fitness and requested that the applicant forward all
the medical documentation to the STRAP manager.  According to notes, dated
21 May 2002, recorded by the STRAP manager, the applicant failed to respond
to his letter.

12.  On 24 July 2002, AR-PERSCOM requested that the Defense Military Pay
Office initiate recoupment action against the applicant due to his
violation of his STRAP agreement by failing to serve satisfactorily in the
SELRES.  The debt was established at $51,457, the amount paid during the
Stipend Phase of STRAP beginning 1 July 1992 through 1 August 1997.

13.  On 21 March 2003, the applicant was ordered to active duty for a
period
of 365 days for mobilization for Operation NOBLE EAGLE.  The applicant was
to report on 23 March 2003.

14.  In a statement, dated 26 March 2003, the applicant again requested
release from the Army due to his back problems.  There was no documentation
enclosed in support of his request for discharge.

15.  On 23 April 2003, the applicant was given a P3 profile for lower
extremities and recommended for a MEB.

16.  On 4 July 2003, the applicant was released from active duty and
returned to his unit at Fort Bragg, North Carolina, with a narrative reason
of "completion of required active service."  He had completed 3 months and
15 days of active service that was characterized as honorable.

17.  On 15 March 2004, the applicant was notified by a memorandum from
Headquarters, 81st Regional Readiness Command, Birmingham, Alabama, that as
a result of his medical examination he was determined to be medically
disqualified for continued service in the USAR.  The memorandum included an
endorsement to be completed by the applicant indicating his option
regarding his medical disqualification and returned within 30 days.  The
memorandum stated that failure to respond within 30 days could constitute a
waiver of all the applicant's rights and he would be discharged with an
honorable characterization of service.
18.  The records do not contain a copy of the examination, the endorsement,
or the applicant's response.

19.  On 7 June 2004, the applicant was discharged from the USAR with an
honorable discharge.

20.  In a letter, dated 16 September 2004, the applicant stated that the
amount of repayment for the STRAP program was incorrect.  The applicant
stated that he completed 90 days of active duty and was given a profile.
The applicant further stated that upon review of his records by the Army he
was discharged because of medical reasons.

21.  On 31 January 2005, AR-PERSCOM requested that the Defense Military Pay
Office initiate recoupment action against the applicant  due to his
violation of his STRAP agreement by failing to serve satisfactorily in the
Selected Reserves. The debt was established at $39,912, the amount paid
during the Stipend Phase of STRAP beginning 1 July 1992 through 1 August
1997.

22.  In the processing of this case, an advisory opinion was obtained from
Human Resource Command (HRC) (formerly known as AR-PERSCOM).  A copy of
that opinion was provided to the applicant in order to allow him to submit
comment or rebuttal.

23.  According to the opinion, dated, 2 February 2005:

      a.  the applicant signed a legally binding STRAP contract and was
physically qualified at that time;

      b.  the STRAP clearly states the applicant's obligation to serve in a
SELRES unit;

      c.  the contract states that if the applicant does not maintain
standards of fitness and satisfactorily participate in the assigned SELRES
that a recoupment action will be initiated for the full amount of the
stipend received plus interest;

      d.  the applicant requested a deferment for a one year fellowship
which was granted;

      e.  the physical taken by the applicant in July 1997 did not address
a back problem and the STRAP manager was not notified of a problem or that
the physical was incomplete;

      f.  it was the applicant's personal responsibility to follow through
on the completion of his physical.  The STRAP manager did not receive any
notification of a problem until notified by the applicant in December of
1998.  The applicant did not submit any medical documentation;

      g.  the applicant requested a medical discharge in October 2000,
knowing that he had a contractual obligation.  However, no medical
documentation was submitted;

      h.  the applicant was reminded numerous times of his contractual
obligation and in January 2001 the applicant was assigned to a TPU.  At
this time the applicant had 3 years of unsatisfactory participation in the
SELRES.  His physical had still not been completed;

      i.  in October 2001, the applicant again requested discharge without
supporting documentation and without a completed physical;

      j.  over the years the applicant was sent notifications about his
violation of his contract and he was warned several times recoupment action
would be taken if he did not become compliant;

      k.  the applicant was non-responsive to requests by the STRAP manager
for medical documentation and in July 2002 recoupment action was initiated;

      l.  the applicant received a P3 profile after being mobilized in
March of 2003. The applicant sent a note to the STRAP manager wherein he
stated that he had not been drilling because of his back and requested
release from the Army; and

      m.  the applicant was found unfit for duty and was discharged June
2004.

24.  The HRC opined that the applicant only served 90 days of active duty
during his 7 years of obligation time and he consistently failed to follow
the instructions and guidance provided by his STRAP managers and as written
in his STRAP contract.  The HRC further opined that the applicant had
violated his contract and that the recoupment action was initiated 2 years
before any official profile or medical documentation was provided.  HRC
determined that the applicant's recoupment would remain in effect.

