IN THE CASE OF:	  

		BOARD DATE:	    10 December 2009

		DOCKET NUMBER:  AR20090004916 


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, in effect, that his records be corrected to show that he was given a waiver of recoupment of tuition and other educational costs under the Health Professions Scholarship Program (HPSP).

2.  The applicant explains that in his final year at the Harvard School of Dental Medicine he was determined to be ineligible for continued participation in the HPSP because of a mental status examination (he was diagnosed with generalized anxiety disorder) and, therefore, was medically disqualified.

3.  He was then notified that because of his disenrollment from the HPSP, he might be required to serve his military obligation in a civilian capacity or reimburse the government for educational costs.  Shortly thereafter, he was honorably discharged from the U.S. Army Reserve.

4.  The applicant later discovered that a memorandum had been sent to the Office of the Surgeon General (OTSG) which asserted that there was no practical way to enforce his unwilling employment as a civilian dentist at a military treatment facility or to ensure his useful service in that capacity.  The applicant believes that the statement that it could not be ensured that he would serve usefully at a civilian facility was prompted by the nature of his medically disqualifying condition.  However, his civilian employment as a dentist disproves this belief.

5.  The applicant believes that the recoupment of his HPSP costs without giving him the option to request a waiver of the costs by serving as a dentist in a civilian capacity violated his rights.  The applicant adds that the lengthy delay in the recoupment resulted in his inability to plan for the repayment of such a large sum of money.  The applicant points to his sub-par earnings as a dentist, stating that his adjusted gross income for 2007 was only $74,180.

6.  The applicant provides an index of exhibits which lists the documents he submits in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he signed an HPSP contract on 14 March 1998.  In that contract it was stated that "I understand that if my status as a student is suspended or discontinued for deficiency in conduct or studies, or for other reasons, I will be required to perform active duty in an appropriate military capacity…I agree to reimburse the Government for all costs which it incurred, plus interest, as determined by the Secretary of the Army, if relieved of my active duty or Reserve service obligation."

2.  On 18 March 2002, the Chief, Community Mental Health Service, West Point Medical Department Activity, wrote the OTSG.  The subject of that memorandum was the applicant's mental health.  In that memorandum it was stated that when the applicant learned that he would not be given a deferment for entering active duty, he developed severe anxiety symptoms, including anxious ruminations about what was happening to him, restlessness, fatigue, poor concentration, irritability, muscle tension, and insomnia.  He was treated for those symptoms but later developed pervasive depressed mood, lack of social interest, primary and middle insomnia, low energy level, poor concentration, and poor appetite.  It was stated that his anxiety and depression continued to worsen despite the administration of appropriate medications.  The physician conducting the evaluation continued that while the applicant did not appear to have a personality disorder, he had limited coping skills.  However, at some level the applicant may have been aware of the advantages of appearing ill, such as achieving his goal of attending a civilian oral surgery program.  However, the physician did not believe the applicant's symptoms were feigned.  The physician determined that he was medically disqualified for retention and stated that active military service would likely worsen his symptoms and negatively impact the quality of the dentistry he provides.

3.  On 16 April 2002, the OTSG notified the applicant that he did not meet the medical retention standards for active duty service.  Accordingly, he became ineligible for continued participation in the HPSP and his eligibility for HPSP benefits ended on 11 April 2002.  The OTSG further advised him that as a result of his disenrollment from the HPSP, he may be required to serve his military obligation in a civilian capacity or reimburse the government for education costs, plus interest, in accordance with the terms of his service agreement, as determined by the Secretary of the Army.  He was informed that the government had paid a total of $155,140.84 for eight semesters of schooling at Harvard Dental School.

4.  On the same day, the OTSG sent a memorandum to the Army Reserve Personnel Command.  In that memorandum it was stated that the applicant had initiated several Congressional inquiries regarding his inability to pursue a civilian oral and maxillofacial residency upon graduation, a benefit he felt he had been promised upon recruitment.  Those inquiries were appropriately responded to citing the lack of such promises in his service agreement.  The OTSG continued that the applicant tendered a resignation from the USAR on 10 February 2002 due to his allegations of misrepresentation and the generalized anxiety disorder he believed resulted from the dishonored promise.

5.  In an undated memorandum, the Deputy Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA M&RA), Human Resources, approved the applicant's discharge subject to the recoupment of his HPSP expenses.

6.  On 1 October 2002, the applicant was honorably discharged.

7.  In the processing of this case, an advisory opinion was obtained from the OTSG.  In that opinion it was stated that the applicant signed a service agreement which stipulated alternative obligations that the Secretary of the Army may give, with or without consent, to an HPSP participant.  The OTSG continues that the nature of the applicant's medical disqualification and aggravating potential of the work environment, description of interactions with and actions taken by the applicant, a medical condition which was not waived, along with a Health Affairs policy that required reimbursement if civilian service is precluded by the disability, led to its recommendation that the applicant's HPSP costs be recouped.  However, the ASA M&RA is the waiver authority for HPSP recoupment.  The OTSG encloses a Superior Court Civil Action Docket wherein the applicant requests dismissal of a ruling against him.  In that decisional document it was said that the applicant alleged that he did not receive due process when the Maine State Board of Dental Examiners suspended his dentistry license for 15 days, imposed fines, and instituted a 5-year probation period based on its findings that the applicant violated certain standards of practice.

8.  The applicant was provided a copy of the advisory opinion and submitted a rebuttal.  In that rebuttal he stated that the OTSG did not address the delay in recouping the HPSP funds and did not address the fact that he was not provided the options given people who are disenrolled from the HPSP.  He also cites changes in policy on the recoupment of scholarship funds.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant has submitted many matters for the Board to consider, the only matter that is relevant to this case is whether the Army had to offer the applicant the option of employment as a civilian dentist at a military treatment facility in lieu of repaying his HPSP debt.

2.  The answer to this is the Army was not required to offer the applicant the option of employment as a civilian dentist at a military treatment facility in lieu of repaying his HPSP debt.  Contrary to the applicant's contention, these options are exercised by the ASA M&RA, not the disenrolled student.  The applicant's service agreement and the governing directives all provide the Secretary of the Army options.  In this case, the ASA M&RA opted to collect the money spent on the applicant's scholarship.

3.  Given the applicant's attitude toward the Army because he believed his recruiter lied to him and the symptoms he was experiencing (severe anxiety symptoms, including anxious ruminations about what was happening to him, restlessness, fatigue, poor concentration, irritability, muscle tension, insomnia, pervasive depressed mood, lack of social interest, primary and middle insomnia, low energy level, poor concentration, poor appetite, anxiety, and depression), the decision to have him repay his scholarship costs instead of allowing him to work as a civilian dentist at a military treatment facility certainly appears to be sound and reasonable.

4.  The delay in the recoupment of this debt is not germane to this case since it does not establish whether the debt was properly established.  The Board has no authority over the payment or recoupment of funds by the Defense Finance and Accounting Service.

5.  Policy changes which occur after the fact have no bearing on a case.  As such, the policy on scholarship recoupment changed after the applicant's debt was established and has no bearing on this case.

6.  In view of the foregoing, there is no basis for granting the applicant's request.


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.



      ___________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.

ABCMR Record of Proceedings (cont)                                         AR20090004916



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ABCMR Record of Proceedings (cont)                                         AR20090004916



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