RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 July 2007
	DOCKET NUMBER:  AR20060014750 


	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

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. Eric Andersen

Chairperson

Mr. Scott Faught

Member

Ms. Ernestine Fields

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 counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests that the applicant’s debt ($129, 296.00) for educational expenses be remitted. 

2.  Counsel states, in effect, that in May 1999 only weeks before the applicant’s graduation from the U.S. Military Academy at West Point, New York he sought discharge from the military as a conscientious objector under the provisions of Army Regulation 600-43.  He states that the applicant’s application was approved later that year and the applicant officially resigned on 9 September 2000.  In 2005, the applicant was notified that the Army was seeking recoupment of his education expenses totaling almost $130,000.00. 

3.  Counsel describes the applicant’s duty and academic performance during his tenure at West Point, the circumstances surrounding the applicant’s decision to pursue a conscientious objector status, the details of the applicant’s conscientious objector hearing, and the recoupment investigation.  He goes on to state that in March 2005, the applicant began receiving notices from the Defense Finance and Accounting Service that full payment of $129,296.00 be made for his Academy expenses and that after several attempts to obtain documents pertaining to the nature of his debt, the applicant retained him for representation. 

4.  Counsel points out that his attempts to obtain documents relating to the applicant from West Point were unsuccessful and that the U.S. Army violated the Freedom of Information Act, Title 5, U.S. Code, section 552, causing undue prejudice to the applicant.  Counsel argues that West Point violated Title 10, U.S. Code, section 2005 by not hearing evidence from the applicant during the recoupment investigation and that the applicant should not be required to repay the cost of his education because of his status as a conscientious objector.

5.  Counsel provides 26 exhibits outlined on page 11 of his memorandum in support of the applicant’s application.

CONSIDERATION OF EVIDENCE:

1.  On 29 June 1995, the applicant was appointed a cadet of the U.S. Military Academy at West Point, New York.  His oath of allegiance states that he agreed that if he voluntarily failed to complete the period of active duty specified he would reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided him as the unserved portion of active duty bears to the total period of active duty he agreed to serve.  This document also states, in pertinent part, that the term “voluntarily fail” includes, but is not limited to, failure to complete the period of active duty because of conscientious objection. 

2.  A memorandum for record, dated 12 May 1999, from the applicant’s tactical officer at West Point states that the applicant entered his office at approximately 1615 hours on 12 May 1999 and informed him of his declaration of conscientious objector.  This memorandum also states, in pertinent part, that “He (the applicant) stated that he would be willing to repay his debt to the United States Government through some community service or through a tuition repayment plan.”

3.  On 14 May 1999, the applicant requested discharge under conscientious objector code 1-0.  In a memorandum, dated 24 May 1999, the applicant documented pertinent information surrounding his request to acquire conscientious objector status.  In pertinent part, he stated, “By declaring my beliefs and applying for conscientious objector status I have sacrificed a hard-earned degree from West Point, lost all the benefits associated with such a degree, broken friendships, been continually badgered by my parents, and other family members as to the monetary ramifications of my decision.”      

4.  On 19 August 1999, a conscientious objector hearing was conducted.  On 
17 November 1999, the Superintendent recommended that the applicant be granted 1-0 conscientious objection status, that he be separated with an honorable discharge, and that action be initiated to recoup his educational expenses. 

5.  A memorandum for the Office of the Superintendent, U.S. Military Academy, West Point, New York, dated 30 December 1999, states the applicant’s application for conscientious objector status (1-0) was approved.  This memorandum also states, in pertinent part, that “Unearned portions of any appropriated funds expended upon the soldier under DOD-sponsored educational programs and/or unearned portions of bonus payments must be recouped.” 

6.  In 2000, an investigation was initiated to determine the validity of the applicant’s debt for recoupment of educational expenses.  The investigating officer completed his findings and recommendations on 10 January 2002.  He found the applicant liable for the cost of his education at West Point, New York.  In his findings, the investigating officer also stated that all correspondence he attempted to send to the applicant to inform him of his debt had been returned unclaimed.   

7.  On 8 September 2000, the applicant was honorably discharged under the provisions of Army Regulation 600-43, paragraph 3-4, for resignation.  

8.  Counsel provided an email, dated 21 June 2001, from the investigating officer to a Staff Judge Advocate.  In summary, the investigating officer stated that he contacted the applicant’s parents in Texas and they haven’t spoken to the applicant since May 1999 following his declaration of conscientious objector status and that they have no idea of his location.  The investigating officer stated that he called the applicant’s girlfriend’s telephone number repeatedly and received no response and that he called the lawyer representing the applicant and he has no idea of the applicant’s location.  The investigating officer stated that he had no valid address to send the documents to inform the applicant of his debt to the U.S. Government and that if he sends the documents to his home of record his parents will send them back.  He indicated that he had no additional resources at his disposal to try to locate the applicant.  

