BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130000912 


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, in effect, waiver of recoupment of the debt for the cost of his education at the United States Military Academy (USMA) at West Point, NY.

2.  The applicant states he performed at an above average rating as a Cadet and also played football.  He made mistakes three weeks after he signed his USMA contract and he was separated due to misconduct in 2008.  He was informed that he would not have to pay back the cost of his education and that forms calculating the education debt would be declared null and void.

	a.  He then attended James Madison University in Virginia and received a football scholarship.  He also joined the Reserve Officers' Training Corps (ROTC) program as a nonscholarship cadet.

	b.  After one semester, the manner in which he was released from the USMA was discovered and the National Collegiate Athletic Association (NCAA) would not let him play football the following year.  As a result, he paid the cost to attend an out-of-state school for one year until his NCAA eligibility was reinstated and he could receive a football scholarship.  After playing two games, he sustained a season-ending ankle injury.  However, based on his circumstances, the NCAA granted him a sixth year of eligibility.


	c.  Due to another injury in his sixth year, he had to delay his commissioning and it impacted his ability to pay back a student loan on time.  That, along with the $150,000.00 USMA debt, has adversely affected his credit record.

	d.  He was commissioned as an officer in the rank/grade of second lieutenant (2LT)/O-1 in the Army National Guard (ARNG) of the United States (ARNGUS) and Virginia ARNG (VAARNG) with an 8-year service obligation.

	e.  He completed the Basic Officer Leaders Course (BOLC) and served in an Active Duty for Operational Support (ADOS) position for the VAARNG.

	f.  He intends to apply for Special Forces and serve on full-time active duty. Therefore, his military service should satisfy his USMA debt.

3.  The applicant provides copies of his USMA separation and recoupment of education costs documents, ROTC enlistment and appointment documents, and active duty orders.

CONSIDERATION OF EVIDENCE:

1.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant enlisted as a Cadet in the U.S. Army Reserve (USAR) on 15 July 2005, for a period of 8 years, to attend the USMA Preparatory School (Class of 2006).

2.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably released from active duty on 25 June 2006 to enter a Service Academy.  He completed the 42-week USMA Preparatory School and he was credited with completing 11 months and 11 days of net active service.

3.  The applicant's USMA cadet records are not available for the Board's review.  This case is being considered using documents provided by the applicant and records in his Army Military Human Resource Record (AMHRR).

4.  The applicant was appointed in the ARNGUS and VAARNG in the rank of 2LT effective 25 May 2012.

5.  A DD Form 214 shows the applicant entered active duty for training (ADT) on 24 June 2012, he was honorably released from ADT on 12 October 2012 based on completion of required active service, and transferred to the VAARNG.  It also shows he completed the 15-week Transportation Basic Officer Leader Branch 


Course and that he was credited with completing 3 months and 19 days of net active service this period.

6.  Orders 299-321, issued by the Office of The Adjutant General of Virginia, Joint Force Headquarters - Virginia, Blackstone, VA, dated 25 October 2012, as amended by Orders 321-338, dated 16 November 2012, ordered the applicant to Full Time National Guard Duty - Operational Support (FTNGD-OS), Ready Reserve Officer Strength Force Support, Richmond, VA, from 16 October 2012 to 30 September 2013, under Title 32, U.S. Code.

7.  Orders 241-395, issued by the same office, dated 29 August 2013, ordered him to FTNGD-OS, Ready Reserve Officer Strength Force Support, Blackstone, VA, from 1 October 2013 to 30 September 2014, under Title 32, U.S. Code.

8.  In support of his application the applicant provides:

	a.  USMA, West Point memorandum, subject:  Recommendation for Final Disposition on the Misconduct Investigation of Cadet (Applicant), dated
5 November 2008, that shows the Brigade Tactical Officer recommended the applicant be separated from the Academy.  He did not concur with the recommendation of recoupment action because the incident occurred less than a month after the Affirmation Ceremony and he did not believe the Government should attempt to recoup the funds for the applicant's first two years of education.

	b.  USMA, West Point memorandum, subject:  Commandant Recommendation in the Misconduct Investigation of Cadet (Applicant), dated
6 November 2008, that shows based on the findings and recommendations of the Investigating Officer, the Commandant of Cadets (CoC) recommended separation of the applicant from the Academy.  It also shows the applicant acknowledged receipt of the record of proceedings on 6 November 2008.

	c.  USMA, West Point memorandum, subject:  Commandant's and CoC Recommendations and Legal Review of the Misconduct Investigation Pertaining to Cadet (Applicant), dated 6 November 2008, that shows the documentation was provided to the applicant on 6 November 2008 for comment not later than
12 November 2008.  The available documents fail to reveal evidence that the applicant provided comments on the recommended actions.

	d.  USMA, West Point memorandum, undated, subject:  Notification Pursuant to Title 10, U.S. Code, section 2005 that shows the applicant was notified that the cost of his education at the USMA and debt to the Government was calculated at $118,395.00.
		(1)  He was advised that, if he disputed the validity of the debt, the Chief of Staff of the Military Academy would appoint an investigating officer to conduct an informal investigation into the debt.

