IN THE CASE OF:	  

		BOARD DATE:	  	  9 December 2008

		DOCKET NUMBER:  AR20070019029 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (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, in effect, that there are three material errors associated with the applicant's case.  First, he states that the Investigating Officer presumed that the applicant's Army Physical Fitness Test (APFT) failures were voluntary because he did not have a medical profile at the time of the test.  Secondly, he states that the Government erroneously separated the applicant for APFT failures despite his diagnosis of persistent physiologic varus of the proximal tibias.  Thirdly, the Government has erroneously demanded recoupment of the applicant's educational expenses from the USMA at West Point, New York.

3.  Counsel provides documents as listed under TAB A through TAB Q in the applicant's Supplemental Statement.  

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 27 August 1997, the applicant underwent a medical examination.  His DD Form 2351 (Department of Defense Examination Review Board (DODMERB) Report of Medical Examination) indicates his lower extremities as “Normal.”

3.  The applicant was examined by a civilian orthopedic surgeon on 11 June 1998.  The examining physician stated the applicant had been having right anterior knee pain from wrestling in high school and was diagnosed as having mild prepatellar bursitis.  

4.  On 29 June 1998, the applicant signed the oath of allegiance as a West Point Cadet.  There is no evidence of record to show he underwent a medical examination between August 1997 and June 1998.  

5.  Paragraph IIe of the Agreement to Serve states, in part, "That if I fail to complete the course of instruction of the United States Military Academy, breach my service agreement as defined in paragraph 1.g(3), Statement of Policies on the next page, or decline to accept no appointment as a commissioned officer, I will serve on active duty as specified in paragraphs 1.b through1.g, which are contained in the Statement of Policies on the next page:"

6.  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.” 

7.  Paragraph 1b 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.”

8.  Paragraph 1g(3) of the Statement of Policies states, "Breach of service agreement includes separation resulting from resignation, from (sic) 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)."

9.  The Department of Physical Education (DPE) administered the APFT to the applicant on 3 December 1998.  He passed the push-up portion (42 push-ups), and the sit-up portion (56 sit-ups) but he failed the 2-mile run portion (19 minutes and 4 seconds) of the APFT.  He was required to run 2-miles in 15 minutes and 54 seconds to pass .  

10.  The DPE administered an APFT retest to the applicant on 9 April 1999.  He passed the push-up portion (67 push-ups), the sit-up portion (79 sit-ups), and the 2-mile run portion (15 minutes and 51 seconds) of the APFT.  

11.  The DPE administered the APFT to the applicant on 13 June 1999.  He passed the push-up portion (72 push-ups), the sit-up portion (63 sit-ups), and the 2-mile run portion (15 minutes and 53 seconds) of the APFT.  

12.  On 6 July 1999, the applicant was examined by an USMA Surgeon for an injury to his right knee.  He was diagnosed as having a sprain to his right knee.

13.  The DPE administered the APFT to the applicant on 7 August 1999.  He passed the push-up portion (72 push-ups), the sit-up portion (71 sit-ups), and the 2-mile run portion (14 minutes and 57 seconds).  

14.  The DPE administered the APFT to the applicant on 6 December 1999.  He passed the push-up portion (50 push-ups), the sit-up portion (60 sit-ups), and the 2-mile run portion (15 minutes and 42 seconds) of the APFT.  

15.  His service records contain an Information Paper which indicates he failed a screening test in January 2000 and was counseled on the importance of physical training.  This document also shows that he failed a second screening test in March 2000 and failed a unit APFT in July 2000 (failed the 2-mile run).  

16.  A Chronological Record of Medical Care, dated 5 May 2000, shows the applicant injured his right foot during intramural rugby.  He was placed on a physical profile until 10 May 2000.
17.  The DPE administered the APFT to the applicant on 13 October 2000.  He passed the push-up portion (73 push-ups) and the sit-up portion (70 sit-ups) but he failed the 2-mile run portion (19 minutes and 10 seconds) of the APFT.  He was counseled on 27 October 2000.  The interviewer made the following recommendations for improvement: (1) keep physical activity log; (2) run a lot, variety (hills, intervals, distance); (3) lift legs for endurance; (4) cut back on alcohol consumption; and (5) keep off cigarettes.  The applicant commented that “I was feeling ill but thought that I could make the run anyway.  I was mistaken.  I quit smoking before the APFT, and have stayed off of cigarettes thus far.”

