IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120012668 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

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

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


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his military records to show that he graduated from the U.S. Military Academy (USMA) with a baccalaureate degree.

2.  The applicant states his USMA transcripts should reflect his academic record.  The withdrawal notations should be removed and the full record of his academic performance should be accurately reflected on his transcript.  He contends that he had completed all course work, took, and passed all of his final term end examinations (TEE).  He earned excellent grades during all 4 years and completed all academic requirements for graduation prior to the Superintendent approving his separation and prior to his final discharge from the USMA.

3.  The applicant provides copies of:

* USMA Transcript
* USMA Dean Letter, dated 23 July 2010
* USMA Chief of Staff Letter, dated 11 June 2010
* DD Form 785 (Record of Disenrollment), dated 20 April 2010
* Statement from Professor Lieutenant Colonel B _ _ _ S _ _ _, dated        28 April 2008
* DA General Counsel Letter to Senator Hutchison, dated 28 June 2012
* Applicant's graduation picture, taken 15 April 2010
* Applicant's letter to superintendent, USMA, dated 12 December 2010
* Applicant's letter to General Petraeus, dated 30 July 2011,                    with 17 attachments
* Applicant's letter to H _ _ _ W _ _ _, dated 1 May 2012
* USMA Medical Opinion, dated 9 March 2009

CONSIDERATION OF EVIDENCE:

1.  On 26 June 2006, the applicant was enrolled in the USMA.  His transcript dated 13 May 2010 shows he completed the academic requirements for each term through the 1st term of the 2009-2010 academic year.  His grade point average never fell below a 3.2 (B) until the final term of 2010.  His transcript shows he was withdrawn from five classes during the second term of 2010, and received a B grade in 1st Class Military Performance II and a B in Combat Applications.

2.  On 2 October 2007, the applicant was notified by memorandum that he      was being enrolled in the Cadet Weight Control Program (CWCP).  As of            9 September 2007, his body fat was 26 percent, exceeding the standard of        20 percent for his age group.  He was directed to undergo a medical evaluation and to receive diet and nutrition counseling.  He was required to be weighed and taped monthly until meeting the standard.  Failure to be present at the appointed time and place would result in disciplinary action.  He was informed that he would be eligible for separation:

	a.  if he failed to make satisfactory progress (3 pounds per month or a loss of body fat) in any 2 consecutive months;

	b.  if, within 12 months of being removed from the CWCP, he failed to meet the height/weight standard; and

	c.  if between 12 and 36 months of being removed from the CWCP, he failed to meet the height/weight standard and did not achieve the standard within 
90 days.

3.  On 12 February 2008, the applicant was counseled for failure to meet consistent loss of weight/body fat.  He had been enrolled in the CWCP for 
4 months and had failed to make consistent progress.  He was informed that at the 6-month mark, he would be recommended for separation unless he successfully completed the CWCP.

4.  On 1 April 2008, a resident physician assistant, USMA, wrote a memorandum to the applicant's Tactical Officer informing him that the applicant's overweight condition was not due to a medical condition.

5.  On 5 March 2009, the Physician Assistant, Military Medicine, USMA, wrote a memorandum to the applicant's Tactical Officer informing him that the applicant's overweight condition was not due to a medical condition.

6.  A DD Form 785, dated 20 April 2010, reports that the applicant was disenrolled on 23 May 2010 and was not recommended for consideration for any future officer training.

7.  On 11 June 2010, the Chief of Staff, USMA, wrote a letter to the applicant's father, who is a retired LTC, U.S. Army.

	a.  The letter stated that the applicant had failed to meet the U.S. Army height and weight requirements and had been counseled on several occasions, both verbally and in writing.

	b.  His failures had began in October 2007 when he was initially enrolled in the Army Weight Control Program (AWCP).

	c.  From October 2007 to April 2008, the applicant exceeded his weight/body fat standards.  In April 2008, he was first recommended for separation from the USMA.

	d.  The Commandant granted him discretion and allowed him to continue at the USMA hoping that he would remediate his weight control problem.

	e.  The applicant was disenrolled from the AWCP in September 2008 after successfully meeting the standards for the previous 2 months.

	f.  In March 2009, the applicant was again enrolled in the AWCP for exceeding the weight/body standards.  After spending a year in the AWCP, he was notified in March 2010, in writing, that he was being considered for separation.

	g.  In April 2010, the applicant provided a rebuttal to the recommendation for separation.  On 11 May, 2010, the recommendation was approved and the applicant was instructed on 13 May 2010 regarding his outprocessing.  The applicant requested to remain at the USMA until graduation so he could see his class graduate.

	h.  The Chief of Staff stated that the applicant could apply for readmission to USMA for the 2012 or 2013 class, if he desired.


