IN THE CASE OF:	  

		BOARD DATE:  20 March 2014

		DOCKET NUMBER:  AR20130007583 


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 correction of the applicant's records by remitting his debt to the U.S. Government for his U.S. Military Academy (USMA) educational costs and restoration of the funds thus far recouped from him.

2.  Counsel states, in effect:

	a.  The Board should correct the decision made by the military regarding the debt because the decision is legally incorrect, unjust, and results in incorrect military records.

	b.  While at the Michigan Academy of Gymnastics, the applicant was approached by recruiters from the USMA at West Point.  They invited him to apply to the USMA.  On 1 July 2002, he became a cadet.  He received favorable performance reports, an "A" in gymnastics, and numerous positive comments.

	c.  In November 2004, the applicant and another cadet consumed alcohol in the cadet barracks.  The applicant was not familiar with its effects and blacked out.  During the blackout, he entered the room of two female cadets and began touching himself.  He woke up the next day not remembering anything.

	d.  In December 2004, he was charged with violating a lawful order, wrongful entry, committing an indecent act, and conduct unbecoming.  During an Article 32 hearing, he took responsibility for his actions.

	e.  In January 2005, he submitted his resignation in lieu of trial by court-martial.  He was court-martialed in February 2005 and sentenced to 6 months in confinement.

	f.  On 3 May 2005, the Acting Assistant Secretary of the Army disapproved his request for a qualified resignation.

	g.  In December 2005, he was notified he owed $119,695.00.

	h.  In July 2006, he received a letter from an investigating officer regarding the recoupment of debt.  In September 2006, the investigating officer found the applicant was given adequate notice of his financial liability, he failed to fulfill his obligation to serve, and his debt totaled $119,695.00.

	i.  On 14 December 2006, the Assistant Secretary of the Army approved the applicant's dismissal from the military effective midnight on 17 January 2007.

	j.  The applicant resumed his civilian life by attending college and he graduated in June 2007.  Following his graduation, he met with a Reserve Officers' Training Corps commander because he still desired to serve in the Army.  However, his reentry code prevented him from applying.

	k.  In July 2011, the Defense Finance and Accounting Service (DFAS) notified  him that he owed a debt to the Department of Defense in the amount of $119.695.00.  In September 2011, the applicant's attorney notified DFAS that the applicant disputed the debt and the amount.  In February 2012, the applicant requested a hearing, arguing the debt was illegal, contrary to law and agency regulations, and any collection was barred by statute.  In August 2012, DFAS notified the applicant that the debt was valid and he must pay the debt because his continued service was not viable.

3.  Counsel also states, in effect:

	a.  The Secretary of the Army did not delegate his authority to appoint investigating officers over civilians to the Superintendent.

	b.  The 2006 investigation into the recoupment is legally invalid under Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) and the above referenced laws.  The investigating officer failed to determine whether the debt was rationally based.  In concluding the applicant owed $119.695.00, the investigating officer simply utilized the memorandum from the Directorate of Resource Management.  He never double-checked the numbers.

	c.  The Army Board for Correction of Military Records (ABCMR) held that an improperly-established debt must not be collected.  Counsel cites several cases (AR2003099361, AR20040004385, and AR20060000122) wherein the ABCMR grants relief by remitting debts.

	d.  The ABCMR should correct the applicant's military records and change DFAS's decision in this case because it is capricious, arbitrary, and contrary to law.

	e.  The amount allegedly owed was incorrectly calculated.

4.  Counsel provides 19 enclosures outlined in pages 1 and 2 of his brief.

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 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.  On 1 July 2002, the applicant signed an oath of allegiance as a cadet at the USMA at West Point, NY.  His contract defined misconduct, in part, as "termination by the United States Army of my service because…criminal conduct in violation of the Uniform Code of Military Justice (UCMJ)…"  

3.  In December 2004, charges were preferred against him for violating a lawful order, wrongful entry, committing an indecent act, and conduct unbecoming.

4.  On 22 January 2005, he submitted a resignation in lieu of trial by court-martial.

5.  On 17 February 2005, he was court-martialed.  His sentence included confinement for 6 months.  He was placed on excess leave on 8 July 2005.
6.  On 3 May 2005, the Acting Assistant Secretary of the Army disapproved the applicant's request to resign in lieu of court-martial.

