IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20100020503 


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 his Reserve Officers' Training Corps (ROTC) scholarship debt be cancelled.

2.  The applicant states the following:

	a.  the Board erred and violated the Administrative Procedures Act by failing to address his issue that he was never provided the resubmitted disenrollment packet/record that was before the Army Board for Correction of Military Records (ABCMR);

	b.  the Board erred in rendering a decision that relied on a legally deficient advisory opinion that failed to address his issues;

	c.  that each paragraph in the Discussion and Conclusions section of the Record of Proceedings is in error because it contains incorrect facts and summarization of his arguments;

	d.  the Board rendered a regulatorily deficient "bottom-line" conclusion that he could not pass an Army Physical Fitness Test (APFT) while failing to address his issues that there were falsifications on test number seven of the 2005 APFT scorecard, and test number eight was an unsigned practice test whose results should not have been reported;

	e.  the Board failed to address his issue that the battalion commander/professor of military science (PMS) had caused fraud upon the proceedings as well as the financial assistance record by requiring him to attain an APFT score to attend the National Advance Leadership Camp (NALC) that was higher than the minimum score of other cadets and by precluding him from advance training by causing him to repeat the level-three classes despite the fact he had passed said classes;

	f.  the Board failed to address that retention regulations were not followed prior to the battalion commander/PMS initiation of disenrollment proceedings because he was never referred to remedial physical training (PT) or a medical evaluation;

	g.  the Board erred by misstating and crafting its decision to make it appear that the medical clearance he received the prior year by the Office of the Army Surgeon General for the misdiagnosis of asthma by Madigan Army Hospital was somehow a medical clearance for a referral based on alleged APFT failure;

	h.  the Board failed to address his issue that there were no counseling statements given to him for any alleged APFT failures that appear on the 2005 scorecard and instead the Board knowingly crafted its decision to make it appear that the 2004 counseling statements given to him the previous year while he was on leave of absence for the medical condition of asthma were legal and could be used to correct the battalion commander's failure to counsel him;

	i.  that any reasonable and prudent Soldier can look at the results of test five and six on the APFT scorecard and determined that regardless of how hard he trained to increase the scores he was receiving failing scores just seconds from passing grades;

	j.  the Board failed to address his issue that the requirements for reimbursement of the scholarship debt were not met and therefore the debt is invalid pursuant to not only Federal statute but also under Army regulations which mandates that there must be a finding that any acts or failures by him in the performance of any conditions under the terms of the ROTC scholarship were either voluntary or as a result of misconduct;

	k.  the Board erred by failing to address his issue that the DA Form 1574 (Report of Proceedings by Investigating Officer (IO)/Board of Officers) was legally and factually deficient because the IO/board president failed to document or investigate any of his disputes and objections; 

	l.  the Board erred by failing to address his documented proof of falsification of an official document by Colonel A of the U.S. Army Cadet Command whose knowing falsifications directly caused him to be unfairly and unjustly disenrolled;
	m.  the Board failed to address the issue that it was a violation of regulations for the battalion commander/PMS to have failed to provide him with unclassified training documents that were repeatedly requested prior to the disenrollment board hearing.

3.  The applicant provides a 143-page binder containing his allegations.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The American Legion, acting as the applicant's counsel, states that following careful review of the evidentiary record, they opine the issues raised on the memorandum addressed to the Board advance the former member's contentions and substantially reflect the probative facts needed for equitable review.  

2.  Counsel provides no additional evidence or argument.

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 AR20080012500, on 1 September 2009.

2.  The applicant provides the argument that the ABCMR did not fully consider his issues.  In the interest of justice and fairness, this argument should be considered by the Board.

3.  The original Record of Proceedings (ROP) provided several paragraphs informing the Board of the essential elements of the case and explaining the sequence of events concerning the applicant's issues.  The proceedings further state that:  

	a.  he was counseled on at least three separate occasions during the period 13 March 2003 to 24 March 2004 regarding his failure to meet the minimum standards of the APFT, his lack of participation in scheduled fitness and special fitness training, and was also advised that his class and lab participation had been marginal;

	b.  he was further advised that in order to maintain his status as a contracted cadet he must adhere to a list of eight standards, which included passing the APFT, meeting the height and weight standards, meeting all of the prerequisites to attend the NALC in the summer of 2005, and participating in all Army ROTC sponsored training events, and that failure to meet and maintain any of those requirements listed may result in his disenrollment.

