RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060006748


	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.  



Acting Director



Analyst


The following members, a quorum, were present:


Chairperson


Member


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 she be allowed to withdraw her resignation in lieu of elimination or, in the alternative, be relieved of any recoupment action for prior educational benefits as a Reserve Officer's Training Corps (ROTC) scholarship recipient.

2.  The applicant states she was notified by her superior that she would be processed for involuntary separation for failure to progress in rank from Second Lieutenant to First Lieutenant.  In lieu of involuntary separation, she offered her resignation, only to find out after the fact, she would be required to repay a prorated share of her ROTC scholarship money.

3.  The applicant states she attempted to withdraw her resignation, but was informed by the US Army Human Resources Command (HRC), Alexandria, VA that her request to withdraw her resignation was denied.

4.  The applicant further states she is an Army nurse and:

	a.  She was not promoted to First Lieutenant because she did not meet Army height/weight and physical fitness standards, but would be given until 1 December 2005 to meet standards.

	b.  She was informed in May 2005 that she was pregnant with her first child, with a delivery date of 30 December 2005.  Knowing this, her superior told her she could not hope to meet standards and would be processed for immediate elimination.

	c.  She sought early release in order to facilitate her chances for civilian employment before she was too far along in her pregnancy.  Her request for early release was denied.

	d.  In a September 2005 meeting with her chain of command and her supervisory nursing chain.  She states she was told her separation would not warrant penalties (e.g., scholarship recoupment), and would include transition insurance, separation pay, and permissive temporary duty (TDY).

	e.  She received her separation packet on 11 December 2005 and was received for legal counseling.  Her legal counsel told her "if that is what they [chain of command] said [would happen] then it probably is what will happen."  Counsel advised her about the separation process and of the opportunity to resign in lieu of separation.
	f.  She submitted her resignation and then found out about the recoupment of scholarship monies.

5.  The applicant provides:

	a.  A memorandum to the Army Board for Correction of Military Records (ABCMR), dated 5 May 2006.

	b.  A memorandum, dated 16 February 2006, in which she offers her resignation in lieu of elimination proceedings; she acknowledges her rights; and acknowledges she may be required to repay educational benefits.

	c.  DA Form 4856 (Developmental Counseling Form), dated 24 February 2006, informing her that her resignation has been approved and that she will be required to repay $38,622.00 in educational benefits on a prorated basis.

	d.  Discharge orders – Orders 068-0353, Headquarters, US Army Maneuver Support Center and Fort Leonard Wood, Fort Leonard Wood, MO, dated 9 March 2006.

	e.  A 14 March 2006 memorandum attempting to rescind her resignation.

	f.  A 31 March 2006 memorandum attempting to rescind her resignation and arguing against recoupment of her educational benefits.

	g.  Electronic mail (email), dated 24 April 2006, seeking to obtain an extension on active duty.

	h.  Emails from her chain of command attempting to keep her on active duty.

	i.  Initiation of Elimination action, dated 12 December 2005

	j.  Memorandum in support of rescission of resignation, dated 12 April 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a Military Science IV (MS-IV) ROTC scholarship student in the School of Nursing at Radford University, Radford, VA.  She incurred a 4-year active duty service obligation (ADSO) in return for receipt of a $38,622.00 scholarship.
2.  The applicant graduated from Nursing School and was appointed as a Second Lieutenant, Army Nurse Corps, with a date of rank of 3 May 2002.  She entered on active duty on 23 January 2003 and had an ADSO of 4 years.  She should have been promoted to First Lieutenant in November 2003.

3.  The applicant's Officer Evaluation Reports (OER) provide her height and weight, and indicate whether she passed or failed her Army Physical Fitness Test (APFT).  The applicant is 5 feet, 5 inches tall.  In October 2003, she weighed 171 pounds; in June 2004, she weighed 190 pounds; and in December 2004, she weighed 198 pounds.  She passed one APFT and failed two tests, including her last test.  Because of her weight and fitness problems, she was not promoted.

