IN THE CASE OF:  

		BOARD DATE:  9 December 2014	  

		DOCKET NUMBER:  AR20140006632 


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 a waiver of all Department of Defense (DOD) education debt.  

2.  The applicant states:

   a.  He was disenrolled from the University of Pittsburgh Army Reserve Officers' Training Corps (ROTC) program due to knee and wrist injuries prior to disenrollment initiation.  All his medical records were provided to the Defense Finance and Accounting Service (DFAS) and DOD as requested per the Army medical doctor's recommendation.  He was disenrolled due to his injury and inability to perform the Army Physical Fitness Test (APFT).  This error and injustice was discovered and disputed at the time of discovery, medical disenrollment was and is warranted.

   b.  In Spring 2001, he received a Congressional appointment to the U.S. Army Academy (West Point).  This appointment was declined due to a requirement to attend a year of junior college or prep school and defer enrollment until Fall 2002.  On 26 August 2002, he entered into the Army Senior ROTC Scholarship Cadet Contract.

   c.  In September 2002, he sustained an injury to the right lateral meniscus.  He received 4.0 grades in ROTC Leadership courses in the Fall 2002 and Spring 2003.  In September 2003, he sustained a broken right wrist and torn left knee anterior cruciate ligament (ACL) and Grade I medial collateral ligament (MCL) sprain at Duquesne University on the running track during ROTC Physical Training (PT) Exercises.

   d.  In December 2003, he underwent surgery to the left knee mid-one-third patellar tendon autograft ACL reconstruction.  All documentation of the injury, procedure, and rehabilitation was provided to the ROTC Panther Battalion at the University of Pittsburgh.  Per the surgeon, Dr. Pxxxxx Dxxxx, at West Penn Allegheny Health System, he was placed on restricted PT duty for the Spring 2004 semester in an effort to heal and rehabilitate the injury to return to full functionality.  At which time he attended the required courses and refrained from ROTC-directed PT which included long distance running (ACL reconstruction), push-ups (wrist injury), and sit-ups per the doctor's orders.

   e.  In March 2004, the ROTC Panther Battalion, under the direction of Lieutenant Colonel (LTC) Rxxxxxxxx, began sending him threatening and harassing emails, followed by a notice of disenrollment from the ROTC Scholarship Program.  In April 2004, he was disenrolled from the program and the scholarship was revoked without a hearing.  In June 2004, he was granted a review of the decision which was to take place in the presence of the ROTC Battalion Commander, LTC Rxxxxxxxx, and staff.

   f.  Upon arrival at the review, the commanding officer and staff were not present.  He was read the decision by Captain Dxxx, with no hearing or review of the facts.  He was ordered to pay back the scholarship due to "Lack of Interest" rather than "Medical Disenrollment" which would directly and clearly apply.  If the ROTC Battalion would have even acknowledged the injury in any way they would have been required to disenroll him due to the injuries sustained and the debt would be forgiven.   

   g.  In June 2004, he began attempts to appeal the decision and continued through August 2013 through the Army Review Boards Agency (ARBA) in 2004, 2005, 2007, and 2008; DFAS Debt Project 2013; Army Board for Correction of Military Records (ABCMR) in 2006, 2012, and 2013; DOD Medical Examination Review Board (MERB) in 2005 and 2013; and the University of Pittsburgh Panther Battalion in 2004, 2005, and 2006.

   h.  In August 2005, billing from DFAS began and he proceeded to pay due to fear of collection and action taken by DFAS while he continued to request a hearing and file an appeal.  In October 2008, he was finally contacted by DFAS via telephone in regard to his requests for a hearing and appeal.  At which time billing ceased and no further attempts to collect the debt were received for a period of 3 years.  In January 2013, he received an invoice from DFAS in excess of the amount that was originally owed.  
   i.  In October/November 2013, he received a collection notice and wage garnishment notice from the Department of the Treasury.  This is the first hearing that has been made available to state his case and display the facts through proper documentation since disenrollment began.

   j.  In summary, disenrollment proceedings did not follow required due process.  No hearing was provided.  The disenrollment reason is not based in fact, is inaccurate, and borderline fraudulent.  Medical documentation clearly displays an injury and timeline that prevented participation in PT.  No appeal or review was granted.  Billing ceased for a 3-year period.  The amount of the liability appears to be arbitrarily assessed.  As of January 2013, the alleged account balance as per the DFAS billing was $32,016.85.  The letter from the ABCMR occasioning this appeal, dated 25 October 2013, reflects a request of $42,710.66 which amounts to an interest rate of over 35 percent.  There has never been a reconciliation of the payments made to this account.  Based on the foregoing facts, he disputes the entire debt.