	c.  on 11 July 2005 a memorandum for record was prepared by the administrative officer of his ROTC detachment which indicates he took the APFT on 30 June 2005 and again failed the run portion of the test.  He was advised at that time that he would not be able to attend NALC;

	d.  a review of the five scorecards provided by him indicates that during the period February - 1 July 2005, he never passed an APFT and the minimum score required for him to attain a passing score of "60" in the 2-mile run was 
16 minutes and 36 seconds (16:36).  In two of the tests, he did not complete the run portion of the APFT;

	e.  on 19 July 2005, he was informed by his commander that he was initiating action to disenroll him from the ROTC program due to his failure to maintain a 3.0 grade point average in all ROTC courses during the Spring semester of 2005, his failure to meet the requirements of the Army Weight Control Program, and his failure to pass the APFT, which disqualified him from eligibility to attend the NALC.  He was provided an option statement to complete and return.

	f.  on 27 July 2005, he completed his option statement and requested that a board of officers or IO be appointed so that he might personally appear and respond regarding his disenrollment and scholarship debt.  He also elected to decline an expeditious call to active duty.

	g.  the IO found that he had entered into a valid ROTC scholarship contract, that he had received educational assistance in the amount of $18,326.00, that he had failed to maintain a 3.0 in all ROTC courses during the spring semester of 2005 (he had previously passed the same courses with grades of "A" and "B"), that he had repeatedly failed to meet the requirements of the Army Weight Control Program (he had only received one counseling statement and was not provided with any nutritional guidance from the cadre in that regard), and that he had repeatedly failed to pass the APFT;

	h.  the IO recommended that he not be retained as a scholarship cadet, that he be disenrolled based on his failure to meet Army Weight Control standards and his failure to pass the APFT, that he be released from his ROTC contractual obligation, that he not be ordered to active duty to repay the funds he received, and that he should be required to repay the scholarship funds received;

	i.  the findings and recommendations were approved by the appointing official on 17 January 2006 and the commander provided him with the DA Form 1574 with all enclosures and exhibits.

4.  In the original ROP, the Board concluded he was properly disenrolled from the ROTC program due to his inability to pass the APFT and that he failed to provide evidence showing he could pass the APFT at the minimum standard.  The debt incurred was found to be valid.  The Board also concluded that:

	a.  he was counseled regarding his failure to participate in scheduled special fitness training which was indicative that training was conducted and that he was not taking advantage of such training;

	b.  the APFT's he was administered were valid;

	c.  all of his arguments/issues were considered and none of them either individually or in sum warranted the relief requested.

5.  Title 10, U.S. Code, section 2005(a)(3), states that the Secretary concerned may require, as a condition to the Secretary providing advanced education assistance to any person, that such person enter into a written agreement with the Secretary concerned under the terms of which such person shall agree 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 by the Secretary to protect the interest of the United States, such person will reimburse the United States in an amount that bears the same ratio to the total costs of advanced education provided such person as the un-served portion of active duty bears to the total period of active duty such person agreed to serve.

6.  Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program) provides that a scholarship cadet may be disenrolled only by the Commanding General, Army Cadet Command.  Cadets may be disenrolled for breach of contract.  Breach of contract is defined as any act, performance, or nonperformance on the part of a student that breaches the terms of the contract regardless of whether the act, performance, or nonperformance was done with the specific intent to breach the contract or whether the student knew that the act, performance or nonperformance breaches the contract.  Cadets may also 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.


7.  Army Regulation (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his earlier request that his ROTC scholarship debt be cancelled has been carefully considered.

2.  He is contending that he was never provided the resubmitted disenrollment packet that was before the ABCMR; however, the evidence used to determine the outcome of the original ROP was the evidence provided by him, to include the disenrollment packet.  No other disenrollment packet was available to the Board other that the one provided by him.

3.  He also contends that there were falsifications on test seven of the 2005 APFT card and that there was fraud upon the disenrollment proceedings as well as the financial assistance record; however, he failed to provide evidence to substantiate these claim.  He continues to raise issues in the form of allegations without concrete evidence to substantiate such allegations.  

4.  The applicant's arguments have been given careful consideration.  However, they do not sufficiently show that the Board's original determination was unjust.

5.  In view of the above, his request for reconsideration should be denied.

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 AR20080012500, dated 1 September 2009.




      _______ _   __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)                                         AR20100020503



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ABCMR Record of Proceedings (cont)                                         AR20100020503



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