BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110012991 


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 correction of his academic transcripts from the U.S. Military Academy (USMA).  Specifically, he requests correction of his grades from semester one, academic year 2010/2011, from "F" and "D" to "NC (No Credit)", for courses taken.

2.  The applicant states:

* He had debilitating pain and effects of narcotic pain medication related to third degree kidney stone episodes in three consecutive semesters preceded a second lithotripsy surgery on 18 October 2008
* He was unable to meet academic standards from October through November 2010 because of pain, surgery, narcotic medications, and prolonged treatment period
* The violation of Army Regulation 40-501 (Standards of Medical Fitness) (forced APFT (Army Physical Fitness Test) and IOCT (Indoor Obstacle Course Test) caused increased and extended pain that compounded his medical and academic difficulty
* He should have been issued a physical profile at the onset of the condition in September 2010
* He was forced to take a diagnostic and a record APFT as well as an IOCT within 10 days of his surgery and 5 days following removal of a stent
* His eventual physical profile (6 December 2010) restricted the APFT requirements of "push-ups" and eliminated the "2-mile run" and the "sit-up" events due to function limitations of recurrent kidney stone
* He was not offered any relief or modification of duties before and after his surgery by his leadership team
* His grades were irretrievably lost by mid-November 2010 due to classes missed and physical inability to complete academic requirements

3.  The applicant provides:

* Academic Summary
* Extracts of his disenrollment packet
* Memorandum disagreeing with the recommendation of the USMA Academic Board proceedings
* Memorandum approving separation by the USMA Superintendent
* USMA Academic Board Proceedings findings and recommendations
* Various medical records, treatment charts and records, lists of medications, physical profiles, and other medical documents
* Letters of acceptance from other colleges

CONSIDERATION OF EVIDENCE:

1.  Abbreviations and references:

* APSC:  Academic Performance Score Cumulative
* MPSC:  Military Performance Score Cumulative
* USCC:  United States Corps of Cadets
* USC:  United States Code
* TAC:  Tactical Officer
* Title 10, U.S. Code, section 4351b (Cadets:  Deficiencies in Conduct or Studies, Effect of Failure on Successor)
* Army Regulation 612-205 (Appointment and Separation of Service Academy Attendees)
* Army Regulation 210-26 (USMA)

2.  Responsibilities (Army Regulation 210-26):  The Superintendent, USMA will:

* Exercise military command, control, and governance over the USMA
* Establish, maintain, and control all regulations and policies necessary for the discipline and governance of USMA
* Establish programs and procedures for the intellectual, military, and physical development of cadets
* Subject to the approval of the Secretary of the Army, and consistent with Department of the Army policy and guidance, establish and maintain a

4-year course of instruction (COI), commonly referred to as the Cadet Leader Development System (CLDS), for the USMA
* Nominate, annually, for attendance at the USMA, no more than 50 persons from the country at large, according to Title 10, U.S. Code, section 4342(d)
* Take final action in separation cases involving third and fourth class cadets where major misconduct, honor, conduct, and undesirable habits or traits of character are not the cause for separation, and where an honorable discharge is awarded
* Inform the DCSPER (Deputy Chief of Staff for Personnel) on USMA matters, as appropriate

3.  Definition:  Academic Board:  Advises the Superintendent on all matters concerning the academic aspects of the Academic, Military, and Physical Programs at the USMA, including, standards; cadet performance evaluations in the Academic, Military, and Physical Programs; and graduation requirements. The Academic Board also exercises those specific functions required by statute or other provisions of this regulation.

4.  The applicant was enrolled as a cadet at the USMA on 2 July 2007. The applicant's Tactical Officer made the following comments in the applicant's progress report:

DATE
COMMENTS
RECOMMENDATION
10 January 2008
failed PE150; above average cadet; struggled with academics throughout the semester before improving in every class but PE150
retain and repeat class
29 May 2008
APSC deficient and failed the APFT; average cadet
retain
26 June 2008
APSC deficient; average cadet
retain
5 January 2009
academic probation; lacked motivation but improved slightly
continue on conditional status
21 May 2009
academic probation; slight improvement
continue on conditional status
4 January 2010
APSC deficient
continue on conditional status

DATE
COMMENTS
RECOMMENDATIONS
18 May 2010
APSC deficient
continue on conditional status
7 December 2010
failed five academic classes
separate
5.  His Academic Summary Transcripts show he received the following grades in 2011:

* Surveying														F
* Land Use Planning and Management 					F
* Environmental Decision Making							D
* Advanced Geographic Information Systems				F
* History of Military Art										F
* First Class Military Performance							F

6.  On 13 January 2010, by memorandum to the Commandant of the Cadets, the Dean of the Academic Board stated that an Academic Board convened on 13 January 2010 and determined the applicant was deficient in five courses.  The board determined his failure was not willful and recommended his separation from the USMA.

