IN THE CASE OF:	  

		BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110014021 


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.  This case comes before the Army Board for Correction of Military Records (ABCMR) on remand from the United States District Court for the District of Columbia.  The ABCMR previously denied the plaintiff in that case (hereinafter, “applicant”) relief from a debt established upon his disenrollment from the United States Military Academy (USMA) after repeated failures of a Cadet Physical Fitness Test (AR20060014346).   

2. The Court’s remand order directed the ABCMR to reconsider its prior decision and specifically address the precedential value and applicability, if any, of another USMA debt case with many similar facts (AR2003094057).  In initially addressing the applicant’s case, the ABCMR summarily rejected any comparisons on the basis that each case is decided on its own merits and does not set a standard for how the Board should vote.  The Court rejected this approach, noting that an agency decision may establish precedent for later actions in similar cases.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel provided argument and evidence to the Board prior to its consideration in Docket Number AR20060014346 on 26 July 2007.  In summary, Counsel asserted the applicant:

* did not voluntarily, or because of misconduct, fail to complete the required period of active service, a term of his contract with the USMA

* does not owe any debt for the cost of his education at the USMA

2.  Counsel states the applicant was a cadet at the USMA from 1997 until his final disenrollment in 2003.  He was disenrolled one month before his expected graduation date for failure to meet Army physical fitness standards.  The Army initiated the recoupment of his educational expenses rather than require him to serve on active duty as an enlisted Soldier.  At the time he was disenrolled from the USMA, he was under a temporary physical profile for a herniated disc.  Counsel further states:

	a.  On 30 June 1997, he signed the oath of allegiance and cadet contract with the USMA.  The contract provides:

		“…if I voluntarily fail, or because of misconduct fail, to complete the period of active duty specified…I will reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided me as the unserved portion of active duty bears to the total period of active duty I have agreed to serve…”

	b.  The applicant experienced difficulties passing the Cadet Physical Fitness Test (CPFT).  These difficulties were due in part to the fact that he was not naturally athletic and had suffered several injuries and medical conditions while a cadet that affected his ability to run.  During his second academic year, he failed the CPFT three times.  The Army advised him that he would be recommended for separation if he did not pass the 90-day CPFT retest.  He failed the 90-day retest and the Army initiated separation paperwork.  Counsel references the applicant’s memorandum dated 19 June 1999, in which he informed his command of the reasons for his failure of three consecutive CPFTs.  Counsel states the Army was fully aware of his documented injuries and the fact he had been placed on a no-running profile.  Counsel points out that he passed the Fall 1999 CPFT but failed the Spring 2000 CPFT.  Due to an ingrown toenail, he was unable to take the retests scheduled on 24 May 2000, 18 August 2000, and      13 September 2000.  His condition was documented by proper medical authority and he was excused from taking the retests.  On 27 October 2000, he failed the CPFT retest.  The Army initiated disenrollment proceedings four days later.  Counsel alleges that the applicant was not afforded any other opportunity to take the CPFT.

	c.  Title 10, United States Code (USC), section 2005 permits recoupment of educational expenses only where a cadet fails to complete his or her military service obligation voluntarily or due to misconduct.  Counsel states that the 

applicant did not voluntarily, or because of misconduct, fail to complete his active duty service obligation.  Counsel reiterates that he was disenrolled for lack of physical fitness due to physical injuries and medical conditions, not because of any voluntary conduct or misconduct.  Counsel references two court cases which addressed the question whether weight control failure constituted “voluntary” conduct or misconduct as indicated in Title 10, USC, section 2005.

		(1)  In United States v. Gears, 835 F. Supp 1093 (N.D. Ind. 1993), the court ruled, under the circumstances, that it did not.  Counsel states the court refused to accept the government’s argument that the term “voluntary” applied to all conduct that “was not caused by disease or physical defect.”

		(2)  In Favreau v. United States, 49 Fed. Cl. 635 (2001), the court accepted the DoD interpretation of the term “voluntary” as being consistent with the legislative history and intent of Title 10, USC, section 2005.  That interpretation was summarized by the court as follows:

"DoD thus interprets the term “voluntary” to refer to whatever the service member did or did not do to prompt separation.  So long as there is counseling and an opportunity to overcome deficiencies, and so long as persons with medically-diagnosed problems that interfere with weight reduction or maintaining physical fitness may not be separated for weight control failure or lack of physical fitness, the failure to meet standards is deemed volitional."   (Emphasis in the original)

	d.  The applicant was plagued by physical injuries and conditions that impaired his ability to properly train for and pass the CPFT from nearly the onset of his cadet career.  Counsel identified his injuries and conditions as ligament strains in his knee joint, a painful ingrown toenail, and a lower back injury.  The applicant strove to improve his CPFT performance.  He took the Army’s counseling to heart and engaged in extra training to improve his performance but the Army did not take this into account when making its decision to separate him. The Army separated him for lack of physical fitness due to the injuries and conditions he suffered, not because he voluntarily failed to meet the Army physical fitness standards.

	e.  The applicant consistently performed in the upper half of those cadets ranked center-of-mass.  He received numerous accolades for his effectiveness as a leader and a follower.  He agreed to serve in the Army for a period of eight years, of which no less than five years were to be served on active duty.

	f.  Section II(g) [sic -should read II(f)] and Section III.g.(3) of the agreement provide: 
      (f) "…if I am separated from the United States Military Academy for breach of this service agreement, as defined in paragraph 1.g.(3), Statement of Policies on the next page, and the Army decides that I should not be ordered to active duty because such service would not be in the interests of the Army, I shall be considered to have either voluntarily or because of misconduct failed to complete the period of active duty and may be required to reimburse the United States as described above…."

		(3)	"Breach of service agreement includes separation resulting from resignation, from any of the bases for separation listed in Table 1, Regulations for the United States Military Academy, including all additions to Table 1 subsequent to the date of this agreement, or from other willful acts or omissions (paragraph 10.20, Regs USMA)."

	g.  Title 10 USC section 2005 was amended on 16 January 2006.  The amended statute does not prohibit the military from recovering educational expenses where a cadet did not voluntarily, or because of misconduct, fail to complete his or her active duty service obligation.  Counsel states the applicant was disenrolled from the USMA prior to the January 2006 amendment of Title 10, USC, section 2005 and therefore, the previous statute applies in this case.  Counsel states that, in pertinent part, Title 10 USC section 2005 read as follows:

	"The Secretary [of the Army] 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:

		(1)  to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement;

		(2)  that if such person fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement;

		(3)  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 pursuant to clause (4), such person will reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided such person as the unserved portion of active duty bears to the total period of active duty such person agreed to serve; and

		(4)  to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States."

	h.  The applicant was unable to obtain the USMA regulations that were in place during his tenure as a cadet.  On 26 August 2002, the USMA regulations were superseded by Army Regulation 210-26 (USMA).

