IN THE CASE OF:	  

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090002516 


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:

1.  The applicant requests reconsideration of his earlier request that the narrative reason for his discharge from the Reserve Officers' Training Corps (ROTC) program be changed.

2.  The applicant states that there were circumstances beyond his control that led to his failure to meet his contractual obligations of the ROTC program, namely, his height/weight and physical fitness.  Overall, he contends that his rights as a cadet were not protected, his superiors of his battalion failed him, and his deformed feet played a major role in his failure to meet standards.  In his self-authored statement, he references letters from the Department of Defense Medical Examination Review Board (DODMERB), civilian physicians, podiatrists, dentist, and orthopedic surgeon.  He states he was so determined to be found medically qualified for entrance into the military academy or ROTC program that he requested a waiver for the anterior cruciate ligament (ACL) tear he had repaired in 1997.  The applicant claims he had a thorough examination of his feet when he was 7 years old, but his parents were told it was too late to try to correct the problem.

3.  The applicant argued the following points regarding his request for reconsideration:

	a.  Paragraph 2 of the DISCUSSIONS AND CONCLUSIONS in the previous Record of Proceedings indicates that his entrance examination was done by competent medical authorities who determined him to be medically qualified for enlistment.  However, he contends that he had to go to his own physicians for the following reasons:  (1) calculations of his height/weight/body fat taken during his physical were inaccurate, (2) the electrocardiogram (EKG) had to be redone, (3) he needed confirmation from his dentist that he did not have any dental concerns, and (4) he needed professional reexamination of his eyes by an ophthalmologist.  He also contends that at no time during his physical examination did the doctor examine his feet.

	b.  He broke his foot in February 2002 during ROTC training activities and again in July 2002 when he was working daily to regain his physical fitness and to lose weight.  However, he contends that he was not taken to the emergency room by the cadre and no accident report was ever completed for this injury.  Although he was given an excuse from physical activity by a civilian orthopedic surgeon, he was only excused from running and was required to participate in daily physical training and field training, which only aggravated his injury.

	c.  His superiors never supervised his physical training nor was any attention given to his weight other than normal monthly counseling sessions.  At no time did any member of the cadre attempt to even recommend any weight control program as outlined in Army Regulation 600-9 (The Army Weight Control Program).  He contends that he had no hearing and the new captain at the battalion was not an impartial party.  Additionally, he contends that the fitness tests and height/weight measurements taken from his personnel file as "evidence" were inaccurate.

3.  The applicant provides the following documents in support of his application:

	a.  enclosure 1 - letter from the DODMERB, dated 4 October 1999; letter from a dentist, dated 15 October 1999; results of his EKG, dated 13 October 1999; letter from an orthopedic surgeon, dated 25 February 2000;

	b.  enclosure 2 - two letters from a podiatrist, dated 9 October 2008 and 31 January 2005;

	c.  enclosure 3 - results of an Investigating Officer's (IO) investigation at Clarkson University; and

	d.  index of enclosure A (including 11 exhibits) through enclosure L.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070005250 on 22 January 2008.

2.  The applicant has provided new arguments and evidence as stated above that will be considered by the Board.

3.  In a 4 October 1999 letter, the DODMERB informed the applicant that he had to provide copies of treatment records relating to his history of knee problems, injury, or surgery; standard 12-lead EKG; current height/weight to determine body fat; and a statement from his dentist indicating when restoration of his carious tooth was made.  The letter indicated that the applicant's present weight exceeded the height/weight standard.  He was given two options to obtain the required information, to obtain them from military medical facilities or by a private physician or dentist for his convenience.

4.  In response to the DODMERB requirement for additional information, the applicant obtained the following information:

	a.  EKG performed on 13 October 1999 which revealed that his sinus rhythm was within normal limits (Summary:  NORMAL);

	b.  letter, dated 15 October 1999, from a civilian dentist which indicated that his tooth (number 19) was not carious or defective in any way.  As a result, no restoration was deemed necessary; and

	c.  letter, dated 25 February 2000, from a civilian orthopedic surgeon which indicated the applicant was being evaluated for his bilateral knees.  The applicant initially injured his knee in 1996 and reinjured it in 1997.  He underwent arthroscopic surgery on his left knee in August 1997.  Follow-ups revealed he progressed excellently post-operatively, achieving normal functioning status.  The orthopedic surgeon stated the applicant was in excellent health and was currently taking no medications.

