RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 November 2006
      DOCKET NUMBER:  AR20060003964


      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             |
|     |Ms. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Ms. Alice Muellerweiss            |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 reconsideration to remit his debt for the cost
of his United States Military Academy (USMA) education.

2.  The applicant states that he was separated from the USMA because he
could not pass the running requirement due to Achilles tendonitis and not
due to any misconduct or voluntary failure on his part.

3.  The applicant provides a self-authored letter, dated 24 February 2006,
in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request to remit
his debt based on new argument and evidence.

2.  Counsel states the new evidence the applicant has provided consists of
a detailed letter which sheds new light on the specific matters.  Counsel
continues that the applicant makes a powerful case that his failure to pass
the physical fitness test was solely due to the medical problem of Achilles
tendonitis which is well documented in his military records.

3.  Counsel continues that the applicant points out that his dietician and
his doctor concluded that the "Army's way of calculating body fat
percentages was inaccurate for someone of (his short stocky) body type."
Counsel further states that the new evidence coupled with the original
evidence establishes that his failure to pass the physical tests was
certainly not the result of either a voluntary act or misconduct and thus
recoupment is not justified in light of all the facts now before the Board.

4.  Counsel makes new argument that since their original submission, the
ABCMR has granted full relief to two cases that were virtually identical to
the applicant's case in light of the decisions and that equal protection of
the law calls out for full relief in this case.  Counsel concludes that
equal protection can stand on its own, but in conjunction with the new
evidence from the applicant, it becomes even more compelling because these
three cases absolutely do no involve misconduct or voluntary failure.

5.  Counsel does not provide any additional evidence in support of the
applicant's application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
ABCMR in Docket Number AR20040002098, on 21 July 2005.

2.  On 17 November 1992, the applicant was granted a medical waiver for
admission to West Point noting that he did not wear an "Ortho fixation
device but a heel lift placed in his shoes" for Achilles Tendonitis.

3.  On 28 June 1993, the applicant signed the Oath of Allegiance as a West
Point Cadet.  In paragraph 1b of Statement of Policies, it states that a
cadet who is separated from the USMA because of demonstrated unsuitability,
unfitness, or physical disqualification for military service will be
discharged in accordance with the applicable Army regulations.  Where such
a discharge is cause by voluntary action or misconduct on the part of the
cadet subject to an active duty obligations, the reimbursement provision of
paragraph IIf of the Agreement to Serve will apply.

4.  Paragraph IIf of the Agreement to Serve states, in part, "That if I
voluntarily fail, or because of misconduct fail, to complete the period of
active duty specified in paragraphs IIb, c, d or e above, I will reimburse
the United States in an amount that bears the same ratio to the total cost
of advanced education provided me as the unserved portion of active duty
bears to the total period of active duty I have agreed to serve.

5.  Records show that during the period July 1993 through February 1997,
the applicant was seen by medical officials on several occasions for
Achilles Tendonitis, was placed on temporary profile, and failed several of
the Army Physical Fitness Tests (APFT).

6.  The applicant was enrolled a second time in the Army Weight Control
Program (AWCP) after a Body Fat Worksheet, dated 9 December 1996, showed
that he exceeded the Army's weight standard.  He was notified that
continued failure to make a satisfactory progress would be cause for
separation processing. Between 9 January 1997 and 14 April 1997, he
continued to exceed the Army's weight standard.




7.  On 10 April 1997, the Commandant of Cadets was informed that the
applicant failed to maintain body fat standards within 12 months of his
removal from the AWCP and that he was counseled and assisted on numerous
occasions regarding his fitness and weight control by tactical officers,
the Department of Physical Education, and instructors but had failed five
out of seven APFTs.

8.  On 27 May 1997, the Commandant was informed by the United States Corps
of Cadets (USCC) Surgeon that the applicant was diagnosed with Achilles
Tendonitis at the age of 6 and was given a 1/4 inch heel lift and arch
supports.  The USCC Surgeon continued that the applicant reported
discomfort while wearing the orthotic devices during physical activities;
therefore, he underwent physical therapy in 1996 and in 1997.  The USCC
Surgeon stated that in February 1997, the applicant was given new orthotic
devices.

9.  On 2 June 1997, the USMA Superintendent recommended the applicant's
separation from USMA and discharge from the Army with an Honorable
Discharge Certificate for repeatedly failing to pass the APFT and not
meeting the Army's fitness standards to graduate or to serve as an enlisted
Soldier in accordance with Army Regulation 350-15 (Army Physical Fitness
Program).  The USMA Superintendent also recommended that the Secretary of
the Army initiate recoupment action for the costs of the applicant's USMA
education (approximately $120,000.00).  The applicant submitted statements
on his own behalf.

10.  On 28 August 1998, the USCC, Adjutant notified the applicant that the
Assistant Secretary of the Army (M&RA) approved his discharge effective
14 August 1998 and directed that he repay the cost of his education in the
amount of $121,039.00, in lieu of being called to active duty and that the
recoupment would be initiated by the USMA in conjunction with the Defense
Finance and Accounting Service (DFAS) - Indianapolis.

