BOARD DATE:	  7 February 2012 

		DOCKET NUMBER:  AR20110010970 


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:

* a waiver of the applicant’s Reserve Officers’ Training Corps (ROTC) debt
* reinstatement of the applicant in the ROTC Program 
* Upon successful completion of his Army Physical Fitness Test (APFT) commissioning as a second lieutenant in the U.S. Army
* Deletion of the applicant’s ROTC removal and these proceedings from his official military personnel file (OMPF)

2.  Counsel states:

   a.  On 29 April 2009, the applicant was informed by his superior officers that he would be disenrolled from ROTC based on his involvement in an alcohol- related incident and failure of the APFT.  On 3 February 2010, the applicant was notified of his official disenrollment in a letter that also demanded repayment of awarded scholarship monies.
   
   b.  The substantial evidence set forth will demonstrate that the alcohol-related incident was actually a misnomer that does not reflect poorly on the applicant’s character and that the APFT examination was improperly conducted, improperly scored, and the applicant was improperly barred from a syllabus-mandated retake.
   
   c.  In addition, the applicant was never given the opportunity to apply for a waiver of civil conviction.  The applicant’s OMPF should be amended and he should be reinstated because the adverse reports do not comport with the stated requirements of his class or the standard evaluation practices of the Army.

	d.  The applicant joined ROTC in September 2005.  In effect, he was successful during his first, second, and third years of ROTC training.  In the summer of his third year, the applicant’s father was diagnosed with colon cancer and underwent an operation.  On the applicant’s way to the hospital to be with his father he was involved in an accident and arrested for driving under the influence (DUI).

   e.  While fiddling with his radio dial, the applicant accidentally sideswiped a parked car causing minor damage.  After finding the owner the police were called and statements were taken.  Upon being asked to take a breathalyzer, the applicant refused based on his father’s advice.  He was arrested and processed. He was fined $300.00, given a one year “CD,” and his license was suspended for 90 days.

	f.  In the applicant’s fourth year, he was placed in an assistant S3 leadership position.  His pre-commissioning security clearance application was flagged as a result of his DUI conviction and returned for more information because of his alcohol-related traffic violation.

   g.  Lieutenant Colonel (LTC) PXXXXXX, the Professor of Military Science (PMS), asked the applicant to meet with him.  He prepared a recommendation for to waive the applicant’s civil conviction, submitted it to the brigade commander, and then withdrew it based on the applicant’s performance on the AFPT.  This recommendation was never provided to counsel or the applicant.

	h.  The applicant was not allowed an APFT retest as mandated by the PMS syllabus.  The syllabus for the class offered students the option to retake the APFT if they failed any section of it on the first attempt.  At the hearing LTC PXXXXX admitted that he had made a mistake in not complying with the retest requirements.  LTC PXXXXX did not have the authority to request a civil conviction waiver.  The record shows LTC PXXXXX withdrew his waiver request based on his anger at the applicant for not performing at an APFT despite the fact that he had admitted he made a mistake in not complying with his own syllabus.
   i.  Based on his statement that he had a charley horse in his leg during the first APFT LTC PXXXXX should have allowed a retest which the applicant probably would have passed.  Had the applicant passed the APFT, LTC PXXXXX would not have withdrawn his endorsement of a waiver request and the applicant would have been commissioned.  Thus, if LTC PXXXXX had acted properly, the applicant’s civil conviction would have effectively been a non-issue. 
   
   j.  After completing the court’s requirements, the applicant was granted a Certificate of Relief of Disability from the court.  However, he was still dismissed from the ROTC Program despite the fact that he was convicted of only a traffic violation, which is not a crime.  

