RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20060016880 


	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. John Slone

Chairperson

Ms. Marla Troup

Member

Mr. Thomas Ray

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, in effect, that the applicant’s records be corrected to show that he does not owe a $164,538 debt for failing to graduate from the U.S. Military Academy (USMA).

2.  Counsel states, in effect, that in March 2005, only two months before the applicant’s graduation from the USMA at West Point, he was placed on leave pending separation under Army Regulation 210-26, paragraph 6-25a.  The applicant was separated for failing two consecutive Army Physical Fitness Tests (APFT), one administered in September 2004, and a remedial APFT administered in December 2004.  He states the Army erroneously contends that the applicant voluntarily breached his service agreement and is liable for recoupment of education expenses totaling nearly $165,000.  He contends that sufficient evidence suggests that the applicant did not voluntarily breach his service agreement and should not be held liable for recoupment of education costs.     

3.  Counsel states that the applicant’s duty performance records during his first three years at the USMA reflect those of an average cadet, that his academic performance could be described as satisfactory, and that his physical performance was similar to his academic performance.  He points out that although the applicant failed two initial APFTs in July 2001 and June 2002, he passed the final record tests he took shortly thereafter.  Counsel states that on 
21 September 2004, the applicant failed an APFT by not finishing the two mile run portion after inadvertently stepping into a pot hole and injuring his right hamstring.  The applicant acknowledged that he would be administered a retest within 90 days and that the counseling reports following the APFT describe push-ups and sit-ups as his strengths and indicate that while the two mile run was an obvious weakness, he had successfully completed a recent diagnostic run.  

4.  Counsel states that following the test, the applicant continued to feel significant discomfort in his right hamstring and knee and on 21 September 2004 the hamstring strain was officially documented by a physical therapist.  On 
9 December 2004, the applicant re-took the APFT and passed the two mile run and sit-up events but failed the push-up portion.  He states the applicant experienced “significant discomfort” and “sharp stabbing sensations” in his left shoulder that forced him to finish the event before the two minutes expired.  Immediately following the APFT, the applicant notified his command of his shoulder injury and was advised to see medical personnel within 24 hours.  The next day the applicant was diagnosed with biceptal tendonitis and issued an excusal from physical activities for a week.  He states that the applicant had never failed a push-up event.  Nonetheless, the make-up APFT was recorded as a failure and the applicant was recommended for separation by the Commandant of Cadets on 17 December 2004 under the provisions of Army Regulation 210-26 for failure to meet APFT standards.

5.  Counsel states that the applicant issued a statement in an attempt to explain that his second APFT failure was a result of a medical problem with his left shoulder but the USMA Superintendent concurred with the recommendation to separate the applicant.  On 9 March 2005, the applicant was forced to leave the USMA on a leave of absence without pay pending final approval. 

6.  Counsel points out that the fall semester of the applicant’s senior year was marred by a tumultuous relationship with a new Tactical Officer who took over that position during the summer of 2004.  Over the course of two months, the applicant received a total of 90 demerits on four separate counts of failure to comply with regulations, orders, or instructions.  Eighty-five of the demerits were given to him by the Tactical Officer.  Prior to that time, the applicant had only incurred five demerits for disciplinary infractions.  Counsel states the Tactical Officer aggressively sought the applicant’s separation after initiating a conduct investigation that found the applicant deficient in conduct.  Following the findings of the investigation, the Tactical Officer, the Regimental Tactical Officer, the Brigade Tactical Officer, and the Commandant of Cadets all submitted concurrences with the recommendation for the applicant’s separation from the USMA.  Despite the recommendations on grounds of misconduct, the Superintendent elected to separate the applicant solely on the basis of his alleged failure to meet USMA physical standards.  