8.  A DA Form 71 (Oath of Office - Military Personnel) dated 22 May 2010, as currently filed in the Interactive Personnel Management System (iPERMS) shows that the applicant was sworn before the Superintendent, USMA, as a second lieutenant, Regular Army, Aviation.  It cannot be determined from the available records if this oath of office was subsequently void, but apparently it was.

9.  On 30 June 2010, the applicant underwent a medical examination to determine if his diagnosed low level of testosterone played a role in his inability to lose fat mass with exercise.  The examining physician stated it was very possible that hypogonadism in the applicant had caused his fatigue, decreased muscle mass, and increased fat percentage.  These are well-documented symptoms of hypogonadism.

10.  On 12 July 2010, the applicant wrote a letter to the Superintendent, USMA, wherein he stated that after a series of medical tests and appointments with both his family doctor and an endocrinologist it was determined that he had the testosterone level of a 60 or 70 year old man.  This condition had a significant, if not overwhelming, negative effect on his physical fitness, ability to lose body fat, and height over the course of several years.  His condition is treatable and neither the problem nor the cure is medically disqualifying for service.  He states that he was able to reduce his weight from 207 pounds on 23 May 2010 to 185 pounds on 8 July 2010.  He also attests that he has subsequently increased muscle and decreased fat, putting his body fat percentage at an all-time low.

11.  On 23 July 2010, the Associate Dean, Operations and Registrar Division, wrote a letter to the applicant wherein he stated that the applicant had completed his TEE prior to being instructed to cease academic work.  The applicant completed this work on 12 May 2010; however, because the Superintendent, USMA had signed the applicant's separation memorandum on 11 May 2010, he was not considered a student on 12 May 2010.

12.  In an undated letter, the Director of Admissions informed the applicant that his application for readmission to the USMA for January 2011 had been denied.  This decision was based on a thorough evaluation of his overall record.  He was also told that he had received support and was encouraged to continue his pursuit of a commission in the U.S. Army via an alternate route, or by applying for readmission in August 2011.

13.  On 31 July 2011, the applicant's physician wrote a letter, addressed to Whom It May Concern, regarding the applicant's medical condition.  The physician essentially stated that the applicant had been suffering from a low level of testosterone and was diagnosed with secondary hypogonadism.  This condition should have been factored in to his inability to lose body fat.  It would be very reasonable to extend to him every benefit of doubt regarding his inability to lose body fat/weight in the face of his now-discovered medical condition.

14.  On 28 June 2012, the General Counsel of the Department of the Army stated in a letter addressed to the Honorable Senator Kay B. Hutchison that on 
5 March 2007, the then-Assistant Secretary of the Army delegated to the USMA Superintendent the authority to separate and discharge First Classmen who failed to make satisfactory progress in a weight control program.  He also informed her that the applicant’s final course grades for the five classes for which he received a “withdrawn” would have been an A for Geography of Global Cultures; a B+ for Chinese Literature II; an A for Language and Culture Capstone Seminar; an A for Constitutional/Military Law; and a B for Terrorism: New Challenges.

15.  During the processing of this case, an advisory opinion was obtained from the Chief of Staff, USMA.  The opinion stated that the applicant was separated from the USMA on 11 May 2010 for failure to meet the AWCP standards.  This action occurred prior to his courses being officially completed.  In accordance with USMA policy, courses are not considered officially completed until all work is graded by the faculty and final grades are reviewed, approved, and electronically posted to a Cadet's record.  Because the applicant was separated for AWCP failure, he did not graduate and should not be awarded a diploma or bachelor's degree from USMA.

16.  On 17 August 2012, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  On 27 August 2012, the applicant replied.

	a.  He states the record is clear that he had completed all required and necessary course work and other matters to be awarded his degree from USMA.  Additionally, it cannot be contested on the record that this was done prior to the actual issuance of any order of separation or disenrollment.

	b.  He states that any assertion that the separation occurred on 11 May 2010 is not supported by the facts in this matter.  He was in uniform every day was living in the barracks, and was treated as a cadet by USMA until 23 May 2010.  This fact cannot be legally disputed based on all known facts and the full record in this matter.

	c.  He provides a copy of his official orders separating him from the USMA and the U.S. Army with an effective day of 23 May 2010.

	d.  He also provides a copy of a DD Form 785 showing his disenrollment date as 23 May 2010.