18.  The applicant was counseled on 2 November 2000 regarding his 13 October 2000 AFPT failure.  The Record of Counseling indicated the applicant failed to meet USMA minimum standards in physical fitness as measured by the APFT.  The applicant was advised that he would be scheduled for a 60-day retest on 13 December 2000 and if he failed to pass a 90-day retest, he could be recommended for separation. 

19.  On 27 November 2000, 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 15 December 2000.  On an unknown date, the applicant acknowledged receipt of the retest memorandum.

20.  The DPE administered a 60-day APFT retest to the applicant on 15 December 2000.  He passed the push-up portion (55 push-ups), the sit-up portion (64 sit-ups) but he failed the 2-mile run portion (16 minutes and 32 seconds) of the APFT.  

21.  On 19 December 2000, the DPE counseled the applicant regarding his 
60-day APFT retest failure on 15 December 2000.  The DPE stated the applicant failed to meet USMA minimum standards in physical fitness as measured by the APFT.  The applicant was advised that he would be scheduled for a 90-day retest on 19 January 2001 and if he failed to pass a 90-day retest, he could be recommended for separation.


22.  On 20 December 2000, the 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 90 days.  The BTO indicated that if the applicant failed any portions of his Army minimums during his retest, he would recommend separation proceedings be initiated against him under the provisions of paragraph 10.24 Regulation, USMA and he could be required to reimburse the U.S. Government for the cost of his education.  His scheduled APFT retest would occur on or about 19 January 2001.  On an unknown date, the applicant acknowledged receipt of the retest memorandum.

23.  The DPE administered the APFT to the applicant on 23 January 2001.  He passed the push-up portion (50 push-ups), the sit-up portion (60 sit-ups) but he failed the 2-mile run portion (16 minutes and 09 seconds) of the APFT.  

24.  In a 22 February 2001 memorandum, the Tactical Officer, Company G-3 informed the BTO that he recommended the applicant be separated from the USMA for failure to pass the APFT.  He indicated that the applicant failed to meet the Army age and gender-specific minimums on his Academic Year (AY) 2000-2001 Fall record APFT on 13 October 2000.  The applicant’s rescheduled 60-day retest and failure was on 15 December 2000.  The 90-day retest and failure was on 23 January 2001.  The Tactical Officer, Company G-3 stated the applicant repeatedly failed to meet the standard, specifically in the performance of the 
2-mile run and had established an historical pattern of failing to maintain the appropriate level of fitness to pass the semi-annual test.  He stated the applicant had failed 7 of 11 tests, despite having received counseling and remedial programs from the Physical Development Officer (PDO) to the DPE level.  

25.  In a 22 February 2001 memorandum, the Tactical Officer, Company G-3 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 Tactical Officer, Company G-3 indicated that the applicant’s substandard performance on two consecutive APFTs over a more than 90-day profile-free period cast significant doubt on his ability to serve as a commissioned officer.  The Tactical Officer, Company G-3 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.  

26.  On an unknown date, the applicant acknowledged receipt of the memorandum describing possible sanctions for a cadet separated for an APFT failure.  The Tactical Officer, Company G-3 made a handwritten entry, dated 26 February 2001, on the acknowledgement memorandum which stated “Cdt C____ C_____ did not provide a statement on his behalf nor character references as directed within this memorandum and as explained to him on 22 February 2001.”

27.  On 14 March 2001, the applicant submitted a Memorandum for Record explaining why he should be retained at the USMA.  He stated, in effect, that he had problems in the past involving his APFT, and the 2-mile had always given him trouble.  He has continued to work out and run diligently since his last APFT failure.  He stated he could pass the APFT and had endeavored to take a DPE test.  

28.  On 30 April 2001, the Superintendent recommended the applicant be separated from the USMA in accordance with Regulations for the USMA (Regs USMA), paragraph 10.24 and that he be discharged from the Army with an Honorable Discharge Certificate.  The Superintendent recommended that the Secretary of the Army initiate action to recoup the cost of the applicant’s USMA education in accordance with Title 10, U.S. Code, Section 2005.  