7.  In December 2005, he was notified he owed $119,695.00 for educational expenses.  This notification letter included a breakdown (by year) of the amount to be collected.  He owed $44,041.00 for 2003, $44,598.00 for 2004, and $31,056.00 for 2005, totaling $119.695.00.

8.  In July 2006, he was notified that the USMA Superintendent had appointed an investigating officer to conduct an informal investigation to determine whether he was aware of the reimbursement requirement and whether the debt was rationally based.

9.  In September 2006, the investigating officer informed him the investigation determined the debt to be valid.

10.  On 14 December 2006, the Assistant Secretary of the Army approved the applicant's dismissal from the military effective 17 January 2007.

11.  In February 2012, the applicant requested a hearing.  On 13 August 2012, DFAS determined the debt was valid.

12.  A staff advisory opinion was obtained from the Chief of Staff, USMA, West Point, NY, in the processing of this case who recommends denial of the applicant's request and finding that his recoupment amount of $119,695.00 is valid.  The advisory official states:

	a.  The applicant disputes his order for recoupment of the cost of his education.  Specifically, he alleges that the recoupment investigation was invalid because the Superintendent does not have authority to appoint investigating officers over civilians; that the 2006 investigation into recoupment is legally invalid under Army Regulation 15-6 and Title 10, U.S. Code, section 2005 (Advanced Education Assistance, Active Duty Agreement, Reimbursement Requirements); that the decision to order recoupment was arbitrary, capricious, and contrary to law; and that the amount owed was incorrectly calculated.  These arguments are without factual or legal merit.

	b.  The applicant's application is untimely.  He did not file an application with the ABCMR until 28 March 2013.  He was on notice for more than 3 years that he was liable for paying the cost of his education at the USMA.  He has not provided any grounds to justify his failure to timely file such that the requirement should be waived.

	c.  As early as 13 July 2006, he was aware of the debt he owed to the United States for the cost of his education.  He signed for the notification letter on 25 July 2006, indicating that he disputed the validity of his debt but did not wish to submit statements, testimony, or evidence.

	d.  On 1 September 2006, an investigating officer informed the applicant that the investigation determined the debt to be valid.

	e.  On 17 January 2007, the Assistant Secretary of the Army for Manpower and Reserve Affairs directed recoupment.

	f.  The applicant provides no explanation for his failure to file an application for relief within 3 years of becoming aware of the debt.  There is no evidence of error or injustice which merits a waiver of the requirement to timely file and the application should be denied.

	g.  An investigating officer found that the applicant was on notice of his active duty service obligation (ADSO) and the financial recoupment requirement; that he failed to fulfill his ADSO; that his separation and subsequent inability to fulfill his ADSO was a result of misconduct and/or a volitional act and that the debt incurred by the applicant, which totaled $119,695.00, was rationally based.  He received notification of the investigation on 17 July 2006 via certified mail.  He indicated he disputed the validity of the debt but did not desire to submit statements, testimony, or evidence.

	h.  If a cadet voluntarily fails to complete the active duty commitment of his contract, recoupment is authorized under Title 10, U.S. Code, section 2005(a)(3).  The applicant does not dispute that he voluntarily failed to complete the active duty commitment of his contract.

	i.  Army Regulation 210-26 (U.S. Military Academy) contemplates the Superintendent appointing an investigating officer to determine the validity of a debt that a person incurred while they were a cadet at USMA, even if that investigation is conducted after the individual has been separated from the USMA.

	j.  The recoupment is legally valid.  The investigation was found to be legally sufficient.  The amount owed was correctly calculated.

13.  A copy of the advisory opinion was forwarded to the applicant's counsel for comment and possible rebuttal.  Counsel responded on 9 August 2013.  In summary, he states:

	a.  The USMA incorrectly calculated the debt which DFAS later used to make its decision.

	b.  The advisory opinion does not provide any advice on the legality of the recoupment standing operating procedure, the incorrectness of the calculations, and the DFAS decision based on that.  Any debt that is incorrectly calculated cannot be rationally based and it results in injustice and incorrect military records.

	c.  The DFAS decision must be corrected because it never properly analyzed the actual debt.

	d.  Debts without accurate numbers and adequate procedural protections should be voided.

	e.  The applicant exhausted administrative remedies before petitioning the Board.

	f.  Army Regulation 210-26 distinguishes between former cadets and civilians.

