RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 July 2006
      DOCKET NUMBER:  AR20050011795


      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. Allen L. Raub                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 Reserve Officers’ Training Corps (ROTC)
debt be cancelled.

2.  The applicant states he was wrongfully removed from the ROTC program.
He was never sent to have a medical evaluation in accordance with Army
Regulation 600-9.

3.  The applicant provides three laboratory results (two date reported 19
March 2005 and one date reported 23 March 2005); a Progress Note dated 18
March 2005; and a letter from his physician dated 7 July 2006.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service as a Sergeant, E-5, military
occupational specialty 91B2P (Medical Specialist, airborne qualified), the
applicant entered ROTC on 23 August 2001.

2.  The applicant's ROTC records show that he signed a DA Form 597-3 (Army
Senior Reserve Officers' Training Corps (ROTC) Scholarship Cadet Contract)
on 14 September 2001.

3.  Paragraph 1i of the applicant’s contract stated he understood that he
must maintain eligibility for enrollment in ROTC, enlistment in the U. S.
Army Reserve, and commissioning, as defined by statute, Army regulation,
and the contract, throughout the period of the contract.  He understood
that he 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 his Military Science III year.

4.  Paragraph 7 of the applicant's contract stated he understood that if he
were disenrolled from the ROTC program for failing to complete the
educational requirement specified in the agreement; for failing to comply
with other terms and conditions of the contract; for misconduct; or for
other disenrollment criteria, the Secretary of the Army could order him 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, could require him 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 his advanced education from the commencement of the contractual
agreement to the date of her disenrollment.  He understood he could be
deemed to have failed to comply with the terms and conditions of the
contract (breach of contract) regardless of whether he knew that the
failure violated the contract and regardless of whether the failure was the
result of an act or omission on his part with a specific intent to avoid
responsibilities under the contract.

5.  Paragraph 9 of the applicant's contract stated he understood that if he
were disenrolled from the ROTC program for any reason he could, at the
discretion of the Army, be directed, in lieu of being ordered to active
duty as a private, 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 his advanced education from the
commencement of this contractual agreement to the date of his
disenrollment.

6.  Paragraph 17 of the applicant’s contract stated that the Secretary of
the Army or his designee could release the cadet from the obligations of
the contract when it was in the best interests of the Army.

7.  The applicant’s disenrollment packet was obtained from the U. S. Army
Cadet Command.

8.  A DA Form 5500-R (Body Fat Content Worksheet (Male)) dated 10 March
2003 shows the applicant weighed 201 pounds, was 70 inches tall, and had a
body fat measurement of 22.81 percent (maximum allowable 22 percent).  He
was placed in the Army Weight Control Program.

9.  A DA Form 5500-R dated 5 November 2003 shows the applicant weighed
196 pounds and had a body fat measurement of 21.27 percent (within the
maximum allowable 22 percent).  He was apparently taken out of the Army
Weight Control Program.  A DA Form 4856 (Developmental Counseling Form)
dated 4 December 2003 shows he was found to have a body fat measurement of
22.05 percent.  He was apparently placed back in the Army Weight Control
Program in December 2003.

10.  A DA Form 5500-R dated 21 January 2004 shows the applicant weighed
199 pounds and had a body fat measurement of 23.56 percent (not within the
maximum allowable 22 percent).

11.  A DA Form 5500-R dated 4 February 2004 shows the applicant weighed
198 pounds and had a body fat measurement of 23.56 percent.

12.  A DA Form 5500-R dated 9 April 2004 shows the applicant weighed
201 pounds and had a body fat measurement of 22.81 percent.

13.  A DA Form 5500-R dated 23 April 2004 shows the applicant weighed
196 pounds and had a body fat measurement of 21.27 percent (within the
maximum allowable 22 percent).

14.  A DA Form 5500-R dated 24 June 2004 shows the applicant weighed
199 pounds and had a body fat measurement of 23.56 percent (not within the
maximum allowable 22 percent).

15.  By letter dated 20 August 2004, the applicant informed Lieutenant
Colonel W___ (apparently his Professor of Military Science) that in his
three years at the school [in the ROTC program] he gave 100 percent all of
the time.  He was captain of the Ranger Challenge Team for two years and he
even represented the [ROTC] program at White Sands, NM for the Memorial
Bataan Death March. The applicant stated he always maintained his physical
fitness and provided support to his fellow cadets.