	e.  He argues that the provisions of Army Regulation 210-26 (USMA) paragraph 5-3c apply in his case, which states: "Notwithstanding any other provision of this regulation, a cadet found by the Academic Board to have successfully completed all requirements in the Academic, Military, and Physical Programs, may receive a diploma and graduate with the Bachelor of Science degree, without being commissioned, provided the Secretary of the Army determines that it is in the best interest of the Government."  The record shows that he completed all such requirements prior to 23 May 2010.

	f.  He further states that USMA had a duty to maintain an accurate and complete record of a cadet's performance until the day of graduation or separation, and clearly did not do so in this case.  The posting of a "W" instead of the grade actually earned in each class, with Honors, proves this fact.  There is no conceivable reason why those grades could not have been reviewed, approved and posted prior to graduation day, one day prior to his separation from USMA.

	g.  He argues that the delegation of authority to separate or discharge USMA cadets that was done prior to 9 December 2009 was superseded by the publication of Army Regulation 210-26 dated 9 December 2009.  Table 7-2 in this regulation states that "After commencement of term 1 of the second class year only the Secretary of the Army or, when the Secretary of the Army delegates the authority, the Deputy Chief of Staff, G-1, is the separation authority.”  He implies that the delegation of authority was not renewed after publication of the regulation.

17.  Army Regulation 210-26 (United States Military Academy) provides:

	a.  that First Class cadets who have successfully completed the academic, military, and physical programs; have maintained prescribed standards of conduct; and who have demonstrated proper moral-ethical qualities, leadership, and character may receive a diploma signed by the Superintendent, the Commandant, and the Dean.  These cadets will have earned the Bachelor of Science degree and will be designated as graduates of the USMA.

	b.  that when a cadet, found by the Academic Board to have successfully completed all requirements in the Academic Program, may receive a diploma and graduate with a Bachelor of Science Degree, without being commissioned, provided the Secretary of the Army determines that it is in the best interest of the Government.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that he graduated from the USMA with a baccalaureate degree.

2.  The available evidence clearly shows that the applicant had a problem with maintaining his body fat levels and was enrolled in the CWCP in October 2007.  He was recommended for separation from the USMA in April 2008 based on his continued enrollment in the CWCP; however, the Commandant allowed him to continue at the USMA hoping he would meet the standards.  In September 2008, he was disenrolled from the CWCP after meeting the standard for 2 continuous months.

3.  In March 2009, just 6 months after his disenrollment from CWCP, he again failed to meet the weight standard and was placed back into the CWCP.  After a year in the CWCP, he was notified in March 2010 that he was being considered for separation.  However, the recommendation was not approved until 11 May 2010.

4.  On 11 May 2010, the applicant completed all of his TEE.  It appears he was even allowed to take his oath of office as a commissioned officer, on 22 May 2010.  Afterward, he was informed that he had been disenrolled from the USMA and instructed to outprocess.  However, he remained at the USMA until 23 May 2010 when he was discharged from the military service.

5.  The advisory opinion from the USMA states that because his TEE had not been reviewed, approved and electronically posted, and had not successfully completed all requirements in the physical programs, prior to the superintendent's approval of his separation, he does not qualify for graduation.

6.  In this case, there is no evidence of error on the part of the USMA.  What the USMA did in this case was in accordance with the governing regulations.  However, it strongly appears that the applicant suffered from an undiagnosed and untreated medical condition which impacted his ability to maintain body fat standards.  It was not until after his separation from the USMA and subsequent discharge from the U.S. Army, that his medical condition was indentified.  He was then placed on medication and reportedly has been able to make a significant reduction in his body fat percentage and to increase his muscle mass.

7.  Notwithstanding the advisory opinion, and as an exception to policy, the applicant's request should be granted based on equity.  The available evidence clearly shows that the applicant was permitted to remain at the USMA where he attended and completed all academic requirements through the end of his final year.  He was not instructed to cease his performance as a cadet until after he had taken his final examinations.  He passed all classes and maintained a B average.

8.  Furthermore, it is in the best interest of the government that the applicant be graduated without being commissioned.

BOARD VOTE:

___x_____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing that he met all requirements for graduation from USMA;

	b.  showing that he received a recommendation from the USMA  Academic Board for award of a diploma without commissioning;

	c.  showing that the Secretary of the Army approved this action without granting him a commission; and
	
	d.  graduating him as a part of the June 2010 class and awarding him the Bachelor of Science Degree.

      
      
      
      _______ _  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)                                         AR20120012668





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012668



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1