25.  On 18 March 2005, the applicant submitted a rebuttal to the HRC
opinion dated 2 February 2005.  In his rebuttal, the applicant stated, in
effect, that:

      a.  his July 1997 physical was incomplete and that he was told he
could request the physical be repeated in North Carolina at a later date.
The applicant stated, in effect, that he did not receive specific
instructions concerning the completion of his physical;

      b.  he did request a discharge for medical reasons and that if
documentation had been requested, it would have been given;

      c.  he was never once asked for supporting documentation concerning
his medical condition.  The applicant stated "I did not think it proper for
me to parade my doctor's review of my back condition to the Army, although
at any time I could have;" and

      d.  because of his 90 days of active duty he lost his practice and
became $20,000 in debt to the Internal Revenue Service with lost revenues
of $30,000 a month.

26.  The applicant also requested that the Defense Finance and Accounting
Service (DFAS) remove from his credit report a report that he was 120 days
late in paying on this debt.  The applicant also requested that the
interest charges be dropped because he is paying on the debt.  The
applicant has not exhausted his administrative remedies concerning these
requests.  The applicant must first contact DFAS and if they are unable to
provide relief he can reapply to the ABCMR.  These issues will not be
discussed further in these Proceedings.

27.  Army Regulation 135-7 states that the purpose of the STRAP is to
provide adequate numbers of commissioned officers who are qualified in
health profession specialties critically needed in wartime.  The STRAP sets
up financial assistance to officers engaged in specialized training in
return for their service in the Ready Reserve.  The amount of financial
assistance an officer may receive while engaged in specialized training is
determined by the service obligation for which the officer contracted on
enrollment in the STRAP and the rate in effect for the fiscal years.  The
rate of assistance under the Armed Forces Health Professions Scholarship
Program is the basis for the amount of monthly stipend under the STRAP.  An
officer who participates in the STRAP incurs an obligation to serve 2 years
in the IRR, or 2 years in the Selected Reserve, as appropriate, for each
year or partial year for which he or she received financial assistance.
Participation in the STRAP will terminate on successful completion of the
specialized training program, if not terminated earlier for failure to meet
or maintain the eligibility requirements for the STRAP.  These requirements
include membership in good standing in the Ready Reserve and attendance in
good standing at the specialized course of training.  A STRAP participant
who fails to complete the specialized training program and is terminated
for failing to maintain eligibility is subject to recoupment of funds paid.

28.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of
Medical Fitness) provides that the basic purpose of the physical profile
serial system is to provide an index to the overall functional capacity of
an individual and is used to assist the unit commander and personnel
officer in their determination of what duty assignments the individual is
capable of performing, and if reclassification action is warranted.  Four
numerical designations (1-4) are used to reflect different levels of
functional capacity in six factors (PULHES): P-physical capacity or
stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-
eyes, and S-psychiatric.  Numerical designator "1" under all factors
indicates that an individual is considered to possess a high level of
medical fitness and, consequently, is medically fit for any military
assignment.  Numerical designators "2" and "3" indicate that an individual
has a medical condition or physical defect which requires certain
restrictions in assignment within which the individual is physically
capable of performing military duty.  The individual should receive
assignments commensurate with his or her functional capacity.  Numerical
designator "4" indicates that an individual has one or more medical
conditions or physical defects of such severity that performance of
military duty must be drastically limited.  The numerical designator "4"
does not necessarily mean that the individual is unfit because of physical
disability as defined in Army Regulation 635-40.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that recoupment action should be cancelled and
that his New Specialized Training Assistance Program (STRAP) debt be
forgiven.

2.  The applicant contends that he was unable to fulfill his STRAP
contractual obligation due to physical disability.

3.  The fact that the applicant requested, and received, a deferment for a
one year fellowship is evidence of the applicant's knowledge of the
contractual requirements.

4.  The completion of the applicant's physical was his personal
responsibility.  There is no evidence that the applicant contacted the
STRAP manager between July 1997 and December 1998.

5.  The applicant was released from active duty due to completion of
required active service.  There is no evidence that the applicant was
separated due to a medical condition.
6.  The applicant consistently failed to follow the instructions and
guidance provided by his STRAP managers and as written in the STRAP
contract.

7.  At the time of the initial recoupment action the applicant had failed
to comply with the obligation portion of his STRAP contract for 5 years.

8.  The initial recoupment action was taken 2 years before the applicant
was found unfit for service.

9.  The applicant failed to keep his status current, failed to keep the
STRAP manager informed of his status, and failed to provide medical
documentation until a recoupment action was filed despite repeated requests
for such documentation.  By his own admission the applicant could have
provided his doctor's review of his back condition to the Army at any time.

10.  The applicant has provided no compelling evidence that the debt was
incurred in error or that it is unjust.  In the absence of such evidence,
there is no basis for granting relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___lmd__  ____reb__  ___lr____  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.





                                  _________Ronald E. Blakely_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011535                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050927                                |
|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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