RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 August 2007
	DOCKET NUMBER:  AR20060013808 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. Rodney E. Barber

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:

The applicant defers to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel, on behalf of the applicant, requests his educational assistance debt in the amount of $190,005.00 be forgiven and the recoupment action cancelled; and that he be awarded a Bachelor of Science Degree from the United States Military Academy (USMA).  He further requests a personal appearance before the Board.

2.  Counsel states, in effect, that the applicant was enrolled in the USMA Preparatory School (USMAPS) in July 1999.  At that time, the applicant exceeded the Army's authorized weight limit and body fat standards.  He had difficulty passing the Army Physical Fitness Test (APFT) and was enrolled in a special physical training program while at USMAPS.  When he left USMAPS he still exceeded the Army's authorized standards for weight but was permitted admission into USMA in June 2000.

3.  Counsel further states that at the time of his admission into USMA, he and his father were informed by the football coach that the weight requirement was waived for "large linemen" and that the applicant would be placed into the Selected Athlete Program (SAP), which substituted the stationary bike for the two-mile run.  The applicant remained in the SAP during the 4 years that he played football at USMA.  The football players were encouraged to eat.  They were given a special diet that was very different from the rest of the cadet body and were even permitted to eat snacks during classes.  The applicant's caloric intake was 3600 calories.  Throughout his football years the Center for Physical Development Excellence fabricated his weigh-ins by listing him at 296 pounds in 2000 and 280 pounds in 2002 and 2003.  When the applicant was no longer eligible to play football, he was removed from the SAP and required to take and pass the normal APFT.

4.  Counsel further states that once the applicant was no longer eligible to participate in the interscholastic football program, he was given several months to ready himself for the standard APFT.  He was given little help or guidance in how to prepare for the APFT.  In May 2004 he failed the 2-mile run event of the APFT.  He was placed into the Commandant's Physical Remediation Program (CPRP) and was scheduled for a retest in 90 days.  The CPRP met twice a day for 3 weeks during June 2004.  After that the applicant was left on his own without any organized training.  The applicant continued training on his own and passed the sit-up and push-up events of the 12 August 2004 APFT.  He significantly reduced his 2-mile run time, but still failed the event.  The applicant was again placed into the CPRP; however, it met only three times a week.  The applicant requested that the program meet everyday.  His request was denied.  The applicant then enrolled in an aerobics fitness class with running, biking, and swimming for an hour everyday.  At the same time, he began running with one of his instructors, who provided him with an intense, disciplined and motivating routine.  

5.  Counsel further states that in October 2004, the applicant was placed on a medical profile as a result of suffering chest pains.  His APFT scheduled for 
12 November 2004 was reset for 6 December 2004.  Even so, the applicant and his instructor still continued to train, resulting in both being reprimanded.   He was denied the use of a pace man for the 2-mile run event during his last APFT.  In this retest, the applicant again passed the sit-up and push-up events.  He ran the 2-mile run in 17 minutes and 27 seconds, 51 seconds slower than the passing time of 16 minutes and 35 seconds.  However, in spite of his profile which had created a void in his training progress and the disallowance of a pace man, he still reduced his run time by 68 seconds from his previous APFT.  The applicant's failure to pass the APFT was not in any way the result of his voluntary actions or his misconduct.

6.  Counsel further states that as a result of the applicant's failure to pass the APFT, the Superintendent of the USMA recommended that he be separated from the academy, be discharged from the United States Army, and repay the costs of his education.  This recommendation was approved.  He was discharged and recoupment of educational costs was directed and forwarded to the Defense Finance and Accounting Service (DFAS).

7.  Counsel argues that the applicant was admitted into the USMA with the full knowledge that he was beyond the allowable acceptance weight and that he was not capable of passing the 2-mile run event of the APFT.  He was placed into the SAP and permitted to play football for 4 years, where he was encouraged to eat and build upper body strength.  This was acceptable as long as he was playing interscholastic football.  However, when the academy could no longer benefit from his skills as a football player, it required him to pass the APFT or be dismissed from the academy without a diploma and to repay the cost of his schooling.  There is a fundamental injustice here and a contradiction of the code of ethics of the USMA.  The applicant relied on the representations of his coaches and superior commissioned officers at the USMA.  He has given everything he had to the USMA.  He completed all of the academic requirements.  
8.  Counsel provides an extensive packet of evidence that includes affidavits, certificates, USMA memoranda, orders, separation documents, academic records, a DFAS memorandum, a copy of Title 10, United States Code (U.S.C.), § 2005, and a copy of United States v. Gears, 835 F. Supp 1093 (N.D. Ind. 1993).