		(1)  Paragraphs 6-25 states, in pertinent part, that a cadet who fails to meet CPFT standards may be separated from the USMA.

		(2)  Paragraph 7-9 states, in pertinent part:

			(a)  Cadets who resign from the [USMA], or who are separated from the [USMA] under the procedures contained in Table 7-1 [which refers back, in pertinent part, to paragraph 6-25], will be deemed to have breached their service agreement.

			(b)  Cadets separated from the [USMA] under procedures other than those contained in Table 7-1 may be deemed by the Superintendent to have breached their service agreement if the cadet's failure to meet the standards for continued attendance at [the] USMA or for commissioning resulted from a willful act or omission.

			(c)  A cadet who voluntarily, or because of misconduct fails to complete the period of active duty service specified…in [his] agreement to serve may be required to reimburse the Government for educational costs pursuant to [Title 10, USC, section 2005] and implementing regulations.  If the Secretary determines that such active duty service is not in the best interests of the Army, the cadet will be considered to have failed to complete the period of active duty and may be required to reimburse the government for educational costs.

	i.  The ABCMR considered arguments very similar to those of the applicant’s, and did so in light of United States v. Gears.  In ABCMR Docket Number AR2003094057, dated 4 August 2004, the ABCMR ruled that the applicant did not owe a lawful debt to the Army where he too experienced continuous difficulties meeting the CPFT.  In pertinent part, paragraph 1 of Discussions and Conclusions of ABCMR Docket Number AR2003094057 states the following:

The majority felt that, as the applicant had had problems passing the CPFT from the beginning, the Army should have separated him before he became subject to recoupment.  Seeking recoupment after the applicant 

had been permitted to successfully complete four years of academic courses before being separated for failing the Academy’s physical training requirements, which resulted in denial of graduation and commissioning, constituted a grave injustice.

	j.  The applicant is not liable for his USMA expenses under Title 10, USC, section 2005, his service agreement, or the applicable USMA regulations because the conduct that led to his disenrollment from the USMA and discharge from the Army Reserve was neither voluntary nor [due to] misconduct.  The applicant struggled for nearly four years to pass the CPFT, despite his injuries and a medical condition.  The applicant had no academic deficiencies and was on schedule for graduation.  He walked away from the USMA without a degree or a commission, and with an alleged debt of more than $130,000.00.  The Army should have separated him before he became subject to recoupment as the ABCMR ruled in ABCMR Docket Number AR2003094057.  Counsel states there are no material differences between the applicant and the applicant in ABCMR Docket Number AR2003094057.  Counsel also argues that the Army was aware of the applicant’s difficulties in passing the CPFT as early as December 1998.  By 27 May 1999, the applicant had failed the CPFT three times.

	k.  Counsel states that the former Regulations, USMA 10.24 provided that a cadet without a medical profile who was determined to have repeatedly failed the CPFT could be separated from the USMA.  Counsel alleges that the applicant’s disenrollment was erroneous and unjust.  Counsel states that according to Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 1-4, Academy cadets are ineligible for MEB [Medical Evaluation Board]-PEB [Physical Evaluation Board] processing.  In pertinent part, paragraph 8-6 of Army Regulation 40-501 (Standards of Medical Fitness) states:

		(1)  “When a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of their office, grade, rank, or rating because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501 or National Guard Regulation 40-3 (Medical Care for Army National Guard Members).”

		(2)  “Conduct of an MEB and referral of case to a PEB will be according to the procedures of chapter 4, section III.  If the Soldier is not eligible for referral to a PEB, the MTF [Medical Treatment Facility] will forward the MEB to the Soldier’s unit commander for disposition under applicable regulations.”

	l.  Counsel references paragraph 9-10 of Army Regulation 40-501 which states, in part, that:

		(1)  “Normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140-10 or discharged from the U.S. Army Reserve per Army Regulation 135-175 (Separation of Officers) or Army Regulation 135-178 (Enlisted Administrative Separations).  They will be transferred to the Retired Reserve only if eligible and if they apply for it.”

		(2)  “Reservists who do not meet medical retention standards may request continuance in active USAR status in accordance with paragraph 9-11 below.  In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the LOD.  Reservists with nonduty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9-12 below.”

	m.  Counsel further states that paragraph 3-39(e) of Army Regulation 40-501 addresses herniated discs and provides that a cause for referral to an MEB is: “Herniation of nucleus pulposus.  More than mild symptoms following appropriate treatment or remedial measures, with sufficient objective findings to demonstrate interference with the satisfactory performance of duty.”

3.  Counsel provided 2 briefs, a statement from the applicant, and the following documents in support of his application:  

* USMA Form 5-50 (Agreement to Serve), dated 30 June 1997 
* memorandum, subject: Army Minimums [sic] Failures on CPFT, dated    21 December 1998 
* memorandum, subject: CPFT Failure/Retest Notification, dated               12 January 1999
* 3 DA Forms 4856 (General Counseling Form); dated 13 January 1999,   24 February 1999, and 26 April 1999
* Third Class Second Semester Counseling, dated 29 April 1999
* memorandum, subject: Army Minimums (sic) Failures on 90-Day CPFT Retest, dated 28 May 1999 
* memorandum, subject: Repeated CPFT Failures, dated 4 June 1999;
* memorandum, subject: CPFT Failure, dated 17 June 1999
* memorandum, subject: Successive CPFT Failures, dated 19 June 1999,  with 1st and 2nd endorsements
* 7 USMA Forms 2-515 (Cadet Excusal), dated 22 June 1999, 22 February 2000, 3 April 2000, 17 April 2000, 15 August 2000, 23 August 2000, and  1 September 2000
* 
memorandum, subject: CPFT/Retest Notification, dated 10 May 2000 (with 1st endorsement)
* Records of Counseling, dated 13 September 2000 and 29 September 2000
* remedial fitness plan for Fall 2000
* memorandum, subject: Recommendation for Separation of Cadet [applicant]…, dated 31 October 2000
* endorsement, subject: Recommendation for Separation of Cadet [applicant]…, dated 30 November 2000
* memorandum, subject: Separation Recommendation, Cadet [applicant]…, undated
* memorandum, subject: Recommendation for Disposition under Regulations, USMA for Cadet [applicant]…, undated
* memorandum, subject: Separation Recommendation, Cadet [applicant]…, undated
* memorandum, subject: Recommendation for Separation of Cadet [applicant]…, dated 5 December 2000,
* information paper, dated 5 December 2000
* handwritten note, undated
* summary sheet, dated 11 December 2000
* DD Form 785 (Record of Disenrollment from Officer Candidate - Type Training), dated 11 December 2000
* USMA Form 2-515, dated 18 January 2001
* memorandum, subject: Notification of Possible Actions for Separation Based Upon CPFT Failure, dated 20 February 2001, with 1st endorsement
* memorandum, subject: Separation Actions Against Cadet [applicant]…, dated 28 February 2001
* DA Form 3349 (Physical Profile), dated 27 March 2001
* letter from Investigating Officer (IO), dated 22 August 2001
* Orders 199-13, Headquarters, USMA, dated 18 July 2002
* memorandum, dated 25 April 2003, Subject: Separation of Cadet [applicant]
* Orders 118-12, Headquarters, USMA, dated 28 April 2003
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* 14 USMA Forms 2-543R (Cadet Performance Report)
* 4 USMA Forms 2-543-4R (Cadet Observation Report)
* 2 court cases - United States v. Gears and Favreau v. United States
* Notice of Intent to Initiate Administrative Wage Garnishment Proceedings, dated 7 September 2006
* 
ABCMR Record of Proceedings Docket Number AR2003094057, dated    4 August 2004

