RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 October 2006
      DOCKET NUMBER:  AR20060004693


      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. Dean L. Turnbull              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 his record be corrected from
showing that he was disenrolled from the Reserve Officer Training Corps
(ROTC) for failing the Army Physical Fitness Test (APFT) to showing he was
disenrolled due to medical injury.  He also requests that he not be charged
for tuition payments.

2.  The applicant states, in effect, that he injured his knee while
training at the National Advanced Leadership Camp (NALC).  The injury to
the Medial Meniscus of his right knee occurred on 26 June 2003.  He states
that before his injury, he passed the APFT in a capable fashion.  He states
that he received surgery on  
26 October 2005 for both Medial Meniscus and Anterior Cruciate Ligament
(ACL), and as a result it affected his physical performance and he was
placed on a profile.

3.  The applicant provides a copy of a self-authored letter dated 28 March
2006 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s case is being considered using reconstructed records
consisting of the following documents:  ROTC Scholarship Contract (DA Form
597-3); Headquarters, Sixth Brigade Eastern Region, United States Army
Cadet Command (USACC), Professor of Military Science Letter, dated 9
December 2004; DA Form 5315-E (US Army Advanced Educational Financial
Assistance Record); Headquarters, USACC Advisory Opinion letter, Fort
Monroe, Virginia, dated 26 April 2005; Headquarters, USACC Commanding
General letter, Fort Monroe, Virginia, dated 3 May 2005; and Addendum to
part I Scholarship Contractual Agreement, dated 27 May 2005.

2.  On 26 August 2002, the applicant entered into an ROTC Scholarship Cadet
Contract (DA Form 597-3).  He enlisted in the United States Army Reserve
(USAR) as a cadet in order to become a member of the ROTC program at the
University of Tampa, Tampa, Florida.  He agreed to remain enrolled in and
successfully complete the ROTC program, including ROTC Advanced Camp and
all training as prescribed by The Secretary of the Army.

3.  The applicant's DA Form 597-3 shows the applicant agreed that if he
were disenrolled from the ROTC program for any reason he could be ordered
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, he could be required to
reimburse the Government 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
his disenrollment.

4.  Records from Madigan Army Medical Center show that he received follow
up treatment for the injury to his right knee, dated 26 June 2003.
However, the record does not show any entry for a temporary or permanent
profile.

5.  The letter from the Professor of Military Science, dated 9 December  
2004, notified the applicant he was being considered for disenrollment from
the ROTC program due to indifferent attitude and lack of interest in the
military training as a result of failure to pass the required APFT.  The
applicant was given the opportunity to request a hearing by a board of
officers or investigating officer; however, on 29 March 2005, the applicant
waived his right to a hearing and elected to decline an expeditious call to
active duty.  On 3 May 2005, the applicant was disenrolled from the ROTC
program under the provisions of Army Regulation 145-1 (Reserve Officers'
Training Corps-Senior Reserve Officers' Training Corps), paragraph 3-43a
(15) and (16).

6.  In the addendum to part I of the applicant's scholarship contract,
signed and dated 27 May 2005, the applicant acknowledged disenrollment and
elected to fulfill his contractual obligation by repaying the total amount
owed, $32,200.00, in monthly installments, plus interest on the amount
owed, as specified in his scholarship contract.

7.  A letter from USACC, dated 2 December 2005, shows that the applicant
submitted an appeal, dated 1 December 2005, concerning his disenrollment
from the ROTC program and repayment of the scholarship funds expended on
his behalf by the U.S. Army.  However, legal restrictions preclude the
USACC from granting a waiver of a properly established debt for recoupment
of scholarship funds arising from breach of his ROTC contract.

8.  A copy of his "Patient Product Agreement" dated 26 October 2005 from
the Florida Orthopedic Institute, shows the applicant had a procedure done
on his right knee to correct his ACL.

9.  During the processing of this case, an advisory opinion was obtained
from Headquarters, USACC, dated 26 April 2006.  This official stated that
the terms of a scholarship contract require that a cadet either repay the
debt monetarily or agree to be ordered to active duty through ROTC channels
based on the needs of the Army.

10.  The USACC official further stated that after being disenrolled from
the ROTC program for breach of contract, the applicant was offered the
options available to him on 9 December 2004, and that he waived his rights
to a formal hearing instead of presenting evidence to support his medical
condition.  The USACC official indicated that the applicant would be
released to his Army National Guard unit and was offered the option of
monetary payback.  The USACC further indicated that, although the applicant
was injured at Fort Lewis in June 2003 and diagnosed with a knee sprain,
the applicant passed the APFT on 22 April 2004.  The applicant failed two
APFTs, one in October and one in November 2004, and was disenrolled for
that reason.  The applicant did not submit additional medical records that
would indicate a medical condition at the time of his APFT failures.
Although the applicant noted that he had an anterior cruciate ligament
repair in October 2005, he did not provide any surgical records throughout
the disenrollment and appeal process.  The applicant's decision to breach
the terms of his ROTC contract was a voluntary action, and the
recommendation of the USACC was for him to reimburse the United States for
$32,200.00 advanced educational assistance and that the disenrollment
reason, APFT failure, remain unchanged.

11.  On 10 May 2006, the applicant was provided a copy of the advisory
opinion for information and possible rebuttal.  On 16 June 2006, the
applicant faxed an unsigned response to the advisory opinion.  Although he
responded, he did not provide any additional documentation or argument, as
his response was identical to the letter dated 28 March 2006 that he
submitted with his application.

12.  Paragraph 3-43a (15) and (16) of Army Regulation 145-1, provides that
indifferent attitude or lack of interest in military training is defined as
frequent absences from military science classes or drill, an established
pattern of shirking, failure to successfully complete an established weight
control program, or similar acts.  A breach of contract is defined as any
act, performance or nonperformance on the part of a student that breaches
the terms of the contract regardless of whether the act, performance or
nonperformance was done with specific intent to breach the contract or
whether the student knew that the act, performance or nonperformance
breaches the contract.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his record be corrected from showing that
he was disenrolled from the ROTC for failing the APFT to showing he was
disenrolled due to medical injury.  He also requests that he not be charged
for tuition payments.

2.  As confirmed in the USACC advisory opinion, the applicant failed to
meet the APFT standards required by his Army ROTC contract.  Therefore, he
breached the terms of his ROTC scholarship contract.  While the applicant
injured his knee during ROTC training, he subsequently passed an APFT.  As
such, the applicant's contention that his knee injury caused his APFT
failure is not accepted.

3.  If the applicant was given a profile during the time of his APFT, it
would have listed his physical limitations and provided a list of alternate
APFT events.

4.  His surgery to his right knee for ACL came after his disenrollment from
the Army ROTC program.  Therefore, the surgery to his knee after the fact
has no bearing on this case.

5.  The evidence of record confirms that the applicant was accepted into an
Army ROTC scholarship program and that he failed to satisfy the contractual
requirements of this program.  At the time he breached the contract, the
applicant was offered the opportunity to be ordered to active duty in lieu
of repaying the debt, but he failed to elect this option, which could have
resulted in him avoiding the current debt to the Government.

6.  The applicant has failed to provide any evidence or argument that shows
that there was an error or injustice related to his disenrollment from the
Army ROTC for breach of contract or to him being required to repay the
scholarship money he received based on his Army ROTC contractual
obligation.

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 evidence that would satisfy this requirement.  Therefore, he is not
entitled to correction of his records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____pbf _  ___rch___  ___jtm__  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 T. Meixell___________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004693                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061017                                |
|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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