16.  By letter dated 22 September 2004, the applicant was notified his
disenrollment from ROTC was being initiated due to failure to meet the same
requirements of the Army Weight Control Program and the Army Physical
Fitness test as required of active duty Soldiers prior to the end of the
last school term of the Military Science III year.  (His Cadet Record Brief
shows he was disenrolled due to height/weight failure.)  He was informed he
could be called to active duty or repay scholarship benefits in the amount
of $16,597.00 in lieu of being called to active duty.  He was informed he
could dispute that such a debt was owed; however, if he did so, then he had
to elect an appointment of a board or investigating officer.

17.  On 29 September 2004, the applicant waived his right to a hearing and
declined expeditious call to active duty.

18.  On 18 January 2005, the applicant signed an addendum to his contract,
promising to make repayment of the total amount owed, $16,597.00, in
monthly installments, plus interest on the amount owed.

19.  By letter dated 11 April 2005, the applicant informed the U. S. Army
Cadet Command that he was rebutting his disenrollment.  He stated that he
discussed his weight situation with his Military Science III instructor in
August 2004, and he was told that if the ROTC commander had to start the
paperwork he (the commander) would go to the full extent of his control to
reprimand him (the applicant).  That was explained to the applicant as
being put back into the military as a Private.  Since he had already served
5 years on active duty and attained the rank of Sergeant, and since he was
married with two kids and one on the way, that [situation] was unacceptable
to him.
20.  The applicant went on to state that, due to his continued weight gain,
about two weeks previously he went to his doctor and was diagnosed with
hypothyroidism.  He was now on medication for the rest of his life for
health risks and to control weight gain.  Under Army Regulation 600-9, he
should have been sent for a medical examination to determine whether or not
he had a thyroid condition before any adverse actions were taken.  He was
never sent to any kind of medical facility.

21.  The applicant provided three laboratory results.  The laboratory
result concerning his Thyroid panel with TSH (thyroid-stimulating hormone)
produced four test results.  Three of the test results were within normal
limits.  The TSH test result was abnormal.  The applicant provided a
Progress Note dated           18 March 2005.  The Progress Note is
partially illegible but appears to indicate the applicant has a hypothyroid
and was started on a daily medication.  At the request of the Board
analyst, the applicant provided a letter from his physician verifying the
applicant was diagnosed with hypothyroidism and prescribed Synthyroid.

22.  In the processing of this case, an advisory opinion was obtained from
the Deputy Chief of Staff, G-1, U. S. Army Cadet Command.  That office
noted the applicant chose monetary repayment [upon his disenrollment] and a
debt was established.  The Cadet Command Surgeon reviewed the medical
documentation provided by the applicant and determined him to be medically
qualified, since controlled hypothyroidism is not disqualifying.  The
advisory opinion recommended the applicant reimburse the Untied States for
his advanced educational assistance.

23.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He responded by stating that his argument is not
based on the sole fact that he has hypothyroidism.  His argument is based
on the fact regulations were disregarded in the fact that Army Regulation
600-9 guidelines were not followed. The University did not [send him for] a
medical screening to check for hypothyroidism.

24.  The National Institutes of Health internet site Medlineplus.gov
describes hypothyroidism as a condition resulting when the thyroid does not
produce enough hormones, affecting all aspects of one’s metabolism, from
the rate at which the heart beats to how quickly one burns calories.  Over
time, untreated hypothyroidism can cause a number of health problems,
including obesity.

25.  Cadet Command Pamphlet 145-4 (Enrollment, Retention, and Disenrollment
Criteria, Policy, and Procedures), dated 16 October 2000, paragraph 6-12
states if the Cadet Command Surgeon determines that the cadet is medically
disqualified and not eligible for waiver and there is no failure to
disclose, the cadet will be processed for disenrollment.  Cadets
disenrolled for medical disqualification will normally not be ordered to
active duty or recommended for recoupment.