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 ABCMR in Docket Number AR20060014346, dated 26 July 2007. 

2.  The applicant is a former USMA cadet who was discharged on 25 April 2003.  
3.  On 30 June 1997, he signed a USMA Form 5-50, in which he agreed to abide by USMA and Army policies related to his attendance at the USMA and further service to the Army.

	a.  Part II (Agreement to Serve), paragraph f, states that the applicant, having been appointed a cadet of the USMA, agrees that if he voluntarily fails, or because of misconduct fails, to complete the period of active duty specified in the agreement, he will reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided him as the unserved portion of active duty bears to the total period of active duty he had agreed to serve.

	b.  Part II, paragraph g, states that the applicant, having been appointed a cadet of the USMA, agrees that if he is separated from the USMA for a breach of his service agreement…, and the Army decides he should not be ordered to active duty because such service would not be in the best interests of the Army, he shall be considered to have either voluntarily, or because of misconduct, failed to complete the period of active duty and may be required to reimburse the United States.

	c.  Statement of Policies, paragraph 1b, states that a cadet who is separated from the USMA because of demonstrated unsuitability, unfitness, or physical disqualification for military service will be discharged in accordance with the applicable Army regulations.  Where such a discharge is caused by voluntary action or misconduct on the part of the cadet subject to an active duty obligation, the reimbursement provision of Part II paragraph f of the Agreement to Serve will apply.

	d.  Statement of Policies, paragraph 1c, provides that a cadet who enters the USMA directly from a civilian status and resigns or is separated from the USMA 

prior to the commencement of the Second Class (Junior) academic year will be discharged from the Army.  Paragraph 1g provides the Second Class year begins at noon on the first regularly scheduled day of classes.  In cases where it is necessary to determine whether the cadet was separated or resigned prior to commencement of the Second Class year, the critical date is the date that the action is initiated, either by the cadet or USMA authorities.  

4.  The applicant received a Cadet Performance Report on 3 August 1997.  He ranked in the upper 25% of the cadets.  His rater recommended he work on PT and set short term goals.  

5.  On 11 December 1998 (fall semester of his 3rd class year), the applicant was administered the semi-annual CPFT, wherein he passed the push-up (42 push-ups/60 points) and sit-up events (56 sit-ups/64 points), but failed the 2-mile run (19 minutes and 4 seconds/8 points).  Passing is 60 points per event; the maximum score is 100 points per event.  On 11 January 1999, he was counseled regarding his CPFT failure.  

6.  On 12 January 1999 (spring semester of his 3rd class year), he was informed that he failed to achieve an Army age and gender specific minimum on the CPFT and he was required to take a CPFT retest within 60 days on his initial failed CPFT; his CPFT retest was scheduled for 11 February 1999.  His Brigade Tactical Officer (BTO) advised him that failure to achieve any of his age and gender specific Army minimums during his retest would result in a second CPFT within 90 days of the initial CPFT failure.  The BTO indicated that if he failed any portions of his Army minimums during his second retest, he would recommend the initiation of separation proceedings.

7.  On 11 February 1999, he was administered the 60-day CPFT retest, wherein he passed the push-up (42 push-ups/60 points) and sit-up events (58 sit-ups/68 points), but failed the 2-mile run (18 minutes and 15 seconds/27 points). On      24 February 1999, he was counseled regarding his failure to meet the minimum standards on the CPFT on his 60-day retest.  He was informed he would be required to take another CPFT within 90 days of his original test failure, and that should he fail to meet the minimum standards on that test, he would be recommended for separation from the USMA.  

8.  On 27 May 1999, he was administered a 90-day CPFT retest, wherein he passed the push-up event (42 push-ups/60 points), but failed the sit-up event (52 sit-ups/58 points) and the 2-mile run (16 minutes and 17 seconds/54 points).  

9.  On 28 May 1999, the Director, Department of Physical Education (DPE) notified the Commandant of Cadets that the applicant had failed to meet Army age and gender specific minimums on his 60-day and 90-day retests.

10.  On 4 June 1999, he was notified by the BTO that he was being considered for separation from the USMA for failing to meet age and gender specific minimums on the CPFT.  

11.  On 19 June 1999, the applicant responded to the BTO’s notification to explain the circumstances surrounding his failure of three consecutive CPFTs and what he had done to improve his performance.  He stated the initial CPFT was held in conditions which caused even the best runners to run over one minute slower than normal.  His run was at night during a storm with high winds and sleet.  He said he injured his knee before the 60-day test and was placed on a profile.  Once the profile expired, he had to start training from the beginning.  He admitted he had never been a good runner so the process was slow.  After this failure, he took some advice and ran three times a week and saw his run time drop by a minute.  He explained his low push-up and sit-up scores as an effort to do the minimum to save energy for the run.  He stated he was working under a fitness regimen designed by CPT PSG to improve his scores and was cooperative in his mission to improve his fitness.  

12.  On an unknown date, the Regimental Tactical Officer indicated he had reviewed the applicant’s complete packet and response (letter dated 19 June 1999) and recommended separation.

13.  The applicant was given a physical examination by a USMA Surgeon on 22 June 1999.  He was found to be in excellent health and fit for duty.  

14.  On 24 June 1999, the applicant’s tactical officer prepared a memorandum to the Commandant of Cadets, wherein he recommended the applicant's separation.  The memorandum noted his CPFT failures on 11 December 1998,    11 February 1999, and 27 May 1999.  The tactical officer noted the applicant was counseled after each test failure and given specific ideas/techniques to improve performance.  In addition, the tactical officer indicated he counseled the applicant on 26 April 1999 and 29 April 1999, during which the applicant was counseled on ways to improve his workouts and increase his CPFT performance, and was informed that he would be recommended for separation if he did not pass his   90-day CPFT retest. 

