BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140009147 


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 an upgrade of his characterization of service and narrative reason for separation.  He also requests cancellation of the recoupment of his educational benefits.

2.  The applicant states he was prematurely and unjustly separated from the United States Military Academy (USMA), West Point, New York.  New evidence came to light nearly 2 weeks after his separation date that would have changed the decision made at his misconduct board.  This new evidence included a Nolle Prosequi form from the Court of the 9th Judicial Circuit, Orange County, Florida that showed all counts and charges were dismissed and no conviction was sought, and lab results from the Florida Department of Law Enforcement (FDLE) that showed no illegal substance was found in the vehicle.

3.  The applicant provides:

* a Notice of Provision of Supplemental Discovery, issued by the 9th Judicial Circuit, in and for Orange County, Florida on 7 December 2011, with associated FDLE laboratory report, dated 11 August 2011
* a notice of Nolle Prosequi, issued by the 9th Judicial Circuit, in and for Orange County, Florida on 12 December 2011

CONSIDERATION OF EVIDENCE:

1.  Without prior military service, the applicant entered the USMA on 30 June 2008 and signed a service agreement.
2.  The service agreement in his record is undated.  Nevertheless, his signature is affixed to this agreement and it shows he agreed to complete the course of instruction at the USMA and, if tendered an appointment as an officer in any branch of service, he would accept the appointment/commission and serve on active duty for at least 5 consecutive years.  He also agreed/acknowledged that if he failed to complete the course of instruction of the USMA, breached his service agreement, to include being discharged from USMA for misconduct, he would be required to serve on active duty to repay the educational debt.  However, if he did not serve on active duty he would be obligated to reimburse the United States for the cost of his education.

3.  It appears the applicant was investigated for misconduct.  His record contains a document entitled "Action," signed by the USMA Superintendent and dated      3 December 2011, which shows the following actions were taken with respect to the findings of the Investigation Officer (IO) in the applicant's misconduct investigation:

	a.  The findings of two violations of Army Regulation 210-26 (USMA), paragraph 6-6 (Major Misconduct, Drugs and Narcotics), and one violation of Army Regulation 210-26, paragraph 6-14 (Major Misconduct, Other Major Misconduct Offenses) were approved.

	b.  The complete case file was forwarded to Headquarters, Department of the Army (HQDA) with a recommendation that the applicant be separated from the USMA and discharged from the U.S. Army with an under honorable conditions (general) discharge certificate.  

	c.  A call to active duty was determined to be inappropriate; therefore, it was recommended that HQDA direct the conduct of an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation to determine if the applicant breached his service agreement and whether he should be required to reimburse his educational costs.

	d.  The applicant was immediately suspended from the USMA academy until HQDA took final action in his case.

	e.  In accordance with Title 10, U.S. Code (USC), Section 702 and Army Regulation 212-205 (Appointment and Separation of Service Academy Attendees), the applicant's pay and allowances were stopped upon his departure from West Point.    

4.  His record contains a memorandum, issued by the Chief, Program and Manpower Division, G-8, HQDA on 13 December 2011, entitled, "Recoupment of Educational Costs," that shows the total amount of his educational costs subject to recoupment was $175,116.00.

5.  His record contains document, entitled "Amended Action," dated 
3 December 2012, which shows the following actions were taken with respect to the findings of the IO in the applicant's misconduct investigation.  

	a.  The findings of one violation of Army Regulation 210-26, paragraph 6-6 (wrongful use of cocaine), and one violation of Army Regulation 210-26, paragraph 6-14 (wrongful possession of drug paraphernalia) were originally approved in 3 December 2011 "Action" memorandum, and remain unchanged.

	b.  The finding of one violation of Army Regulation 210-26, paragraph 6-6 (wrongful possession of cocaine), originally approved in 3 December 2011 "Action" memorandum, is now disapproved in accordance with USMA Regulation 1-10, paragraph 3(1)(2)(b) (Major Variances).

	c.  The complete case file was forwarded to HQDA with a recommendation that the applicant be separated from the USMA and discharged from the U.S. Army with an under honorable conditions (general) discharge certificate.  This recommendation was made in the original 3 December 2011 "Action" memorandum and remains unchanged.

	d.  A call to active duty was determined to be inappropriate; therefore, it was recommended that HQDA direct the conduct of an Army Regulation 15-6 investigation to determine if the applicant breached his service agreement and whether he should be required to reimburse his educational costs.  This recommendation was made in the original 3 December 2011 "Action" memorandum, and remains unchanged.

	e.  The applicant remains suspended from the USMA academy until HQDA takes final action in his case.

	f.  In accordance with Title 10, USC, Section 702 and Army Regulation 
212-205 the applicant's pay and allowances were stopped upon his departure from West Point.    

	g.  The superintendent forwarded his recommendations to Assistant Secretary of the Army (ASA), Manpower and Reserve Affairs (M&RA).

6.  His record contains an undated memorandum from the ASA (M&RA), approving the recommendation that the applicant be discharged from USMA with a general discharge certificate.  These orders also directed a recoupment investigation.