7.  Counsel points out that in the months following his release from the USMA, the applicant sought further medical evaluations from civilian doctors to assess the pain and injuries that he had been suffering from during the period of his APFT failures.  The doctors administered an x-ray scan on the applicant’s knee and found a lesion on his right tibia.  They administered magnetic resonance imaging (MRI) tests and noted that the applicant’s condition would require physical therapy and potentially orthoscopic surgery.  Counsel notes that no medical personnel at the USMA ever administered x-rays or an MRI to determine the source of the pain in the applicant’s knee.  

8.  Counsel states that in May 2005 the applicant was notified that he was liable to reimburse the United States for education costs totaling $164,538 for failing to fulfill his obligation to serve in accordance with his Agreement to Serve.  In February 2006, the applicant requested a copy of his official military records under the provisions of the Freedom of Information Act (FOIA).  The USMA FOIA office responded in April 2006 by requesting an extension of an unspecified amount of time to process the request.  Failing to receive a response in over 
45 days, counsel submitted a request in March 2006 for the applicant’s military records and medical records.  In May 2006, the USMA FOIA office released only a portion of the requested documents.  The cover letter indicated that a portion of the documents were being withheld under Exemptions 2 and 5 and that those documents were being sent to Headquarters, Department of the Army for a final determination.  At present, counsel has not received any determination from the Headquarters, Department of the Army regarding the release of the documents initially withheld by the USMA. 

9.  Counsel argues that the United States violated the FOIA and has caused undue prejudice to the applicant, that the USMA’s failure to comply with its statutory obligations significantly impeded the applicant’s ability to present an effective case before the Army Board for Correction of Military Records (ABCMR), and that counsel has sufficient reason to believe that the unreleased documents contain material information directly relating to the USMA’s decision to separate and recoup educational funds from the applicant. 

10.  Counsel also argues that the applicant did not voluntarily fail to complete the period of active duty and is therefore not liable to recoup education costs.  He contends that the applicant did not voluntarily fail to complete his active duty requirements by failing an initial APFT and the retake.  He states the applicant has definitive and legitimate medical documentation proving that his inability to reach minimum quotas in the two mile run and push-up events was not willful but instead due to physical limitations.  Counsel pointed out that courts have ruled in favor of cadets in similar situations to the applicant’s (i.e. U.S v. Gears).   

11.  Counsel further states that although the applicant’s record shows demerits, his separation was not a result of misconduct but rather was premised entirely on his failure to meet physical fitness standards.  He states that because the record contains overwhelming evidence that he never wanted to, or intended to, be separated from the USMA, the applicant should not be required to reimburse the United States for education costs.     

12.  Counsel provides 25 exhibits outlined on page 13 of his memorandum.

CONSIDERATION OF EVIDENCE:

1.  On 2 July 2001, 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.

2.  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.”

3.  The USMA Department of Physical Education (DPE) administered the APFT to the applicant on 21 September 2004.  He had passed the push-up and sit-up portions of the APFT but failed the 2-mile run portion.  On 12 November 2004, he was counseled regarding his failure of the APFT.

4.  On 22 September 2004, the applicant acknowledged that he understood that he would take the 90-day APFT retest on or before 20 December 2004 and that failure to achieve the minimum standard on the second APFT would result in recommendation for separation under the provisions of Army Regulation 
635-200.

5.  On 23 September 2004, the applicant was issued a Cadet Excusal for a right hamstring strain/injury.  He was placed on limited duty medical excusal through 28 September 2004 and he was instructed to perform physical therapy.    

6.  On 6 December 2004, a Record of Formal Proceedings under Article 
10, Cadet Disciplinary Code was imposed against the applicant for failure to obey a lawful order.  His punishment consisted of an admonition/reprimand, extra duty, restriction, and withdrawal of privileges.  

7.  The DPE administered a 90-day APFT retest to the applicant on 9 December 2004.  He passed the run and sit-up portions of the APFT but failed the push-up portion by 3 repetitions.  

8.  On 10 December 2004, the applicant was issued a Cadet Excusal for an unspecified medical condition.  He was placed on limited duty medical excusal through 17 December 2004 and he was instructed to perform upper body “PT” at his own pace and to get sleep.  He was also diagnosed with biceptal tendonitis.   