15.  16 August 1999 marked the first day of classes at USMA for the 1999-2000 school year and the beginning of the applicant’s 2nd class (junior) year. 

16.  On 20 August 1999, the applicant passed all portions of the semi-annual Fall CPFT.  

17.  On 22 February 2000, the applicant was examined by a USMA surgeon for an injury to his right big toe.  He was diagnosed as having an ingrown toenail and was given a limited duty medical excusal through 29 February 2000.  His duty limitations were listed as lower body [physical exercise], marching, and sports (self-pace).  

18.  On 5 May 2000, the applicant was administered the CPFT, wherein he passed the sit-up event (63 sit-ups/76 points), but failed the push-up event       (41 pushups/59 points) and the 2-mile run (17 minutes and 18 seconds/41 points).

19.  On 10 May 2000, the BTO notified the applicant he had failed to achieve an Army age and gender specific minimum on the CPFT held on 5 May 2000     (TAB H).  He was informed that he would retest on 24 May 2000.   

20.  The applicant was scheduled for a CPFT retest on 24 May 2000; however, he did not retest due to a medical excusal.  The record of the medical excusal is not available.  

21.  The applicant was examined by a USMA surgeon on 15 August 2000 for an injury to his right big toe.  He was given a limited duty medical excusal through 22 August 2000.  His duty limitations were listed as lower body physical exercise, marching, sports (own pace/tolerance), and soft shoes as needed.  

22.  The applicant was scheduled for a 90-day CPFT retest on 18 August 2000 (the beginning of his First Class, or senior, year), but he was unable to test due to a medical excusal.  

23.  The applicant was examined by a USMA surgeon on 23 August 2000 for an injury to his right big toe.  He was given a limited duty medical excusal through 8 September 2000.  His duty limitations were listed as lower body physical exercise, marching, sports (own pace/tolerance), and soft shoes as needed.  

24.  The applicant was examined by a USMA surgeon on 1 September 2000 for a follow up examination of his right toe.  He was given a limited duty medical excusal through 7 September 2000.  His duty limitations were listed as lower body (self-paced and soft shoes as needed).  The USMA surgeon indicated the applicant would perform physical therapy.  

25.  On 13 September 2000, he was counseled regarding his physical strengths and weaknesses.  The general period covered by this interview was Spring CPFT/60-Day Retest and 90-Day Retest.  The Record of Counseling identified his weaknesses as the 2-mile run (17 minutes and 18 seconds) and push-ups (41 push-ups).  The counselor noted he failed to meet USMA minimum standards in physical fitness as measured by the CPFT and that his demonstrated performance was below standard.  He was informed that he must pass his 60-day or 90-day retest.  If he failed the retests, he would be recommended for separation.  

26.  On 29 September 2000, he was counseled regarding his physical fitness.  The general period covered by this interview was Fall CPFT.  His weaknesses were identified as push-ups (41 push-ups/59 points) and the 2-mile run            (17 minutes and 18 seconds/41 points).  The counselor indicated he failed to meet the minimum number of push-ups required on the CPFT and exceeded the maximum 2-mile run time allowed on the CPFT.  He was informed that he would take a 90-day retest on 27 October [2000], and if he failed the retest, he would be subject to separation from the Academy.  

27.  On 27 October 2000, after the expiration of his physical profile recovery period and a fit-for-duty determination, he was administered a 90-day CPFT retest, wherein he passed the sit-up event (63 sit-ups/76 points) but failed the push-up event (38 push-ups/54 points) and the 2-mile run (16 minutes and 38 seconds/50 points).  

28.  On 31 October 2000, the Director, DPE recommended the applicant be separated from the USMA for failure to meet the Army age and gender specific minimums on CPFTs administered on 5 May 2000 and 27 October 2000.  

29.  On 30 November 2000 and 5 December 2000, the Regimental Tactical Officer and Company Tactical Officer, respectively, recommended his separation from the USMA for failure to pass the CPFT.  

30.  On an unknown date, the BTO notified the Commandant of Cadets that he concurred with the chain of command’s recommendation to separate the applicant for repeated failure to meet physical fitness standards and discharge him from the U.S. Army with issuance of an Honorable Discharge Certificate.  The Commandant of Cadets notified the Superintendent that he concurred with the chain of command's recommendation.

31.  In a 20 February 2001 memorandum, the applicant was provided information regarding possible consequences for a First Class or Second Class cadet who was pending separation based on CPFT failures.
	a.  The first possible consequence was an enlisted service obligation.  The Tactical Officer indicated the Department of the Army could require enlisted service; however, it was unlikely based upon the documented performance of failing to meet Army standards.

	b.  The second possible consequence was recoupment.  If the Army chose this outcome, the separated cadet could be required to pay back the monetary value of his/her education to the U.S. government.  If recoupment was recommended, the cadet had the right to dispute the debt, and an investigation by an impartial officer would ensue based on that action.  

The applicant was encouraged to make an appointment with a legal assistance attorney at the Office of the Staff Judge Advocate.  

32.  On 28 February 2001, the applicant submitted a rebuttal concerning the separation action against him, in which he stated:

* the CPFT has plagued him throughout his cadet career
* he had continued to improve his time on the run and he was within one or two repetitions from passing the push-up event
* he had several medical problems, including knee injuries and a concussion that had interrupted his CPFTs and training
* he had not given up, but instead he continued to strive to meet the standard
* he had recently had back problems and was diagnosed as having a possible slipped disk
* he had always tried to perform his best
* his grades had been above average and he had not had any disciplinary problems
* even though separation action was pending, he still worked hard in order to pass the CPFT should he be given another chance

33.  On 22 August 2001, an investigating officer (IO) concluded her investigation under the procedures in Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) and pursuant to Title 10 USC section 2005(g).  The IO considered the applicant’s input and concluded that he had adequate notice he would be liable to reimburse the cost of his education if he failed to fulfill the obligations under his Agreement to Serve.  She further concluded he failed to fulfill such obligations and his debt to the United States totaled $137,630.00.  There is no record the applicant responded to the IO’s findings by disputing the validity of the debt.  

34.  Orders 199-13, Headquarters, United States Military Academy, West Point, NY, dated 18 July 2002, placed the applicant on leave of absence without pay and allowances, effective 18 July 2002, pending completion of separation.  

