RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 July 2007
	DOCKET NUMBER:  AR20060014346 


	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.


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	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 counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s records be corrected to show he did not voluntarily or because of misconduct fail to complete the required period of active duty and that he does not owe any debt for the cost of his education at the U.S. Military Academy (USMA).

2.  Counsel states the applicant was a cadet at the USMA from 1997 until his final disenrollment in 2003.  The applicant was disenrolled one month before his expected graduation date for failure to meet Army physical fitness standards.  The Army initiated the recoupment of the applicant’s educational expenses rather than require him to serve on active duty as an enlisted Soldier.  At the time the applicant was disenrolled from the USMA, he was under a temporary physical profile for a herniated disc.  On 30 June 1997, the applicant signed the oath of allegiance and cadet contract with the USMA.  Counsel states that the contract provides:

“…if I voluntarily fail, or because of misconduct fail, to complete the period of active duty specified…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….”  

3.  Counsel continues to state that the applicant experienced difficulties passing the Army Physical Fitness Test (APFT).  These difficulties were due in part to the fact that he was not naturally athletic and had suffered several injuries and medical conditions while a cadet that affected his ability to run.  During the applicant’s second academic year, he failed the APFT three times.  Counsel points out that the Army advised the applicant that he would be recommended for separation if he did not pass the 90-day APFT retest.  He failed the 90-day retest and the Army initiated the separation paperwork.  Counsel references the applicant’s memorandum dated 19 June 1999 in which he informed his command of the reasons for his failure of three consecutive APFTs.  Counsel states the Army was fully aware of the applicant’s documented injuries and the fact he had been placed on a no-running profile.  Counsel points out that the applicant passed the Fall 1999 APFT but he failed the Spring 2000 APFT held on 5 May 2000.  Due to an ingrown toenail, the applicant was unable to take the retests scheduled in 24 May 2000, 18 August 2000, and 13 September 2000.  His condition was documented by proper medical authority and he was excused from taking the retests.  On 27 October 2000, the applicant failed the APFT retest.  The Army initiated disenrollment proceedings four days later.  Counsel alleges that the applicant was not afforded any other opportunity to take the APFT.  

4.  Counsel points out that Title 10, United States Code, section 2005 permits recoupment of educational expenses only where a cadet fails to complete his or her military service obligation voluntarily or due to misconduct.  Counsel states that the applicant did not voluntarily or because of misconduct fail to complete his active duty service obligation.  Counsel reiterates that the applicant was disenrolled for lack of physical fitness due to physical injuries and medical conditions not because of any voluntary conduct or misconduct.  Counsel references two court cases which addressed the question whether weight control failure constituted “voluntary” conduct or misconduct as indicated in Title 10, United States Code, section 2005.  In United States v. Gears, 835 F. Supp 1093 (N.D. Ind. 1993), the court ruled, under the circumstances, that it did not.  Counsel states the court refused to accept the government’s argument that the term “voluntary” applied to all conduct that “was not caused by disease or physical defect.”  In Favreau v. United States, 49 Fed. Cl. 635 (2001), the court accepted the Department of Defense interpretation of the term “voluntary” as being consistent with the legislative history and intent of Title 10, United States Code, section 2005.  That interpretation was summarized by the court as follows:

“DoD thus interprets the term “voluntary” to refer to whatever the 
service member did or did not do to prompt separation.  So long as there is counseling and an opportunity to overcome deficiencies, and so long as persons with medically-diagnosed problems that interfere with weight reduction or maintaining physical fitness may not be separated for weight control failure or lack of physical fitness, the failure to meet standards is deemed volitional.”  (Emphasis in the original)

5.  Counsel states the applicant was plagued by physical injuries and conditions that impaired his ability to properly train for and pass the APFT from nearly the onset of his cadet career.  Counsel identified the applicant’s injuries and conditions as ligament strains in his knee joint, a painful ingrown toenail, and a lower back injury.  Counsel alleges that the applicant strove to improve his APFT performance.  Counsel states that the applicant took the Army’s counseling to heart and engaged in extra training to improve his performance but the Army did not take this into account when making its decision to separate him.  Counsel further alleges the Army separated the applicant for lack of physical fitness due to the injuries and conditions he suffered, not because he voluntarily failed to meet the Army physical fitness standards.
6.  Counsel reiterates some of the above arguments in a brief received on 19 December 2006.  He alleges that the applicant consistently performed in the upper half of those cadets ranked center-of-mass.  The applicant received numerous accolades for his effectiveness as a leader and a follower.  Counsel continues to state that the applicant agreed to serve in the Army for a period of eight years, of which no less than five years were to be served on active duty. Counsel cites Section II(g) of the agreement again.  He states that Section II(h) and Section III (g)(3) of the agreement provide: 

”…if I am separated from the United States Military Academy for breach of this service agreement, as defined in paragraph 1.g.(3), Statement of Policies on the next page, and the Army decides that I should not be ordered to active duty because such service would not be in the interests of the Army, I shall be considered to have either voluntarily or because of misconduct failed to complete the period of active duty and may be required to reimburse the United States as described above….”