5.  On 22 September 2000, the applicant entered into an ROTC scholarship cadet contract and he enlisted in the U.S. Army Reserve (USAR) as a cadet in order to become a member of the ROTC program at Clarkson University, Potsdam, New York.  He agreed to remain enrolled in and successfully complete the ROTC program, including ROTC Advanced Camp and all training as prescribed by the Secretary of the Army, in his contract.

6.  In Part I (Agreement of Scholarship Cadet Enrolling in the Senior ROTC Program Advanced Course), paragraph 1i of the DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), the applicant agreed to meet and maintain the Army Physical Fitness Test (APFT) standard and the screening weight or body fat percentage required by the Army Weight Control Program.

7.  The DA Form 597-3 also contains the applicant's acknowledgement of his understanding that if he were disenrolled from the ROTC program for any reason, he could be ordered to active duty as an enlisted Soldier for a period of not more than 4 years or, in lieu of being ordered to active duty, he could be required to reimburse the government through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the United States for his advanced education from the commencement of the contractual agreement to the date of his disenrollment.

8.  On separate occasions between September 2001 and November 2002, the applicant was counseled regarding his physical fitness and height/weight requirements.  His DA Form 4856-E (Developmental Counseling Form), dated 21 November 2002, indicated he had a physical limitations profile for several months and would be reevaluated on 25 November [2002].  His DA Form 3349 (Physical Profile) is not available.

9.  The applicant provided five additional letters from his orthopedic surgeon as outlined below.

	a.  On 4 March 2002, the civilian orthopedic surgeon addressed a letter to the applicant's physician regarding his visit for evaluation of his right foot injury.  
X-rays showed a fracture at the base of the right fifth metatarsal [bones in foot].  The orthopedic surgeon had advised the applicant not to participate in gym or sports until 15 April 2002.

	b.  On 1 August 2002, the civilian orthopedic surgeon addressed a letter to the applicant's physician.  He informed the physician that x-rays of the applicant's right foot showed a fracture of the shaft of the right fifth metatarsal.  The orthopedic surgeon advised the applicant to take it easy, increase his calcium, and not do any running for the next few months.

	c.  On 6 August 2002, the civilian orthopedic surgeon addressed a letter to the applicant's commanding officer.  In part, he indicated the applicant sustained a fracture of his right fifth metatarsal on 2 February 2002 and reinjured it in July; therefore, the applicant would not be able to participate in physical training.  Based on his assessment, the orthopedic surgeon indicated that the applicant should be excused from running and from field exercises for at least the next 2 months so his injury could heal properly.

	d.  On 1 October 2002, the civilian orthopedic surgeon addressed another letter to the applicant's physician.  He informed the physician that the applicant was doing better, but he still had some discomfort if he went up and down stairs.  X-rays were obtained of the right foot and showed a healing fracture of his fifth metatarsal proximally.  He recommended that the applicant not participate in the ROTC training for another 2 months.

   e.  On 26 November 2002, the civilian orthopedic surgeon addressed another letter to the applicant's physician.  Based on this follow-up visit, the orthopedic surgeon felt that the applicant's fifth metatarsal fracture had healed since he had no tenderness or pain.  The applicant would increase his activity as tolerated.

10.  On 10 March 2003, the applicant completed a DD Form 2807-1 (Report of Medical History).  In blocks 12f, 12g, 12i, 12j, and 12l, he marked "no" indicating that he did not have nor did he ever have foot trouble; impaired use of arms, legs, hands, or feet; knee trouble; any knee or foot surgery; or any bone, joint, or other deformity.

11.  In a 25 March 2003 memorandum, the Professor of Military Science (PMS) informed the applicant that he was on probation for not meeting APFT standards and height, weight, and body fat requirements.  The applicant acknowledged both verbal and written receipt of the letter of formal counseling, dated 25 March 2003.  He acknowledged that he understood the content of the letter and the potential ramifications for his failure to comply with his contractual obligations.  The applicant did not submit any statements in his behalf.