	g.  Following the applicant's discharge from the USMA, he resumed his civilian life in August 2005.  In December 2005, the military prepared the letter advising him of his debt.  In July 2006, the investigating officer sent a letter stating he would investigate whether the debt was rationally based.  In September 2006, the investigating officer concluded that the applicant had debt, not that is was rationally based.

	h.  The DFAS decision relied on incorrect facts relating to the initial investigation where the applicant was investigated by a military officer even though he was no longer a cadet in contravention of the applicable Military Academy guidance.  The investigating officer assumed that the numbers were correct and the applicant was never provided with all the academic expenses.  The DFAS decision did not address the underlying legal issues raised by the applicant in his March 2012 correspondence with the DFAS.

	i.  For the preceding reasons, the applicant requests the Board to grant relief by correcting his military records in such a way as to eliminate his debt to the U.S. Government based on reimbursement of his USMA scholarship and the funds thus far recouped from him be restored to him.

14.  Title 10, U.S. Code, section 2005 was modified in January 2006.  The previous version required an investigation to establish the validity of a debt.  This provision was removed in January 2006.  Section 2005(a)(3) of the current version states 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, such person shall be subject to repayment.

15.  Title 10, U.S. Code, section 4348 requires cadets sign an agreement with respect to the cadet's length of service in the Armed Forces.

16.  Title 37, U.S. Code, sections 303a(e)(1)(B) authorized the Secretary concerned to establish, by regulation, procedures for determining the amount of payment required and what circumstances an exception may be granted. 

17.  Army Regulation 210-26, dated 26 July 2002, was in effect at the time period in question.  Chapter 6 (Misconduct, Honor, Disciplinary, and Other Grounds for Separation, Section II (Major Misconduct), paragraph 6-8 (Sexual Misconduct) states:

	a.  a cadet who engages in (or attempts) an act of sexual misconduct may be separated from the Military Academy and awarded punishments under paragraph 6-4 of this regulation.  Sexual misconduct includes but is not limited to:

		(1)  Violations of Articles 120, 126, or 134 (indecent assault; assault with the intent to commit rape or sodomy; adultery; indecent act/liberties with a child; indecent exposure; or indecent acts with another) of the UCMJ.

		(2)  Sexual acts or relations committed in a barracks or classroom or other public place at the Military Academy.

		(3)  Sexual acts or relations committed anywhere under circumstances where the conduct of the cadet was to the prejudice of good order and discipline or was of a nature to bring discredit upon the Military Academy.

	b.  for purposes of this offense, the term "sexual acts or relations" is defined as sexual intercourse with another, or any activity or behavior with another that excites an individual's sexual lust and desires. 

18.  Paragraph 6-14 of Army Regulation 210-26 states a cadet who commits an offense punishable under the UCMJ by confinement for a term of 6 months or more may be separated from the Military Academy and awarded punishments under paragraph 6-4 of this regulation.

19.  Paragraph 7-9 (Breach of Service Agreement and Reimbursement of Educational Costs) of Army Regulation 210-26 states:

	a.  a cadet who voluntarily, or because of misconduct, fails to complete the period of active duty service specified by the Secretary in the cadet's agreement to serve may be required to reimburse the U.S. Government for educational costs pursuant to Title 10, U.S. Code, section 2005, and implementing regulations.  If the Secretary determines that such active duty service is not in the best interests of the Army, the cadet will be considered to have failed to complete the period of active duty and may be required to reimburse the government for educational costs.

	b.  when the Superintendent recommends reimbursement of educational costs and the cadet disputes the validity of the debt, the Superintendent is authorized to appoint an investigating officer to hear evidence concerning the validity of the debt.

20.  Rule 5 of Table 7-2 (Delegation of Separation and Discharge Authority) of Army Regulation 210-26 summarizes the rules applicable to the applicant.  The applicant had commenced term 1 of his junior year.  The military service obligation was in effect.  The separation authority and discharge authority was the Secretary of the Army. 