	“Breach of service agreement includes separation resulting from resignation, from any of the bases for separation listed in Table 1, Regulations for the United States Military Academy, including all additions to Table 1 subsequent to the date of this agreement, or from other willful acts or omissions (paragraph 10.20, Regs USMA).”

7.  Counsel further states that Title 10, United States Code, section 2005 was amended on 16 January 2006.  The amended statute does not prohibit the military from recovering educational expenses where a cadet did not voluntarily or because of misconduct fail to complete his or her active duty service obligation.  Counsel states the applicant was disenrolled from the USMA prior to the January 2006 amendment of Title 10, United States Code, section 2005 and therefore, the previous statute applies in this case.  Counsel states that, in pertinent part, Title 10, United States Code, section 2005 reads as follows:

	(a)  The Secretary [of the Army] may require, as a condition to the Secretary providing advanced education assistance to any person, that such person enter into a written agreement with the Secretary concerned under the terms of which such person shall agree…

		(1)  to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement;

		(2)  that if such person fails to complete the education 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 pursuant to clause (4), such person will reimburse the United States in an amount that bears the same ratio 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; and 

		(4)  to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States.

8.  Counsel continues to state that the applicant had been unable to obtain the USMA regulations that were in place during his tenure as a cadet.  Counsel states that on 26 August 2002 the USMA regulations were superseded by Army Regulation 210-26.  In relevant part, paragraphs 6-25 and 7-9 of Army Regulation 210-26 state:

	6-25.  Failure to Maintain Proper Physical Fitness

	a.  …A cadet who fails to meet the [APFT] standards…may be separated from the [USMA]….

	7-9.  Breach of Service Agreement and Reimbursement of Educational Costs

	a.  Cadets who resign from the [USMA], or who are separated from the [USMA] under the procedures contained in Table 7-1 [which refers back, in pertinent part, to paragraph 6-25], will be deemed to have breached their service agreement.

	b.  Cadets separated from the [USMA] under procedures other than those contained in Table 7-1 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…

	c.  A cadet who voluntarily, or because of misconduct fails to complete the period of active duty service specified…in [his] agreement to serve may be required to reimburse the Government for educational costs pursuant to [Title 10, U. S. Code, section 2005] and implementing regulations.  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.
9.  Counsel states that the ABCMR considered arguments very similar to those of the applicant’s, and did so in light of United States v. Gears.  In ABCMR Docket Number AR2003094057, dated 4 August 2004, the ABCMR ruled that the applicant did not owe a lawful debt to the Army where he too experienced continuous difficulties meeting the CPFT [Cadet Physical Fitness Test].  In pertinent part, paragraph 1 of Discussions and Conclusions of ABCMR Docket Number AR2003094057 states the following:

	“The majority felt that, as the applicant had had problems passing the CPFT and APFT from the beginning, the Army should have separated him before he became subject to recoupment.  Seeking recoupment after the applicant had been permitted to successfully complete four years of academic courses before being separated for failing the Academy’s physical training requirements, which resulted in denial of graduation and commissioning, constituted a grave injustice.”

10.  Counsel argues that the applicant is not liable for his USMA expenses under Title 10, United States Code, section 2005, his service agreement, or the applicable USMA regulations because the “conduct” that led to his disenrollment from the USMA and discharge from the Army Reserve was neither voluntary nor [due to] misconduct.  Counsel states the applicant struggled for nearly four years to pass the CPFT, despite his injuries and a medical condition.  The applicant had no academic deficiencies and was on schedule for graduation.  Counsel continues to state that the applicant walked away from the USMA without a degree or a commission, and with an alleged debt of more than $130,000.00.  Counsel also argues that the Army should have separated the applicant before he became subject to recoupment as the ABCMR ruled in ABCMR Docket Number AR2003094057.  Counsel states that there are no material differences between the applicant and the applicant in ABCMR Docket Number AR2003094057.  Counsel also argues that the Army was aware of the applicant’s difficulties in passing the CPFT as early as December 1998.  By 27 May 1999, the applicant had failed the CPFT three times.  

11.  Counsel states that the former Regulations, USMA 10.24 provided that a cadet without a medical profile who was determined to have repeatedly failed the CPFT could be separated from the USMA.  Counsel alleges that the applicant’s disenrollment was erroneous and unjust.  Counsel states that according to Army Regulation 635-40, paragraph 1-4, Academy cadets are ineligible for 
MEB [Medical Evaluation Board]-PEB [Physical Evaluation Board] processing.  In pertinent part, paragraph 8-6 of Army Regulation 40-501 states:

	(a)  “When a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of their office, grade, rank, or rating because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501 or National Guard Regulation 40-3.”

	(b)  “Conduct of MEB and referral of case to a PEB will be according to the procedures of chapter 4, section III.  If the Soldier is not eligible for referral to a PEB, the MTF [Medical Treatment Facility] will forward the MEB to the Soldier’s unit commander for disposition under applicable regulations.”  

12.  Counsel references paragraph 9-10 of Army Regulation 40-501 which states, in part, that:

	a.  “Normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140-10 or discharged from the USAR per AR 135-175 or AR 135-178.  They will be transferred to the Retired Reserve only if eligible and if they apply for it.”

	b.  “Reservists who do not meet medical retention standards may request continuance in active USAR status in accordance with paragraph 9-11 below.  In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the LOD.  Reservists with nonduty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9-12 below.”