29.  On 24 September 2001, the Assistant Deputy Chief of Staff, G-1 directed the applicant be separated from the USMA.  

30.  In a 4 November 2001 letter, the Investigating Officer responded to questions contained in an e-mail (dated 25 October 2001) and letter (dated 1 November 2001) from the applicant’s attorney.  The Investigating Officer stated that his role was to determine whether or not the applicant was aware of the reimbursement requirement and whether the debt was rationally based.  The scope of his investigation did not permit him to re-examine the underlying basis for the separation or the separation act itself.  The Investigating Officer stated he would not try to determine the reasons why the applicant repeatedly failed the APFT.  He further stated that repeated failure of the APFT was the primary cause of the applicant’s separation and the APFT failure was considered voluntary unless the applicant had a medical condition or other injury that was diagnosed by a medical doctor.  

31.  On 5 November 2001, the applicant signed a Statement of Position indicating that it was his intention to oppose any recoupment by the United States for any expenditure made for his stay at West Point.  He indicated that he was discharged against his will and in violation of his rights of equal protection 
and due process of law, which were guaranteed to him pursuant to the 14th Amendment of the Constitution of the United States.  He stated that "I wish to present testimonial and documentary evidence in my defense."


32.  In a 7 November 2001 letter, the applicant’s civilian orthopedic surgeon stated that the applicant had been under his care for complaints of left knee pain since 28 November 1997.  The applicant’s X-rays showed that he had a persistent physiologic varus of the proximal tibias and that this condition was a developmental deformity left over from childhood.  Children all have a varus deformity of the knees which usually corrects in between the ages of 5 and 11, but the applicant’s infantile deformity never completely corrected.  The physician explained to him that he might have intermittent knee pain with jogging, and that if he did he should report it to a physician.  The physician concluded that the applicant had a mild knee deformity which prevented him from running without substantial pain.  The knee deformity would well lead to an early arthritic degeneration of his knees and that any running which the applicant performed had been detrimental to his knee condition.  

33.  On 15 November 2001, the attorney and father of the applicant provided statements in opposition to recoupment of the cost of his son’s USMA education. The attorney stated, in effect, that the applicant’s separation from the USMA was involuntary, not voluntary.  He stated, in effect, that the Investigating Officer misinterpreted the meaning of the statute concerning the active duty obligation and the financial recoupment requirement.  The attorney also stated the Investigating Officer should have determined the reason for the applicant’s APFT failure.  He stated that the applicant had a disability in his knees and this disability was diagnosed before he began his term at West Point.

34.  In a 17 December 2001 letter to the applicant’s attorney, the Investigating Officer stated that there was not enough documented or supporting information for him to render a judgment other than for the applicant to reimburse the USMA for his educational expenses.  The Investigating Officer pointed out that the applicant met the three criteria for USMA to recoup educational expenses to include (1) the former cadet must be put on notice concerning the recoupment option: (2) the amount to be recouped must be rationally based; and (3) the failure of the APFT was voluntary.  The Investigating Officer concluded that there was no medical condition or injury documented in the applicant’s medical records to substantiate his present claim.  He intended to file his official report recommending the applicant to reimburse the USMA in the amount of $107,439.00 for the cost of his tuition.  

35.  The Investigating Officer concluded his investigation under the procedures of Army Regulation 15-6 and pursuant to Title 10, section 2005(g).  After reviewing all of the available information and facts, he concluded that the applicant did in fact have adequate notice that he would be liable to pay back the cost of his USMA education if he failed to fulfill the obligations under the Agreement to Serve.  The applicant’s debt was to the United States totaled $107,439.00.
36.  On an unknown date, the Commandant of Cadets notified the Superintendent that the applicant would be separated from the USMA and discharged with an Honorable Discharge Certificate.  The Commandant of Cadets stated that the applicant failed to meet Army Regulation 350-41 physical fitness standards by repeatedly failing the APFT.  The applicant was not under any profile during his APFT failures.  The Commandant of Cadets recommended that a recoupment action under Title 10, U.S. Code, Section 2005 and Department of Defense (DoD) Directive 1332.23, be initiated against the applicant for his educational expenses at the Academy due to his breach of the agreement to serve.  

37.  On 24 September 2004, the Assistant Deputy Chief of Staff, G-1 approved the recommendation that the applicant be separated from the USMA and directed issuance of an Honorable Discharge Certificate.  