9.  On 17 September 2001, the applicant’s father informed West Point that the applicant was not a resident in his house and that the applicant had chosen to break all contact with him.  He provided the last known address of the applicant in Flushing, New York.  A private investigator confirmed that the applicant resided at this address.  The registered mail sent to the Flushing, New York address was returned as unclaimed in November 2001.  

10.  A memorandum, dated 10 November 2004, directs the recoupment action for the applicant’s educational expenses in the amount of $129,296.00.

11.  On 16 February 2005, the Defense Finance and Accounting Service (DFAS) established the applicant’s debt and addressed a letter to the applicant at the same Flushing, New York address used by the investigating officer to notify the applicant of the debt.  

12.  On 9 December 2005, the applicant informed DFAS that he disputed the debt.

13.  In the processing of this case an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1.  That office states the doctrine of administrative finality precludes their office from reconsidering its prior decision to order recoupment for the cost of the applicant’s education.  That office recommends disapproval of the applicant’s request. 

14.  The advisory opinion was provided to the applicant for review and possible rebuttal.  On 16 May 2007, counsel responded.  In summary, he stated that citing the doctrine of administrative finality has absolutely no bearing on the Board’s standard of review in accordance with Title 10, U.S. Code 1552.  Counsel states the Board failed to acquire any opinion that adequately and specifically addressed the three arguments contained in the application.  Counsel also states that it would be a disservice to the applicant for the Board to base its decision solely on the inadequate and irrelevant content of one advisory opinion.  

15.  Title 5, U.S. Code, section 552, provides, in pertinent part, that each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefore, and of the right o such person to appeal to the head of the agency any adverse determination.  

16.  Title 10, U.S. Code, section 2005(g)(1) provides, in pertinent part, that in any case in which the Secretary concerned determines that a person who entered into an agreement under this section failed to complete the period of active duty specified in the agreement (or failed to fulfill any other term or condition prescribed in the agreement) and, by reason of the provision of the agreement required under subsection (a)(3), may owe a debt to the United States and in which that person disputes that such a debt is owed, the Secretary shall designate a member of the armed forces or a civilian employee under the jurisdiction of the Secretary to investigate the facts of the case and hear evidence presented by the person who may owe the debt and other parties, as appropriate, in order to determine the validity of the debt.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that West Point violated Title 10, U.S. Code, section 2005 by not hearing evidence from the applicant during the recoupment investigation.  Evidence of record shows numerous attempts were made to send the applicant the investigation.  Further, it appears that the investigating officer’s certified letter sent to the applicant’s Flushing, New York address was not accepted.  The Board notes that the applicant was receiving mail at this address, as evidenced by the fact the applicant received the 2005 recoupment letter from DFAS and stated his desire to contest the debt.  The fact that he failed to respond to repeated efforts by the investigating officer when he knew that a debt for recoupment of his $129,296.00 educational expenses could be established, is not a valid excuse to now waive his requirement to repay that debt.  The Army afforded the applicant a sufficient opportunity to challenge the debt.
2.  Any argument that the applicant should not be required to repay that debt because West Point violated the Freedom of Information Act is also without merit.  Had the applicant kept West Point informed of his address or responded to the investigating officer’s attempts to contact him, he could have had the recoupment investigation packet years ago.  Further, any claimed error based on the applicant’s Freedom of Information Act request is premature, as the applicant has not shown he has exhausted all of his remedies under the Act.       

3.  Counsel’s argument that the applicant should not be required to repay the cost of his education because of his status as a conscientious objector was noted.  However, evidence of record shows that on 29 July 1995 the applicant signed an oath of allegiance and agreed that if he voluntarily failed to complete the period of active duty because of conscientious objection he would reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided him as the unserved portion of active duty bears to the total period of active duty he agreed to serve.  Evidence of record also shows the applicant was aware of his debt to the U.S. Government on 12 May 1999 when he told his tactical officer at West Point of his declaration of conscientious objector.  Therefore, there is no basis for granting the applicant’s request.     

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

EA_____  __SF____  __EF____  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.


___Eric Andersen______
          CHAIRPERSON




INDEX

CASE ID
AR20060014750
SUFFIX

RECON

DATE BOARDED
20070703
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
128.1000
2.

3.

4.

5.

6.