13.  Counsel further states that paragraph 3-39(e) of Army Regulation 40-501 addresses herniated discs and provides that a cause for referral to a MEB is: “Herniation of nucleus pulposus.  More than mild symptoms following appropriate treatment or remedial measures, with sufficient objective findings to demonstrate interference with the satisfactory performance of duty.”

14.  Counsel provides two briefs and the following documents in support of the applicant’s application:  

The applicant’s self-authored letter, dated 4 December 2006;
The applicant’s Oath of Allegiance, dated 30 June 1997; 
Memorandum, dated 21 December 1998, Subject: Army Minimums 
(sic) Failures on APFT; 
Memorandum, dated 12 January 1999, Subject: APFT Failure/Retest 
Notification; 
Three DA Forms 4856 (General Counseling Forms);
Third Class Second Semester Counseling Form, dated 29 April 1999; 
Memorandum, dated 28 May 1999, Subject: Army Minimums (sic) 
Failures on 90-Day APFT Retest; 
Memorandum, dated 4 June 1999, Subject: Repeated APFT Failures;
Memorandum, dated 17 June 1999, Subject: APFT Failure;
Memorandum, dated 19 June 1999, Subject: Successive APFT
Failures with a second endorsement;
USMA Form 2-515 (Cadet Excusal), dated 22 June 1999;
Tactical Officer’s Recommendation for Separation, dated 24 June 
1999;
Three Cadet Excusals, dated 22 February 2000, 3 April 2000, and 
17 April 2000;
Memorandum, dated 10 May 2000, Subject: APFT/Retest Notification;
Three Cadet Excusals, dated 15 August 2000, 23 August 2000, and
1 September 2000;
Two Records of Counseling, dated 13 September 2000 and 
29 September 2000;
A Workout Plan;
Memorandum, dated 31 October 2000, Subject: Recommendation for 
Separation of Cadet [applicant’s name], Co. E-3, Class of 2001;
Memorandum, undated, Subject: Recommendation for Disposition 
under Regulations, USMA for Cadet [applicant’s name], Class of 2001, Company E-3;
Memorandum, undated, Subject: Separation Recommendation, 
Cadet [applicant’s name], Class 2001, [applicant’s social security number];
Endorsement, dated 30 November 2000;
Information Paper, dated 5 December 2000;
Memorandum, dated 5 December 2000, Subject: Recommendation for 
Separation of Cadet [applicant’s name], Company E, Third Regiment, Class of 2001;
Handwritten note, undated;
Summary Sheet, dated 11 December 2000;
DD Form 785 (Record of Disenrollment From Officer Candidate - Type 
Training), dated 11 December 2000;
Cadet Excusal, dated 18 January 2001;
Memorandum, dated 20 February 2001, Subject: Notification of 
Possible Actions for Separation Based Upon APFT Failure;
Memorandum, dated 28 February 2001, Subject: Separation Actions 
Against Cadet [applicant’s name], Class of 2001, Company E-3;
DA Form 3349 (Physical Profile), dated 27 March 2001;
Letter, dated 22 August 2001, from an Investigating Officer;
Headquarters, United States Military Academy Orders 199, dated 
18 July 2002;
Memorandum, dated 25 April 2003, Subject: Separation of 
Cadet [applicant’s name and social security number];
Headquarters, United States Military Academy Orders 118-12, dated 
28 April 2003;
DD Form 214 (Certificate of Release or Discharge from Active Duty) 
for the period ending 25 April 2003;
Thirteen USMA Forms 2-543R (Cadet Performance Report);
Four USMA Forms 2-543-4R (Cadet Observation Report);
Two court cases;
A Notice of Intent to Initiate Administrative Wage Garnishment 
Proceedings, dated 7 September 2006; and 
ABCMR Record of Proceedings Docket Number AR2003094057,
dated 4 August 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 25 April 2003.  The application submitted in this case is dated 26 September 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 30 June 1997, 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 caused by voluntary action or misconduct on the part of the cadet subject to an active duty obligation, 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.  Paragraph b of the Statement of Policies states “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 caused by voluntary action or misconduct on the part of a cadet subject to an active duty obligation, the reimbursement provision of paragraph IIf of the Agreement to Serve will apply.”

6.  The applicant received a Cadet Performance Report on 3 August 1997.  He ranked in the upper 25 percentage of the cadets.  His rater recommended for improvement that he should “…Work on PT.  Set short-term goals.”

7.  The applicant received a Cadet Performance Report on 5 April 1998.  He was ranked in the upper half of the center-of-mass.  Under Part III (Professionalism Performance), paragraph b.1, the rater placed an “X” in the block “Improve” with the comments “CDT [applicant’s name] needs to work on physical development so that he sets himself up for success on later PT tests.” 

8.  The Department of Physical Education (DPE) administered the APFT to the applicant on 11 December 1998.  He had passed the push-up portion of the APFT (42 push-ups/60 points) and the sit-up portion (56 sit-ups/64 points) but failed the 2-mile run portion (19 minutes and 4 seconds/8 points).  Passing is 60 points per event; the maximum score is 100 points per event.  On 11 January 1999, he was counseled regarding his failure of the semi-annual APFT.  