9.  By a 17 December 2004 memorandum, the applicant was notified that he was being considered for separation from the USMA for failing to meet age and gender specific minimums on the APFT.  He failed to pass the APFT on 
21 September 2004 and also failed the retest on 9 December 2004.  The applicant was informed he could submit a written response no later than 
6 January 2005 explaining any extenuating circumstances or special considerations he believed should influence the final decision in his case.  

10.  On 6 January 2005, the applicant submitted a memorandum to explain the circumstances surrounding his failure of the APFT retest administered on 
9 December 2004.  He stated that he failed the push-up portion of the test because he injured/re-injured himself during the event.  He claims he sustained a shoulder injury due to biceptal tendonitis in his left shoulder.  He indicated that the Brigade Surgeon felt that the injury should not have been sufficient enough to cause him to fail the push-up portion of the APFT test, but he strongly disagreed given the pain he felt.  He pointed out that while the 2-mile run portion had been some difficulty to him historically, the push-up portion had never caused him problems and just two weeks prior to the retest he took a diagnostic APFT and completed just under 60 push-ups.  Therefore, he felt he should be given a reconsideration on the grounds of the injury he sustained during the APFT retake.   

11.  An email, dated 12 January 2005, from the Brigade Surgeon states, in pertinent part, that based on his recollection of the applicant’s visit on 
10 December 2004, the preponderance of the visit was spent evaluating his chronic sleep deprivation, as this was the impetus for the visit, and was also the applicant’s main concern.  Minimal time was spent on his shoulder injury, as this was a relatively minor side issue (as understood by him at the time).  The email also states, “I and the medical profession cannot say with 100% certainty whether his pain at the time of the event should have been tolerable enough to complete a passing push up score.  Pain and tolerance are fundamentally individually unique experiences.  What can be medically substantiated is that at the time of my exam he had no indications of a significant joint or muscle injury/ailment which should have precluded him from completing push ups earlier that day.  Substantial numbers of soldiers with similar and/or more significant shoulder injuries are able to pass the APFT, despite their pain levels.”  

12.  On 24 January 2005, a conduct investigation convened to hear matters pertaining to the conduct deficiency of the applicant.  An investigating officer found the applicant deficient in conduct for exceeding his 6 month demerit allowance by receiving 90 demerits, 18 demerits in excess of his allowance of 
72, between 12 October 2004 and 5 December 2004.  His disciplinary awards were for failure to comply with regulations, orders, or instructions.  The investigating officer recommended that the applicant be separated.  The Tactical Officer, the Regimental Tactical Officer, and the Brigade Tactical Officer concurred with the investigating officer’s recommendation.  On 10 February 2005, the Commandant of Cadets concurred with the findings that the applicant was deficient in conduct and recommended that he be separated from the USMA and discharged from the Army. 

13.  On 9 March 2005, the Superintendent of the USMA prepared a memorandum and recommended the applicant be separated from the USMA and discharged from the Army with an honorable discharge.  The memorandum noted that the applicant had repeatedly failed to pass the APFT in accordance with Army Regulation 350-1 and that he did not meet Army fitness standards to graduate or to serve as an enlisted Soldier.  His failure to meet APFT standards constituted a breach of his service agreement under the provisions of Army Regulation 210-26, USMA, paragraph 7-9(a).  In addition, he recommended that the Secretary of the Army initiate action to recoup the cost of the applicant’s USMA education.

14.  Headquarters, USMA, West Point, New York Orders 69-10, dated 10 March 2005, show the applicant was placed on leave of absence without pay and allowances effective 11 March 2005 pending approval of separation.    

15.  On 6 April 2005, the applicant was notified that an informal investigation was initiated in regards to the recoupment of debt owed for his educational costs while at the USMA.  On 16 May 2005, the applicant was notified that the investigating officer found that he failed to fulfill his obligation to serve and that his debt to the United States totaled $164,538.   