11.  Headquarters United States Military Academy, West Point, New York
Orders Number 229-16, dated 17 August 1998, discharged the applicant from
the Corps of Cadets, USMA effective 14 August 1998.  Under "Additional
Instructions" it shows the following entries: "(a) Cadet [applicant's name
omitted] departed with pay pending final separation disposition." and "(c)
Under the provisions of U.S.C. Section 2005(a), action will be initiated to
recoup for the cost of USMA education ($121,039)."



12.  The applicant submitted a four-page self-authored letter, dated 24
February 2006, wherein he states that his problems with running started at
a young age.  He stated that throughout his plebe year, he continued to
workout and attempted to improve his running ability; however, could never
really improve.

13.  The applicant stated that during the second year, he failed the APFT
and the obstacle course which were required and was placed on the Cadet
Weight Management Program (CWMP) which included counseling with a
dietician.  He continued that the dietician stated "that the Army way of
determining fat percentages in short stocky males was inaccurate."

14.  The applicant indicated that his file was reviewed by the academic
review board and he was given another chance even though they knew about
his physical fitness scores and being on the weight program throughout his
two years.  He argues that even though he was frustrated and considered
leaving West Point, he decided to remain and pursue the dream of graduating
and becoming an armor officer.

15.  The applicant stated during his junior and senior years, he showed no
progress with the running and was placed on and off the CWMP.  He further
stated he was given a profile due to continued agitation of his Achilles
Tendonitis and that he failed all the fitness tests during his senior year.


16.  The applicant contends that his file was forwarded to the West Point
Flight Surgeon who recommended separation even though his medical condition
was well documented and the he was originally medically disqualified for
admission.  He continued that after the separation from the academy he
enrolled at Iowa State University to complete his degree.

17.  The applicant stated that he has suffered from depression after his
dismissal from the academy; however, he has completed his degree, is
married with three children, and has a successful career.  He continued
that it has been a learning experience which gave him a great leadership
foundation.

18.  The applicant further stated that he had put forth a good faith effort
to achieve the Army's weight and physical fitness standards.  He continued
that after leaving West Point, he joined a gym and is in good physical
shape with his body fat percentage within the guidelines for a healthy
male.



19.  In conclusion, the applicant stated that the academic review board had
the opportunity to separate him when he was a sophomore for failure to
maintain weight and physical standards and the recoupment action would not
have been allowed.  The applicant declared that based on these facts and
coupled with his medical condition, the recoupment of funds for his
education is not warranted.

20.  Army Regulation 210-26 (United States Military Academy) provides
existing direction and guidance from the Secretary of the Army for the
general governance and operating polices of the USMA.  Paragraph 6-25 of
this regulation states that the provisions of Army Regulation 350-41 (Army
Forces Training) pertaining to physical fitness as measured by the Army
Physical Fitness Test are applicable to cadets at the Military Academy.  A
cadet who fails to meet the Army Physical Fitness Test standards and
conditions as outlined in Army Regulation 350-41 may be separated from the
Military Academy.

21.  Paragraph 7-9b of Army Regulation 210-26, in pertinent part, that
cadets separated from the Military Academy under procedures other than in
table 7-1 (Separations deemed to be a breach of service contract) may be
deemed by the Superintendent to have breached their service agreement if
the cadet's failure to meet the standards for continued attendance at the
USMA or for commissioning resulted from a willful act or omission.

22.  Paragraph 7-9c of Army Regulation 210-26 states, in pertinent part,
that if the Secretary determines that such active duty service is not in
the best interests of the Army, the cadet will be considered to have failed
to complete the period of active duty and may be required to reimburse the
government for educational costs.

23.  Section 2005 (a) of Title 10, United States Code, states, in pertinent
part, that if such person, voluntarily fails to complete the period of
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 bears the same ration 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration to remit his debt for the cost
of his United States Military Academy education.

2.  The facts of this case show the applicant's separation from the USMA
was accomplished in accordance with applicable law and regulation and that
his rights were fully protected throughout the separation process.

3.  Evidence shows that when the applicant accepted his appointment at the
USMA, he understood and acknowledged with his signature that if he breached
his service agreement and not ordered to active duty, he would reimburse
the United States in an amount that bears the same ratio to the total cost
of advanced education provided to him.

4.  Evidence of records show that the applicant did not perform the
required active duty service per his USMA agreement.  Therefore, in
accordance with governing regulations, the applicant is responsible for
repayment of the cost of his USMA education.

5.  The applicant's counsel contends that the ABCMR has granted relief to
two other cases that were "virtually identical to this case."  The ABCMR
reviews each case individually and is presented before the Board based on
its own merit and evidence presented.  There are no cases that set the
standards on how the Board should always vote.

6.  Based on the foregoing, there is no basis to grant relief requested in
this case.

7.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit new evidence that would satisfy this requirement regarding his
request to remit his debt for advance education.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_AM____  _DLL___  _WFC____  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 to amend the decision of
the ABCMR set forth in Docket Number AR20040002098, dated 21 July 2005.




                                      _William F. Crain___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003964                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  24   |104.0000.0000                           |
|2.  293                 |128.1000.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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