9.  On 12 January 1999, the Brigade Tactical Officer (BTO) informed the applicant that the DPE had identified him as failing to achieve an Army age and gender specific minimum on the APFT and he was required to take an APFT retest within 60 days.  He was advised that failure to achieve any of his age and gender specific Army minimums during his retest would result in a second APFT within 90 days of the initial APFT failure.  The BTO indicated that if he failed any portions of his Army minimums during his second retest, he would recommend separation proceedings be initiated against him under the provisions of paragraph 10.24 Regulation, USMA.  His scheduled APFT retest would occur on 11 February 1999.  The applicant acknowledged receipt of the retest memorandum on 19 January 1999.

10.  The DPE administered a 60-day APFT retest to the applicant on 11 February 1999.  He passed the push-up portion of the APFT (42 push-ups/60 points) and the sit-up portion (58 sit-ups/68 points) but failed the 2-mile run portion 
(18 minutes and 15 seconds/27 points).  On 24 February 1999, he was counseled regarding his failure to meet the minimum standards on the APFT on his 60-day retest.  The commander informed the applicant that he would be required to take another APFT within 90 days of his original test and, should he fail to meet the minimum standards on that test, he would be recommended for separation from the USMA.  

11.  On 26 April 1999, the applicant was counseled for being dropped from Airborne School.  

12.  The DPE administered a 90-day APFT retest to the applicant on 27 May 1999.  He passed the push-up portion (42 push-ups/60 points) of the APFT but failed the sit-up portion (52 sit-ups/58 points) and the 2-mile run portion 
(16 minutes and 17 seconds/54 points).  

13.  On 28 May 1999, the Commandant of Cadets was informed that the applicant failed to meet Army age and gender specific minimums on his 60-day and 90-day retests.

14.  By 4 June 1999 memorandum, the BTO notified the applicant that he was being considered for separation from the USMA for failing to meet age and gender specific minimums on the APFT.  The BTO indicated that the applicant’s substandard performance on three consecutive APFTs had cast significant doubt on his ability to serve as a commissioned officer.  The BTO informed the applicant he could submit a written response to him within three working days from the receipt of the memorandum explaining any extenuating circumstances or special considerations he believed should influence the final decision in his case.  

15.  The applicant’s Cadet (CDT) Platoon Sergeant (PSG) submitted a memorandum, dated 17 June 1999, to ensure the applicant’s success on his next diagnostic APFT.  The CDT PSG indicated that he planned to put the applicant through a rigorous physical fitness program within the following three weeks.  The CDT PSG indicated that if the training process prevented the applicant from running, the applicant would perform lunges while out in the field.  The CDT PSG also indicated he would be working with the applicant during this program and he would insist on him keeping a record of his activities.  In addition, the CDT PSG indicated he would monitor the applicant’s progress closely and would give weekly reports.

16.  On 19 June 1999, the applicant submitted a memorandum to the BTO to explain the circumstances surrounding his failure of three consecutive APFTs and what he had done to improve his performance.  He stated the initial APFT was held in conditions which caused even the best runners to run over one minute slower than normal.  His run was at night during a storm with high winds and sleet.  For his 60-day and 90-day retests, he was injured prior to each of the tests.  He stated he re-injured his right knee prior to the 60-day retest and injured the same knee in CBT [cadet basic training] and was on profile for several weeks.  He further stated he injured his left knee in the DPE grappling on the day of the test.  After he was cleared from his profile to run, he had to start from the beginning.  He admitted that he had never been a good runner so the process had been long and slow.  He was counseled by the B-4 DPE Liaison after his failure of the 60-day retest.  He used the advice of the DEP Liaison and began to run three times a week.  As a result, he was able to drop over one minute from his run time.  He explained that his push-up and sit-up scores were low because he only did the minimum to save energy for the run.  He stated that his CDT PSG designed a program for his physical improvement and he has given his full cooperation to his CDT PSG and his mission to improve his physical fitness.

17.  On an unknown date, the Regimental Tactical Officer indicated he had reviewed the applicant’s complete packet and response [letter dated 19 June 1999] and recommended separation.  

18.  The applicant was given a physical examination by an USMA Surgeon on 22 June 1999.  He was found to be in excellent health/condition and fit for duty.  

19.  On 24 June 1999, the applicant’s tactical officer prepared a memorandum to the Commandant of Cadets.  The tactical officer recommended the applicant be separated.  The memorandum noted the applicant had failed his APFTs on 11 December 1998, 11 February 1999, and 27 May 1999.  The tactical officer stated the applicant had been given a physical examination on 22 June 1999 and was found to be in excellent health/condition and fit for duty.  The tactical officer noted the applicant had been counseled after each test failure and was given specific ideas/techniques to improve his run and to maintain his push-up and 
sit-up performance.  In addition, the tactical officer indicated he counseled the applicant on 26 April 1999 and 29 April 1999.  During the counseling sessions, the applicant was given ways to improve his workouts to increase his APFT performance and was informed that he would be recommended for separation if he did not pass the APFT by his 90-day APFT retest.  