35.  On 25 April 2003, the Deputy Chief of Staff, G-1 approved the Superintendent’s recommendation to separate the applicant from the USMA and discharge him from the service with an Honorable Discharge Certificate. The Deputy Chief of Staff, G-1 directed that the applicant not be ordered to active duty or transferred to the Reserve.  

36.  Orders 118-12, Headquarters, United States Military Academy, West Point, NY, dated 28 April 2003, discharged him from the Corps of Cadets, USMA, effective 25 April 2003, under the authority of Army Regulation 612-205 (Appointment and Separation of Service Academy Attendees).  His DD Form 214 confirms he completed 5 years, 9 months, and 26 days of active military service. 

37.  On 7 September 2006, a Notice of Intent to Initiate Administrative Wage Garnishment Proceedings was initiated.  This document, created by a collection agency on behalf of the Defense Finance and Accounting Service (DFAS) and the Department of the Treasury, shows the applicant’s debt was $180,333.96.  

38.  On 4 April 2007, DFAS informed an ABCMR staff member that, according to the Defense Debt Management System (DDMS), the applicant’s debt balance was $140,885.90.

39.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Officer Division, Directorate of Military Personnel Management, Office of the Deputy Chief of Staff, G-1 (TAB U).  The advisory official noted that:

	a.  The doctrine of administrative finality recognizes that once a final administrative act has been ordered or approved by an official legally competent to do so, that official has exhausted his power to act in connection with that case. The decision of the Assistant Deputy Chief of Staff, G-1 became final when he separated the applicant from the Army and ordered recoupment for the cost of his education.  Therefore, the doctrine of administrative finality precludes the Assistant Deputy Chief of Staff, G-1 from reconsidering his prior decision.

	b.  There are 4 narrow exceptions to the doctrine of administrative finality: evidence of fraud; mistake of law; mathematical miscalculation; and substantial new evidence discovered contemporaneously with or within a short time following the action in question.  The official opined that none of these apply in the applicant's case.

	c.  The applicant's repeated CPFT failures were considered a series of voluntary acts, insofar as the applicant failed to take the necessary initiative to ensure he maintained the appropriate level of physical fitness necessary to ensure his success on the tests.

40.  The applicant and his counsel were provided a copy of the advisory opinion for possible comment or rebuttal.  In rebuttal, the applicant’s counsel states:

	a.  The advisory opinion introduced no new facts or evidence.

	b.  The advisory official's discussion of the doctrine of administrative finality was inapplicable because it was the duty of the Board to weigh the evidence and determine whether the records contain errors and injustices warranting the relief requested.

	c.  The applicant did not apply to the G-1 for reconsideration of its decision to separate him and to recoup its expenses.

	d.  The advisory official did not address the applicant’s claim that his disenrollment during his final academic semester was grossly unjust, as the Board determined in ABCMR Docket Number AR2003094057, dated 4 August 2004.

	e.  The applicant provided compelling evidence that his disenrollment was erroneous and unjust, and does not owe the government a lawful debt.  

41.  Counsel submitted, with the initial application to the ABCMR, a statement from the applicant dated 4 December 2006.  The applicant stated his inability to meet the standards of the physical training program was not due to voluntary conduct or misconduct.  The applicant cites his efforts to improve his physical fitness and physical injuries that prevented him from successfully completing the CPFT.  He notes specifically an ingrown toenail that required him to be excused from three CPFTs.

42.  In ABCMR Record of Proceedings Docket Number AR2003094057, dated    4 August 2004, the Board granted relief to a Cadet (hereinafter, Cadet X) who challenged a debt established upon his disenrollment from USMA during his senior year for failure to pass the CPFT.  

43.  A summary of the facts pertaining to Cadet X.  He:

	a.  entered USMA on 28 June 1993 and executed an agreement similar to the one signed by the applicant establishing a requirement for service or recoupment in the event of a voluntary disenrollment or separation for misconduct after the beginning of his Second Class (Junior) year;  

	b.  failed the CPFT (push-up portion) and was counseled on 7 September 1993;

	c.  failed the CPFT (run portion) and was counseled on 30 March 1994 (Spring semester of his Fourth Class year); the counseling notified him of a retest at 60 and 90 days and the possibility of separation proceedings if he continued to fail the CPFT;

	d.  failed the CPFT (push-up portion) and was counseled on 12 May 1994;  the counseling reminded him continued failure could result in his separation and his requirement to pass the 90 day retest;

	e.  underwent counseling on 21 October 1994 (Fall semester of his Third Class year) concerning his strengths (academics and mid-term military program) and weaknesses (CPFT).  The counselor provided him tips to improve his ability to pass the CPFT (The Record of Proceedings did not indicate if he took the
90-day test noted in the 12 May 1994 counseling);

	f.  learned in a 1 February 1995 counseling that he was being considered as a possible physical education failure for academic year 1994-1995 and a candidate for the STAP (remedial physical training program);

	g.  failed the CPFT (run portion) and was counseled on 7 April 1995; he was informed he would take a retest in 7 – 10 days, a failure would restart the “60/90 day retest clock,” and of possible separation from USMA if he continued to fail the CPFT;

	h.  underwent surgery in June 1995 for a herniated disk and placed on a profile for about 6 months (this profile carried him into his Second Class year, which began in August, 1995);

	i.  underwent counseling on 13 March 1996 (Spring semester of this Second Class year) concerning his physical fitness (but the Record of Counseling indicates Cadet X signed the form on 18 September 1996);

	j.  failed the CPFT on 13 May 1996 and was counseled; comments noted Cadet X had considered the consequences of separation, to include repayment of education expenses;

	k.  received a counseling on 16 September 1996 (Fall semester of his First Class year) after completing the STAP the previous summer and earning the highest ever CPFT score; the USMA Academic Board had decided to retain him;

	l.  underwent counseling on 19 November 1996 and informed he needed to pass two of three CPFTs;

	m.  failed the CPFT on 16 January 1997 and was counseled;

	n.  underwent counseling on 31 March 1997 concerning his strengths and weaknesses (physical fitness, duty, motivation, personal discipline and communication);  Cadet X admitted he failed to work out as frequently or intensely as he should and on 8 April 1997, he was referred to the Cadet Personal Development Center;

	o.  failed his 90-day CPFT retest on 16 April 1997;

	p.  learned the Commandant of Cadets learned of this failure on 17 April 1997 and his possible separation for failure of the CPFT; Cadet X requested to remain at USMA; and

	q.  acknowledged receipt on 27 May 1997 of the USMA Superintendent’s recommendation to separate the applicant for failure of the CPFT. 

44.  On 14 August 1998, the Assistant Secretary of the Army (M&RA) approved and executed the Superintendent’s recommendation to separate Cadet X from the USMA with an honorable discharge and ordered recoupment of the cost of his USMA education.  

