IN THE CASE OF:	  

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110014766 


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 reinstatement as a cadet in the U.S. Military Academy (USMA) and referral to a medical evaluation board (MEB).  

2.  The applicant states:

* he was improperly separated from the USMA due to an in line of duty injury
* he suffered a shoulder injury in 2008 and received continued treatment
* he was diagnosed with a post-labral non-displaced tear in his left shoulder in April 2009
* surgical repair was recommended and he underwent left shoulder reconstruction posterior laberal repair in September 2009 which required 6 weeks of wearing a brace with no internal rotations
* after surgery, he complied with his prescribed physical therapy until he was cleared to return to duty with limitations in February 2010
* as his exercise increased, he experienced more pain in his left shoulder
* in May 2010, he reinjured his left shoulder during the gymnastics portion of a physical education course
* he was academically separated shortly thereafter
* his academic separation appears to be a punishment for being injured in line of duty and except for this injury, he would have passed the course with good academic standing
* 
his injury should have required referral to an MEB but he was never given an opportunity to undergo an MEB
* he was deprived of his rights to an MEB and potential compensation or the opportunity to be found fit for duty

3.  The applicant provides:

* 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 chronological records of medical care
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Abbreviations and references:

* PPSC: Physical Program Score Cumulative
* PPS: Physical Performance Score
* APSC: Academic Performance Score Cumulative
* MPSC: Military Performance Score Cumulative
* PE107: Physical Education 107
* APFT: Army Physical Fitness Test
* USCC: United States Corps of Cadets
* USC: United States Code
* TAC: Tactical Office
* Title 10, USC, 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 (United States Military Academy)

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 Section 4342(d), Title 10, United States Code (10 USC 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.  His records show he was frequently counseled by his Tactical Officer as well as the Associate Dean for Operations and Registrar, on various dates as follows:

* 28 July 2008, an evaluation of his academic performance determined that he received an unsatisfactory program score; he was deficient in PPSC and he had a PPS of 1.696 out of 4.33
* 27 January 2009, he had received an unsatisfactory program score; he was deficient in PPSC , had a PPS of 1.693, and failed to meet the terms of his condition in APSC, MPSC, or PPSC
* 27 July 2009, he had received unsatisfactory program score; he was deficient in PPSC , had a PPS of 1.842, and failed to meet the terms of his condition in APSC , MPSC, or PPSC
* 8 June 2010, he had received unsatisfactory program score; he was deficient in PPSC and he had a PPS of 1.954
* 7 July 2010, he had received unsatisfactory program score; he was deficient in PE107, deficient in PPSC, failed to meet the terms of his condition in APSC , MPSC, or PPSC, and recommended for separation

5.  The applicant's TAC made the following comments in the applicant's progress report:

* 4 January 2009, PPSC deficient; weak retain; slightly below average academically and militarily; failed three record APFT since arrival at USMA; does not spend time for academic or physical preparation; continue in conditioned status for one more semester
* 21 May 2009; PPSC deficient; retain; slightly below average; peers noted physical deficiencies as a serious mark on his abilities as a leader
* 5 January 2010; PPSC deficient; weak retain; slightly below average academically and militarily; peers noted physical deficiencies as a serious mark on his abilities as a leader; received negative assessment as a squad leader; loss of focus; no sense of urgency; disagreement with others 
* 26 April 2010, strong separate; slightly below average academically and militarily; has been injured or on surgery-recovering profile since Yearling APFT make-up; was given a chance to recover from surgery and increase PPSC by completing 3 APFTs and other tasks; he failed to complete requirement

6.  On 17 June 2010, by memorandum to the Commandant of the Cadets, the Acting Dean of the Academic Board stated that an Academic Board convened on 17 June 2010 and determined the applicant was deficient in PE107 and PPSC.  The board determined his failure was not willful and recommended his separation from the USMA.

7.  Between 22 June and 2 July 2010, his chain of command recommended approval.  This included the:

* Brigade Tactical Department
* Chief of Staff, USCC
* USCC
* Staff Judge Advocate
* Dean
* Secretary of General Staff
* Chief of Staff, USMA

8.  On 29 June 2010, the USMA Staff Judge Advocate conducted a legal review of the applicant's academic separation and found it legally sufficient.  

9.  On 2 July 2010, the USMA Superintendent approved the Academic Board's recommendation to separate the applicant and ordered him separated, in accordance with Army Regulation 612-205 and transferred to the U.S. Army Individual Ready Reserve in the rank of E-3 in pay grade E-3.

10.  On 6 July 2010, he signed a memorandum wherein he requested a separation medical examination and acknowledged that the purpose of this examination is to identify conditions that may require attention; not to determine eligibility for physical disability processing.  The separation physical is not available for review with this case.
11.  On 15 July 2010, by memorandum on behalf of the applicant, an officer submitted a rebuttal of the USMA Academic Board Proceedings decision.  The officer stated that the applicant disagrees and alleged that the shoulder injury treatment for approximately 18 months limited his ability to complete PE107.  He also provided a timeline of the injury and corresponding treatment.  However, it is unclear if this rebuttal was received by the USMA or responded to.

12.  The applicant was honorably released from active duty on 16 July 2010.  His DD Form 214 shows he completed 3 years and 15 days of cadet service.  

13.  The applicant provides various medical documents/chronological records of medical care that essentially show:

* In April 2009, he had a post laberal tear in his left shoulder and he was recommended for surgical repair
* In September 2009, he underwent surgical repair that required him to wear a brace for 6 weeks and that he continued to experience pain
* In May 2010, he reinjured his shoulder 

14.  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 is deficient in any one subject of instruction is entitled to a reexamination of equal scope and difficulty in that subject, if he applies in writing to the Academic Board within 10 days after he is officially notified of his failure. The reexamination shall be held within 60 days after the date of his application.  If the cadet passes the reexamination and is otherwise qualified, he shall be readmitted to the Academy.  If he fails, he may not have another examination.

15.  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 (Standards of Medical Fitness), 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; (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.

16.  Army Regulation 612-205 contains procedures for processing and strength accounting of US Army members appointed as cadets at the US Military Academy 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.

17.  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 PE107 and PPSC.  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 failure began in August 2008 when he was counseled by his TAC for being deficient in PPSC.  His failure continued through April 2010.  He was repeatedly counseled and given multiple opportunities to succeed.  However, he lacked the self-discipline and motivation to improve his academic standing as evidenced by his peers' evaluation who noted he spent a 

significant amount of time on personal entertainment in lieu of academic and physical preparation as well as his TAC's evaluation who noted the applicant may never value fitness as a necessary feature of leadership.

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 contention that his condition rendered him unable to perform his academic and physical responsibilities as a cadet.  Additionally, since he requested a separation physical and in the absence of this physical, it is presumed he was found fit for separation.  

4.  In view of the foregoing evidence, he is not entitled to the 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)                                         AR20110014766





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ABCMR Record of Proceedings (cont)                                         AR20110014766



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