IN THE CASE OF:	  

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130004540 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request, to include:

* a waiver of the applicant's Reserve Officers' Training Corps (ROTC) debt
* reinstatement of the applicant in the ROTC Program
* upon successful completion of his Army Physical Fitness Test (APFT), commissioning as a second lieutenant in the U.S. Army
* deletion of the applicant's ROTC removal and these proceedings from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF)

2.  Counsel states:

	a.  the applicant completed more than 3 years of the ROTC Program when he was processed for disenrollment.  Cadre leadership failed to provide all opportunities for the applicant to succeed and failed to faithfully follow their own policies when barring the applicant the opportunity to take a syllabus mandated APFT retake.

	b.  Army Regulation 145-1 (Senior Reserve Officers' Training Corps Program:  Organization, Administration, and Training), paragraph 3-38a(2)(f) provides for a


leave of absence (LOA) for "special reasons" not to exceed one semester.  Cadre leadership could have provided the applicant an opportunity to take an LOA to focus on his fitness and any character building that would have allowed him to commission.  He would have done anything necessary to commission if the opportunities were presented to him.  By processing the applicant for disenrollment without exhausting all opportunities for him to demonstrate his capabilities, the Army failed to uphold its own regulations and its responsibility to training cadets.

	c.  the Board makes a broad assumption in refuting the applicant's argument that despite failing the APFT, the Professor of Military Science (PMS) should have proceeded with submitting the waiver of civil conviction.  The Board assumes that the "Brigade General" would not have approved the waiver of civil conviction that the PMS refused to submit after the applicant failed an APFT.  The Board bases this conclusion on evidence drawn from active duty Soldiers and provides no specific examples.  The fact remains that the applicant was a cadet and not an active duty Soldier.  With this consideration, it is improper for the Board to casually link the use of reprimands on active duty Soldiers with that of ROTC cadets.

	d.  the amended psychological assessment surrounding the events of the applicant's 12 June 2008 accident provides new material evidence that illustrates he did not display undesirable character.  The addendum clarifies that at no point did the applicant drive while intoxicated and that he was in fact en route to visit his father at the hospital on the morning of 12 June 2008.  His conduct after the accident is nothing short of honorable.  He had the opportunity to leave the scene of the accident, but chose to seek out the owner of the vehicle.  The applicant did not operate his vehicle the night that he was intoxicated, and based on his actions after the accident his character cannot be reasonably defined as undesirable in the clear and general language contained in Army Regulation 
145-1, paragraph 3-43a.

	e.  the applicant took responsibility for his actions, completed a drunk driving awareness course, and satisfied all requirements to be granted a Certificate of Release from Disability for his driving under the influence (DUI).

	f.  the applicant was one semester from commissioning.  Because he had successfully completed over 3 years of the program, ROTC leadership had the authority to place him on an LOA to remediate any undesirable character issues leadership thought he exhibited and it would have given him time to focus on physical fitness.  The decision to process him for disenrollment is disproportionate to the nature of his indiscretion.


	g.  in addition to not providing the applicant an opportunity to remediate his indiscretion, ROTC leadership also failed to faithfully follow their own policies and exhibited poor leadership.

3.  Counsel provides an amended psychological assessment.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110010970, on 7 February 2012.

2.  Counsel provides an amended psychological assessment, dated 28 June 2008, wherein the psychologist states, "It has come to my attention that significant determinations regarding the subject's ROTC status were made based on a misinterpretation of my written description of the events that preceded
Mr. [applicant's name] arrest.  Therefore, I have amended the report to reflect what I understand to be the facts of the case.  Specifically, it is my understanding that Mr. [applicant's name] had a ride to and from the establishment where he was consuming alcohol the night prior to his arrest.  He did not drive home intoxicated.  Rather he took a cab back to his apartment and went to sleep.  He was arrested the following morning en route to the hospital where his father was being treated.  I respectfully request that this clarifies any issues and is taken into consideration when determining the outcome of Mr. [applicant's name] status."

3.  The amended psychological assessment is new evidence that will be considered by the Board.

4.  The applicant's military record shows he entered ROTC in the Fall of 2005.  He was arrested for a DUI on 12 June 2008 after refusing to take a breathalyzer test.

5.  In the original psychological assessment, dated 28 June 2008, the psychologist stated that in her opinion the applicant did not suffer from alcohol abuse or dependence; therefore, individual therapy was not warranted.  She recommended he attend the New York State Drinking Driver Program.  However, contrary to the statement of counsel and the applicant that the accident occurred the next morning after the applicant had taken a cab home, slept, and was driving to the hospital to visit his father, the psychologist related that the accident occurred while the applicant was driving home from his evening of socializing.


6.  He was issued a State of New York Certificate of Relief from Disabilities on 1 July 2008.

7.  In August 2008, he failed the sit-up event portion of his APFT.

8.  The MS Syllabus, dated 12 January 2009, outlined that any MS IVs who failed any portion of the end-of-semester record APFT would be administered one retest at the end of the semester.  If they failed the retest, they would not be commissioned with their class and would be considered for an LOA pending disenrollment for breach of contract.

9.  On 29 April 2009, he failed the pre-commissioning APFT.  Disenrollment proceedings were commenced following his failure of this APFT.

10.  On 7 May 2009, the PMS advised the applicant of his decision to proceed with his disenrollment and provided instructions if he wished to retake the APFT.  A disenrollment hearing was held on 29 July 2010.  The applicant and his counsel attended.

