IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140007562 


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:

	a.  amendment of the applicant's record to remove any negative comments or evaluations related to her back problems; 

	b.  correction of her record to show Reserve Officers' Training Corps (ROTC) scholarship benefits for Fall 2008 and Spring 2009 were not suspended; and

	c.  payment of outstanding tuition and waiver or cancellation of any resulting debt the applicant may owe the Army.  

2.  Counsel states:

	a.  After 4 years of high school, the applicant intended to enlist in the U.S. Army.  She successfully underwent a Military Entrance Processing Station evaluation in the spring of 2007 during her senior year.  The evaluation found no problems and did not mention any spinal or other issues.  As she was preparing for basic training, she met with a captain at Texas Christian University (TCU) who informed her of a possible scholarship opportunity.  She chose TCU because of the scholarship available through ROTC for the university's nursing program.  She began school and the Army ROTC program at TCU in August 2007.  
	b.  In October 2007, she passed her Army Physical Fitness Test (APFT).  She officially contracted into the ROTC on 13 November 2007.  During her first year of classes, her physical performance became increasingly difficult as she noticed pain beginning to occur during and after her workouts.  Assuming it was nothing major, she attempted to ignore the pain and push through.  She took on more physical challenges working through one-on-one training and additional physical training (PT).  Even with all of the additional work and attempting the APFT multiple times, she was unable to pass her APFT for the Spring 2008 semester.

	c.  In the fall of 2008, she failed APFTs and was counseled on 3 October 2008 that her benefits would be suspended.  She subsequently failed a record APFT and her benefits were suspended.  After the disappointment of her Fall 2008 APFT failure, she spent her entire winter break working with a trainer in order to pass her spring test.  By this time, the pain in her back had become so severe it was restricting the amount of PT she could handle.  Her back pain began to affect her during normal activities outside of PT, so she went to see her primary care physician.

	d.  Meanwhile, the Army informed TCU that tuition costs for the applicant's Fall 2008 semester would not be paid.  Despite this, TCU allowed her to enroll for the Spring 2009 semester, and the university expected the Army to reimburse tuition costs for both the Fall 2008 and Spring 2009 semesters.  Her account statement notes that TCU deducted $13,519.00 and $13,684.00 from her Fall 2008 and Spring 2009 balances, respectively, with a notation that the balances were to be paid by Army ROTC.  

	e.  The applicant visited her primary care physician in January 2009.  She was referred to a specialist and told to limit physical activities until after that appointment.  She met with the specialist and was told she should limit physical activities until he was able to evaluate her X-rays.  Although she promptly scheduled a follow-up visit with the specialist to evaluate the X-ray results, her grandfather became sick and died before she could go to the appointment.  She had to go home with her family during that time and missed her originally scheduled appointment.  By the time she was able to reschedule with her specialist, it was April.  Dr. K____, the specialist, diagnosed her with scoliosis and informed her that the ROTC PT schedule had exacerbated it causing muscle and joint problems.  He believed she would have permanent back problems if she continued the strenuous physical requirements demanded by ROTC.  As a result of the diagnosis, she was disenrolled from ROTC on 11 May 2009 for being medically unfit.  

	f.  Following her dismissal, she made attempts to have her scholarship benefits reinstated.  In a letter dated 9 September 2009, she requested reevaluation of the suspension of benefits.  She indicated her back pain dated to the fall of 2008, but she continued to work diligently despite her struggles.  She stated that her desire to become an Army officer compelled her not to quit and she described the measures she had taken to pass the APFT.  

	g.  On 12 September 2009, the U.S. Army Cadet Command (USACC) disapproved her request because contracting standards were not met by failing the APFT for the Spring and Fall 2008 semesters.

	h.  Because the Army had suspended her benefits and did not reimburse her tuition, TCU's records reflected an outstanding balance of nearly $25,000.00.  Without any means to pay the tuition costs or eligibility for retroactive financial aid, her debt remains outstanding.  She cannot resume efforts to earn a college degree, and she cannot enroll in any other institution because TCU has placed a hold on her transcripts.  The university continues to add finance charges to the debt, which has since ballooned to well over $30,000.00.  

	i.  The Board should grant the requested relief.  Her back problems began in 2007 and her perseverance and determination were the only reasons she did not receive a formal medical excuse prior to the spring of 2009.  It is an injustice because it is not in line with the Army's goals to unjustly punish its Soldiers for attempting to follow Army policy and maintain Army spirit.  Additionally, requiring her to pay TCU outstanding scholarship monies places an enormous financial burden on her, has precluded her from further pursuing a nursing degree, and is wholly inequitable.  