12.  The applicant provided four DA Forms 705 (APFT Scorecard) covering the period September 2000 through April 2003 which show the total points he received on his APFT as follows:  6 September 2000 - height 76 inches, weight 240 pounds, total points 106; 15 September 2000 - height blank, weight blank, total points 148; 22 September 2000 - height blank, weight blank, total points 155; undated - height blank, weight blank, total points 207; 16 January 2001 - height blank, weight blank, total points 201; 5 September 2001 - height blank, weight blank, total points 102, undated - height blank, weight blank, total points 104; 7 November 2001 - height blank, weight blank, total points 152; 5 December 2001 - height blank, weight 261 pounds, total points 127; 15 February 2002 - height blank, weight blank, total points 130, 17 April 2002 - height 75 inches, weight 255 pounds, total points 135; 5 February 2003 - height 75 inches, weight 270 pounds, total points 103 ; 5 April 2003 - height blank, weight blank, total points 124; 2 April 2003 [sic] - height 74 1/2 inches, weight 278 pounds, total points 124; and 23 April 2003 - height blank, weight blank, total points 163.

13.  On 29 May 2003, the PMS initiated action to disenroll the applicant from the ROTC program under the provisions of Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program:  Organization, Administration, and Training), paragraph 3-43a(8), by reason of failure to meet height/weight and APFT standards.  The applicant was advised that he could request a hearing by a board of officers or an IO, or he could waive his rights to a hearing.  He was also told that he could consult with any reasonably available military officer (who need not be an attorney) or civilian counsel at no expense to the government to help him decide whether to waive a hearing and otherwise to assist him in making his options.

14.  On 2 June 2003, the applicant requested a hearing by a board of officers and declined expeditious call to active duty.

15.  On 13 August 2003, the IO sent three questions via electronic mail (email) to the Cadet Command Surgeon regarding profiling requirements for cadets.  The Cadet Command Surgeon responded to each question in an email message, dated 13 August 2003.  In response to the IO's first question, the Cadet Command Surgeon stated that if a cadet makes a claim that he/she is unable to participate in a scheduled physical activity, such as physical training, APFT, field training exercise, etc., a cadet should provide a physician's statement documenting the presence of a medical condition and how long a cadet should be excused from training activities.  He stated that if a cadet fails to do so it is reasonable to assume that no significant medical problem is present.

16.  In response to the IO's second question, the Cadet Command Surgeon stated that there was no requirement nor expectation that an overweight cadet would be placed in an overweight program according to the Cadet Command Staff Judge Advocate and Chief of Cadet Actions.  The Cadet Command Surgeon also stated that the contract signed by a cadet requires him/her to continue to maintain contracting standards (i.e., meet height/weight) or be subject to disenrollment.  He referenced Army Regulation 600-9, which is used for the procedures to follow for measuring by tape a cadet and the height/weight tables; the rest of the regulation applies to active duty Soldiers.

17.  In response to the IO's third question, the Cadet Command Surgeon stated that temporary injuries/illnesses expected to produce complete recovery are not reported to Cadet Command.  If illness or injuries have persisted longer than 90 days, a battalion should contact him for guidance as to whether or not a medical determination packet should be submitted to Cadet Command regarding the medical fitness of a cadet to continue in ROTC.  The Cadet Command Surgeon continued by stating that the injury the applicant sustained did not need to be reported to him unless his physician did not expect a full recovery.  He made the following comments regarding injury to the fifth metatarsal:  (1) this toe is generally useless and has little if any role in running; (2) when you walk or run, you push off with your first metatarsal (big toe) with the assistance of the adjacent two toes; and (3) some individuals would have been able to pass an APFT despite this injury while others may have felt some discomfort while healing.

18.  On 13 August 2003, the IO sent an email message to a Safety and Occupational Health Manager at the U.S. Army Cadet Command and inquired about the reporting requirements for cadet injuries that do not require hospitalization and the source regulation.  The Safety and Occupational Health Manager responded that those types of minor things should be handled in-house.  The cadet recordable injuries were lost-time on-duty injuries similar to on-duty civilian employees.  The Safety and Occupational Health Manager stated that serious on-duty and off-duty cadet incidents that meet the threshold of submitting a serious incident report (SIR) should be reported via that means.  He stated that SIRs were not accident reports and referenced Cadet Command Regulation 
385-10, chapter 2, for accident reporting requirements.

