BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130003154 


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 records to show he graduated from the U.S. Military Academy (USMA) at West Point and he was discharged from the Army by reason of physical disability.  He further requests cancellation of his educational debt and reimbursement of monies already recouped.

2.  The applicant states:

* he believed he had met all requirements for graduation and commissioning until 2 days before graduation when he was told he would not graduate
* his failure of the Army Physical Fitness Test (APFT) was not a voluntary act
* he was unable to complete his final APFT due to a combination of two medical conditions – sinus bradycardia and an esophageal duplication cyst
* a proper and thorough investigation of his medical conditions was not undertaken
* his esophageal duplication cyst was discovered as a result of a post-service college pre-enrollment chest x-ray
* he should have been referred to a medical evaluation board (MEB) and medically retired
* the physicians providing advisory opinions have little or no experience with his type of condition


* it was not until 2 days prior to graduation that he was told he would not be permitted to graduate with his class due to the APFT failure
* he was improperly disenrolled from the USMA just prior to graduation

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* USMA Oath of Allegiance
* USMA Statement of Policies
* USMA transcript
* USMA discharge orders
* 10 documents from the Defense Accounting and Finance Service (DFAS) or the USMA related to debt and recoupment actions
* 9 pages of service medical records
* 11 pages from MedWeb related to bradycardia and esophageal duplication cyst
* correspondence to Members of Congress and the President of the United States

4.  In concert with his rebuttal to an advisory opinion, he also submits:

* The Annals of Thoracic Surgery article titled, "Congenital Esophageal Cysts in Adults"
* World Journal of Gastroenterology article titled, "Esophageal Duplication Cysts:  Endosonographic Findings in Asymptomatic Patients"
* Internet medical articles pertaining to esophageal cysts, mediastinal cysts, and dyspnea
* additional copies of his medical records
* response to his indebtedness, dated 16 November 2004
* extracts from the Department of the Army Field Manual 21-20 (Physical Fitness Training)
* 6 letters to Members of Congress requesting assistance
* letter to the Secretary of Defense from the applicant's father
* correspondence to the President of the United States

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.  All documentation in relation to this application was provided by the applicant.  Other than the medical records provided by the applicant, no service medical records or APFT Scorecards are available for review.

3.  The applicant accepted an appointment to the USMA at West Point and entered service as a cadet on 29 June 1998.

4.  The applicant's Oath of Allegiance completed at the time of his entry in the USMA set forth the conditions for his appointment.  It included information pertaining to failure to complete his course of instruction and stated:

	a.  if he voluntarily failed, or through misconduct failed, to complete his course of instruction he would reimburse the U.S. Government the cost of his advanced education;

	b.  if he were separated for breach of his service agreement, he would be considered to have voluntarily failed, or through misconduct failed, and he would be ordered to active duty or required to reimburse the cost of his education;

	c.  the term "voluntarily fail" includes but is not limited to failure to complete the period of active duty because of conscientious objection, resignation, or marriage; and

	d.  the term "course of instruction" is synonymous to the term "educational requirements" set forth in Title 10, U.S. Code, section 2005.

5.  Following the applicant's reported April 2002 APFT failure, he was seen at the USMA medical facility and then transferred to the Walter Reed Army Medical Center for testing.

	a.  He reported experiencing a syncopal (fainting) episode during the running portion of the December 2001 APFT.  He reported losing consciousness briefly and completing the run in 20 minutes instead of his normal 15-minute time.  (A 20-minute run would have put him 4 minutes over the maximum allowable time for someone of his age.)

	b.  Three electrocardiograms (EKG) were done between 12 and 18 April 2002, each showing sinus bradycardia (a slow heart rhythm).  The medical testing also included a Holter monitor test (ambulatory EKG monitoring), a stress test, and an echocardiogram.  The evaluations conducted found no other abnormalities and the applicant did not experience any of the same symptoms he described during the evaluations although he experienced some light headedness following the stress test.  He was cleared for exercise and no further cardiac follow-up was warranted at that time.

6.  He also reported he had similar episodes of syncope or fatigue during subsequent APFT's and failing the final running portion of the APFT by 7 seconds.  (This indicates the applicant completed the run with a time of 16 minutes and 1 second.)  Copies of his APFT scores are not available.

7.  The applicant did not graduate with his USMA class in June 2002 and did not receive a USMA diploma.  It appears he was placed on administrative hold pending resolution of his medical conditions and other administrative actions pending.

8.  In October 2003, the applicant underwent surgical removal of an esophageal duplication cyst at the Emory University Hospital.

9.  On 10 September 2004, the Department of the Army Office of the Deputy Chief of Staff, G-1, approved the applicant's separation from the USMA.  It directed that the USMA conduct an investigation to determine if there was reason to warrant recoupment of his educational training costs and submit the findings G-1 for final action.