4.  Counsel provides the following documents pertaining to the applicant:

* ROTC Cadet Accession Management Sheet
* Grades for Fall Semester 2006, Spring and Fall Semesters 2007, and Spring Semester 2008, 
* Psychological Assessment, dated 28 June 2008
* Certificate of Relief from Disabilities, dated 1 July 2008
* Request for upward migration of the applicant memorandum, dated         11 August 2008
* ROTC Leader Development and Assessment Course Certificate of Training, dated 17 August 2008
* MS Syllabus, dated 12 January 2009
* DA Form 705 (APFT Scorecard), dated 29 April 2009
* U.S. Army Physical Fitness Charts for Males, Age 22-26
* Email from LTC PXXXXXX, dated 7 May 2009
* Six character reference letters, dated June and July 2009
* Transcript of Proceedings for the disenrollment hearing, dated 29 July 2009
* Disenrollment memorandum, dated 3 February 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows he entered ROTC in the Fall of 2005.  He was arrested for a DUI on 12 June 2008 after refusing to take a breathalyzer test.  

2.  In a Psychological Assessment, dated 28 June 2008, a civilian clinical psychologist stated that in her opinion the applicant did not suffer from alcohol abuse or dependence; therefore, individual therapy was not warranted.  She recommended he attend the New York State Drinking Driver Program.  However, contrary to the statement of counsel and the applicant that the accident occurred the next morning after the applicant had taken a cab home, slept, and was driving to the hospital to visit his father, the psychologist related the accident occurred while the applicant was driving home from his evening of socializing.

3.  He was issued a State of New York Certificate of Relief from Disabilities on 1 July 2008.

4.  On 11 August 2008, the applicant's platoon tactical officer at the Leader Development and Assessment Course requested the applicant's overall performance be migrated from "N" (needs improvement) to "S (satisfactory)."  He stated:
   
   a.  The applicant would normally receive an overall performance "N" at Warrior Forge due to his initial failure of the APFT (sit-up event).  

	b.  Justification of the applicant's migration to an overall performance of "S" was due to his overall leadership performance and demonstrated potential during Warrior Forge.  The applicant had received overall "S" ratings in all 16 dimensions.  The applicant received one overall "E" (Excellent) evaluation during the first garrison leadership position and overall "S" ratings in all other big 6 evaluations.  The applicant absolutely deserved that upgrade.

5.  The MS Syllabus, dated 12 January 2009, outlined that any MS IVs who failed any portion of the end-of-semester record APFT would be administered one retest at the end of the semester.  If they failed the retest, they would not be commissioned with their class and would be considered for leave of absence pending disenrollment for breach of contract.

6.  On 7 May 2009, LTC PXXXXX advised the applicant of his decision to proceed with his disenrollment and provided instructions if he wished to retake the APFT.

7.  The Transcript of Proceedings of the applicant's disenrollment hearing, dated 29 July 2009, pertained to the DUI issue and whether or not he had an undesirable character and failed the APFT.  A decision was not rendered on that date.  The applicant has not provided the Board a copy of the hearing office’s findings and recommendation.

8.  A memorandum from Headquarters, U.S. Army Cadet Command, Fort Monroe, Virginia, dated 3 February 2010, Subject:  Disenrollment from the USAR ROTC Program, stated that the applicant was disenrolled from the ROTC Program under the provisions of Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program:  Organization, Administration, and Training), paragraphs 3-43a(14) and (16).  Disenrollment was based on his undesirable character as demonstrated by adverse adjudication on an alcohol-related incident and breach of the ROTC contract based on his failure of the APFT.  

9.  The memorandum also advised that when the ROTC scholarship contract is breached, any obligations to the Army must be satisfied by repaying the cost of advanced education assistance provided by the Army.  The total amount of monies spent in support of his education was $98,898.00.  A U.S. Army Advanced Education Financial Assistance Record (DA Form 5315-1) detailing the debt was enclosed.  He was informed of his options.  There is no evidence he elected to repay the total amount owed or enter active duty to fulfill his contractual obligation.

10.  He was disenrolled from the ROTC on 3 February 2010.

11.  Army Regulation 145-1 prescribes polices and general procedures for administering the Army's Senior ROTC Program.  This regulation specifies as part of a scholarship enlistment in the ROTC, an individual must sign a DA Form 597-3, which is the agreement between the Army and a potential ROTC cadet.  The form contains the promises made between the Army and the potential cadet, and includes what action the Army will take in the event that a cadet fails to successfully complete the terms of the contract.  Paragraphs 3-3-42a(14) and 43a(16) specifies that non-scholarship and scholarship cadets will be disenrolled for demonstrated undesirable character due to incidents with civil or university authorities and breach of contract.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and counsel's contentions have been noted.  The evidence of record confirms the applicant entered into an Army ROTC scholarship program and that he failed to satisfy the contractual requirements of this program.  On 12 June 2008, he was arrested for a DUI.  In August 2008, he failed the sit-up event portion of his APFT.  