3.  The applicant provides copies of the following:

* letter from the DOD MERB
* DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract)
* two Allegheny General Hospital Records of Operation
* three letters from Dr. Hxxxx
* two letters from Dr. Dxxxx and allied medical documentation
* emails correspondence
* Memorandum for Record (MFR)
* Disenrollment from the ROTC Program memorandum
* Scholarship Recoupment Debt memorandum
* Orders Number 115-2
* DD Form 139 (Pay Adjustment Authorization)
* Disenrollment of Scholarship Cadet from ROTC memorandum
* Acknowledgement of Cadet
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* DFAS Account Statement
* Notice of Intent to Initiate Administrative Wage Garnishment Proceedings letter
* letter from DFAS
* Summary Record and Hearing Decision




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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant provided a copy of a letter, dated 5 June 2001, wherein the DOD MERB advised him that he was qualified for the U.S. Army ROTC.

3.  He enlisted in the ROTC Program on 28 August 2002.  He executed a DA Form 597-3 for scholarship monies for 3 years in the annual amount of $17,000.00.  Part II (Agreement of Scholarship Cadet Contracting in the Senior ROTC Program) states, in effect, the understanding that if the individual was disenrolled for breach of contractual terms or any other disenrollment criteria, they could be ordered to active duty or they would be required to reimburse the U.S. government through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid for their advanced education.

4.  He provided copies of the following:

   a.  An Allegheny General Hospital Record of Operation, dated 6 September 2002, which shows he was diagnosed with a right knee recurrence of lateral meniscal tear.

   b.  A letter, dated 17 September 2003, wherein Dr. Hxxxxx stated the applicant was seen in his office on that date after his knee gave out.  He landed on his wrist and suffered a fracture.  He explained the treatment options to the applicant and his father.  He recommended a Computerized Tomography (CT) scan to evaluate any displacement of the articular fracture and continuance of his splint until they saw him next.  Next week, if everything appeared nondisplaced, they would place him in a short arm cast.

   c.  A letter, dated 25 September 2003, wherein Dr. Hxxxxx stated the CT scan showed a nondisplaced triquetral fracture that was comminuted.  Their plan today was to continue the applicant's short arm cast and see him back in 4 weeks and they would likely remove the cast and repeat x-rays.
   d.  A letter, dated 20 October 2003, wherein Dr. Hxxxxx stated the applicant was now a month status post for an injury to his wrist.  They did a CT scan which showed a comminuted fracture and he was placed in a cast.  There seemed to be some blurring of the fracture lines, although it was difficult to assess any significant healing.  He had minimal tenderness there and was neurovascularly intact.  Their plan at that point was to get him moving, as they did not want him to get too stiff.  He appeared to have some good healing.  He would like to see the applicant back in a month for motion check and see how he was doing with repeat radiographs.

   e.  An Allegheny General Hospital Record of Operation, dated 23 December 2003, which shows he was diagnosed with a left ACL deficient knee.

   f.  Email correspondence, dated 18 March 2004, wherein the applicant advised MAJ Gxxx that his father had informed him of the call.  He was not in attendance that Tuesday due to illness and he missed his ethic course Monday afternoon.  He had been doing PT Monday through Friday at Duquesne because of class conflicts on Monday, Wednesday, and Friday mornings.

   g.  Email correspondence, dated 18 March 2004, wherein LTC Rxxxxxxx advised the applicant that his performance sounded like apathy, a lack of commitment and dedication, repeated lack of performance, and they were not traits they wanted in an officer.  Unless he came in to see MAJ Gxxx tomorrow, he would not wait for MAJ Gxxx to give him his recommendation or do any paperwork.  He would immediately suspend his tuition benefits and initiate disenrollment paperwork.

   h.  Email correspondence, dated 18 March 2004, wherein MAJ Gxxx advised the applicant that if had he shown up for class, he would have realized he was promoted to MAJ.  The applicant had not been to class since 24 February.  He failed to submit his mid-term exam and to show up for mid-term counseling.  He failed to provide what exactly he could and couldn't do for PT, as he had twice requested of the applicant.  He had failed to respond to his emails and failed to show up for equipment issue for that weekend's Squad Situational Training Exercises.   

   i.  A letter, dated 17 May 2004, wherein Dr. Dxxxx, stated:

		(1)  The applicant was a patient of his.  In September 2003, the applicant was exercising, twisted his left knee, and fell to the ground.  He sustained injuries to his right wrist in which he fractured his carpal bones and in addition, he had an injury to his left knee.  At that time, he sustained a left knee ACL tear with a Grade I MCI sprain.  On 23 December 2003, he underwent a left knee arthroscopic with a mid-one-third patellar tendon ACL patellar tendon autograft reconstruction.