20.  The DPE administered the Fall APFT to the applicant on 20 August 1999.  He passed the push-up portion (42 push-ups/60 points), the sit-up portion 
(64 sit-ups/78 points), and the 2-mile run portion (15 minutes and 27 seconds/
66 points) of the APFT.

21.  On 22 February 2000, the applicant was examined by an USMA Surgeon for an injury to his right big toe.  He was diagnosed as having an ingrown great toenail on his right big toe and was given a limited duty medical excusal through 29 February 2000.  His duty limitations were listed as lower body PE [physical exercise], marching, and sports (self-pace).  

22.  On 3 April 2000, the applicant was examined by an USMA Surgeon for an injury to his left knee.  He was diagnosed as having a sprain to his left knee and was given a limited duty medical excusal through 20 April 2000.  The USMA Surgeon indicated the applicant would perform physical therapy but he would not perform the Indoor Obstacle Course Test (IOCT), would not do the APFT, and would not do the 2-mile run.  

23.  On 17 April 2000, the applicant was examined by an USMA Surgeon.  He was found to be fit for duty.

24.  The DPE administered the APFT to the applicant on 5 May 2000.  He passed the sit-up portion (63 sit-ups/76 points) on the APFT but failed the 
push-up portion (41 pushups/59 points) and the 2-mile run portion (17 minutes and 18 seconds/41 points).

25.  By 10 May 2000 memorandum, the BTO notified the applicant that he had failed to achieve an Army age and gender specific minimum on the APFT held on 5 May 2000.  He was informed that he would retest on 24 May 2000.   

26.  The applicant was scheduled for a 60-day APFT retest on 24 May 2000; however, he did not retest due to a medical excusal.  The record of the medical excusal is not available.  

27.  The applicant was examined by an USMA Surgeon on 15 August 2000 for an injury to his right big toe.  He was given a limited duty medical excusal through 22 August 2000.  His duty limitations were listed as lower body PE, marching, sports (own pace/tolerance), and soft shoes as needed.

28.  The applicant was scheduled for a 90-day APFT retest on 18 August 2000, but he was unable to test due to a medical excusal.  

29.  The applicant was examined by an USMA Surgeon on 23 August 2000 for an injury to his right big toe.  He was given a limited duty medical excusal through 8 September 2000.  His duty limitations were listed as lower body PE, marching, sports (own pace/tolerance), and soft shoes as needed.

30.  The applicant was examined by an USMA Surgeon on 1 September 2000 for a follow-up examination of his right hallux (big toe).  He was given a limited duty medical excusal through 7 September 2000.  His duty limitations were listed as lower body (self-paced and soft shoes as needed).  The USMA Surgeon indicated the applicant would perform physical therapy.  

31.  On 13 September 2000, the applicant was counseled regarding his physical [fitness] strengths and weaknesses.  The general period covered by this interview was Spring APFT/60-Day Retest and 90-Day Retest.  The Record of Counseling identified his weaknesses as the 2-mile run (17 minutes and 18 seconds) and push-ups (41 push-ups).  The counselor noted that the applicant had failed to meet USMA minimum standards in physical fitness as measured by the APFT and that his demonstrated performance was below standard.  He was informed that he must pass his 60-day or 90-day retest. If he failed the retests, he would be recommended for separation.  

32.  The applicant was counseled on 29 September 2000 regarding his physical fitness.  The general period covered by this interview was Fall APFT.  His weaknesses were identified as push-ups (41 push-ups/59 points) and the 2-mile run (17 minutes and 18 seconds/41 points).  The counselor indicated the applicant had failed to meet the minimum number of push-ups required on the APFT and exceeded the maximum 2-mile run time allowed on the APFT.  He was informed that he would take a 90-day retest on 27 October [2000].  If he failed the retest, he would be subject to separation from the Academy.  

33.  The DPE administered a 90-day APFT retest to the applicant on 27 October 2000.  He passed the sit-up portion (63 sit-ups/76 points) of the APFT but failed the push-up portion (38 push-ups/54 points) and the 2-mile run portion 
(16 minutes and 38 seconds/50 points).  

34.  In a 31 October 2000 memorandum, the Director of the DPE informed the BTO that he recommended the applicant be separated from the USMA for failure to pass the APFT.  The Director indicated the applicant failed to meet the Army age and gender specific minimums on his 5 May 2000.  He was then scheduled to take a 60-Day retest on 24 May 2000, but he was unable to test due to medical excusal.  He was rescheduled as a 90-day retest on 18 August 2000; however, another medical excusal prevented him from testing.  His 90-day retest was then rescheduled to 27 October 2000 and he failed the 90-day APFT retest. The Director stated the applicant had repeatedly failed to meet the standard, specifically in the performance of push-ups and the 2-mile run.  He stated the applicant had failed 4 of his last 5 tests, despite having received counseling and remediation programs from the Physical Development Officer (PDO) to the DPE level.  

35.  On 30 November 2000, the Regimental Tactical Officer recommended that the applicant be separated from the USMA for failure to pass the APFT.  
36.  On an unknown date, the BTO notified the Commandant of Cadets that he concurred with the chain of command’s recommendation to separate the applicant for repeated failure to meet Army Regulation 350-41 physical fitness standards and discharge him from the U.S. Army with issuance of an Honorable Discharge Certificate.