7.  On 14 January 2011, his Brigade TAC recommended separation for academic deficiency.

8.  On 19 January 2011, he acknowledged receipt of the Academic Board's recommendation.  He elected not to waive his right to submit matters for the board's consideration.

9.  On 25 January 2011, by memorandum addressed to the Dean of Academic Board, an officer submitted a rebuttal on behalf of the applicant.  The officer stated he disagreed with the findings and recommendations of the Academic Board and alleged that the applicant's injury and treatment impaired his ability to satisfactorily complete the USMA curriculum.

10.  On 29 January 2011, by memorandum addressed to the Dean of Academic Board, the applicant also submitted a rebuttal.  He detailed his medical conditions and requested reinstatement into the USMA.

11.  On 3 February 2011, the Associate Dean for Operations and Registrar reviewed the matters submitted for reconsideration and stated that those matters 

had already been considered by the Academic Board.  As such, the Academic Board determined the matters submitted presented no new substantive information that was not already considered and that the Academic Board affirmed the recommendation that the applicant be discharged.

12.  On 4 February 2011, by memorandum to the applicant, the Associate Dean for Operations and Registrar notified the applicant that his rebuttal was considered by the Dean of the Academic Board and that the Academic Board reconsidered his case on 3 February 2011; however, but the Academic Board reaffirmed its decision to separate him.

13.  On 7 February 2011, the USMA Staff Judge Advocate conducted a legal review of the applicant's academic separation and found it legally sufficient.

14.  On 8 February 2011, the USMA Superintendent approved the Academic Board's recommendation to separate the applicant and ordered his separation in accordance with Army Regulation 612-205 and transferred him to the U.S. Army Individual Ready Reserve in the rank/grade of specialist (SPC)/E-4 for 3 years.

15.  The applicant was honorably released from active duty on 8 February 2011.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 7 months, and 7 days of cadet service.

16.  The applicant provides various medical documents/chronological records of medical care that essentially describe his medical condition and treatment.

17.  During the processing of this case, on 9 January 2012, an advisory opinion was obtained from the USMA.  The advisory official recommended disapproval of the applicant's request.  He stated:

	a.  The applicant completed the course work for Fall Term 2010 (Term 11-1) to include his final examinations and on 13 January 2011, the USMA Academic Board, in accordance with Title 10, U.S. Code, section 4351b and Army Regulation 210-26, paragraph 6-32a determined he was deficient in five out of six academic courses.  These courses were required for his major and for graduation.  He had been on academic probation for either a low grade point average (GPA) or a low cumulative GPA during every term he spent at the USMA, including terms that preceded the onset of his medical condition.

	b.  During the Academic Board proceedings, his medical condition was identified and taken into consideration.  The USCC Surgeon noted the applicant had undergone an extensive medical review and he was found "fit for duty."  

Additionally, the USCC Surgeon indicated that although the applicant's condition may impact his daily life to some extent, it would not prevent him from effectively performing within the academic program.

	c.  The applicant's contention that his medical issues were not handled properly and that Army Regulation 40-501, chapter 7, may have been violated was reviewed by a licensed medical doctor, the Deputy Commander at Keller Army Community Hospital.  The medical doctor found no violations.  In each instance where duty limitations were needed, the duty limitations were reported to the Cadet Injury and Illness Tracking System (CIITS) with a cadet Medical Excusal (CME).

	d.  On 20 December 2010, the applicant was considered by a medical evaluation board (MEB) that concluded he met retention standards and recommended his return to duty.  On 7 February 2010, the applicant signed a statement indicating he had been informed of the approved findings and recommendations of the MEB.  He agreed with those findings and recommendations.

18.  On 15 February 2012, he submitted a rebuttal.  He stated:

* The USMA administrative relief is appropriate and it is the right thing to do both morally and ethically
* However, his early academic history is irrelevant; the Board should not consider it
* He was denied access to the same Academic Board proceedings and as such his due process was violated
* His separation should be viewed in its entirety
* He is relieved that he was found fit for duty and he is ready to go back

19.  Title 10, U.S. Code, section 4351 states a cadet who is reported as deficient in conduct or studies and recommended to be discharged from the Academy may not, unless recommended by the Academic Board, be returned or reappointed to the Academy.  Any cadet who fails to pass a required examination because he/she is deficient in any one subject of instruction is entitled to a reexamination of equal scope and difficulty in that subject, if he/she applies in writing to the Academic Board within 10 days after he/she is officially notified of his/her failure.  The reexamination shall be held within 60 days after the date of his/her application.  If the cadet passes the reexamination and is otherwise qualified, he/she shall be readmitted to the Academy.  If he/she fails, he/she may not have another examination.