		(2)  He was provided a memorandum from the Directorate of Resource Management that calculated the debt owed to the government for educational costs, based on the applicant's last day of class on 6 November 2008, as follows:

			Period			Amount

			2006			$50,949.00
			2007			$52,332.00
			2008			$15,114.00
			Total		    $118,395.00

		(3)  He was also provided copies of the Agreement to Serve that he signed when he began his service as a Cadet, a copy of the separation action, and a memorandum of notification for him to execute and return outlining his decisions with regard to the debt.  The available documents fail to reveal evidence that the applicant disputed the validity of the debt.

	e.   Pages 1 and 2 of a DD Form 4 that shows the applicant enlisted as a Cadet in the USAR for a period of 8 years.  The date of enlistment is not indicated on the document.  It also shows the enlistment agreement included participation in the Army Senior ROTC Nonscholarship Cadet Program.

	f.  Pages 1, 3, and 5 of a DA Form 597 (Army Senior ROTC Nonscholarship Cadet Contract), dated 30 November 2009, that shows the applicant agreed to enter the ROTC nonscholarship program.  It also shows the applicant agreed that he would incur an active duty obligation after the first day of Military Science III (junior) year.

	g.  Orders 171-069, issued by the VAARNG Blackstone, VA, dated 19 June 2012, that appointed the applicant in the ARNG in the rank of 2LT effective
25 May 2012.

	h.  Orders T-05-00977, issued by the National Guard Bureau (NGB), Arlington, VA, dated  31 May 2012, that ordered the applicant to active duty for training on 24 June 2012 for a period of 110 days to attend the Transportation Corps, BOLC.


9.  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 does not complete the period of active duty specified in the agreement, or does not fulfill any term or condition prescribed pursuant to paragraph (4), such person shall be subject to the repayment provisions; and

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

10.  Department of Defense Directive (DoDD) Number 1332.23 (Service Academy Disenrollment) provides uniform policies and reporting procedures for disenrolling U.S. Military, Naval, and Air Force Academy cadets and midshipmen before completing the course of instruction or after graduation if they do not accept or are not offered appointments as commissioned officers.  It also establishes reimbursement policies for cadets and midshipmen failing to complete their required active duty period when called to active duty, and for those not called to active duty.  It shows in paragraph 6 (Procedures):

	a.  subparagraph 6.1.1.3 (Second or First Classmen - Third and Fourth or Subsequent Years), any second or first classman who is disenrolled and who, for reasons of demonstrated unsuitability, unfitness, or physical disqualification, is not suited for enlisted Military Service, shall be discharged in accordance with the current Military Service regulations that implement this Directive.  Other second or first class cadets and midshipmen disenrolling after the beginning of the second class academic year, but before completing the course of instruction, may be transferred to the Reserve component in an enlisted status and ordered to active duty for not less than 2 years, but not more than 4 years, under Title 10, U.S. Code, sections 4348(b), 6959(b), or 9348(b); and

	b.  paragraph 6.1.4, ordinarily, disenrolled cadets and midshipmen shall be ordered to Reserve or active duty status, if qualified.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that recoupment of the debt for the cost of his USMA education should be waived because he was told he would not have to pay back the cost of his education and that forms calculating the education debt would be declared null and void.  In addition, he is currently serving in the VAARNG on FTNGD-OS.

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 for review, the applicant was required to enter into a written agreement prior to entering the USMA.

	a.  It is clear he failed to maintain the required standard that resulted in his disenrollment due to misconduct.  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 a breach of this agreement.

	b.  The applicant provides insufficient evidence to show he was informed that he would not have to pay back the cost of his education and/or that the forms calculating the education debt were declared null and void.

	c.  Absent evidence of error or injustice in the applicant's separation processing from the USMA, there is an insufficient evidentiary basis to support granting the requested relief.

4.  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 on documents submitted by the applicant in adjudicating this case.


5.  The evidence of record shows:

	a.  the applicant:

* was disenrolled from the USMA in November 2008
* enrolled in ROTC a year later (i.e., November 2009)
* was commissioned in the VAARNG three years later (i.e., May 2012)
* was ordered to FTNGD-OS duty in October 2012

	b.  The governing DoDD states that disenrolled cadets shall be ordered to Reserve or active duty status (emphasis added).

	c.  The applicant's Reserve active duty service, beginning nearly four years after his disenrollment from the USMA, fails to satisfy the active duty service obligation he incurred as a result of his disenrollment from the USMA.

6.  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.  In fact, the evidence of record shows the applicant enrolled in college after having completed two years of undergraduate study at the USMA at the expense of the Government.  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.

7.  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.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X_____  ___X_____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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)                                         AR20130000912



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ABCMR Record of Proceedings (cont)                                         AR20130000912



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