10.  The USMA directed an investigation.  The only available documentation related to this investigation is the handwritten annotations on a letter sent to the Professor of Surgery at Emory University (the attending physician where the cyst was diagnosed) by the investigating officer.  There are only four responses to questions posed by the investigating officer:

* when was the applicant's condition assessed – 1 October 2003
* how long does it take for an intramuscosal esophageal duplication cyst to develop – cannot be determined, 1-3 years would be a guess
* what effects would the condition have on cardiovascular endurance and performance at the time of assessment – it should have no effect
* what effects would the condition have on cardiovascular endurance and performance 1 1/2-2 years prior to assessment – do not think it would have an effect

11.  On 21 October 2005, G-1 directed recoupment of the applicant's educational expenses in the amount of $151,084.00. 

12.  On 27 October 2005, the USMA notified the applicant of the decision that recoupment was warranted and referred the debt to DFAS.  Recoupment would be made in the amount of $151,084.00 in lieu of being called to active duty.

13.  The applicant was issued a DD Form 214 for the period 29 June 1998 through 10 September 2004.  He was credited with 6 years, 2 months, and 12 days of net active service.

14.  On 14 March 2006, DFAS notified the applicant of the pending recoupment actions.

15.  The applicant provided copies of four acknowledgements of payments made by him in 2009 totaling $718.46.

16.  It appears that the applicant's debt was referred to a private collection agency in January 2013.  That agency's letter to the applicant shows a principal balance of $124,212.19 with fees of $37,263.66, for a total debt of $161,475.85.  It further appears that the applicant had been making payments totaling over $24,000.00 at this point.

17.  The available records contain no evidence that the applicant was on the Army Weight Control Program or had either a temporary or permanent physical profile.

18.  The Chief of Staff, USMA, provided an advisory opinion, dated 28 June 2013, wherein he stated:

	a.  The applicant was on notice for over 7 years as to the liability for repayment for his cost of education at the USMA prior to his current request.  

	b.  On 13 December 2004, an investigating officer found the applicant had failed to meet his active duty service obligation as a result of a volitional act and the debt incurred was rationally based.  In his consideration, the investigating officer reviewed the medical condition diagnosed on 1 October 2003 and, based on correspondence from the attending physician, found his condition should have had no effect on his ability to perform cardiovascular endurance testing at the time of surgery or affect his performance on the APFT.

	c.  The medical opinion and diagnosis were referred to the U.S. Corps of Cadets Surgeon who concurred with the opinion that the medical condition should not have had an effect on the applicant's APFT performance.

	d.  Because the applicant failed the APFT, he failed to complete all of the requirements to earn a diploma.  He was issued a certificate of completion on 11 October 2011 showing he met the academic requirements but failed to meet other graduation requirements.

	e.  The USMA Chief of Staff recommended denial of the applicant's request and validation of recoupment of the cost of his education.

19.  The applicant submitted a rebuttal to the advisory opinion, dated 30 July 2013, in which he states:

	a.  he should have been referred to an MEB and processed by the physical evaluation board for a medical discharge;

	b.  esophageal cysts are rare, many patients are asymptomatic and no large studies of the condition have been undertaken so they are relatively unknown;

	c.  he did not voluntarily fail the APFT or fail to complete his active duty service commitment; he was medically unable to do so;

	d.  because of the rarity of the condition, he should have been given the opportunity to perform an alternate aerobic event when he failed the run;

	e.  his correspondence with divers members of Congress and the administration shows he attempted to resolve the situation within the 3-year administrative period for applying to the ABCMR;

	f.  he questions the reviewing physician's medical experience with this type of condition;

	g.  even with his condition and an inability to pass the standard APFT, there are a number of positions he could have served in to meet his military commitments; and

	h.  based on the above, the recoupment should be remitted, he should be issued a USMA diploma, and his records should be corrected to show he was medically discharged.



20.  Medscape Reference describes sinus bradycardia as follows:

Sinus bradycardia is the medical term for a sinus rhythm of less than 60 beats per minute.  Sinus bradycardia can cause a decreased cardiac output resulting in symptoms such as lightheadedness, dizziness, hypotension, vertigo, and syncope.  However, bradycardia is not necessarily problematic.  People who regularly practice sports may have sinus bradycardia, because their trained hearts can pump enough blood in each contraction to allow a low resting heart rate.

21.  Medscape Reference describes an esophageal duplication cyst as follows:

Esophageal duplication cysts are a rare congenital malformation of the gastrointestinal tract, a doubling or folding of a part of the esophageal tissue.  Cysts occurring in the upper third of the esophagus may cause respiratory difficulty from compression of the tracheobronchial.  While many patients with esophageal cysts are asymptomatic and never diagnosed, nearly 75 percent of patients with esophageal cysts eventually become symptomatic; therefore, cysts should be resected when they are diagnosed unless the patient's other medical ailments prohibit operation.  Symptoms are caused by compression of surrounding structures and include dysphagia (difficulty swallowing), epigastric discomfort, pain, neck enlargement, or respiratory difficulties.