37.  On an unknown date, the Commandant of Cadets notified the Superintendent that he concurred with the chain of command to separate the applicant.

38.  On 5 December 2000, the Tactical Officer recommended the applicant be separated from the USMA for failure to pass the APFT.  

39.  On 18 January 2001, the applicant was examined by an USMA Surgeon for lower back pain.  He was given a limited medical excusal through 4 February 2001.  His duty limitations were listed as lower body PE, marching, sports 
(as tolerated), no sit-ups (may do crunches).  

40.  In a 20 February 2001 memorandum, the Tactical Officer provided the applicant information regarding possible sanctions that could be imposed on a First Class or Second Class cadet who was pending separation from the USMA based on APFT failures.  The first sanction was enlisted service obligation.  The Tactical Officer indicated the Department of the Army could impose this sanction; however, it was unlikely based upon the documented performance of failing to meet Army standards.  The second possible sanction was recoupment.  Under this sanction, the separated cadet could be required to pay back the monetary value of his/her education to the U.S. government.  If this sanction was imposed, the cadet had the right to dispute the debt, and an investigation by an impartial officer would ensue based on that action.  The applicant was advised to make an appointment with a legal assistance attorney at the Staff Judge Advocate’s Office.  

41.  On 28 February 2001, the applicant submitted a rebuttal concerning the separation actions against him and to show he would continue to work on improvement.  He stated the APFT has plagued him throughout his cadet career. He stated he had continued to improve his time on the run and he had not passed his push-ups only within one or two.  He alleged that he had several medical problems, including knee injuries and a concussion that had interrupted his APFTs and training.  He stated that he had not given up, but instead he continued to strive to meet the standard.  He had recently had back problems and was diagnosed as having a possible slipped disk.  As a cadet, he had always tried to perform his best.  His grades had been above average and he had not had any disciplinary problems.  Even though these actions [separation] were pending, he still worked hard in order to pass the APFT with another chance.

42.  The applicant was placed on a temporary profile on 27 March 2001 for a herniated disk at the L5-S1 level with an expiration date of 26 April 2001.  The profiling officer indicated the applicant could do the 2-mile run and push-ups, but no sit-ups.  

43.  On 22 August 2001, an investigating officer stated he had concluded his investigation under the procedures in Army Regulation 15-6 and pursuant to Title 10, U.S. Code, section 2005(g).  The investigating officer stated he considered the applicant’s input provided to him previously and concluded that the applicant had adequate notice that he would be liable to pay back the cost of his education if he failed to fulfill the obligations under his Agreement to Serve.  He further concluded that the applicant failed to fulfill such obligations and his debt to the United States totaled $137,630.00.  There is no record the applicant responded to the investigating officer’s findings by disputing the validity of the debt.  

44.  Headquarters, United States Military Academy, West Point, New York Orders 199-13, dated 18 July 2002, show the applicant was placed on leave of absence without pay and allowances effective 18 July 2002 pending completion of separation.  The orders indicate that action would not be taken to collect amounts already paid to the cadet.  

45.  The Superintendent’s recommendation to separate the applicant from USMA is not available.

46.  On 25 April 2003, the Deputy Chief of Staff, G-1 approved the Superintendent’s recommendation to separate the applicant, Class of 2001, from the USMA and discharge him from the service with an Honorable Discharge Certificate.  The Deputy Chief of Staff, G-1 directed that the applicant not be ordered to active duty or transferred to the Reserve.  

47.  Headquarters, United States Military Academy, West Point, New York Orders 118-12, dated 28 April 2003, discharged the applicant from the Corps of Cadets, USMA with an effective date of 25 April 2003.  The additional instructions include the following entries: “(a) Cadet [applicant’s name] departed without pay pending final separation disposition.” and “(c) Awaiting final recoupment action.” 

48.  His DD Form 214 shows the applicant was honorably discharged from the USMA on 25 April 2003 under the provisions of Army Regulation 350-41, paragraph 10-24(a) and Regulations USMA, paragraph 10.20a by reason of APFT Failure.  He had completed 5 years, 9 months, and 26 days of active military service. 

49.  A Notice of Intent to Initiate Administrative Wage Garnishment Proceedings, dated 7 September 2006, shows the applicant’s debt as $180,333.96.

50.  The applicant submitted a one-page self-authored letter, dated 4 December 2006, wherein he stated he was first recommended for separation in a 24 June 1999 letter from his company tactical officer.  He stated that he was motivated for success throughout his entire career at the USMA.  His APFT scores show his run time improved for every test and he consistently strove to improve his physical ability.  He stated he was helped by several people with advice, workout routines, and motivation through his efforts to improve his physical performance. The applicant referenced his counseling sessions, his daily exercise routine, and his workout program.  He stated he suffered from physical injuries that severely inhibited his ability to successfully complete the APFT.  He also suffered from a painful ingrown toenail that required he be excused from three APFTs.  He stated his inability to meet the standards of the physical training program was not due to voluntary conduct or misconduct.  In conclusion, he stated he was a committed and loyal cadet.