3.  Counsel provides:

* DD Form 2351 (DOD Medical Examination Review Board (DODMERB) Report of Medical Examination)
* DD Form 2492 (DODMERB Report of Medical History)
* APFT Scorecard
* Memorandum for Record (MFR), subject:  [Applicant]; Timeline and Explanation of Events that Led to Medical Disenrollment
* Excuse Slip
* letter from Dr. K____
* memorandum, subject:  Request for Reconsideration of Reinstatement of Scholarship Benefits for Fall 2008 and Spring 2009
* TCU Statement of Account
* memorandum, subject:  Request for a Reevaluation of Suspension of Benefits, Fall 2008/Spring 2009


CONSIDERATION OF EVIDENCE:

1.  On 27 January 2007, the applicant enlisted in the U.S. Army Reserve.  

2.  A DD Form 2808 (Report of Medical Examination), dated 27 January 2007, shows a medical examination found no abnormalities.  

3.  Counsel provides a DD Form 2351, dated 14 February 2007, showing an examining physician found no abnormalities.  Counsel also provides a DD Form 2492, dated 14 February 2007, showing the applicant reported no medical problems other than an amoxicillin allergy.  

4.  Counsel provides an APFT Scorecard showing the applicant had a passing score (180 or greater total points with 60 or more points in each of three events) on 31 October 2007.  On 3 December 2007 and on 22 January 2008, she failed to achieve a passing score for the 2-mile run event of the APFT.  

5.  Her Official Military Personnel File (OMPF) contains no documents related to suspension of her ROTC scholarship or her disenrollment, and any files regarding the applicant maintained by USACC were not available for review.  

6.  Her record in the Total Army Personnel Database shows she was involuntarily discharged on 22 May 2009 by reason of failure to meet eligibility requirements for appointment.  

7.  Counsel provides an MFR, subject:  [Applicant]; Timeline and Explanation of Events that Led to Medical Disenrollment, dated 15 September 2009, signed by Master Sergeant (MSG) B____, a noncommissioned officer with the Department of Military Science, TCU.  MSG B____ stated:

	a.  The applicant was a 4 1/2 year scholarship winner who contracted on 13 November 2007 after passing the APFT.  She failed all APFTs in the Spring 2008 semester and continued to fail during the Fall 2008 semester.  She was counseled on 3 October 2008 and was informed that she would be placed on suspension of benefits until she could pass the APFT.  After failing the record APFT after being given multiple attempts, her benefits were suspended on 4 December 2008.  Her final attempt at passing a record APFT was on 10 December 2008.  At no time during the fall semester did she provide any medical documentation stating that she should be exempt from or on limited physical activity.  Her parents were both at the final two attempts and made no mention of any medical issues or concerns.

	b.  TCU was informed that her semester would not be paid for.  The university allowed her to sign up for the spring semester without paying for the balance owed for the previous semester.

	c.  During the Spring 2009 semester, she did not take the initial diagnostic APFT in January and was again counseled and informed that she was on suspension of benefits for failing to meet Army APFT standards.  She took the APFT on or about 25 February 2009 and again failed.  Around that time, she told them she was having medical problems.  He informed her she needed to see a doctor and provide medical documentation for her injuries.  The first note he received from the doctor was dated 4 March 2009.  It stated she should not be allowed to do any ROTC event using heavy equipment and should not lift, bend, stoop, or carry heavy equipment.  She continued with notes from the doctor until 29 April 2009, when she obtained the proper documentation from her doctor.  The information was forwarded to the USACC for a medical determination on 29 April 2009.  The USACC Surgeon medically disenrolled her on 11 May 2009.  