20.  Army Regulation 210-26 provides policy and procedures for the general governance and operation of the USMA.  Chapter 6 provides for separation for misconduct, honor, disciplinary, or other grounds for separation of cadets.

	a.  Paragraph 6-28 (inability to meet the non-academic requirements of the physical program) states cadets who are unable to meet the non-academic requirements of the Physical Program during any continuous 18-month period may be separated from USMA.  Prior to the initiation of a separation action, the Commandant will notify the cadet concerned, in writing, that separation proceedings are being considered.  All documentation that provides a basis for the separation will be attached to this letter.  The Commandant will consider the cadet's reply prior to forwarding a recommendation to the Superintendent.

	b.  Paragraph 6-30, medically disqualified cadets, whenever the Surgeon, USMA, determines that a USMA cadet does not meet the fitness requirements to perform all duties as a member of the Corps of Cadets during the current academic term or summer training period, or will not meet the medical fitness standards for appointment on active duty at the expected time of commissioning, the Superintendent will review the case and, at his discretion, take one of the following actions:

		(1)  Afford the cadet an opportunity to resign;

		(2)  Recommend that, in the case of the medical disqualification under cadet retention standards as provided in Army Regulation 40-501, the cadet be separated;

		(3)  For cadets of the first class, recommend they be retained and graduated, if otherwise qualified, by being granted a waiver and commissioned; 

		(4)  Recommend that the cadet, if physically disqualified for any military service, be discharged;

		(5)  Permit the cadet, upon the cadet’s written request, to complete the academic year in which the defect is noted, and in those cases in which it appears that the disqualifying defect is clearly remediable, to continue for an additional period of time beyond the current academic year for the purpose of further observation and/or treatment.  This additional period will not go beyond the end of the academic year following that in which the defect is noted unless the physical disqualification is removed; or

		(6)  Grant leave without pay to the cadet, upon the cadet’s written request, or direct leave from the Military Academy for an appropriate period of time, not to exceed one year.  At a time designated by the Surgeon, USMA, the cadet will be reexamined to determine if the medical disqualification has been remedied.  If so and otherwise qualified, the cadet will be permitted to return to the Military Academy.  In the event that the medical disqualification continues to exist, the case will be reevaluated consistent with this article.

	c.  Paragraph 6-32, academic, military, and physical program deficiency, states cadets who fail to meet the requirements of the Academic, Military, or Physical Program may be separated from the Academy or subject to other remedial action pursuant to paragraph 4–5 of this regulation.  Cadets who are deficient in the Academic Program, in military science or physical education courses, or in Military Development may be separated from the Academy or subject to other remedial action pursuant to paragraph 4–5 of this regulation. Cadets who are deficient in the Military or Physical Program, for reasons other than those included in paragraph 6–32a, may be separated from the Academy pursuant to paragraphs 6–24, 6–25, 6–28, and 6–29 of this regulation, as appropriate.

21.  Army Regulation 612-205 contains procedures for processing and strength accounting of U.S. Army members appointed as cadets at the USMA and civilian personnel appointed as cadets at the USMA.  Paragraph 7 provides for separation of cadets from the USMA.  Paragraph 7a(1)(b) states when cadets are separated for reasons other than physical disability, the Superintendent of the USMA will take these actions.  For all personnel except those being commissioned, refer to Table 3 for separation, discharge, or service obligation policies.

22.  Table 3, Rule 6, states if separation action is started after commencement of the third academic year (junior year) but before commencement of the fourth academic year (senior year) and the cadet is separated or resigns, then he or she will be transferred to the Reserve as an E–3 (or appropriate grade) for
2 years and may be ordered to active duty for not less than 2 years, or discharged from the Army if transfer to the Reserve is inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  An Academic Board determined the applicant was deficient in five courses.  The Academic board determined that his failure was not willful and recommended his separation from the USMA.  Cadets who fail to meet the requirements of the Academic, Military, or Physical Program may be separated from the Academy or subject to other remedial action.  
2.  The applicant's academic history reveals a substandard cadet as evidenced by the various entries made by his TAC and his substandard grades throughout his tenure at the USMA.  He was counseled on his deficiencies and placed on academic probation.  He was repeatedly counseled and given multiple opportunities to succeed.  However, he appears to have lacked the self-discipline and motivation to improve his academic standing.

3.  His medical condition is noted; however, this is not a medical issue; this is a case of academic failure.  The evidence does not support the applicant's contention that his condition rendered him unable to perform his academic and physical responsibilities as a cadet.  Additionally, as stated by the USMA official, the applicant underwent a medical board that found him fit for duty.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110012991



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ABCMR Record of Proceedings (cont)                                         AR20110012991



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