51.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1.  That office noted that the doctrine of administrative finality recognizes that once a final administrative act has been ordered or approved by an official legally competent to do so, that official had exhausted his power to act in connection with that case. The opinion stated that the decision of the Assistant Deputy Chief of Staff, G-1 became final when he separated the applicant from the United States Army and ordered recoupment for the cost of his education.  Therefore, the doctrine of administrative finality precludes the Assistant Deputy Chief of Staff, G-1 from reconsidering his prior decision.

52.  The opinion points out that there are four narrow exceptions to the doctrine of administrative finality to include, evidence of fraud, mistake of law, mathematical miscalculation, and substantial new evidence discovered contemporaneously with or within a short time following the action in question.  Based on the facts provided by the applicant’s attorney, the request for reconsideration does not meet any of these exceptions.  The opinion states that the applicant’s attorney argues that the statute permits recoupment of education expenses only when a cadet fails to complete his or her military service obligation voluntarily or due to misconduct.  The USMA Superintendent and Deputy Chief of Staff, G-1 ruled that the applicant failed to fulfill his active duty obligation due to his inability to meet the Army standards and that his failure was voluntary.  Although the applicant had a history of medical ailments, he was provided the required recovery time mandated in support of the duration that he was under a medical profile status.  The opinion states that the applicant’s continued APFT failures reflected that he voluntarily did not put forth the necessary effort to maintain the appropriate physical fitness level.  The opinion concludes that, unless new matters of defense are submitted that refute the facts presented, the decision of the Office of the Deputy Chief of Staff, G-1 remained the same.  

53.  The applicant was provided a copy of the advisory opinion for possible comment or rebuttal.  In rebuttal, the applicant’s counsel states that the advisory opinion introduced no new facts or evidence.  Counsel states that Colonel _______’s discussion of the doctrine of administrative finality was inapplicable because it was the duty of the Board to weigh the evidence and determine whether the records contain errors and injustices warranting the relief requested. Counsel points out that the applicant did not apply to the G-1 for reconsideration of its decision to separate him and to recoup its expenses.  Counsel continues to state that Colonel ________ did not address the applicant’s claim that his disenrollment during his final academic semester was grossly unjust, as the Board determined in ABCMR Docket Number AR2003094057, dated 4 August 2004.  Counsel reiterates his previous arguments in his brief received on 19 December 2006.  In conclusion, counsel states the applicant provided compelling evidence providing that his disenrollment was erroneous and unjust, and that he does not owe the government a lawful debt.  

54.  On 4 April 2007, the Defense Finance and Accounting Service (DFAS) informed a staff member that the applicant’s total Defense Debt Management System (DDMS) balance was $140,885.90.

55.  Title 10, U. S. Code, section 2005(a)(3) reads in full:

	(3)  that if such person, voluntarily or because of misconduct, fails to complete the period for active duty specified in the agreement, or fails to fulfill any term or condition prescribed pursuant to clause (4) (emphasis added), such person will reimburse the United States in an amount that be as the same ratio 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.

56.  Title 10, U. S. Code, section 2005(a)(4) reads:

	(4) to other such terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States.

57.  Army Regulation 210-26 (USMA) provides existing direction and guidance from the Secretary of the Army for the general governance and operating policies 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 APFT are applicable to cadets at the Military Academy.  A cadet who fails to meet the APFT standards and conditions as outlined in Army Regulation 350-41 may be separated from the Military Academy.  

58.  Paragraph 7-9b of Army Regulation 210-26 states, 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.  

59.  Paragraph 7-9c of Army Regulation 210-26 states, in pertinent part, that if a cadet who voluntarily, or because of misconduct fails to complete the period of active duty service specified by the Secretary in the cadet’s agreement to serve may be required to reimburse the Government for educational costs pursuant to Section 2005, Title 10, United States Code and implementing regulations.  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.  

60.  Army Regulation 612-205, in effect at the time, provided the policy for separation of Army members from the service academies.  Paragraph 7a(1)(b) states that the Superintendent of USMA will take action as shown in Table 3 for cadets separated for other than physical disability.  Table 3, Rule 9 states that a cadet will be discharged because of unsuitability for military service as contemplated by Army Regulation 635-200.

61.  United States v. Gears, 835 F. Supp. 1093 (N.D. Ind. 1993) involved a midshipman who was recommended for disenrollment from the Naval Academy because of his non-compliance with the Academy's weight standards, his inability to meet the Naval Academy's minimum physical education requirements, and his inability to conform to the Academy's physical fitness standard.  He was discharged and reimbursement was demanded.  One of the decisions made by the court in that case was that the cadets' active duty service agreement with the service was at the discretion of the Service Secretary.  The Service Secretary, in discharging the cadet from the Academy, determined that the length of the cadet's active duty service agreement was zero days and reimbursement was warranted if the decision was the cadet's voluntary choice or resulted from misconduct.  The court found the government had proven the element of recovery of educational expenses under section 2005 to Title 10, U. S. Code in that the cadet had failed to complete the period of active duty specified in the original contract.

62.  The Court noted that the second element for recovery under section 2005(a)(3) required the Government to prove either that Mr. Gears voluntarily failed to complete his period of active duty or that his failure to complete his period of active duty was because of misconduct.  The Court found that the Government had not satisfied that burden.