8.  Counsel also provides:

	a.  An excuse slip, dated 4 March 2009, from Fort Worth Family Practice, showing she was seen by a medical professional on the date of the slip and that she was to be restricted from ROTC events using heavy equipment and restricted from lifting, bending, stooping, or carrying heavy equipment.  

	b.  A letter, dated 10 August 2009, from Dr. K____, Texas Center for Spinal Disorders, certifying that the applicant had been under his care.  Dr. K____ stated she had low back pain and scoliosis and that he felt that carrying heavy loads for any period of time and participating in strenuous activities worsened her condition.  In his opinion, these activities contributed to her current physical state.  He stated she should be exempt from any ROTC activities.  

	c.  A memorandum authored by the applicant, subject:  Request for a Reevaluation of Suspension of Benefits, Fall 2008/Spring 2009, dated 9 September 2009, in which she requested a reevaluation of the suspension of her scholarship, which she stated would result in debt forgiveness for her academic year 2008/2009 tuition.  She stated:

		(1)  She began to have severe back pain during the Fall 2008 semester that affected her ability to meet ROTC physical standards and also affected her grades, personal life, and simple daily activities.  In January 2009, her primary care physician recommended that she decrease her physical activities to prevent permanent damage and referred her to a specialist, Dr. K____.  In February 2009, she completed her medical follow-up with Dr. K____, who informed her it was his medical opinion that she would have permanent damage to her back if she continued the strenuous physical activity of ROTC.  

		(2)  She had been found responsible for tuition costs for her sophomore year because of suspension of benefits, which she believed was incorrect.  She worked diligently during the Fall 2008 semester, but continued to struggle.  She began to take extreme measures to improve her PT.  She increased the frequency and intensity of her personal PT sessions, she completed one-on-one PT with MSG B____, and she joined a campus running club.  No matter how hard she pushed herself, she would not only fail to meet APFT standards but also risked permanent damage to her back.  The challenges she faced in her sophomore year were directly related to the medical prognosis she received.  She believed a waiver of suspension of benefits should be granted and she should not be held liable for the tuition in questions.  She was doing her duty, not giving up and quitting.  

	d.  A memorandum, subject:  Request for Reconsideration of Reinstatement of Scholarship Benefits for Fall 2008 and Spring 2009, from the Commander, 5th Brigade Headquarters, USACC, Fort Sam Houston, TX.  The Commander disapproved reinstatement of her scholarship benefits.  He stated the reasons for disapproval were:

* contracting standards were not met by failing the APFT for both the Spring and Fall 2008 semesters, which led to suspension of benefits for the Fall 2008 semester
* no medical documentation was produced to show any medical issues before March 2009 that prevented passing the APFT and a DODMERB physical taken in 2007 was negative for back pain

	e.  A TCU Statement of Account, dated 23 August 2011, showing an entry for Fall 2008 indicating $13,519.00 was to be paid by Army ROTC.  An entry for Spring 2009 shows $13,684.00 was to be paid by Army ROTC.  

9.  Army Regulation 145-1 (Senior ROTC Program:  Organization, Administration, and Training) prescribes policies and general procedures for administering the Army’s Senior ROTC Program.  It states:

	a.  To be eligible to receive or retain an Army ROTC scholarship, a student must meet several requirements, to include possessing officer potential by being physically fit and medically qualified under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).  

	b.  A scholarship cadet may be disenrolled for medical disqualification when determined and approved by Headquarters, USACC, or higher authority.  A medical condition that precludes appointment will be cause for disenrollment.

10.  Cadet Command Pamphlet 145-4 (Enrollment, Retention, and Disenrollment Criteria, Policy, and Procedures) states the PMS will submit a request for determination/waiver on medically disqualified cadets to Headquarters, Cadet Command.  If the Cadet Command Surgeon determines the cadet is medically disqualified and not eligible for waiver and there is no failure to disclose, the cadet will be processed for disenrollment.  Cadets disenrolled for medical disqualification will not be ordered to active duty or recommended for recoupment.

