IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20110017705 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his $143,000.00 plus interest debt for education assistance based on his discharge from the U.S. Military Academy (USMA) be forgiven.

2.  The applicant states he received an honorable discharge from the USMA and he is currently being asked to repay the cost of his education.  He states cadets are required to repay the cost of their education if they are discharged voluntarily or as a result of disciplinary action.  He states he was on the football squad for
4 years and had no problem passing the alternate Army Physical Fitness Test (APFT) which substituted the run portion of the APFT with a bicycle event.  He claims he was only able to pass the normal APFT twice during his time as a cadet.  He states he failed his final 90-day retest run event by 2 seconds and following this failure, he remained at the USMA for the summer in order to try and pass the event; however, he was eventually discharged as a result of his APFT failure.  He states he obviously did not resign voluntarily and he was not separated for disciplinary reasons; therefore, the debt he is being asked to repay is unjust.  He claims he is not financially able to repay the debt.  The applicant requests the Board take into consideration the Record of Proceedings (ROP) in Docket Number AR20040011234 when considering action regarding this matter.

3.  The applicant provides the following documents in support of his application:

* APFT records
* APFT scorecard


* Army Weight Control Program (AWCP) records
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* Superintendent separation memorandum 
* Separation orders
* USMA transcript

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's cadet records are not available for the Board's review.  This case is being considered using the documents provided by the applicant.

3.  The applicant entered the USMA as a cadet on or about 30 June 1997.  On 20 May 2002, he failed a record APFT and on 21 June 2002, he failed to retest.  He was enrolled in the Commandant’s physical readiness program from 28 May 2002 to 20 June 2002.

4.  On 21 June 2002, the USMA, Director, Department of Physical Education recommended the applicant be separated from the USMA for failing to pass the APFT.  He stated the applicant’s past performance reflected substandard physical fitness for a cadet and future officer.  He further indicated the applicant had not progressed in his ability to become a physically fit leader.  He stated this performance indicated the applicant had not internalized the importance of physical fitness for leaders.

5.  On 3 April 2003, the HQDA Deputy Chief of Staff, G-1 approved the applicant’s separation from the USMA and his discharge from the U.S. Army with an honorable discharge.  On the same date, the applicant was discharged accordingly.

6.  On 18 August 2005, the HQDA Assistant Deputy Chief of Staff, G-1 directed recoupment action for the applicant’s education expenses at the USMA in the 
amount of $142,934.00 under the provisions of Title 10, U.S. Code, section 2005 (Advanced education assistance:  active duty agreement; reimbursement requirements), and Department of Defense Directive (DoDD) 1332.23 (Service Academy Disenrollment).

7.  Title 10, U.S. Code, section 2005, in effect at the time, states 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:

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

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

	c.  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 any amount that bears the same ratio to the total cost of advanced education provide such person as the unserved portion of active duty bears to the total period of active duty such person agreed to serve; and

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

8.  Title 10, U.S. Code, section 2005(f)(2002) further stipulates that, as a condition of the Secretary concerned providing financial assistance to any person, the Secretary concerned shall require the person enter into an agreement as described in the preceding paragraph and if the person does not complete the education requirements specified in the agreement or does not fulfill any term or condition prescribed in the agreement, the person shall be subject to the repayment without the Secretary first ordering such person to active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his $143,000.00 plus interest debt for education assistance based on his discharge from the USMA be forgiven has been carefully considered.  However, there is an insufficient evidentiary basis to support this claim.
2.  By law and regulation, as a condition of the Secretary concerned providing financial assistance, the Secretary of the Military Department concerned shall require a member to enter into a written agreement and if the terms and conditions of the agreement are not met, that member will be subject to repayment of the educational financial assistance.

3.  In this case, although the agreement is not available to the Board, the applicant was required to enter into a written agreement prior to entering the USMA in which he agreed to meet APFT standards.  It is clear he failed to maintain this standard which resulted in his discharge.  Based on his failure to comply with the terms and conditions of the USMA agreement he entered into, he was appropriately required to repay the financial assistance he received as a result of this agreement.  Absent evidence of error or injustice in the applicant’s separation processing form the USMA, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  Although the Board provided relief in the case referred to by the applicant and his counsel (AR20040011234), each case that comes before the Board is considered based on its own merits.  In AR20040011234 the Board did not provide detailed reasoning for its decision to grant relief.  The Board concluded that the evidence presented was sufficient to warrant relief.  The decision in AR20040011234 indicates that the record contained evidence from the applicant’s tactical officer that the applicant was unable to meet standards because of reasons beyond the applicant’s control.  

5.  The applicant has not provided sufficient evidence that he was unable to meet physical standards for reasons that were not voluntary.  The evidence suggests the applicant could lose weight and pass previous APFT tests.  The applicant claimed he had a problem with the run portion of the test but he states he only failed the run on the last test by two seconds.  Based on this evidence, the facts in AR20040011234 are distinguishable from the facts in this case. 

6.  This case is also distinguishable from United States v. Gears, 835 F. Supp. 1093 (N.D. Ind. 1993).  In Gears the court found Mr. Gears was not liable to reimburse the United States for the cost of education at the Naval Academy.  In Gears the Court believed that the phrase "voluntarily fails to complete the period of active duty" required, at the least, either an intent to produce a separation from the service or an awareness that a chosen course of conduct would produce such a result.  The Court found that nothing in the record indicated that Mr. Gears knew his weight threatened his active service as well as his commission.  In this case, applicant has not claimed that he was unaware that his failure to 


meet Army physical standards would result in separation from the Army.  Furthermore, the available records indicate the applicant received counseling and he was enrolled in the Commandant’s Physical Readiness Program.

7.  There was no error or injustice related to the recoupment action taken against the applicant based on his failure to fulfill the terms and conditions of his USMA agreement.  Therefore, granting the requested relief would be unfair to the Government who provided the financial assistance that provided for the applicant’s education with the expectation that it would receive military service in return as provided for in the governing law.

8.  The applicant provides no reason for his delay in applying for relief in this matter.  His delay in submitting his application had a negative impact on the Board’s ability to obtain applicable cadet records and other pertinent documentary evidence that would assist in arriving at a fair and just decision in this case and places the Board in the position of relying solely on documents submitted by the applicant in adjudicating this case.

9.  Excusing the applicant’s decision to delay filing creates a situation where the applicant receives an extraordinary windfall (excused debt/free education) for a lack of diligence.

10.  In view of the foregoing, there is no 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)                                         AR20110017705



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110017705



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1