45.  Cadet X and his counsel appeared before the ABCMR on 4 August 2004.  Cadet X outlined the reasons why he chose the USMA over several other universities even though he had at least one full scholarship.  Counsel argued that the issue of recoupment turned on a legal interpretation of 10 U.S.C. 2005, which allowed the service academies to seek recoupment from their cadets in certain instances and why the applicant’s failure to pass the CPFT was not “voluntary” under that statute.  

46.  Under the section, “Consideration of Evidence,” the ABCMR cited to several sources of law:

* 10 U.S.C. 2005 (a)(3), providing for recoupment of educational expenses if a cadet voluntarily or because of misconduct, fails to fulfill any term or condition of their agreement with the service academy/service
* Senate Report Number 96-850, 16 July 1980
* United States v. Gears, 835 F.Supp. 1093 (N.D. 1993)
* Army Regulations 210-26 and 612-205

47.  Under the section “Discussion and Conclusions,” the ABCMR set forth its rationale for granting Cadet X relief from his USMA debt:

The majority of the Board members felt the applicant met the burden of proof in showing that the Army failed to meet the legal requirements of “voluntariness” before demanding recoupment.  The majority also felt that, as the applicant had problems passing the CPFT and APFT from the beginning, the Army should have separated him before becoming subject to recoupment.  Seeking recoupment after the applicant had been permitted to successfully complete four years of academic courses before being separated for failing the Academy’s physical training requirements, which resulted in denial of graduation and commissioning, constituted a grave injustice to the applicant.

48.  Title 10, USC, sections 2005(a) and (c), in effect at the time, read in full:

	a.  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--

		(1)  to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement; 

		(2)  that if such person fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement;

		(3)  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 pursuant to paragraph (4), such person will 

reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided such person as the unserved portion of active duty bears to the total period of active duty such person agreed to serve; and 

		(4)  to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States.

	b.  As a condition of the Secretary concerned providing financial assistance under section 2107 or 2107a of this title to any person, the Secretary concerned shall require that the person enter into the agreement described in subsection (a).  In addition to the requirements of paragraphs (1) through (4) of such subsection, the agreement shall specify that, if the person does not complete the education requirements specified in the agreement or does not fulfill any term or condition prescribed pursuant to paragraph (4) of such subsection, the person shall be subject to the repayment provisions of section 303a (e) of title 37 without the Secretary first ordering such person to active duty as provided for under subsection (a)(2) and sections 2107 (f) and 2107a (f) of this title.

49.  Senate Report Number 96-850, dated 16 July 1980, noted that the purpose of Title 10 USC section 2005 was to authorize the Service Secretaries to require an applicant for certain advanced education sponsored by the Armed Forces to agree in writing to serve on active duty for a specified period, or reimburse the United States for the cost of the education.  It noted that it was not the intent of the proposed legislation to include situations where an individual was discharged or his education was terminated because of academic failure not deemed willful on the part of the individual, failure to meet physical standards, or hardship.  

50.  Army Regulation 210-26 provides existing direction and guidance from the Secretary of the Army for the general governance and operating policies of the USMA.

	a.  Paragraph 6-25 states the provisions of Army Regulation 350-41 (Training in Units) pertaining to physical fitness, as measured by the CPFT, are applicable to cadets at the Military Academy.  A cadet who fails to meet the CPFT standards and conditions as outlined in Army Regulation 350-41 may be separated from the Military Academy.

	b.  Paragraph 7-9a states cadets who resign from the Military Academy, or who are separated from the Academy under the procedures contained in Table 7–1 (Separations Deemed to be a Breach of Service Contract), will be deemed to have breached their service agreement.

	c.  Paragraph 7-9b states cadets separated from the Military Academy under procedures other than in table 7-1 may be deemed by the Superintendent to have breached their service agreement if the cadet’s failure to meet the standards for continued attendance at the USMA, or for commissioning, resulted from a willful act or omission.

		(1)  For Academic, Military, or Physical Program failures, the determination of a willful act or omission will be based on a recommendation of the Academic Board after the cadet has been advised of the basis for the contemplated separation and has had the opportunity to present, in writing, his or her rebuttal to the allegation of willful act or omission.

		(2)  For other failures, the determination of a willful act or omission will be based upon an investigation conducted under the provisions of Army Regulation 15–6.  The Superintendent, upon recommendation of the Commandant, will appoint the investigating officer.  The report of the investigating officer will be processed in accordance with paragraph 7–3, prior to action by the Superintendent.

	d.  Paragraph 7-9c states cadets who voluntarily, or because of misconduct, fail to complete the period of active duty service specified by the Secretary in the cadet’s Agreement to Serve, may be required to reimburse the Government for educational costs pursuant to Title 10 USC section 2005 and implementing regulations.  If the Secretary determines that such active duty service is not in the best interests of the Army, the cadet will be considered to have failed to complete the period of active duty and may be required to reimburse the government for educational costs.

	e.  Table 7-1 contains a list of circumstances or offenses warranting separation from the USMA; notably, failure to maintain physical fitness standards in accordance with Army Regulation 350–1 (in which Army Regulation 350-41 was incorporated).

51.  Army Regulation 612-205, in effect at the time, provided the policy for separation of Army members from the service academies.  Paragraph 7a(1)(b) states the Superintendent of USMA will take action as shown in Table 3 for cadets separated for other than physical disability.  Table 3, Rule 9, states a cadet will be discharged because of unsuitability for military service as contemplated by Army Regulation 635-200.

52.  United States v. Gears, 835 F. Supp. 1093 (North. Dist. of Indiana, 1993), involved a midshipman who was discharged from the Naval Academy because of 

non-compliance with the Academy's weight standards and his inability to meet the Naval Academy's minimum physical education requirements and conform to the Academy's physical fitness standard.  The Court considered the defendant's obligation to reimburse the Government for the cost of his education, based on two criteria set forth in Title 10 USC section 2005(a)(3): the obligation to reimburse arises only if (1) the midshipman fails to complete "the period of active duty specified in the agreement," and (2) that failure was either (a) voluntary on the midshipman's part or (b) because of misconduct on the midshipman's part.

	a.  The Court determined the midshipman's active duty service obligation was at the discretion of the Service Secretary, and the Secretary's policy to require reimbursement when he or she reasonably believes a separated cadet is ineligible to fulfill the active duty service commitment is consistent with the intent of Congress when Title 10 USC section 2005 was added.  On this point, the Court found in favor of the Government.

	b.  The second element for recovery under section 2005(a)(3) required the Government to prove that Mr. Gears voluntarily failed to complete his period of active duty, or that his failure to complete his period of active duty was because of misconduct.

	c.  The Government contended that Mr. Gears' failure to complete a tour of active duty was voluntary, relying on "voluntariness" in two senses – acquiescence and volition.