16.  Records show that on 5 May 2005, a civilian doctor x-rayed the applicant’s knee and found a lesion on his right tibia and noted that the applicant’s condition would require physical therapy and potentially orthoscopic surgery.  
 
17.  The approval authority’s action is not available.

18.  The applicant’s discharge orders are not available.

19.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) is not available.  However, the applicant indicated that he was discharged from the USMA on 11 July 2005.

20.  On 27 February 2006, the applicant submitted a request to the USMA for a complete copy of all of his records (medical records, tactical officer evaluation reports, cadet evaluations, APFT scores and records, and all other (non-academic) evaluations and reports) under the FOIA.  On 5 April 2006, he received a letter from the USMA requesting an extension of time to process his request.  

21.  On 6 May 2006, the FOIA office of USMA responded to the applicant’s request, released records to him, and informed him that a portion of the documents were being withheld under Exemption 2 and 5 as they were internal documents and pre-decisional documents.  He was also informed that these documents would be forwarded to the Headquarters, Department of the Army, Deputy Chief of Staff G-1 for final determination on releasability.  On 
26 June 2007, the Office of the Deputy Chief of Staff G-1 responded to counsel’s FOIA request dated 20 March 2006.  He advised counsel that the remaining documents were not releasable to him, as they were pre-decisional, deliberative documents used in the evaluation process, and were exempt from release pursuant to Exemption 5, Title 5, U.S. Code, Section 552a(k)(5), as implemented by Army Regulation 340-21.  Both the FOIA and Privacy Act protect these documents from disclosure.  Similarly, some of the requested documents were not subject to release as they contained internal communications consisting of pre-decisional deliberations related to an individual’s qualification for admission, and were exempt from release pursuant to Exemption 2, Title 5, U.S. Code, Sections 552(b)(2) (“High 2”), as implemented by Army Regulation 25-55.         

22.  In the processing of this case, a staff advisory opinion was obtained from the Legal Advisor, USMA, West Point, New York.  The opinion states that the applicant’s allegations (that USMA violated the FOIA, thereby causing undue prejudice to him, and that his APFT failure was not voluntary) are without merit and the applicant should not be entitled to relief.   

23.  The opinion states that the applicant’s argument that USMA violated the FOIA, thereby causing undue prejudice, fails because the applicant failed to exhaust his administrative remedies by not filing an appeal of the initial denial; that the request for review from USMA to Headquarters, Department of the Army is not bound by the 20-day statutory time limit that applies to new requests; and that his argument as to prejudice is conclusory because it fails to demonstrate the prejudice he has suffered.

24.  The opinion states that if a person voluntarily or because of misconduct fails to complete a period of active duty, the person will reimburse the United States for the costs of education provided by the government.  The Department of Defense has considered failure to achieve physical fitness standards as a breach of active duty requirements, and therefore, a voluntary separation for purposes of recoupment.  The applicant argues that he did not voluntarily fail to complete his active duty requirements by failing the initial APFT and the retake because he had legitimate and documented medical excuses.  However, the applicant has not provided sufficient medical evidence to show that he was not capable of passing either of the APFTs.  The applicant was not on a physical profile at the time of either APFT, he was not in a recovery period from any physical profile at the time of either APFT, and he did not inform his commanding officer prior to either APFT that he was medically unfit to complete the test.  

25.  The opinion points out that the applicant argues that he failed the first test because he stepped into a pothole during the 2-mile run and strained his hamstring.  However, he never reported the incident after the APFT to his commanding officer.  After he failed the second APFT, the examining doctor expressly stated that there was no evidence that the applicant’s injuries would have, or should have, prevented him from passing the APFT.  After the applicant failed his final APFT he was examined by civilian doctors who diagnosed a lesion on his right tibia; however, the civilian doctors did not diagnose any impairment in the applicant’s shoulders.  His knee condition would not have prevented him from completing the required push-up repetitions.  The knee condition would only affect the applicant’s ability to complete the 2-mile run, which he passed on the second APFT, and in his memorandum the applicant states that he failed the first APFT run because of a hamstring strain, not a knee injury.      