2.  A disenrollment hearing convened on 29 July 2009 and he was afforded the opportunity to present matters on his own behalf.  After consideration of his case, it was determined he had entered into a valid contract and received educational assistance but failed to complete the requirements of this contract.  He was disenrolled because of an alcohol-related incident and failure of the APFT.  

3.  There is no evidence to support his counsel’s contention the APFT examination was improperly conducted; however, the APFT was improperly scored, and the applicant was improperly barred from a syllabus-mandated retake.  The applicant was provided with instructions if he wished to retake the APFT.  However, LTC PXXXX apparently decided to proceed with the disenrollment process without retesting the applicant on the APFT because he had other grounds upon which the applicant could be disenrolled.  LTC PXXXX confirmed at the disenrollment hearing that he denied the applicant the opportunity to retest on the APFT contrary to the terms of his syllabus.  The PT record indicates erroneously that the applicant was 21 years old on the date of the APFT.  However, that entry was harmless error.  The rating scale submitted by the applicant and testimony at the hearing indicate the applicant’s performance for sit-ups for 22-26 year old males failed to achieve the requisite 60 points he needed to pass that event and the APFT.  Although the applicant failed the APFT, it was unfair to use this as a basis for disenrollment, when the applicant was denied the opportunity to retest, an option provided by the PMS’s published course syllabus before a cadet would be disenrolled on that basis.

4.  Therefore, the validity of the applicant’s disenrollment and resulting debt rests upon whether it was shown that the applicant’s refusal to take a breathalyzer test demonstrated that he was of undesirable character.  Reviewing the evidence in the light most favorable to the applicant, the PMS indicated that he had forwarded a recommendation to waiver consideration of the incident to the brigade commander, and only withdrew it because the applicant had failed the sit-up portion of his PT test.  Although there is some discrepancy in the record as to the applicant’s destination at the time of the accident, it is undisputed that the applicant stopped his vehicle after clipping a parked car in the early morning.  He sought out the owner of the vehicle although there was no indication anyone else had observed the accident, and agreed with the owner to report the accident to the police.  He declined to take a breathalyzer test; however, he met all state requirements that flowed from that refusal, and the court issued him a Certificate of Release from Disabilities which otherwise would have flowed from his conviction of the traffic infraction.

5.  However, counsel would have this Board assume that if the PMS had allowed the applicant to retest he would have passed the APFT, and the PMS would not have withdrawn his request to waive the alcohol-related traffic offense.  Even assuming that to be the case, there is no guarantee the brigade commander would have supported that request, Cadet Command would have waived the conviction, and clearance officials would have granted him the security clearance required for his commissioning.  General officers commonly issue memoranda of reprimands in cases where active duty Soldiers have declined breathalyzer tests or have been found to have operated a motor vehicle under the influence of alcohol or drugs.  Based on experience in previous cases it is recognized that these reprimands often form the basis for Soldiers’ involuntary separations from the Army. Given this knowledge it should not be presumed that the applicant otherwise would have been commissioned given his New York traffic conviction for driving while impaired by alcohol.  By its very terms, the Certificate of Release from Disability does not act as a pardon for the underlying conviction.

6.  Neither the applicant nor counsel has provided sufficient evidence to show the applicant was erroneously disenrolled from the ROTC Program.  Cancelling the applicant’s debt and, in effect, providing him a free education without having to become an officer, would be a windfall.  Since the applicant’s disenrollment from the ROTC Program was due to his failure to maintain appropriate standards of behavior, it would not be appropriate to grant the requested relief in this case.

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)                                         AR20110010970





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ABCMR Record of Proceedings (cont)                                         AR20110010970



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