4.  As a result of her failure to gain promotion, the applicant's chain of command, on 12 December 2005, initiated elimination action against her.  The applicant was afforded, and accepted, legal counseling from a Judge Advocate officer with TDS.  The elimination process was explained to her, as were her options.  She was also informed that she may be required to repay any educational assistance provided her.  Following counseling, she elected to submit a request for resignation in lieu of elimination.  She contends she was told she would not have to repay any educational assistance provided her.

5.  The applicant's request was accepted and she was notified in writing that she would be subject to a prorated recoupment action for the $38,622.00 she received as an ROTC scholarship student.  She immediately attempted to withdraw her request, but was unsuccessful.  On 25 May 2006, she was discharged after serving 3 years, 4 months, and 3 days of her 4-year ADSO.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Retirements and Separations, HRC-Alexandria which recommends denial of the applicant's request.  The opinion points out the applicant was overweight and could not pass an APFT.  When her command initiated elimination proceedings, she requested resignation in lieu of elimination.  In her signed request, she stated, "I understand that if I participated in certain education programs, I may be required to reimburse the United States Government as stated in written agreement made by me with the United States Government under law and regulation."  The opinion also states it would be unfair to others who were made to repay educational assistance to allow the applicant to avoid repayment.


7.  The applicant was provided an opportunity to respond to the advisory opinion and did so by memorandum dated 11 July 2006.  She stated the language "may be required to reimburse the US Government" was merely pro forma and did not mean she would actually have to do it.  She also argued that each case should be judged on its own merits, and she should not be required to make reimbursement because someone else had to do so.

8.  Army Regulation (AR) 600-9 establishes policies and procedures for the implementation of the Army Weight Control Program (AWCP).  It states that commanders and supervisors will monitor all members of their command (officers, warrant officers, and enlisted personnel) to ensure that they maintain proper weight, body composition, and personal appearance.  At a minimum, personnel will be weighed when they take the APFT or at least every 6 months.  Soldiers may be weighed immediately before or after they take the APFT.  Personnel exceeding the screening table weight or identified by the commander or supervisor for a special evaluation will have a determination made of percent body fat.  Identification and counseling of overweight personnel are required.  The maximum allowable weight for the applicant was 152 pounds.

9.  AR 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions.  This regulation supports the objectives of the Army's officer promotion system, which include filling authorized spaces with the best qualified officers.  It also provides for career progression based upon recognition of an officer's potential to serve in positions of increased responsibility.  Additionally, it precludes promoting the officer who is not eligible or becomes disqualified, thus providing an equitable system for all officers.  It states that officers who do not meet AWCP standards or pass the APFT will not be promoted.

10.  AR 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  It states, in pertinent part, that officers who will not or can not maintain Army standards will be separated.  One reason for elimination is failure to keep pace or to progress with contemporaries.  It further states an officer identified for elimination may, at any time during or prior to the final action in the elimination case, submit a resignation in lieu of elimination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was overweight and did not meet Army height/weight standards.  Likewise, she could not pass an APFT.  She was appropriately denied promotion to First Lieutenant.

2.  Because of her failure to keep pace or to progress with contemporaries in the area of promotions, the applicant was appropriately identified for elimination action.  Following counseling by a TDS Judge Advocate officer, she voluntarily requested resignation in lieu of elimination.  This request was appropriately accepted.

3.  The applicant had been an ROTC scholarship recipient while in Nursing School; she received $38,622.00 in scholarships in return for a promise to serve 4 years on active duty.  She knew that she was subject to recoupment action if she did not fulfill her ADSO.

4.  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.

5.  Collection of a prorated portion (18%, or $6,951.96) of the applicant's scholarship is appropriate in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __tmr___  __rmn___  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
AR20060006748
SUFFIX

RECON

DATE BOARDED
20070417
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
128.1000
2.

3.

4.

5.

6.