19.  The applicant provided a DA Form 2823 (Sworn Statement), dated 18 August 2003, which shows the IO interviewed a cadet on 13 August 2003 regarding the applicant's injury to his foot.  The cadet testified that she was present when the applicant injured his foot during the Winter Olympics back in the Spring Semester 2002.  The cadet said that she drove the applicant to the Canton-Potsdam Hospital, but when they got there the line was very long.  The cadet also testified that the applicant made the following comments:  he did not want to wait and wanted to be taken back to his room; his foot was sore and he probably had strained it; and he would go to the campus health center later.  In question 2 of the interview, the IO asked the cadet, "Did any cadre members inquire about him when you returned?"  In response, the cadet testified that she told Captain J____ that the applicant did not want to go to the hospital and that he was back at his room resting.

20.  On 18 August 2003, the IO interviewed Major K____ regarding the applicant.  In response to question 1, Major K____ testified that he counseled the applicant regarding alternate activities to keep himself in shape when he was on profile.  In question 2 of the interview, the IO asked Major K____, "Did you discuss his seeing a nutritionist for his weight problem?"  Major K____ testified that he gave the applicant specific examples of exercises to do to maintain himself and related his own experiences when he suffered a broken back and had to try and do some limited physical activities.  Major K____ testified that he was trying to illustrate that the applicant could find alternate ways to stay in shape despite the setback.  Major K____ advised the applicant to see a nutritionist for his weight problem; however, for some reason, he had missed the appointment.

21.  The specific documents pertaining to the applicant's appearance before the board of officers are not on file.  However, on 26 January 2005, the U.S. Army ROTC Golden Knight Battalion, Clarkson University, issued Orders Number 26-1, which directed the applicant's discharge from the USAR Control Group (ROTC), under the provisions of Army Regulation 145-1, paragraph 3-43a(8), for breach of contract effective 14 January 2005.

22.  On 5 May 2005, the Defense Finance and Accounting Service Denver Center notified the applicant that he was indebted to the Department of Defense in the total amount of $51,710.00.

23.  The applicant provided a doctor's statement, dated 31 January 2005, which was based on his 20 December 2004 medical examination.  In this statement, the doctor claimed that during the applicant's ROTC scholarship physical exam, his unusual foot shape should have been recognized and he should have been referred to a specialist for a thorough examination.  He also states that based on the structure of the applicant's foot, had he been that physician he would have disqualified him for entrance into the ROTC program.  He further indicated that had the applicant at that point requested a waiver, he would only have agreed to allow his entrance into the ROTC program for other than combat arms career fields.

24.  The applicant provided a letter, dated 9 October 2008, from a civilian podiatrist which stated the applicant had been seen in his office for several problems.  In this letter, the podiatrist mentioned that the applicant had sustained a fifth metatarsal fracture in February 2002.  In part, he stated, "His feet had never given him trouble up to that point and the patient had made no mention of the problem because he had not been exposed to such strenuous and intense activity previously."  The podiatrist also stated that the physician who gave the physical examination prior to admission made no mention of the applicant's foot problem and, in fact, did not even examine the applicant's feet.  In his professional opinion, he assessed that the applicant was prone to the foot fracture due to his foot deformity and he should have not been expected to sustain a high level of physical training without sustaining such an injury.

25.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program.  Paragraph 3-43a(8) states that non-scholarship and scholarship cadets will be disenrolled for failure to meet the same requirements of the Army Weight Control Program and the APFT as required of active duty Soldiers prior to the end of the last school term of the Military Science III year.

26.  Cadet Command Pamphlet 145-4 (Enrollment, Retention, and Disenrollment Criteria, Policy, and Procedures), dated 1 September 1994, states the PMS will submit a request for determination/waiver on medically disqualified cadets to Headquarters, Cadet Command.  If the Cadet Command Surgeon determines that the cadet is medically disqualified and not eligible for waiver and there is no failure to disclose, the cadet will be processed for disenrollment.  Cadets disenrolled for medical disqualification will not be ordered to active duty or recommended for recoupment.

