IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100024661 


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, reconsideration of the applicant's original request that his records be corrected to show:

   a.  he failed his Army Physical Fitness Tests (APFT) due to a preexisting medical condition that rendered his APFT failure involuntary;

   b.  he did not voluntarily fail to complete his required period of active service, he was physically incapable of passing the APFT; and
   
   c.  cancellation or forgiveness of the debt that he owes to the Government for the cost of his education at the U.S. Military Academy (USMA).

2.  Counsel states, in effect, the applicant's heart arrhythmia was the likely cause of him failing the APFT.  The applicant’s APFT failures were caused by his medical condition and the recoupment of his USMA educational expenses is inappropriate and inconsistent with the law.

3.  Counsel provides a copy of a statement from Dr. L____, dated 13 July 2010.



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 AR20070019029, on 9 December 2008.

2.  Counsel provides a copy of a statement from Dr. L____, dated 13 July 2010 which is new evidence that requires consideration.

3.  The applicant, as a cadet at the USMA, failed the run portion of the majority of his APFT's between the date of his first official APFT, 3 December 1998, and 23 January 2001.  

4.  His run times ranged from 19 minutes and 4 seconds to 14 minutes and 57 seconds.  He was required to complete the 2-mile run in 15 minutes and 54 seconds to pass.  He passed the push-up and sit-up portions of these tests although his performance was not consistent, ranging from 42 to 73 push-ups and 56 to 71 sit-ups.  His best performance on any APFT was on 7 August 1999, when he did 72 push-ups, 71 sit-ups, and he ran the 2 miles in 14 minutes and 57 seconds.  On 23 January 2001, his performance on his final APFT consisted of 50 push-ups, 60 sit-ups, and 16 minutes and 9 seconds on the 2-mile run.  

5.  The applicant had been counseled on several occasions about the effect of failure of the APFT as noted in the previous decisional document.

6.  During the separation process, the applicant cited a problem with his knees as the cause for his failure to pass the APFT's.  A 7 November 2001 letter from the applicant’s civilian orthopedic surgeon stated the applicant had been under his care for complaints of left knee pain since 28 November 1997.  The applicant’s X-rays showed he had a persistent physiologic varus of the proximal tibias and that this condition was a developmental deformity left over from childhood.  The physician explained that the applicant 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 could 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.  There is no indication that this information was provided to military physicians prior to his entry or at any time prior to the separation action.

7.  Additionally, an investigation under Army Regulation 15-6 was undertaken.  It was determined that the applicant met the three criteria for recoupment of 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 service medical records to substantiate his present claim.  He recommended that the applicant be required to reimburse the USMA $107,439.00 for the cost of his tuition.  In effect, it was determined that the applicant's failure of the APFT's was due to his own lack of consistent effort.

8.  The Commandant of Cadets stated the applicant failed to meet the physical fitness standards of Army Regulation 350-41 by repeatedly failing the APFT.  It was noted that the applicant was not under any profile during his APFT failures.  It was 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 USMA due to his breach of the agreement to serve.

9.  On 24 September 2004, the applicant was honorably discharged from the USMA under the provisions of Army Regulation 210-26, paragraph 6-25a and Army Regulation 350-41, paragraph 4-9c(2) by reason of APFT failure.

10.  At the time of the previous request, counsel argued that a previously undiagnosed heart condition caused the applicant to be unable to successfully complete the APFT's.  Counsel provided a statement from Dr. L____ describing the applicant's condition which was first diagnosed in 2008.

11.  The applicant's request was denied on 9 December 2008.  The reason for the denial was that there was no evidence to show the applicant’s unreported heart arrhythmia, diagnosed 7 years after his separation, was the cause of him failing the APFT's.

12.  The applicant's counsel requested reconsideration on 8 December 2009.  In that request counsel stated that a medical statement would be provided at a later date to support the contention that the heart arrhythmia preexisted his entry into the service and that it was the likely cause of him failing the APFT.

13.  On 3 June 2010, the Army Review Boards Agency, Case Management Division (CMD) notified the applicant and his counsel that if the medical statement was not provided within 15 days the case would be processed without further information.
14.  On 28 June 2010, the CMD administratively closed the request for reconsideration based on the applicant's failure to provide new evidence and/or argument. 

15.  On 13 August 2010, counsel forwarded a statement, dated 13 July 2010, from Dr. L____, Assistant Professor of Internal Medicine, Clinical Cardiac Electrophysiology at the University of Texas Southwestern Medical Center.  This statement was accepted as a continuation of the 8 December 2009 reconsideration request.

16.  Dr. L____'s current letter states the applicant was initially evaluated by his office on 21 May 2008 following an abnormal exercise tolerance test.  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 symptoms revolved around his inability to fully exert himself without symptoms of shortness of breath, palpitations or, at times, syncope [passing out].  He is diagnosed as suffering from exertional atrial tachycardia and the physician opined that it was within reasonable medical probability that this arrythmia was present in 2001 and was the cause of the applicant's inability to fully exert himself.

17.  The available service medical records do not show any complaints of shortness of breath, palpitations, or syncope during or following the applicant's participation in either regular physical fitness training or during the time of the APFT's.

18.  Army Regulation 15–185 (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 paragraph 2-9 states 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.  Counsel states, in effect, that the applicant's heart arrhythmia was the likely cause of his failing the APFT.  The applicant’s APFT failures were caused by his medical condition and the recoupment of USMA educational expenses are inappropriate and inconsistent with the law.

2.  The current medical statement is a virtual repeat of Dr. L____'s earlier statement except for the opinion that it is within reasonable medical probability that the arrythmia was present in 2001 and was the cause of the applicant's inability to fully exert himself.

3.  The applicant's APFT scores were highly inconsistent.  He successfully passed the run portion during several physical fitness tests in 1999 without any complaints before his performance in all areas dropped significantly. 

4.  There is no evidence available to support the assumption that the applicant suffered from a preexisting heart condition while he was enrolled at the USMA. No such symptoms are noted as occurring at the time of his APFT's or at any time that he was enrolled in the USMA.  In the absence of evidence that clearly show the applicant had a medical condition 7 years earlier the current allegation is mere conjecture and not sufficient to support that it was the cause of the APFT failures especially in light of the fact that he did well on the tests in 1999.

5.  Therefore, the additional medical statement is insufficient to show the applicant failed the APFT's due to a preexisting heart condition that was discovered 7 years after he was separated or to support forgiveness of the educational debt.

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 AR20070019029, on 9 December 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.
ABCMR Record of Proceedings (cont)                                         AR20100024661



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ABCMR Record of Proceedings (cont)                                         AR20100024661



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