		(2)  Due to his multiple injuries, it was impossible for him to partake in any type of physical activity because he had a wrist fracture as well as knee reconstruction.  As of that writing, he was 5 months post-op and still with restricted activities.  He anticipated that if he had a successful postoperative result, he would be able to return to full-time activities sometime between 9 and 12 months following that surgery.  

		(3)  As of that writing, it was still indeterminate as to whether or not he would be able to return to full-time military duties pending the outcome of his surgery.  He continued to progress with his ACL protocol.

   j.  An MFR, dated 29 June 2004, wherein the Assistant Professor of Military Science (PMS), stated:

		(1)  He met with applicant on 18 June 2004.  The applicant provided him a doctor's statement from 17 May 2004 stating that it was unknown whether the applicant could return to his military duties.  He also provided him a timeline of what occurred with the applicant during his ROTC tenure from his MS 1 year to now.

		(2)  The applicant began by explaining that he hurt his knee last September.  As a result of his knee injury, he could not perform any physical activity and he missed many classes because he could not change gears with his manual transmission.  Consequently, he claimed he had to rely on his roommates to drive him to classes.  He stated that not only did he miss many ROTC classes, but he also missed many of his classes at Duquesne.

		(3)  In December 2003, he had knee surgery and was in a full leg mobilizer, resulting in his inability to conduct PT during the spring semester.  The applicant claimed he only missed one or two classes, but also did not show up to PT or the field training exercise as a result of his injury.  He stated the doctor recommended that he take off the spring semester, but he insisted on attending classes since he didn't find it necessary to take off.

		(4)  He admitted that he turned in his midterm a week late.  In mid-March, he stated that MAJ Gxxx did not inform him of cancellation of classes.  After he showed up two times and there was no class, he stopped coming to class.  He claimed he never received word when class was cancelled or other events for that matter.  He admitted that there was a lack of communication between him and his instructor, MAJ Gxxx, but he added that when MAJ Gxxx needed to get hold of him via email or telephone he always responded immediately.  The applicant stated it was a shock when the PMS and MAJ Gxxx recommended disenrollment.  He stated that he would like to remain in the program.

   k.  A Disenrollment of Scholarship Cadet from ROTC memorandum, dated 3 May 2004, wherein the PMS advised the applicant of his disenrollment and discharge from the ROTC Program under the provisions of Army Regulation 145-1, paragraphs 3-43a(15) and (16), for breach of contact due to his lack of interest in military training as evidenced by frequent absences from military science class, PT sessions, and a field training exercise.  The PMS advised the applicant of his rights and the amount of debt owed.  
   
   l.  An Acknowledgement of Cadet, dated 9 May 2004, wherein he requested a board of officers be appointed so that he could personally appear and respond regarding his disenrollment and his scholarship indebtedness.  He also declined expeditious call to active duty.

   m.  A DA Form 1574 which shows a board convened on 18 June 2004.  The board found that the applicant:

		(1)  Did enter into a valid Army Senior ROTC.

		(2)  Did receive advanced educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $35,200.00 and;

		(3)  Did voluntarily fail to complete the requirements of the ROTC Cadet Contract.  Voluntary failure was found in that the cadet did have a lack of interest in military training.  

   n.  A letter, dated 24 January 2005, wherein Dr. Dxxxx, stated:

		(1)  The applicant was a patient who was well known to him.  He underwent right knee arthroscopy at which time he was noted to have a significant osteochondral lesion on the weight bearing surface of the lateral femoral condyle.  He subsequently sustained a left knee ACL tear and approximately 13 months ago underwent a left knee mid-one-third patellar tendon autograft ACL reconstruction.