		(1)  The defendant's refusal to submit a "show cause" statement amounted to acquiescence on his part to the Superintendent's recommendation for separation.

		(2)  The conduct that led to the Secretary's action was volitional in that it was not caused by disease or physical defect.  The defendant's inability to pass the Navy's physical fitness test was attributed to his lack of motivation, discipline, and physical conditioning; therefore, because he could control these factors, it was deemed "voluntary."  The Court rejected this contention.

			(a)  Congress plainly intended to limit the reimbursement obligation to a particular class of persons; the Government's interpretation would remove any such limits, insofar as only those separated involuntarily would be spared the reimbursement obligation.

			(b)  The phrase "voluntarily… fails to complete the period of active duty" required, at the least, either intent to produce a separation from the service, or awareness that a chosen course of conduct would produce such a result.

			(c)  The record contains no indication the defendant knew his deficiencies threatened either his continued active service or his commissioning.

			(d)  The Court found that the Government had not satisfied that burden.

	d.  The Court found that misconduct had not occurred in this case.  

The Court found in favor of the defendant.

53.  Favreau v. United States, 49 Fed. Cl. 635; (Ct. Cl., 2001), was a class action brought by former members of the Armed Forces who were separated because they failed to meet weight and/or physical fitness standards, and who alleged breach of contract and illegal exaction through the recoupment of bonuses.

	a.  The court opined each service has the authority to determine the standards that individuals must meet to remain a member of the Armed Forces.  The court determined the plaintiffs failed to satisfy such requirements pertaining to weight control or physical fitness, and that failure to meet those standards was not caused by medical conditions.  Additionally, they were not separated until they received counseling, remedial weight or physical fitness programs, and had been advised that failure to meet standards might result in discharge.

	b.  The court noted the Office of the Secretary of Defense (OSD) uniformly determines the question whether an individual has failed to complete a term of enlistment "voluntarily" depends on whether the service member was separated for engaging in conduct within the control of the service member but incompatible with military service.  OSD has uniformly determined recoupment is appropriate if the conduct that resulted in the separation was voluntary (within the service member's control).  The focus is thus not on the characterization of the separation itself but on the service member's actions or inactions leading to separation.  

DISCUSSION AND CONCLUSIONS:

1.  The Court remanded this case to examine whether Cadet X’s case establishes a precedent that controls the resolution of the applicant’s request for relief.  Cadet X’s case does not serve as a controlling precedent as it may be distinguished and explained on several fronts. 

2.  The ABCMR’s rationale in Cadet X’s case can be broken down into two parts:

	a.  An interpretation or application of the law concerning voluntariness (…the Army failed to meet the legal requirements of “voluntariness” before demanding recoupment…); and

	b.  Equity (even if USMA followed its rules, the result was not fair):

		(1)  in light of Cadet X’s continued failure of the CPFT, the USMA should have disenrolled him before he became subject to recoupment at the beginning of his Second Class year

		(2)  it was unjust to separate the applicant after he had successfully completed four academic years for failing the CPFT as it resulted in a denial of his graduation and commissioning.  

3.  Application of the Law:  Cadet X’s Board failed to explain its rationale for determining the Army failed to show his CPFT failures resulting in his separation were voluntary.  Cadet X’s Board could have found the language in the Senate Report controlling or that the Army failed to prove “voluntariness” in light of Gears. 

	a.  The language in the Senate Report is not controlling.  The language in the report suggesting that a “failure of physical standards” should not serve as a basis for recoupment is itself open to interpretation.  If applied broadly to include failure of the CPFT – versus medical retention standards – it could result in situations where a cadet intentionally or through lack of a legitimate effort fails a CPFT without any recourse for the investment made by the United States in his or her education and training,  The Senate Report makes clear the goal of 10 U.S.C. 2005 was to ensure the government a fair return on its investment.  The agreement signed by every cadet carries with it an inherent promise that he or she will abide by the standards established for continued enrollment – to include the CPFT – or, at a certain point, risk a service obligation as an enlisted Soldier or recoupment of the educational costs spent by the Army. 

	b.  Gears did not determine all separations for failing physical fitness requirements exempted a cadet from a determination the failure was “voluntary” under 10 U.S.C. 2005.  Specifically, the Court required, at a minimum, a showing by the service Academy that the failure was with the intent to produce a separation or with an awareness that a chosen course of conduct would produce such a result.  A Cadet’s continued failure of the CPFT is “voluntary” if the Cadet was placed on notice of the consequences, knew it could result in separation and recoupment, and otherwise was able to adapt his behavior to successfully complete the tests. 

4.  In the applicant’s case, his failure to pass the CPFT was “voluntary” within the meaning of the Court under Gears and 10 U.S.C. 2005.  He:

* Proved he could pass the CPFT; he:

* passed the CPFTs administered during his 4th Class year and was counseled to work harder to improve his scores  
* passed the CPFT before his 2nd Class (Junior) year and avoided the separation action initiated on his prior failures

* Did not suffer from a medical condition that prevented alternate methods to maintain fitness or pass the CPFT and his:

* temporary profiles for a toe injury in February 2000 (7 days) or knee strain in April 2000 (17 days) were not permanent and did not prevent upper body exercises or running upon expiration of the profiles, yet in May he failed the push-up portion and the run portion of the CPFT.  
* temporary profiles for a toe injury from 15 August 2000 until
7 September 2000 did not prevent upper body exercises or sports at his own pace, yet in late September he failed both the run and push-up portions of the CPFT (his delayed 60-day test)
* profiles expired on 7 September 2000, allowing almost 7 weeks until his 90-day retest on 27 October 2000, yet he again failed the run and push-up portions of the test

* Knew the consequences of failing the test, as he faced separation even before entry into his 2nd Class year (and the commencement of his recoupment obligation)
* Elected to remain at the USMA after assessing his ability to pass CPFT and willingness to train despite any limitations to pass each portion of the test  

5.  It appears that, unlike the Naval Academy's service agreement in Gears, the applicant's service agreement did call for reimbursement of educational expenses based upon the failure to complete the course of study at the USMA.  The applicant's service agreement defined breach of contract in an attached Statement of Policies, i.e., if the Army decided that he should not be ordered to active duty at all because such service would not be in the best interests of the 

Army, he would be considered to have either voluntarily or because of misconduct failed to complete the period for active duty and could be required to reimburse the United States.