11.  To accept an Army ROTC scholarship, a prospective cadet must sign a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), thereby agreeing to the terms and conditions listed on the form.  The form states, in pertinent part, that a cadet will meet and maintain the APFT standard as required by active duty Soldiers each year and that these are continuous requirements the cadet must continue to meet until the date he or she reports to the Officer Basic Course or a Reserve Component unit.  The form further states that failure to maintain physical fitness requirements may subject the cadet to disenrollment from the ROTC program.  

12.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs.  Current deviation or curvature of spine from normal alignment, structure, or function is disqualifying if:

	a.  It prevents the individual from following a physically active vocation in civilian life.

	b.  It interferes with the proper wearing of a uniform or military equipment.

	c.  It is symptomatic.

	d.  There is lumbar scoliosis greater than 20 degrees, thoracic scoliosis greater than 30 degrees, or kyphosis and lordosis greater than 55 degrees when measured by the Cobb method.

DISCUSSION AND CONCLUSIONS:

1.  The available records are void of any evidence of negative comments or evaluations related to the applicant's back problems and counsel has not specified which documents he believes should be amended or removed.  As such, there is no relief that can be granted with regard to this portion of the request.  

2.  When she accepted her ROTC scholarship, she would have signed a DA Form 597-3 agreeing, in part, to maintain the APFT standard.  Although it appears she made a concerted effort to meet the standard, she was unable to do so during Spring 2008, Fall 2008, and Spring 2009 semesters.  As a result of failing to meet the APFT standard during the Fall 2008 semester, her scholarship benefits were suspended.  Only after she failed the APFT during the Spring 2009 semester did she provide documentation regarding her medical condition.  

3.  The evidence of record shows she delayed seeking medical treatment for the pain that appears to have prevented her from maintaining the APFT standard.  When she finally did seek treatment, she was diagnosed with scoliosis, a condition of the spine which, when symptomatic, is a disqualifying condition for commissioning.  Two medical examinations—the examination she underwent when she enlisted in the USAR and the DODMERB examination she underwent in conjunction with receiving a 4-year ROTC scholarship—failed to identify scoliosis.  As such, she would have had no reason to believe this condition existed or that it was the underlying cause of her pain.  This may explain her delay in seeking a medical opinion.  

4.  There was no administrative error in the suspension of the applicant's ROTC scholarship or her subsequent disenrollment.  However, medical examinations failed to identify a condition that would likely have been present when she was examined for entry into the USAR and ROTC program, even though it may not have been obvious, and by May 2009 the USACC Surgeon medically disenrolled her.  The applicant’s records should be corrected to show USACC did NOT make a determination in October 2008 that her benefits would be suspended and that she was allowed to remain on a scholarship until in May 2009 when USACC medically disenrolled her and determined that she did not deliberately fail to disclose her condition to Army authorities.  By Cadet Command policy, medically disqualified cadets not eligible for waiver and who have not failed to disclose their medical condition will be processed for disenrollment and not be ordered to active duty or recommended for recoupment.

5.  As a result of the correction described above, it would be appropriate for TCU to bill the Army for the applicant's tuition for the Fall 2008 and Spring 2009 semesters.  

6.  The evidence of record shows there was a sufficient basis for disenrolling her from the ROTC program.  No actions taken as a result of a decision in this case should be construed as affecting her disenrollment.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing USACC did NOT make a determination in October 2008 that her benefits would be suspended and that she was allowed to remain on a scholarship until in May 2009 when USACC medically disenrolled her and determined that she did not deliberately fail to disclose her condition to Army authorities.  

2.  As a result of this correction, the appropriate authority should contact TCU and ask the university to submit a bill to the Army for the applicant's tuition for the Fall 2008 and Spring 2009 semesters.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing negative comments or evaluations related to her back problems from her records.



      _______ _   _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.



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