26.  The opinion states the applicant cites two cases (sic) in his memorandum, where the court found that the government was precluded from recoupment of educational expenses, as precedent for how the Board should rule in his case.  The facts of these cases can be distinguished from the applicant’s case.  For example, in U.S. v. Gears the court found that the defendant did not “voluntarily” fail to complete his active duty requirement because he was not aware that his weight would bar him from completing his active duty obligation.  In contrast, the applicant was explicitly notified of the consequences of failing to pass the APFT.  The USMA APFT standards are identical to active duty Army APFT standards, further distinguishing the applicant’s case from Gears.

27.  The opinion also states that the ABCMR ruling in the 2004 case attached to the applicant’s memorandum differs from his case.  In that case, the cadet suffered from numerous medical injuries since he enrolled at USMA, including a herniated disk which required surgery, and had a medical profile for 6 months.  Moreover, this cadet presented evidence through witness testimony and his membership on USMA intramural wrestling team that he had worked hard to meet Army physical fitness standards.  Accordingly, the ABCMR concluded that the cadet in the 2004 case did not voluntarily fail the APFT.  In addition, the Board ruled that because USMA knew that this cadet had serious medical problems from the beginning, which would make it extremely difficult for him to pass the APFT, it was unfair to seek recoupment and that the USMA should have separated him before he became subject to recoupment.  In contrast, the Army was not aware of the applicant’s injuries until after he failed his final APFT and was subject to recoupment, he was never on medical profile, and none of his injuries required surgery.  

28.  The opinion concluded that the applicant’s request should be denied.  His failure to meet Army physical fitness standards was a result of his volitional acts; he was well aware of these standards and the consequences that would follow should he fail to meet them; and after he failed the first APFT he was given a second opportunity to pass and participated in a remedial program.  He failed the APFT a second time and was sent to a doctor who concluded that his injuries should not have impaired him from passing the APFT.  Because the applicant’s alleged injuries were not found to have prevented him from passing the APFT, separation from USMA was proper and therefore he must reimburse the government for his educational expenses.  

29.  The opinion further states that the ABCMR should not prevent recoupment based upon either the applicant’s alleged physical ailments or his FOIA claim.  The Army has a compelling interest to set demanding physical standards and dismiss those who cannot comply with those standards.  The Army cannot and need not grant exceptions, or an unlimited amount of retests, for every minor ache and pain one might naturally experience while completing the APFT.  If exceptions are to be made they must be only on account of legitimate and documented medical injuries.  The applicant’s FOIA claim should not preclude the government from recoupment.  The applicant was not prejudiced by not receiving the requested documents.  All documents pertaining to his separation and the subsequent recoupment action were provided by the Commandant’s letter pursuant to Army regulations.  Most importantly, the free diploma from USMA the applicant would have been awarded was in exchange for 4 years of military service.  Because the applicant will not serve in the Army, as a matter of equity he should not be given a free education while his fellow classmates are honorably serving their commitments, many of which are away from their families, deployed abroad in Afghanistan and Iraq.
 
30.  On 9 July 2007, the applicant was provided a copy of the advisory opinion for possible comment or rebuttal.  He did not respond within the given time frame (20 August 2007).  However, on 6 September 2007, counsel requested a continuance until 9 October 2007.  On 5 October 2007, counsel requested a second continuance until 24 October 2007.

31.  In rebuttal, counsel states that due to the fact that the applicant’s hamstring injury not only occurred during the test, but was confirmed by certified medical personnel, the APFT should not be recorded as an inclusion of the two, allowed, attempts.  Counsel states that the Brigade Surgeon presumed that the injury should not have caused the applicant to fail; this presumption has no basis considering the fact that the surgeon was not the person experiencing the pain.  The surgeon states that, “there is no medically objective way to verify/quantify pain or its near term impacts on a patient.”  Also, while the injury may not have prevented him from performing push-ups altogether, it certainly acted as a hindrance to keep the applicant from performing to his potential.  The surgeon’s words were that the “injury should not have caused him to fail.”  This statement allows for the implication that the injury could, in fact, have caused the applicant to fail.  While it “should not” have, it is possible that it did.