63.  The Court believed that the phrase "voluntarily…fails to complete the period of active duty" required, at the least, either an intent to produce a separation from the service or an awareness that a chosen course of conduct would produce such a result.  The Court found that nothing in the record indicated that Mr. Gears knew his weight threatened his active service as well as his commission.

64.  The Court also found that no misconduct on the part of Mr. Gears had taken place.  Mr. Gears had sought an award of attorney fees, contending that the suit was not substantially justified.  The Court disagreed and believed that the Government's action was substantially justified.  The Court noted that Mr. Gears' case ultimately turned on a question of statutory interpretation, with both parties presenting reasonable interpretations of the law, and the law as applied to the facts.  Although the Court decided in Mr. Gears' favor, it was a close decision.

65.  A more recent Federal Court case in 2001, Favreau versus United States, concerned alleged breach of contract and illegal exaction through recoupment of bonuses.  This was a class action brought by members of the Armed Forces who were separated because they failed to meet weight and/or physical fitness standards.  The court opined each service has the authority to determine the standards that individuals must meet to remain a member of the Armed Forces.  The court determined the plaintiffs failed to satisfy such requirements pertaining to weight control or physical fitness and that failure to meet those standards were not caused by medical conditions.  Additionally, they were not separated until they received counseling, remedial weight or physical fitness programs, and had been advised that failure to meet standards might result in discharge.

66.  The court noted the Office of the Secretary of Defense (OSD) uniformly determines the question whether an individual has failed to complete a term of enlistment "voluntarily" depends on whether the service member was separated for engaging in conduct within the control of the service member but incompatible with military service.  OSD has uniformly determined recoupment is appropriate if the conduct that resulted in the separation was voluntary (within the service member's control).  The focus is thus not on the characterization of the separation itself but on the service member's actions or inactions leading to separation.  As long as persons with medically diagnosed problems that interfere with weight reduction or maintaining physical fitness are not being separated for weight control failure or lack of physical fitness, the failure to meet standards is deemed volitional.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s counsel contends that the ABCMR has granted relief in a similar 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.  

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.  The evidence of record 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 was 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.  Counsel contended that, in Favreau v. United States, the court accepted the Department of Defense interpretation of the term “voluntary” so long as persons with medically diagnosed problems that interfere with maintaining physical fitness may not be separated for lack of physical fitness.  He contended the applicant was plagued by physical injuries and conditions that impaired his ability to properly train for and pass the APFT from nearly the onset of his cadet career.  

5.  There is evidence of record to show the applicant had problems with the APFT from nearly the onset of his cadet career; however, the first available evidence of record to show he had medically-diagnosed problems that could have interfered with his passing the APFT is dated 22 February 2000.  It is noted that, in his 19 June 1999 memorandum to the BTO he mentioned he had been injured prior to the 60-day and 90-day retests; however, medical documentation from those incidents is not available for the Board to consider and presumably they only rendered him temporarily unable to perform the APFT.  

6.  There is no evidence of record to show the applicant was on other than a temporary profile (on 18 January 2001 and due to expire on 4 February 2001 and on 27 March 2001 and due to expire on 26 April 2001) or that he had any other medical condition that rendered him physically unfit to perform his military duties except for certain events on the APFT.  Although the applicant had been diagnosed with a herniated disc, he was diagnosed with this condition several years after his difficulty with passing the APFT began and after separation proceedings were initiated.  None of the failed APFTs were due to his back condition.  Additionally, applicant’s failures to meet push-up standards were not affected by the profiles he was issued.  Therefore, counsel’s contention that the Army separated the applicant due to the injuries and conditions he suffered, rather than because he voluntarily (under the Department of Defense interpretation of “voluntary” as upheld by the court) failed to meet the Army physical fitness standards, is not supported by the evidence.  

7.  It is noted that the court, in United States v. Gears, found that the Government failed to proof that Gears voluntarily failed to complete his period of active duty because there was nothing in the record to indicate that Mr. Gears knew his weight threatened his active service as well as his commission.  The applicant, on the other hand, was informed as early as January 1999 that failure to pass the APFT would result in his separation.  It is also noted that the decision in Gears was close.  The decision in ABCMR Docket Number AR2003094057 also was not a unanimous decision to grant relief.

8.  The Army invests much time and money in ensuring as many cadets as possible graduate and fulfill their obligation to the Army.  It appears the Academy was giving the applicant every benefit of the doubt by allowing him to continue with the course beyond his second year.  Presumably, the applicant also wanted to continue the course or else he would have agreed that he should be separated prior to the start of his third year.  

9.  It is regrettable that the final outcome was that the applicant could not pass the APFT and was separated without being allowed to graduate; however, he received almost four full years of a college education at Government expense.  Almost all of his credits would have been transferable to another institution of higher education.  To waive the debt without getting the benefits of the active duty obligation he would have owed had he graduated would be an unjust enrichment.  To have ordered him to active duty in an enlisted status would have almost certainly condemned him to failing the first APFTs he took as an enlisted Soldier and have also earned him an early separation as an enlisted Soldier.


10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 April 2003; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 24 April 2006.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x_____ x______ x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



x______
          CHAIRPERSON




INDEX

CASE ID
AR20060014346
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070726
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
128.1000
2.

3.

4.

5.

6.