CONSIDERATION OF EVIDENCE:

1.  On 22 February 1995, the Director, Human Resources, Office of the Deputy Chief of Staff for Personnel, Washington, DC, approved an USMA request for exception to Army Regulation 600-9, Army Weight Control Program, for the USMA SAP.  The program was originally established in 1988 with the approval of the Superintendent, USMA.  The SAP allows selected athletes to take a modified version of the APFT that replaced the 2-mile run event with a 12-minute stationary bicycle ergometer test.  The purpose of this modification is to test aerobic fitness while factoring out the negative effects of increased body weight.  In addition, these selected athletes are granted waivers of the body fat standards.  Prior to consideration a selected athlete must pass a normal three event APFT, be recommended by the Director of Intercollegiate Athletics with the concurrence of the Director, Department of Physical Education (DPE), and be approved by the Commandant of Cadets.   Cadets are to be removed from the SAP no later than the end of the athletic season of their first class year.  They then must meet the same body fat standards, pass a regular APFT, and pass all DPE courses prior to graduation.

2.  On 30 November 1998, the USMA Admissions Interview Report indicated that the applicant was a 6 foot, 5 inch tall football player who weighed 300 pounds.  He was being actively recruited by a host of colleges.  The interviewer also indicated that the applicant had great potential and should be considered for USMAPS if not selected for USMA.

3.  On 1 April 1999, the Admissions Office, USMAPS, wrote a letter to the applicant offering him the opportunity to attend the USMAPS commencing in July 1999.  This offer was contingent upon his being medically qualified by 1 July 1999.  The applicant accepted this offer. 






4.  A Memorandum for USMA Surgeon, dated 16 June 1999, indicated that the medical doctor determined the applicant exceeded the body fat standards for admission and only may have met the retention standards.  The doctor indicated that he did not meet commissioning standards.  He recommended a waiver with the assumption that the applicant was an athlete.  On 21 June 1999, the USMA Surgeon granted a medical waiver and indicated that he would support a request for the superintendent's special waiver.

5.  On 9 July 1999, the applicant enlisted in the United States Army Reserve for 
8 years.  He was assigned to the USMAPS, Fort Monmouth, New Jersey, as a cadet candidate.  

6.  Item 17 (Civilian Education and Military Schools) of the applicant's Qualification Record credits him with successful completion of the 42 week USMA Preparatory School.

7.  The applicant entered the USMA as a cadet on 29 June 2000 as a member of the Class of 2004.  At that time, he signed an Oath of Allegiance and Agreement to Serve.  

8.  On 29 June 2000, the applicant, at 18 years of age, was assigned as a cadet to the Cadet Detachment, USMA, West Point, New York.   He was 76 inches tall and weighed 296 pounds. Army standards permitted a maximum weight of 
212 pounds or a body fat level of not more than 20 percent.

9.  On 3 July 2000, the applicant underwent his initial Cadet Basic Training (CBT) APFT at USMA.  The standard to pass this APFT was achievement of 50 points or better in each event which was lower than the normal APFT minimum of 
60 points in each event.  He passed the push-up and sit-up events but failed the 2-mile run event.  He completed the running event with a time of 20 minutes and 9 seconds.

10.  On 7 August 2000, the applicant again underwent the CBT.  He passed all three events.  He had the use of a pace man for the run event.  He completed the running event with a time of 16 minutes and 30 seconds.

11. Records show that the applicant weighed 333 pounds on 10 January 2002.




12.  On 19 June 2002, the applicant underwent a diagnostic APFT at USMA.  He performed satisfactorily on the push-up and sit-up events.  However the running event shows a zero for his completion time indicating that he did not take this event.  There is no indication that he was given an alternate event in lieu of the run.

13.  Records show that the applicant weighed 310 pounds on 24 June 2002.

14.  Records show that the applicant weighed 331 pounds on 12 March 2003.

15.  The applicant was a Corps Squad Football player from 21 November 2000 to 7 July 2004.  The Academy notified the applicant that once he was no longer on the football team, he would have to pass a standard APFT.  On 17 May 2004, the applicant underwent an APFT at USMA.  He passed the push-up and sit-up events, but failed the 2-mile run event.  His completion time was 18 minutes and 54 seconds, exceeding the maximum allowed time of 16 minutes and 36 seconds by 2 minutes and 18 seconds.