6.  In addition, Title 10, USC, section 2005(a)(3) does provide for reimbursement of educational expenses based upon the failure to complete the course of study at the USMA.  Section 2005(a)(3) contains the phrase, "…or fails to fulfill any term or condition prescribed pursuant to clause (4).  Section 2005(a)(4) reads, "to other such terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States."  Under the terms of the applicant’s contract, passing the CPFT was a condition of his continued service as a cadet and graduation/commissioning.

7.  Counsel contended that, in Favreau v. United States, the court accepted the Department of Defense interpretation of the term “voluntary” so long as persons with medically diagnosed problems that interfered with maintaining physical fitness were not separated for lack of physical fitness.  He contended the applicant was plagued by physical injuries and conditions that impaired his ability to properly train for and pass the CPFT from nearly the onset of his cadet career.  
8.  Counsel's contention that the applicant's medical issues played a part in his inability to pass the CPFT are unfounded.  At no time was the applicant made to take a CPFT while under the protection of a physical profile.  Nor was he made to take an CPFT while still in a recovery period, the purpose of which is to ensure the profile recipient has sufficient time to prepare physically for the rigors of an CPFT.  Additionally, the applicant's medical limitations were not related, in multiple instances, to the applicant's inability to pass certain CPFT events (i.e. his ingrown toenail doesn't explain his failure of the push-up event).

9.  Equity:  Cadet X’s Board relied heavily on equity to fashion relief for that applicant.  The Board did not find the USMA violated rules or procedures in separating Cadet X for CPFT failure.  Instead, it determined the USMA’s failure to separate the applicant before he incurred a recoupment obligation and waiting to initiate separation proceedings and disenroll him after he had completed all other graduation requirements was fundamentally unjust.  Cadet X’s Board had a substantial basis in fact to support its decision:

* Cadet X failed all of his PT tests in his 4th Class (Freshman) year, including his 60-day retest in May 1994;
* The record does not show the USMA followed through with a 90-day retest during the summer following his 4th Class (Freshman) year or at the beginning of his 3rd Class year (suggesting a lack of urgency in administering the test or disenrollment)
* During his 3rd Class year he: 

* still showed weakness in the CPFT in October 1994
* received counseling as a possible CPFT failure for the academic year in February 1994 (but the USMA chose to put him on a remedial PT program)
* failed the CPFT in April 1994 and faced another 60/90 day retest cycle
* Underwent surgery for a herniated disk and was placed on a 6-month medical profile in June 1994 which precluded a 60/90 day test and the initiation of separation proceedings before he incurred a recoupment obligation upon entry into his Second Class year

* During his 2nd Class (Junior) year, his record of CPFT failures warranting separation continued and he:

* received a counseling in March 1996 concerning the CPFT (though not clear from the record, this action was presumably triggered by more PT failures)
* failed a 90-day retest (showing prior failures) in May 1996
* avoided disenrollment by participating in a STAP (remedial PT program) in the summer before his 1st Class year and passing the CPFT

* During his 1st Class (Senior) year he continued to show his inability to pass the CPFT and he:

* failed the CPFT in the fall of his Senior year and was informed in November 1996 he had to pass two of the next three CPFTs
* failed the CPFT again in February 1997 and a 90-day test in April 1997

* USMA waited until April 1997 - weeks before graduation – to initiate separation  

In short, although Cadet X was told often of the consequences of failing the CPFT (separation and recoupment), the USMA allowed him to continue as a cadet despite glaring evidence he could not pass the CPFT except under the most controlled and supervised circumstances (the remedial CPFT before his 1st Class year).  Further, Cadet X did not receive before the beginning of his Second Class year, a clear unmistakable warning of the consequences of continued failure of the CPFT (enlisted service or recoupment) because of his surgery and 6-month profile.  Only on the eve of graduation did USMA bring home the consequences of CPFT failure by initiating the separation action.  

10.  Cadet X’s case does not serve as precedent concerning relief as a matter of equity because the applicant’s case presents very different considerations.  The applicant:

	a.  proved his ability to pass the CPFT.  He did so his during 4th Class year without any apparent extraordinary measures by USMA authorities.  Though he was counseled on ways to improve his performance, he demonstrated the ability to meet standards.  Cadet X, by contrast, failed from the beginning of his Cadet career.

	b.  proved his ability to pass the CPFT when faced with an impending disenrollment.  On the cusp of separation before his 2nd Class year, he passed the CPFT and was allowed to continue.

	c.  experienced first-hand the consequences of continued failure of the CPFT before he incurred a repayment commitment when the USMA initiated separation action before his 2nd Class year.  Knowing of his precarious situation, he asked to be retained and was granted this (when he passed his CPFT), knowing he would owe repayment if he continued to fail.  Knowing of the potential consequences of his failure, the applicant made an adult decision to press forward and risk the consequences if he did not abide by the conditions required by the Army for its continued investment in his education.  Cadet X – because of his medical profile - was not faced with disenrollment before his Second Class year.  The applicant was so informed and – knowing of his past difficulty in passing the CPFT and with a reminder of the consequences of continued failures – elected to proceed.

	d.  Failed to maintain his fitness for portions of the CPFT unrelated to the temporary profiles he received in his 2nd and 1st Class years.  Where he once passed the push-up portion, he then consistently failed despite no limitations on physical training to pass that event.

11.  The evidence does not support counsel’s argument that the applicant’s failure was not “voluntary” because of physical limitations preventing his successful completion of the test.  Despite counselings, the applicant failed to increase his physical stamina but elected to rely upon minimal passing scores on other events to “preserve energy” for the run.  He also failed to take advantage of the opportunity to bolster the events he could take when under the periods of profile preventing him from running.  

12.  The application of the law as it then existed, and the facts of this case, warrant a different outcome than that directed for Cadet X.  

13.  This case rests on informed choices.  The applicant made an informed choice when he entered USMA understanding his failure to maintain standards could eventually lead to recoupment or enlisted service if he chose to continue as a Cadet after a certain point.  The applicant was reminded of the consequences of failure several times before he incurred this commitment when he failed portions of the CPFT.  He knew he had problems with the CPFT before entering his Second Class year.  He asked USMA to give him yet another chance.  

14.  The USMA did not have a duty in this case to disenroll the applicant – despite his request to stay – before he incurred a commitment in his second class year.  The applicant knew his history with the CPFT.  He also knew he could walk away from USMA with no commitment before his Second Class year. While the applicant’s desire to continue the path toward commissioning was admirable, it did not relieve him of making a considered decision and accepting the consequences when it did not result in the outcome he desired.  The applicant’s knowing choice to continue into his last two years at USMA changes the equitable landscape from that presented in Cadet X’s case.  For the reasons outlined above, it also calls for a different result.

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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________XXX__________
               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)                                         AR20110014021



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