27.  Cadet Command Regulation 385-10 prescribes policies, responsibilities, and procedures for the development, implementation, and evaluation of Cadet Command safety programs.  Paragraph 2-2 covers accident accountability and reporting and states the following:

	a.  Report accidents to the Cadet Command Safety Office that involve:

		(1)  personal injury or death to on- and off-duty military personnel, on-duty civilian employees, or on-duty cadets;

		(2)  occupational illnesses involving on-duty military personnel, civilian employees, or cadets;

		(3)  property damage to Cadet Command facilities or equipment;

		(4)  fires involving Cadet Command facilities or equipment;

		(5)  Army motor vehicle (AMV) accidents occurring on- or off-post

		(6)  privately-owned vehicle (POV) accidents involving on- and off-duty military personnel, on-duty civilian employees, or on-duty cadets.  Accidents involving civilians/cadets are reported when a POV is being used for official business or when the accident occurs on government property.

	b.  Report accidents and incidents that do not meet the above criteria at the local level and develop countermeasures to prevent their recurrence.

28.  Army Regulation 600-9 implements the guidance in DOD Directive 1308.1 which establishes a weight control program in all the Services.  This regulation applies to all members of the Active Army, the Army National Guard and the USAR to include those Army National Guard and USAR personnel in Active Guard Reserve status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his rights as a cadet were not protected, his battalion superiors failed him, and that his deformed feet played a major role in his failure to meet standards were noted.  However, the facts of this case show the applicant's separation from the ROTC program was accomplished in accordance with applicable law and regulation and that his rights were fully protected throughout the separation process.

2.  The applicant contends that he had to go to his own physicians because his height, weight, body fat, and EKG were inaccurate and that he needed a statement from his dentist indicating when restoration of his carious tooth was made.  However, the DODMERB carefully evaluated the applicant's entrance physical examination and determined there was a requirement for additional tests and medical records/information in order to make an adequate medical qualification decision for his enrollment into the ROTC program.  At that time he was given the option to obtain this information from military medical facilities or a private physician or dentist.  There is no evidence which confirms his entrance physical examination was inaccurate.

3.  The applicant also contends that at no time during his physical examination did the doctor examine his feet.  However, there is insufficient evidence to substantiate this claim.

4.  The applicant contends that he was not taken to the emergency room by cadre nor was an accident report completed when he broke his foot in February 2002 during ROTC training activities.  In a 13 August 2003 sworn statement, a cadet testified that she drove the applicant to the emergency room after he injured his foot during the Spring Semester 2002.  The cadet testified that the applicant chose to be returned to his room because the line was long at the emergency room and he did not want to wait.  It was the responsibility of the applicant to inform the cadre concerning the status of his injury.  Since the applicant's injury did not meet the criteria in Cadet Command Regulation 385-10, there was no basis for reporting the accident to the Cadet Command Safety Office.

5.  The applicant also contends that his superiors never supervised his physical training nor was there any attention given to his weight by recommending him for a weight control program as outlined in Army Regulation 600-9.  However, the evidence of record shows that when the applicant signed his ROTC scholarship cadet contract, he agreed to meet and maintain the APFT standard and the screening weight or body fat percentage required by the Army Weight Control Program.  In the 13 August 2003 email message, the Cadet Command Surgeon stated that Army Regulation 600-9 is used for the procedures to follow for taping a cadet and the height/weight tables.  This regulation governs members of the Active Army.

6.  The first available evidence of record which shows the applicant had a problem with his feet occurred in February 2002 when he broke his right fifth metatarsal.  The applicant completed a DD Form 2807-1 in March 2003 and indicated he did not nor did he ever have foot trouble; any knee or foot surgery; or any bone, joint, or other deformity.

7.  It is noted that the applicant's civilian orthopedic surgeon stated the applicant had been under his care for complaints of foot pain.  There is no evidence to show the applicant informed ROTC officials of this condition prior to his September 2000 becoming a cadet.

8.  The applicant contends that he did not have a hearing and the new captain at the battalion was not an impartial party.  He also contends that the fitness tests and height/weight measurements taken from his personnel file as "evidence" were inaccurate.  However, in the absence of evidence to the contrary, it is presumed that the applicant's case was heard by a board of officers.  Therefore, there is no evidence to substantiate these claims.

9.  After careful review of all the evidence, there is no error or injustice in this case to warrant changing the applicant's narrative reason for his discharge.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070005250, dated 22 January 2008.



      ____________x_____________
                 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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