16.  On 12 August 2004, the applicant underwent a 90-day retest of the APFT at USMA.  He passed the push-up and sit-up events, but failed the 2-mile run event. His completion time was 18 minutes and 35 seconds, exceeding the maximum allowed time of 16 minutes and 36 seconds by 1 minute and 59 seconds.

17.  On 30 August 2004, the Superintendent, USMA approved a recommendation to retain the applicant at USMA and to program him as a 
4 December 2004 graduate pending successful completion of his 90-day APFT retest.  However, should the applicant fail his retest or any program area, the superintendent would reconsider his separation and potential recoupment of educational costs. 

18.  During the period from 1 to 22 October 2004, the applicant was on medical excusal (profile).  His APFT retest scheduled for 12 November was reset for 
6 December 2004.

19.  On 6 December 2004, the applicant underwent another 90-day retest of the APFT at USMA.  He passed the push-up and sit-up events, but failed the 2-mile run event.  The applicant requested to run the race with a pace man, as permitted under FM 21-20 (APFT).  However, the officer conducting the test denied this request.  [The applicant ran with a pace man on his entry CBT in 2000 and passed.]  On this APFT, his completion time was 17 minutes and 
27 seconds, exceeding the maximum allowed time of 16 minutes and 36 seconds by 51 seconds.
20.  On 9 December 2004, the applicant's tactical officer recommended that he be permitted to graduate from the USMA but not be commissioned.  He opined that the applicant should not be commissioned because he has demonstrated that he cannot fulfill all of his duties as an Army officer by failing to pass the APFT.  

21.  On 28 December 2004, the Staff Judge Advocate, USMA, recommended that the applicant be separated with an Honorable Discharge Certificate from USMA due to his repeated APFT failures and failure to make satisfactory progress toward meeting the Army height/weight and body-fat percentage standards. He further recommended that the applicant be notified of the cost associated with his education, his obligation to repay this debt, and of his right to dispute the validity of the debt.

22.  On 28 December 2004, the superintendent, USMA, approved the Staff Judge Advocate's recommendation. 

23.  Title 10 U.S.C. § 2005(a) provides that the Secretary of the Army may require, as a condition to providing educational assistance to any person, that such person enter into a written agreement with the Secretary under the term of which such person agrees:

	(1) to complete the educational requirements specified in the agreement;

	(2) that if such person fails to complete the educational requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement;

	(3) that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed by the Secretary, such person will reimburse the United States in an amount that bears the same ratio to the total cost of the advanced education provided to such person as the unserved portion of active duty bears to the total period of active duty such person agreed to serve.

24.  The Department of Defense has long considered failure of a fitness test to be a voluntary or volitional act.  See United States vs. Favieau, 49 Fed
C1.635, 643 (2001).



25.  Title 10 U.S.C. § 2005(a)(1) provides that if a person disputes a debt established under U.S.C. § 2005(a)(3), the Secretary shall appoint an officer to conduct a hearing and receive evidence from the person regarding the legitimacy of the debt.

26.  On 31 March 2005, the USMA conducted an Army Regulation 
15-6 investigation to consider the applicant's USMA debt.  The investigation officer found: that the applicant had signed a valid service agreement on 29 June 2000, putting him on notice that if he breached the service agreement, he may be required to reimburse the Government for the total cost of the education provided to him; that the applicant failed to fulfill his active duty obligation; that the applicant was recommended for separation as a result of a volitional act or omission; and that the United States had spent $188,964.00 educating the applicant.   On 7 April 2005, the investigatory officer recommended that the applicant reimburse the United States in the amount of $188,946.00.  On 1 July 2005, the Department of the Army, G1 later approved the applicant's disenrollment and the establishment of a debt of $188,964.00.

27.  On 25 July 2005, the Dean of the Academic Board, USMA, conferred upon the applicant a certificate showing that he had successfully completed all of the academic courses of study prescribed for the degree of Bachelor of Science from the USMA.  His cumulative grade point average was 2.12.

28.  On 7 August 2006, DFAS provided an account statement to the applicant informing him that his debt to the United States Government was $190,005.00 and that payment in full was due within 30 days.  If he was financially unable to make full payment, he may make monthly installments in the amount of $5,597.04.  The unpaid balance would be subject to a 3.850 interest charge.