21.  The following information is provided in reference to the prior ABCMR decisions cited by counsel:

	a.  In AR2003098361 an ROTC cadet was relieved of debt due to compassionate reasons.  She experienced the death of a sibling and the suicide of a sibling close in time.  She became overwhelmed by the deaths and was subsequently disenrolled for "indifference/lack of interest."  The Board determined that her conduct was not the willful conduct that disenrollment for indifferent attitude or lack of interest implies.

	b.  in AR20040004385 the applicant breached an ROTC contract and elected to repay the debt as opposed to being ordered to active duty.  He subsequently enlisted in the navy.  The Board granted equitable relief on the unpaid portion of the debt.  The Board did not order a refund of the previously paid portion.

	c.  in AR 20060000122 an ROTC cadet was disenrolled for undesirable character.  He was given the option to enlist or repay the obligation.  He immediately reenlisted in the Florida Army National Guard.  Approximately, 9 months later he was accepted for reservation under the Army Warrant Officer Program and he subsequently enlisted as an E-4 3 months later in the Regular Army (RA).  Effectively, he enlisted in the RA approximately 12 months after disenrollment.  The Board conceded that the applicant's method of enlistment was incorrect under Army regulations.  However, the Board determined that his enlistment in the RA served the same purpose had he been ordered to active duty through ROTC channels.  The applicant served for approximately 4 years and the Army is getting the benefits of his service as if he had been ordered to active duty as a result of breaching his ROTC contract.   

DISCUSSION AND CONCLUSIONS:

1.  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.  

2.  By law, if a cadet voluntarily fails to complete the active duty commitment of his contract, recoupment is authorized.

3.  The applicant signed the contract with the Army in the 2002 timeframe, prior to the 2006 modification to Title 10, U.S. Code, section 2005.  The previous version of the law excused a Soldier's failure to complete the period of active duty specified in the agreement if the failure was not voluntary or the result of misconduct.  This provision was removed in 2006.

4.  His contract defined misconduct, in part, as "termination by the United States Army of my service because…criminal conduct in violation of the [UCMJ]…"  He was convicted by a general court-martial in February 2005 for violations of Articles 92, 133 and 134.  The Article 133 and 134 violations involved sexual misconduct with a female cadet.  Per the definition in Army Regulation 210-26, the applicant engaged in major misconduct.  

5.  The evidence shows the applicant incurred a debt in the amount of $119,695.00 for educational costs at the USMA because he was dismissed from the military on 17 January 2007 due to misconduct.

6.  Counsel contends the Secretary of the Army did not delegate his authority to appoint investigating officers over civilians to the Superintendent.  However, the applicant was not a civilian when the investigation was conducted in 2006.  He was on appellate leave, and therefore a member of the Armed Forces subject to the UCMJ.  He was dismissed from military service on 17 January 2007.

7.  Counsel provides a document titled "U.S. Military Academy 2008 Cost of Education, For Public Law 96-357."  The DFAS letter contained costs for academic years 2003 and 2004 based on the USMA's "Cost of Education" reports.  The 2005 year costs were extrapolated from the 2004 costs.

8.  Although counsel contends the USMA incorrectly calculated the debt which DFAS later used to make its decision, the USMA Chief of Staff stated the amount owed was correctly calculated.  If counsel and the applicant have evidence to refute that calculation they should provide it to DFAS.

9.  Counsel contends the debt is legally incorrect, unjust, and results in incorrect military records.  However, there is no evidence of record and counsel provided no evidence which shows this debt was incurred erroneously.

10.  Counsel asserts that the ABCMR has granted relief in similar cases.  In one case an ROTC cadet was relieved of debt due to compassionate reasons.  She experienced the death of a sibling and the suicide of a sibling close in time.  The Board determined that her conduct was not the willful conduct that disenrollment for indifferent attitude or lack of interest implies.  In another case, an ROTC cadet was disenrolled for undesirable character.  He immediately reenlisted in the Florida Army National Guard.  Approximately 9 months later he was accepted for reservation under the Army Warrant Officer Program and he subsequently enlisted as an E-4 in the RA 3 months later.  The Board determined that his enlistment in the RA served the same purpose had he been ordered to active duty through ROTC channels.  He served for approximately 4 years and the Army is getting the benefits of his service as if he had been ordered to active duty as a result of breaching ROTC contract.  In another case the Board granted equitable relief to an applicant who agreed to repay an ROTC debt in lieu of being ordered to active duty.  Years later he enlisted in the Navy.  The board considered the applicant's service in the Navy to have met the active duty obligation required by his ROTC scholarship contact as a matter of equity.  The Board granted relief from the unpaid portion of the debt.  Unlike these other case, the applicant was convicted by a general court-martial.  Furthermore, his misconduct rendered him unsuitable for military service.

11.  Based on the foregoing, there is insufficient evidence on which to grant his requests.



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)                                         AR20130007583



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ABCMR Record of Proceedings (cont)                                         AR20130007583



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