		(2)  Due to the fact that the applicant had surgery on both knees and the fact that his articular surface of his right knee was negative in nature, he did not believe that the applicant would be able to successfully fulfill his requirements as a full-time military Soldier.  He believed that excessive physical activity, especially running-type activities, would cause the applicant to have recurrent episodes of effusions and progressive degenerative changes of his right knee.

   o.  A Disenrollment from the ROTC Program memorandum, dated 19 April 2005, wherein the Director, U.S. Army Cadet Command (USACC) advised the PMS of the applicant's disenrollment and discharge from the ROTC Program under the provisions of Army Regulation 145-1 (Senior ROTC Program), paragraphs 3-43a(15) and (16), based on the applicant's lack of interest in military training as evidenced by his absence from a field training exercise and frequent absences from military science class and PT.

   p.  A Scholarship Recoupment Debt memorandum, dated 19 April 2005, wherein the Chief, Cadet Actions and Standards, Division, USACC, requested the applicant's case be processed to establish a debt with DFAS.

   q.  Orders Number 115-2, issued by the U.S. ROTC Battalion, on 25 April 2005, discharging him from the University of Pittsburgh, Army ROTC program, effective 18 March 2005.

   r.  A DD Form 139, dated 29 April 2005, which shows a total debt of $35,200.00 was established for the applicant.
   
   s.  An Account Statement, dated 3 December 2012, wherein DFAS advised him of a payment due in the amount of $32,016.85 and his account was now in default.

   t.  A Notice of Intent to Initiate Administrative Wage Garnishment Proceedings letter, dated 25 October 2013, wherein the Department of the Treasury advised him of his debt to DFAS in the amount of $42,710.66.  The letter also advised they were authorized to issue a wage garnishment order to collect the debt.

   u.  A letter, dated 2 April 2014, wherein DFAS advised him of the hearing decision in his case.

   v.  A Summary Record and Hearing Decision, dated 2 April 2014, wherein DFAS stated that based on review of the applicant's record and pertinent documents, is was determined that the debt remained valid and the amount was correct.  The applicant was provided due process and collection of the debt by administrative wage garnishment, not to exceed 15 percent of disposable pay, was proper.

5.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program.  

	a.  Paragraph 3-39 states the Commanding General, USACC is the approving authority for termination of scholarship and/or disenrollment.  A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3–43.  

	b.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract.  Sub-paragraphs 3-43(15) and (16) of the regulation states nonscholarship and scholarship cadets will be disenrolled for indifferent attitude or lack of interest in military training as evidenced by frequent absences from military science classes or drill, an established pattern of shirking, failure to successfully complete an established weight control program, or similar acts and breach of contract as defined as any act, performance or nonperformance on the part of a student that breaches the terms of the contract regardless of whether the act, performance or nonperformance was done with specific intent to breach the contract or whether the student knew that the act, performance or nonperformance breaches the contract.

6.  Title 10, U.S. Code, section 2005(a), 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 under the terms of which such person shall agree:  (1) to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement and (2) 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was accepted into an Army ROTC Scholarship Program.  He fully understood and accepted the terms of his enrollment.  However, during this time, he sustained a knee injury, underwent knee surgery, and had a subsequent wrist injury.  

2.  He was contacted by the ROTC battalion commander and was advised that he had not been to class since February 2004, he had failed to submit his mid-term exam, and failed to show up for mid-term counseling.  He failed twice to provide what exactly he could and couldn't do for PT, he had failed to response to emails, and failed to show up for field training exercise.  The ROTC Battalion Commander initiated action to disenrollment him.

3.  He acknowledged a proposed disenrollment action and requested a hearing before a board of officers.  He also declined expeditious call to active duty.  This board recommended he be disenrolled from the program.  He was disenrolled effective 18 March 2005 and a debt was established with DFAS in the amount of $35,200.00.  

4.  On 2 April 2014, after his appeal, DFAS determined the debt remained valid, he was provided due process, and collection of debt by administrative wage garnishment was proper.

5.  His contentions and the documentation he submitted were carefully considered; however, there is no evidence and he did not provide sufficient evidence showing he was unjustly or erroneously disenrolled from the ROTC program.  He was well aware that if he was disenrolled for breach of contract that recoupment of scholarship costs would occur.  He provided no evidence to show he presented his medical documents to his battalion.  There is no evidence and he did not provide sufficient evidence showing this debt was unjustly or erroneously established.

6.  Cancelling his debt, in effect, providing him a free education without having to become an officer, would be windfall.  Since his disenrollment from the ROTC Program was due to his lack of interest in military training as evidenced by frequent absences from military science class, PT sessions, and a field training exercise, it would not be appropriate to grant the requested relief in this case as he voluntarily breached the terms of his contract.

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)                                         AR20140006632



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140006632


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1