IN THE CASE OF:	  

		BOARD DATE:	    29 September 2011

		DOCKET NUMBER:  AR20110009446 


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 his medical waiver, dated 31 March 2008, and his Reserve Officers' Training Corps (ROTC) contract, dated 14 April 2008, be corrected to reflect a date of on or before 23 August 2007.

2.  The applicant states the record is unjust because he fulfilled his requirements under the ROTC contract, but the U.S. Army did not.  Specifically, the Army failed to pay his fall 2007 tuition and expenses pursuant to the contract.

3.  The applicant provides:

* Self-authored statement
* DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), dated 14 April 2008
* Cadet Command Form 131-R (Cadet Action Request) 
* Email correspondence disapproving his request for retroactive payment of scholarship benefits
* Email correspondence requesting appellate review of his disapproved request for retroactive payment of scholarship benefits

CONSIDERATION OF EVIDENCE:

1.  The applicant is a captain, Judge Advocate General's Corps, serving on active duty and assigned to Fort Polk, LA.  The following evidence was provided by the applicant:

	a.  An Army Senior ROTC Scholarship Contract, dated 14 April 2008, shows his education began on 24 August 2007 and would be completed on 15 May 2009.  

	b.  An unsigned, undated request for retroactive benefits in the total of 
$10,640.00 to cover the Fall 2007 Semester of his 2-year-on-campus (Basic Camp) Army Scholarship.  In his request he stated that on 11 April 2007 he initiated his physical and in the summer of 2007, while attending the Leadership Training Course (LTC), he received notification of a remedial/disqualification.  Upon completion of the course he returned home to begin his second year of law school/MS III year.  He worked actively to make sure his medical examination requirements were fulfilled so that he could contract.  On 25 January 2008 he was disqualified by the Department of Defense Medical Evaluation Review Board (DODMERB) but later medically cleared on 5 March 2008.  A medical waiver was submitted on 7 March 2008 and was approved on 27 March 2008.  Upon contracting both he and his Professor of Military Science (PMS) agreed the contract would be retroactive covering the period 2007 - 2009.  He contends the Jackson State University staff and he worked hard to make sure all the medical requirements were met while he fulfilled his ROTC obligations, which is why a retroactive contract was instituted.  

	c.  Email correspondence, dated 4 May 2010, from the Chief, Incentives Division, U.S. Army Cadet Command, informed the applicant's legal counsel that the applicant's request for retroactive payment was denied because he was not medically qualified during the Fall 2007 semester in order to contract on a  scholarship.  Further, Cadet Command Regulation 145-1 (Army ROTC Scholarship Policy, Administrative, and Procedural Instructions) allows the PMS to request retroactive benefits if the system failed the cadet in some way.  Only the Commanding General, Cadet Command, has the authority to authorize retroactive benefits and that authority was delegated to the Deputy Chief of Staff, G2.  In the applicant's case, the PMS requested retroactive benefits in October 2009; however, the timeline revealed the cadet was responsible for the delay in obtaining DODMERB qualification.  Timeline shows a 9-month delay:

* 11 April 2007 - Examination Date
* 26 April 2007 - Remedials sent from DODMERB
* 22 January 2008 - Remedials received
* 25 January 2008 - DODMERB disqualified the applicant
* 7 March 2008 - Medical waiver approved
* 27 March 2008 - Medical waiver initiated
* 23 April 2008 - Contracted on 2-year scholarship

2.  On 23 November 2010, the Command Judge Advocate, U.S. Army Cadet Command, confirmed his request for retroactive payment for the Fall 2007 semester was properly denied pursuant to Army and Cadet Command regulations.   

3.  The applicant contends: 

   a.  In April 2007, he initiated the required physical for ROTC participation.  He began the ROTC program in the summer of 2007 attending the LTC in Fort Knox, KY.  Upon his return, he was notified by the ROTC department that his physical was not complete and they reassured him that all problems would be taken care of, but he still had more medical examinations to complete before he could sign a contract.  
   
   b.  Although his ROTC contract was not signed until 14 April 2008, the terms specifically included the fall 2007 semester.  He was told his tuition was not paid because the PMS did not have the legal authority to contract retroactively and because he was not qualified to contract prior to having a medical waiver.  However, he was never notified that he was medically disqualified.  He continued his participation in the ROTC program, completed all training, and went to medical appointments when he was told to go.  As a cadet, he had no control over the examination procedure or timeline.  The Human Resources office was in charge of scheduling appointments.  He was consistently being told his paperwork was being completed so he simply continued with his training.  
   