29.  In the processing of this case, a staff advisory opinion was obtained from the Staff Judge Advocate, USMA.  The opinion disputes the applicant's argument that his failure to pass the APFT was involuntary and takes the position that his separation was valid; he should not receive a Bachelor of Science Degree; and that he should be required to repay the cost of his education.  

30.  On 11 June 2007, the applicant's counsel provided a rebuttal statement with enclosures.  He took exception to the USMA position that the applicant's failure to pass the APFT was voluntary.  Counsel also restates the issue of the denial of the use of a pace man in the December 2004 APFT. 



31.  The Military Program (Greenbook) for USMA Academic Year 2003-2004 provides, in pertinent part, the graduation requirements for First Class Cadets. Paragraph 5.09 d provides that a First Class cadet will not graduate until he has taken and passed the Spring Record APFT for that academic year.  December graduates must take and pass the Fall Record APFT in their final term.

32.  Army Regulation 210-26, United States Military Academy, provides policy and procedures for the general governance and operation of the USMA.  Paragraph 3-6 provides guidance for the determination of candidate qualification. Paragraph 3-6d specifically states that medical fitness qualification will be determined in accordance with Army Regulation 40-501 based upon a physical examination to ensure that the candidate is in good health, meets prescribed standards of height and weight, and has no disqualifying physical defects. The Superintendent, USMA, is the designated administrative authority for granting waivers of these medical fitness standards under AR 40-501, paragraph 1-6b. Waivers for candidates who do not meet the minimum medical fitness standards of Army Regulation 40-501, chapter 2, will be processed in accordance with Army Regulation 40-501, paragraph 1-6c. 

33.  Paragraph 2-4a of Army Regulation 210-26 provides that cadets must be afforded the opportunity to receive additional instruction or extra training, on a voluntary basis. Procedures for additional instruction will be as recommended by the Academic Board and approved by the Superintendent. Procedures for extra training will be as recommended by the Commandant and approved by the Superintendent. 

34.  Paragraph 4-6 of Army Regulation 210-26 provides that cadets of the USMA must meet the medical accession standards of AR 40-501, chapter 2, for retention at USMA and for appointment as officers upon graduation. The Superintendent may, however, grant medical waivers for continuation at USMA, provided the cadet meets the retention standards of AR 40-501, chapter 3. 

35.  Paragraph 5-3 of Army Regulation 210-26 provides that First Class cadets who have successfully completed the requirements of the course of instruction including the Academic, Military, and Physical Programs; have maintained prescribed standards of conduct; and who have demonstrated proper moral-ethical qualities, leadership, and character may receive a diploma signed by the Superintendent, the Commandant, and the Dean. These cadets will have earned the Bachelor of Science degree and will be designated as graduates of the USMA.   A cadet who is discharged or separated from the Academy under provisions of this regulation, or for any other good cause, will not be graduated, awarded a diploma, or commissioned. However, when the Superintendent proposes that a cadet be separated for failure to meet medical retention standards under paragraph 4-6 of this regulation, and when the Academic Board determines that the cadet successfully completed all requirements of the Academic, Military, and Physical Programs, the Superintendent may approve graduation and the award of a diploma with a Bachelor of Science degree. Such a cadet will not be commissioned. If the medical separation is not approved, the cadet will be commissioned under paragraph 5-4 of this regulation. Notwithstanding any other provision of this regulation, a cadet, found by the Academic Board to have successfully completed all requirements in the Academic, Military, and Physical Programs, may receive a diploma and graduate with the Bachelor of Science degree, without being commissioned, provided the Secretary of the Army determines that it is in the best interest of the Government. 

36.  Paragraph 6-25, Army Regulation 210-26, provides that a cadet who fails to meet the APFT standards and conditions as outlined in Army Regulation 350-41 may be separated from the USMA.

37.  USMA Regulation 350-12 (Intercollegiate Athletics) dated 1 July 2000 provides, in pertinent part, that the SAP is open to select football team members who are asked to gain a significant amount of weight during their cadet careers.  Cadets must pass a 50-point APFT administered during CBT to be recommended for enrollment in the SAP.  A SAP cadet is exempt from the Army Weight Control Program until completion of the competitive season of his First Class year. 