11.  A memorandum from Headquarters, U.S. Army Cadet Command, Fort Monroe, Virginia, subject:  Disenrollment from the USAR ROTC Program, dated 3 February 2010, stated that the applicant was disenrolled from the ROTC Program under the provisions of Army Regulation 145-1, paragraphs 3-43a(14) and (16).  Disenrollment was based on his undesirable character as demonstrated by adverse adjudication on an alcohol-related incident and breach of the ROTC contract based on his failure of the APFT.

12.  The memorandum also advised that when the ROTC scholarship contract is breached, any obligations to the Army must be satisfied by repaying the cost of advanced education assistance provided by the Army.  The total amount of monies spent in support of his education was $98,898.00.  A U.S. Army Advanced Education Financial Assistance Record detailing the debt was enclosed.  He was informed of his options.  There is no evidence he elected to repay the total amount owed or to enter active duty in an enlisted status to fulfill his contractual obligation.

13.  He was disenrolled from the ROTC Program on 3 February 2010.

14.  There is no evidence that show he requested an LOA prior to his disenrollment.


15.  There is no evidence which shows the applicant requested a waiver of civil conviction or that a waiver would have been granted.

16.  In the original case, the Board commented that general officers commonly issue reprimands based on declinations of breathalyzer tests and that these reprimands often form the basis for involuntary separations.

17.  Army Regulation 145-1 prescribes polices and general procedures for administering the Army's Senior ROTC Program.  This regulation states that as part of a scholarship enlistment in the ROTC an individual must sign a DA Form 597-3, which is the agreement between the Army and a potential ROTC cadet.  The form contains the promises made between the Army and the potential cadet, and includes what action the Army will take in the event that a cadet fails to successfully complete the terms of the contract.

	a.  Paragraph 3-38 states a cadet who requests an LOA or who otherwise extends his or her period of enrollment beyond the 8-year period of enlistment must voluntarily extend the enlistment by an amount of time equal to the period of the extended enrollment or LOA.  The PMS will ensure that the cadet still meets enrollment criteria and eligibility requirements.  

	b.  Paragraph 3-38(2)(f) states the PMS may authorize an LOA when special reasons exist, not to exceed one semester or quarter.

	c.  Paragraph 3-43a(14) states non-scholarship and scholarship cadets will be disenrolled for undesirable character demonstrated by discreditable incidents with civil or university authorities.  Such an act may also be characterized as misconduct.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's allegations that the Board assumed that the "Brigade General" would not have approved the applicant's waiver of civil conviction misinterprets the previous decision.  In the previous decision the Board simply stated there was no evidence that the waiver would have been granted.  The Board did not assume it would not have been granted.

2.  The Board commented that general officers commonly issue reprimands based on declinations of breathalyzer tests.  These reprimands often form the basis for involuntary separations.  Counsel asserts the Board based its conclusion on evidence drawn from active duty Soldiers who received reprimands for failure to take breathalyzer tests.  Counsel asserts the applicant was a cadet and it is improper to link the use of reprimands for active duty Soldiers with that of ROTC cadets.

3.  The statement by the Board was essentially a comment on the disposition of related incidents in the Army.  The Board pointed out that it was common to see similar dispositions.  This comment, in hind-sight, probably did not belong in the record of proceedings.  However, counsel has not submitted any evidence to dispute the Board's observation.

4.  The applicant was disenrolled for undesirable character demonstrated by discreditable incidents with civil authorities.  He had an incident with civil authorities that involved alcohol and driving.  This incident could be considered discreditable by ROTC officials.

5.  Counsel contends the amended psychological assessment surrounding the events of the applicant's 12 June 2008 accident illustrates he did not display undesirable character within the general understanding of Army Regulation
145-1, paragraph 3-43a(14).  However, whether or not his accident occurred while he was driving home from an evening of socializing or the next morning after he had taken a cab home, slept, and was driving to the hospital to visit his father, evidence shows he was arrested for a DUI on 12 June 2008 after refusing to take a breathalyzer test.  His involvement with civil authorities was discreditable.

6.  The governing regulation states non-scholarship and scholarship cadets will be disenrolled for undesirable character demonstrated by discreditable incidents with civil or university authorities.  Such an act may also be characterized as misconduct.
 
7.  The evidence of record supports counsel's contention cadre leadership failed to provide him the opportunity to take a syllabus APFT retake.  The PMS denied the applicant the opportunity to retest on the APFT contrary to the terms of his syllabus.  

8.  Counsel contends the governing regulation provides ROTC leadership the authority to grant an LOA for special reasons.  However, there is no evidence that shows the applicant requested an LOA prior to his disenrollment.

9.  Counsel's contention that the Board erroneously applied standards for active duty Soldiers when concluding the "Brigade General" would disapprove the applicant's waiver of civil conviction was noted.  However, it had no bearing on the issues at hand.

10.  Evidence shows he was arrested on 12 June 2008 for a DUI and he failed the pre-commissioning APFT on 29 April 2009.  He was disenrolled from the ROTC Program because of undesirable character and failure of the APFT.

11.  The applicant failed the APFT in August 2008 and again in April 2009.  There is insufficient evidence to show an LOA to focus on his fitness would have improved his physical fitness.

12.  Since there is no evidence that show the applicant was erroneously disenrolled from the ROTC Program, there is an insufficient evidentiary basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20110010970, dated 7 February 2012.



      _____________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)                                         AR20130004540



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ABCMR Record of Proceedings (cont)                                         AR20130004540



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