38.  The applicant’s DD Form 214 shows he was honorably discharged from the USMA on 24 September 2004 under the provisions of Army Regulation 210-26, paragraph 6-25a (which superseded Regs USMA effective 26 August 2002) and Army Regulation 350-41, paragraph 4-9c(2) by reason of APFT Failure.  

39.  On 9 May 2005, the Assistant Deputy Chief of Staff, G-1 approved recoupment action against the applicant in the amount of $107,439.00.

40.  In a 29 August 2006 letter, the applicant’s attorney informed the Defense Finance and Accounting Service (DFAS) that the debt was invalid.  The attorney stated that the alleged debt arose from the involuntary separation of the debtor from West Point as a result of an insufficient score on a physical fitness test.  

41.  On 7 March 2007, the DFAS informed the applicant that the debt originator had determined his debt in the amount of $107,439.00 was correct.

42.  In the processing of this case, a staff advisory opinion was obtained from the Staff Judge Advocate (SJA), USMA, West Point, New York.  Several exhibits were submitted with the advisory opinion.  The SJA recommended that the ABCMR deny relief as there is no evidence of error or injustice.  The opinion stated that the applicant’s allegations regarding his separation for failure to pass the APFT was involuntary due to his preexisting knee ailment were without factual or legal merit.  The SJA stated the applicant failed 7 of the 11 APFTs he took at the Academy.  He was separated for failing 3 APFTs.  

43.  The advisory opinion pointed out that the applicant failed the run portion of his 13 October 2000 APFT and was permitted to take two retests before being processed for separation.  The applicant failed the run portion of these retests on 15 December 2000 and 23 January 2001.  The advisory opinion stated the applicant was well aware that failure to meet fitness standards for both the Army and USMA could lead to separation from the Academy and require reimbursement of his educational expenses.  The applicant was repeatedly counseled by DPE faculty members and his Tactical Officers subsequent to his October 2000 and December 2000 APFT failures that continued failure to meet fitness standards could result in separation and recoupment.  

44.  The advisory opinion continued by stating that there is no evidence that the applicant’s medical condition, physiologic varus of the proximal tibias, commonly known as “bowleggedness,” impacted his ability to meet the Academy’s fitness standards in any way.  There was no evidence in the applicant’s medical records that he ever disclosed this medical condition or complained of knee pain before entering the Academy or while a cadet.  The advisory opinion stated that the only evidence of contributing factors appeared to be the applicant’s smoking habit and lack of cardiovascular training.  In conclusion, the advisory opinion stated the applicant’s failure to meet fitness standards was a voluntary failure to complete his active duty service commitment.  In conclusion, the advisory opinion stated that the ABCMR should deny the applicant's request and find that he was separated due to his voluntary acts and his recoupment amount of $107,439.00 was valid.  

45.  A copy of the advisory opinion was forwarded to the applicant for his information and possible rebuttal.  

46.  On 18 April 2008, the applicant's current attorney submitted statements in response to the advisory opinion.  Counsel stated that the Government arrived at their erroneous conclusion without addressing all of the applicant's issues.  Counsel stated that the Government did not address the fact that the Investigating Officer violated Title 10, U.S. Code, section 2005(a)(3).  The advisory opinion provided no statutory analysis of Title 10, U.S. Code, section 2005 (a)(3) (2001) or any other regulation other than misstating the holding in Favreau v. United States, 49 Fed. Cl. 635 (2001).  Counsel further stated that the Government did not cite the appropriate regulation under which the applicant was separated.  Army Regulation 210-26 was the current regulation that became applicable in July 2002.  Counsel stated that the current statute under Title 10, U.S. Code, section 2005 removed the word "voluntarily" from the law.  The appropriate regulation for the year 2001 was Regs USMA, paragraph 10.24.

47.  On 7 August 2008, the applicant’s current attorney submitted additional statements and new evidence in response to the advisory opinion.  Counsel stated, in effect, that the applicant was examined by a physician at the University of Texas Southwestern Clinical Heart Center and was diagnosed with inducible atrial tachycardia [rapid heart rate] with isuprel infusion.  Counsel stated that the applicant has an abnormal heart rhythm that causes breathlessness, palpitations, and even fainting during exercise.  The applicant’s heart rate rises to the inappropriate level of 210 beats per minute during exercise.  Counsel stated that the applicant’s condition was previously undiagnosed until 11 July 2008.  