22.  Title 10, U.S. Code, section 2005 (Advanced Education Assistance:  Active Duty Agreement; Reimbursement Requirements) states the Secretary concerned may require, as a condition to 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 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;

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

	e.  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 without the Secretary first ordering such person to active duty.

	f.  The term "advanced education" means education or training above the secondary school level but does not include technical training provided to a member of the Armed Forces to qualify such member to perform a specified military function, to workshops, or to short-term training programs.

	g.  The term "assistance" means the direct provision of any course of advanced education by the Secretary concerned, reimbursement by the Secretary concerned for any course of advanced education provided by another department or agency of the Federal government, or the payment, in whole or in part, by the Secretary concerned for any course of advanced education provided by any public or private educational institution or other entity, but such term does not include the payment for any course of advanced education which is paid for under chapter 106 or 107 of this title.

	h.  The term "cost of advanced education" means those costs which are, under regulations prescribed by the Secretary concerned, directly attributable to the education of the person to whom a course of advanced education is provided, including the cost of tuition and other fees (or, if none is charged, an amount determined by the Secretary concerned to be a reasonable charge for the education provided), the cost of books, supplies, transportation, and miscellaneous expenses, and the cost of room and board, but such term does not include pay or allowances. 

23.  In similar cases the Federal Courts have determined that to meet the requirement that a person has "voluntarily failed" it must be determined that at a minimum they either had an intent to produce a separation from the service or an awareness that a chosen course of conduct will produce such a result.  

24.  Field Manual 21-20 provides the following:

	a.  Soldiers recovering from injury, illness, or other medical conditions must train within the limits of their medical profiles (DA Form 3349 (Physical Profile)) and be afforded a minimum train-up period of twice the length of the profile.  
Prescribed train-up periods must not exceed 90 days before APFT administration or other unit physical readiness goal requirements according to Army Regulation 350-1.

	b.  Soldiers in the reconditioning program will be on a physical profile or in the authorized recovery period from a temporary physical profile.  Soldiers with a permanent physical profile are to be allowed to remain in unit physical fitness training and complete alternative exercises for precluded activities.

	c.  Soldiers who fail any portion of the APFT must re-take the entire APFT within 3 months (unless they have an approved medical profile).  Soldiers who fail the APFT are flagged in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions).  Individuals who are flagged for APFT failure are not eligible for promotion, reenlistment, or enlistment extension.

25.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of a disability incurred or aggravated while entitled to basic pay.

26.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not issued a physical profile at the time he failed the final APFT; therefore, he was not entitled to perform an alternative form of exercise in lieu of the two-mile run.

2.  Neither the investigation, which appears to have been conducted 3 years after disenrollment, nor the applicant's APFT scores are of record.

3.  The applicant underwent a physical evaluation and testing to determine if there was a medical condition that prevented him from successfully completing the APFT; none was found.  


4.  Sinus bradycardia is a symptom or finding, not a disease in and of itself.  It is a frequent normal finding in people who are in very good physical health.  The simple finding of bradycardia would not warrant referral to an MEB.  Without other symptoms, especially in light of the negative findings of any abnormalities during his medical evaluations, the finding of bradycardia cannot be shown to have been the cause of his failure of the APFT.

5.  The physician who found his esophageal duplication cyst, a year after his USMA dismissal, provided an opinion that this condition would not have negatively impacted his ability to perform the APFT.  The opinion that the esophageal duplication cyst developed 1-3 years before the surgery is somewhat contradicted by the medical references showing esophageal duplication cysts are rare congenital malformations.  

6.  An esophageal duplication cyst is a congenital malformation that becomes symptomatic at some point in nearly 75 percent of patients.  While the applicant did have this condition it was not found until after the applicant's disenrollment.  More importantly it was not found as a result of any respiratory difficulty but, by the applicant's own statement, on a standard school-required x-ray.  

7.  Without a determination that his bradycardia and/or esophageal duplication cyst was/were a contributing cause(s) to the applicant's APFT failure, there is insufficient evidence to warrant referral to an MEB or to approve a physical disability discharge.

8.  In order to require a USMA cadet to repay the cost of their education, the reason for disenrollment has to be voluntary failure, or failure through misconduct, or the failure of the course of instruction.  

9.  In the case of a USMA cadet, the course of instruction includes successful completion of the APFT is a requirement for graduation and commissioning.  This fact is well known to all cadets as is the fact that repeated failure of the APFT will result in dismissal from the academy.

10.  Therefore, in accordance with the Federal Court's usage of "voluntarily fail," without a finding that the applicant was suffering from a medical condition at the time he failed the APFT his APFT failure must be considered to have been a voluntary act.

11.  Because the applicant did not successfully pass his APFT, he is not shown to have completed all requirements to graduate and be commissioned.  Therefore, he was properly disenrolled and declined award of a USMA diploma.
12.  While some factors are unresolved as to the cause of the applicant's APFT failure, the Board is not an investigative agency and must presume regularity unless an applicant provides evidence to show an error or injustice.

13.  The applicant has provided no evidence to show that either of the two reported conditions were the cause of his APFT failure.  Without such a finding it cannot be shown that he was not afforded a proper medical evaluation, that he should have been referred for medical disability consideration, that the dismissal from the USMA was improper, that his APFT failure was not a voluntary failure, or that his indebtedness was improperly created.

14.  Therefore, there is insufficient evidence to warrant any 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)                                         AR20130003154



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ABCMR Record of Proceedings (cont)                                         AR20130003154



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