38.  Army Regulation 210-26 (United States Military Academy) provides, in pertinent part, that the Deputy Chief of Staff, G1, Headquarters, Department of the Army, will be the Army Staff point of contact for administrative actions concerning the USMA; separate first and second class cadets where no call to active duty is recommended, except for medical separations; take final action in separation cases involving third and fourth class cadets for major misconduct, honor, conduct, and undesirable habits or traits of character; provide staff supervision for all personnel actions affecting the USMA; serve as the office of record for all actions related to the USMA; and inform the Chief of Staff, Army, on all matters, as appropriate.  The next level of review is the Assistant Secretary of the Army Manpower and Reserve Affairs (M&RA).






DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.  

2.  The evidence clearly shows that the applicant weighed 300 pounds in 1998, a year prior to his entry into USMAPS.  He had to have a special waiver for entry into USMAPS because he exceeded the allowable body fat standards for admission and only "may" have met the retention standards. 

3.  In June 2000, at the time of the applicant's enrollment into USMA, he weighed 296 pounds and exceeded the body fat standards.  He barely passed the initial CBT APFT, and then only after two tries and because the standard used was lower than that required for retention.  Also, he was permitted the use of a pace man.    

4.  Throughout his years at USMA, the applicant was on a special diet and exercise program that encouraged him to increase his weight, and develop upper body strength (muscle).  His recorded weight was as high as 333 pounds in 2002, and was still at 331 pounds in 2003.  

5.  When the applicant was no longer eligible to play football for USMA, he was immediately removed from this special training program and required to lose the weight and body fat that he had carried for more than 6 years.  Also, he had to pass the regular three-event APFT with the 60 point per event normal standard. 

6.  Evidence shows that the applicant underwent APFT's in May and August 2004.  He failed each time.  However, the evidence shows that he made improvement.  He requested that the 3-day per week CPRP meet everyday.  This was denied.  He enrolled in aerobics and swimming class and established a running program with one of the instructors.  For this, he was given a reprimand and was told that he was only authorized to follow the DPE program.

7.  Evidence shows that the applicant was the sole participant during his last APFT on 6 December 2004.  He was denied a pace man for the two-mile run event.  He passed the push-up and sit-up events, but failed the two-mile run event by 51 seconds.  The evidence further shows a strong probability that had he been permitted a pace man, as authorized by regulation, he would have completed the run within the allowed time.

8.  The applicant was placed into a situation that increased the potential for failure.  It was very unrealistic to expect that he could lose sufficient muscle weight and concurrently develop the physical endurance needed to complete the two-mile run within the Army standard, without a very strong training program.  He was denied the kind of program he needed and wanted.  Further, he was denied the assistance of a pace man in his final APFT; a crucial test on which his entire military career rested.

9.  The applicant has provided compelling evidence to grant him the relief he requests as a matter of equity.  The USMA enrolled the applicant primarily to aid the USMA football program.  The USMA gave the applicant several waivers for both the APFT and weight standards so he could play football.  The applicant barely met standards when entering the Academy.  The Army knew or should have reasonably known that, after encouraging the applicant to gain weight and easing fitness requirements, that it would be difficult, if not impossible, to meet commissioning standards.  In this respect, the Army made an empty promise of commission to the applicant, as it was conditioned upon a requirement the applicant was unlikely to meet.  As a matter of fairness and equity, the ABCMR should grant the applicant relief.

10.  The evidence clearly shows that the applicant successfully completed all of the academic requirements for award of the Bachelor of Science Degree.  

11.  In view of the above, the applicant's request for award of his degree and to be relieved of all financial responsibility for his education should be granted.

BOARD VOTE:

__PMS__  __REB__  ___RCH   GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

1.  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:

	a.  graduating him from the December 2004 class and awarding him the Bachelor of Science Degree; and

	b.  showing that, on 8 April 2005, the Assistant Secretary of the Army (M&RA) reviewed the applicant's separation action and approved the recommendation to separate him from the USMA and discharge him from the Army with an honorable discharge, with a new finding of not due to a volitional act or act of misconduct on his part, and that no action would be taken to recoup any amount of the cost of his USMA education.

2.  Based on the M&RA finding the DFAS is requested to review the applicant's pay account to ensure that the now erroneous recoupment be stopped and any funds collected be refunded.






____     Paul M. Smith__
          CHAIRPERSON




INDEX

CASE ID
AR20060013808
SUFFIX

RECON
 
DATE BOARDED
20070828 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
128.1000
2.

3.

4.

5.

6.