48.  Counsel further stated, in effect, that the applicant’s APFT failures were caused by his medical conditions and the recoupment of his educational expenses at the USMA was inappropriate and inconsistent with Title 10, 
U.S. Code 10, section 2005 (a)(3)(effective in 2001).  

49.  Counsel stated that it is now clear that the applicant's APFT failures were caused both by his persistent physiologic varus of the proximal tibias and an arrhythmia causing breathlessness and heart palpitations.  The Assistant Professor of Internal Medicine, Clinical Cardiac Electrophysiology at the University of Texas Southwestern Medical Center provided statements in support of the applicant's claim.  The physician stated that the applicant was a patient of his at the University of Texas Southwestern Clinical Heart Center and was evaluated in the office by him on 21 May 2008.  The applicant underwent an electrophysiology study on 11 July 2008 for evaluation of exertional palpitations and exercise intolerance.  The physician indicated the applicant's clinical syndrome revolved around the inability to fully exert himself without symptoms of shortness of breath, palpitations or, at times, syncope [passing out].

50.  Title 10, U. S. Code, section 2005(a)(3), effective in 2001 read 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.

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

	(3)  that if such person does not complete the period of active duty specified in the agreement, or does not fulfill any term or condition prescribed pursuant to paragraph (4), such person shall be subject to the repayment provisions of section 303a(e) of title 37.


52.  Title 10, U. S. Code, section 2005(a)(4), at the time and currently, reads:

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

53.  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.

54.  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.

55.  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, because the Navy had different weight standards for officers and enlisted personnel. 

56.  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.

57.  A more recent Federal Court case in 2001, Favreau v. 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.

58.  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.

59.  Regs USMA, paragraph 10.20(a) stated that a cadet who resigns from the Academy, or who is separated from the Academy under the procedures contained in Table 1, will be deemed to have breached his or her service agreement.  

60.  Regs USMA, paragraph 10.20(b)(1) stated that for academic (including physical education and military development) failures, the determination of a willful act or omission will be based on a recommendation of the Academic Board after the cadet has been advised of the basis for the contemplated separation and has had the opportunity to present, in writing, his or her rebuttal to the allegation of willful act or omission.  

61.  Regs USMA, paragraph 10.24(a) stated that a cadet, without medical profile, who is determined to have repeatedly failed the Cadet Physical Fitness Test (CPFT) in accordance with the provisions of Army Regulation 350-15 may be separated from the Military Academy.  The CPFT is the APFT as administered to cadets at the Military Academy; APFT and Army alternate test standards apply to determination of failure of the CPFT as used in this paragraph.  A cadet will be considered to have repeatedly failed the CPFT when a record test is taken and failed, the cadet is provided adequate time (no more than 90 days) and assistance to improve his or her performance, and failure occurs again on the cadet's next record test.  

62.  Table 1, Regs USMA, referenced in the Statement of Policies read:

		NATURE OF SEPARATION		STANDARDS		PROCEDURES
		Repeated Failure of the 10.24b	Para 10.24a			Para _____
		Cadet Physical Fitness Test		Regs USMA			Regs USMA	
																		(C20, 29 Apr 93)

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  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.  The Statement of Policies informed him that breach of service agreement included separation resulting from any of the bases listed in Table 1, Regs USMA, and repeated failure of APFT is listed in this table.  

3.  There is evidence of record to show the applicant had problems with the APFT from nearly the onset of his cadet career (December 1998).  It is noted that, during his counseling session on 27 October 2000, the applicant commented that he was feeling ill but he thought he could make the run anyway. He also commented that he had quit smoking before the APFT.  It is also noted that in November 2001, his civilian orthopedic surgeon stated the applicant had been under his care since November 1997 for complaints of knee pain.  There is no evidence to show he informed West Point officials of this condition prior to his June 1998 appointment as a cadet.  

4.  There is no evidence to show the applicant's unreported medical condition was the cause of his failing the APFTs.  There is no evidence to show his heart arrhythmia, diagnosed 7 years after his separation as a cadet, was the cause of his failing the APFTS.

5.  There is insufficient evidence that would warrant granting the relief requested.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  ___X_____  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.




      _______XXX _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

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