26.  Army Regulation 600-9 (The Army Weight Control Program) states
commanders and supervisors will implement the Army Weight Control Program.
Overweight is defined as when a Soldier’s percent of body fat exceeds the
standard specified in the regulation.  Body fat composition will be
determined for personnel whose body weight exceeds the screening table
weight.  A medical evaluation will be accomplished when requested by the
unit commander or when the Soldier is being considered for separation due
to failure to make satisfactory progress in a weight control program.  If
health care personnel discover no underlying or associated disease process
as the cause of the condition and the individual is classified as
overweight, these facts will be documented.

27.  Sample correspondence for the documentation is provided in Army
Regulation 600-9.  It includes a sample memorandum from the unit commander
to the medical activity requesting a medical evaluation be conducted (in
one instance, for initiation of separation action for failure to make
satisfactory progress in a Weight Control Program).  It also includes a
sample memorandum from health care personnel to the commanding officer
indicating whether or not the overweight condition is or is not due to a
medical condition.

28.  Title 10, U.S. Code, section 2005, provides the law on reimbursement
requirements for educational assistance from the Armed Forces.  It provides
that the Secretary concerned may require any person provided advanced
education assistance to reimburse the United States in an amount that bears
the same ratio to the total cost of advanced education provided.

DISCUSSION AND CONCLUSIONS:

1.  The U. S. Army Cadet Command Surgeon’s opinion that the applicant is
medically qualified, since controlled hypothyroidism is not disqualifying,
has been considered.  It is noted that the applicant has been prescribed
medication for his hypothyroidism.  However, the applicant did not argue
that his condition should have been determined to be medically
disqualifying.

2.  The applicant argued that the provisions of Army Regulation 600-9 were
not followed prior to his being processed for disenrollment.  It appears
his argument has merit.

3.  ROTC cadets are required to meet the Army’s weight control standards as
prescribed, in part, by regulation.  Army Regulation 600-9 is the
regulation that prescribes the procedures and policies governing the Army
Weight Control Program.  It states that a medical evaluation will be
accomplished when the Soldier is being considered for separation due to
failure to make satisfactory progress in a weight control program.  If
health care personnel discover no underlying or associated disease process
as the cause of the condition and the individual is classified as
overweight, these facts will be documented.  The regulation even provides
sample correspondence that will be used to document those facts.

4.  The memorandum that should have been prepared by health care personnel
to indicate whether or not the applicant’s overweight condition was due to
a medical condition was not in the applicant’s Cadet Command files.  The
fact that health care personnel did or did not determine he had a medical
condition that caused his overweight condition was not even mentioned in
his 22 September 2004 notice of disenrollment.  This lends credence to the
applicant’s contention that he was not medically evaluated, as required by
regulation, prior to disenrolling him from ROTC for not meeting weight
control standards.

5.  The applicant has provided evidence to show that he has a medical
condition, hypothyroidism, which causes obesity.  Since it is a condition
that develops over time, he most likely had the condition when he was
processed for disenrollment.  Had he been properly evaluated by medical
personnel prior to initiating disenrollment action, it is likely his
hypothyroidism would have been discovered and he could not have been
disenrolled for failing to meet the Army’s weight control standards.  The
applicant’s disenrollment action was therefore fatally flawed.

6.  It is acknowledged that the applicant waived his right to a board of
officers and he would have needed a board or investigating officer before
he could dispute that a debt was owed.  However, he was not given the
required medical evaluation before disenrollment action was initiated (a
requirement he had no reason to know of, unlike his unit commander and
other disenrollment officials), so he did not know he had a medical
condition that caused his overweight condition.  Therefore, he had no basis
on which to dispute the debt.

7.  Title 10, U.S. Code, section 2005, provides that the Secretary
concerned may require any person provided advanced education assistance to
reimburse the United States in an amount that bears the same ratio to the
total cost of advanced education provided.  The applicant should not be
penalized for failing to dispute the ROTC debt in a timely manner when it
was Government error, in failing to follow regulatory guidance, which
resulted in a failure to reveal that he had a basis on which to dispute
that debt.

BOARD VOTE:

__alr___  __lmd___  __pmt___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined 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 the Secretary of the Army or his designee released the
applicant from his obligations under the ROTC contract, including repayment
of the ROTC debt when his disenrollment from ROTC was approved, pursuant to
paragraph 17 of the scholarship contract, as it was determined to be in the
best interest of the Army.




                                  __Allen L. Raub_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011795                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060725                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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