	c.  Despite many requests, the Cadet Command never provided him a written denial of his request for retroactive payment for the Fall 2007 tuition.  However, the Command Judge Advocate later informed him that he had exhausted all his administrative remedies and appeals on the issue.
   
   d.  In April 2009, he consolidated his tuition statements for the purpose of loan repayment and realized that his Fall 2007 tuition and expenses were never paid, approximately $10,640.00.  His PMS recommended he submit a Cadet Action Request for retroactive benefits.  The form was processed but he never received a signed copy. 
   
   e.  Finally, he contends the denial of benefits due to medical disqualification is unjust because he relied on the contracting official's assertions that any issues with his physical could be overcome and that the ROTC contract would include the fall 2007 semester.  His PMS contracted on behalf of the government for the 2-year scholarship, which clearly included the fall 2007 semester.  He was never informed of his medical disqualification.  The government should be bound to the terms of the contract.
4.  Section 2 of the applicant's ROTC contract outlines specific requirements that the cadet agrees to do.  Item f (Medical and Physical Fitness Standards) states the cadet agrees to maintain eligibility for enrollment and retention in ROTC and commissioning, as defined by statute, Army Regulation, and his contract, throughout the period of the contract.

5.  Army Regulation 145-1 prescribes polices and general procedures for administering the Army's Senior ROTC Program.  

   a.  Paragraph 3–3a(8) outlines the eligibility for scholarships.  It states to be eligible to receive or retain an Army ROTC scholarship, the student must be medically qualified under the standards of Army Regulation 40–501; and 
   
   b.  Paragraph 3-19 specifies the timeframe for examinations.  It states medical examinations for Basic Course applicants (MS I and MS II) for scholarship must be examined within 1 year before enrollment.  

6.  Cadet Command Regulation 145-1 states scholarship applicants must successfully pass a medical examination reviewed by the DODMERB or be granted a medical waiver by Headquarters, Cadet Command.  Applicants should have completed the entire physical process within six months of their initial physical.  If after six months the cadet is not qualified, the PMS may extend the medical determination for 30 days.  Holding a scholarship after the seven-month period requires approval by Headquarters, Cadet Command.

7.  Paragraph 5-1- of Cadet Command Regulation 145-1 states medical qualification is required prior to contracting and prior to payment of any scholarship benefits.  

8.  This same regulation states that in order to be eligible for retroactive benefits the cadet must perform all follow-up actions to include but not limited to responding to remedials within a timely fashion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his medical waiver, dated 31 March 2008, and his ROTC contract, dated 14 April 2008, be corrected to reflect a date of on or before 23 August 2007.

2.  The applicant's ROTC contract shows that he began his education on 
24 August 2007 and the term of the contract was for 2 years to include the Fall 2007 semester.  He signed the contract on 14 April 2008 after he received 
medical qualification.  He contends he was never informed that he was medically disqualified and he relied on the assurances of the contracting officials that any problems with his physical could be overcome.

3.  Regulatory guidance states that to be eligible to receive or retain an Army ROTC scholarship the student must be medically qualified and medical qualification is required prior to contracting and prior to payment of any scholarship benefits.  Also, applicants should have completed the entire physical process within six months of their initial physical.  If after six months, the cadet is not qualified, the PMS may extend the medical determination for 30 days.  Holding a scholarship after the seven-month period requires approval by Headquarters, Cadet Command.

4.  The DODMERB timeline shows it took the applicant 9 months from the date of his initial examination to complete his medical processing and he was subsequently medically disqualified on 25 January 2008.  He was granted a medical waiver on 27 March 2008 and he contracted on 14 April 2008.  The evidence clearly shows he was not medically qualified as of 23 August 2007; therefore, he was not eligible to receive an ROTC scholarship.  It would be inappropriate to correct the date of his medical waiver or contract to show 
23 August 2007 or an earlier date. 

5.  There is no evidence in available records, and the applicant failed to provide any supporting medical documents, which would confirm the extent to which he complied with scheduled medical appointments.  In addition, there is insufficient evidence to corroborate that delay in completing his remedials was due to circumstances beyond his control or to show his ROTC obligations precluded him from the timely completion of medical requirements.

6.  In view of the above, his request 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 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)                                         AR20110009446





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ABCMR Record of Proceedings (cont)                                         AR20110009446



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