32.  Counsel states that the legal advisor’s claim that no action was taken to “exhaust his administrative remedies by not filing an appeal of the initial denial” is completely unfounded.  He points out that a letter of appeal was sent 2 days after receiving the initial denial letter.  Counsel states that the advisory opinion argues that the applicant received all information that was relevant to the case.  The documents that were not received included those that “contain[ed] internal and confidential information detailing USMA’s longstanding admissions and cadet evaluation criteria.  These documents are not of importance to Mr. [the applicant’s name] because all information that is pertinent to Mr. [the applicant’s name] separation and recoupment action for failure to pass the APFT has already been released.”  Considering that the applicant  was separated based on performance, the documents concerning his evaluation could have been critical in order to see how he was rated previously.  A cadet with an outstanding record and evaluations, prior to the failed APFTs, would make for a much stronger case regarding two justified failures.    

33.  Counsel states that it is plainly stated that failure to achieve physical fitness standards is cause for recoupment.  The applicant’s inability to successfully complete the APFTs was based solely on physical disabilities.  It is contradictory to fail a cadet in his APFT when he is physically unable to complete the test successfully.  He states that if the applicant’s hamstring strain had not been sufficient, there should have been no reason for him to be placed on Cadet Excusal.  He points out that following the applicant’s second APFT attempt he was placed on Cadet Excusal for an upper body injury and was diagnosed as suffering from biceptal tendonitis.   

34.  Counsel states that the advisory opinion points out that “civilian doctors did not diagnose any impairment in Mr. [the applicant’s name] shoulder.”  However, the applicant did not visit civilian doctors until 5 May 2005 – almost 6 months following the initial report of injury.  The tendonitis certainly could have healed by that point.  Counsel further states that not only were the applicant’s injuries documented, but they were, in fact, legitimate.  While surgery may not have been required, the impact that muscle injuries can take in physical performance cannot be emphasized enough.  The doctor clearly saw the applicant’s injuries as legitimate, otherwise there would not have been a need to place him on Cadet Excusal.  

35.  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 of 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 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.

36.  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.

37.  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.  

38.  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.  

39.  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, he or she 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.  

40.  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.

41.  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 cadet’s 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.

42.  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.

43.  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.

44.  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.

45.  The court noted the Office of the Secretary of Defense (OSD) uniformly determined that the answer to 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.  Counsel contends that the ABCMR has granted relief in a similar case.  The ABCMR reviews each case individually and as 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 that 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 as the unserved active duty bears to the total length of active duty required by his service agreement.

4.  It is noted that the court, in United States v. Gears, found that the Government failed to prove 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 September 2004 that failure to pass the APFT would result in his separation.  It is also noted that the decision in Gears was close.  

5.  Counsel’s contention that the applicant did not voluntarily fail to complete his active duty requirements by failing the APFTs because he had legitimate and documented medical conditions was noted.  However, the applicant has not provided sufficient medical evidence to show that he was not capable of passing either of the APFTs.  There is no medical evidence of record which shows he was on a physical profile at the time of either APFT or that he was in a recovery period from any physical profile at the time of either APFT.  In addition, he did not inform his commanding officer prior to either APFT that he was medically unfit to complete the test.  His Cadet Excusals following both failed APFTs placed him on limited duty medical excusal for approximately 1 week.    

6.  The Army invests much time and money in ensuring as many cadets as possible graduate and fulfill their obligation to the Army.  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 the applicant.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JS_____  __MT____  ___TR___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


___John Slone_________
          CHAIRPERSON




INDEX

CASE ID
AR20060016880
SUFFIX

RECON

DATE BOARDED
20071218
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
128.1000
2.

3.

4.

5.

6.