7.  Orders Number 284-8, issued by Headquarters, USMA, West Point, New York on 10 October 2012, show the applicant was discharged from the Corps of Cadets, USAM, in accordance with Army Regulation 210-26, table 7-2, rule 5 and the recoupment of his educational expenses was initiated.  

8.  His record contains a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), which shows an investigation commenced on 
20 December 2012 and convened on 5 February 2013.  

	a.  The IO/board found/recommended:

		(1)  The applicant signed a valid service agreement on 30 June 2008 that put him on notice that if he breached his service agreement, he could be required to reimburse the government for the total cost of the education provided to him.  

		(2)  The applicant failed to fulfill his active duty service obligation, pursuant to the ASA (M&RA) decision.

		(3)  The applicant was separated as a result of his own misconduct.

		(4)  The U.S. Government spent $175.116.00 educating the applicant.

		(5)  The IO/board recommended that recoupment actions for the cost of the applicant's education while enrolled at the USMA proceed and that action be taken to collect $175,116.00. 

	b.  On 12 March 2013, the superintendent approved the IO's findings and recommendations.

9.  On 22 January 2013, the applicant acknowledged receipt of the notification of the Army Regulation 15-6 investigation.  He acknowledged he understood that the purpose of the investigation was to determine the validity of the debt that the U.S. Government claims he owes as a result of his education at the USMA.  This memorandum also show he choose to dispute the validity of his debt, desired to submit statements, testimony, and/or evidence either physical or documentary and that these items were enclosed with his notification/decision.  He also indicated he read the IO's letter and understood his rights.  


	a.  He provided an undated letter and memorandum wherein he stated his alleged violations of Army Regulation 210-26, paragraph 6-6 and paragraph      6-14, were wrongfully found.  He has/was submitting documents that were not available to the Superintendent and the original IO until after the decision had been made.  These documents show:

* all the charges in the criminal case against him were dismissed on    12 December 2012, 7 days after his departure from West Point
* the lab results conclusively show that no drugs were identified per Florida Statute 893
* based on this evidence he did not partake in any illegal drug use
* he had been waiting to hear from West Point affiliates about whether or not he would have the opportunity to plead his case with this new evidence
* he did not give false testimony when he said he did not partake in illegal activities on the night in question
* the arresting officer was overzealous and unfair in his assessment of the situation and he believes the authorities at West Point were too quick to act
* his student loan/student aid has turned from an easily affordable plan as an officer to an overbearing financial burden as a lower/middle class member of society

	b.  He also provided a/an:

* Notice of Provision of Supplemental Discovery, issued by the 9th Judicial Circuit, in and for Orange County, Florida on 7 December 2011, with associated FDLE laboratory report, dated 11 August 2011
* the FDLE laboratory report shows no drugs were identified per Florida Statute 893 [it is unclear what these tests pertain to or what items were tested; however, the applicant stated the tests refer to items or substances found in his car]
* a notice of Nolle Prosequi, issued by the 9th Judicial Circuit, in and for Orange County, Florida on 12 December 2011 that indicates the court in Florida dropped all charges against him, though, it is unclear what charges were preferred against him  

10.  On 26 February 2013, the IO responded to the applicant and stated his responsibility as IO was to determine whether or not he was aware of the reimbursement requirement and whether the debt was rationally based.  He did not have the authority to re-litigate or reverse the decision in the applicant's underlying separation action.  He also called the applicant's attention to the fact that the ASA (M&RA) made the final determination in the applicant's separation case, not the USMA Superintendent, and that the ASA (M&RA) directed he receive a general discharge.  

11.  On 20 March 2013, the Office of the Deputy Chief of Staff, G-1, stated pursuant to Title 10, USC, Section 2005, the Army Regulation 15-6 findings had been carefully considered.  The Deputy Chief of Staff, G-1 found the debt to be valid and directed the applicant be ordered to repay the educational benefits in the amount of $175,116.00 with interest if applicable.  The Deputy Chief of Staff, G-1 requested the USMA Superintendent notify the Defense Finance and Accounting Service (DFAS) that collection actions should be pursued and in the above amount plus any additional interest and penalties that may have accrued since the debt was originally established.  

12.  During the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief of the Officer Division, on 
21 August 2014.  The advisory official stated the applicant was not entitled to the administrative relief he requested.  The advisory official also stated:

	a.  The applicant entered USMA from a civilian status on 30 June 2008.

	b.  On 8 July 2011, police officers arrested the applicant for possessing cocaine in Orange County, FL.  The applicant's arrest occurred during the summer before his First Class (Senior) year at USMA.  Following an administrative hearing on 9 September 2011, an investigating officer concluded that the applicant wrongfully used cocaine and possessed drug paraphernalia.  

	c.  By memorandum, dated 3 July 2012, the USMA Superintendent recommended that the applicant be separated from USMA due to his wrongful use of cocaine and possession of drug paraphernalia.

	d.  At the time of his separation, the SA was the final approval authority for the applicant's separation under the provisions of Army Regulation 210-26, table 7-2, rule 5.  Under the provisions of HQDA General Orders Number 2012-01, this authority was delegated to the ASA (M&RA).  By undated Memorandum, the ASA (M&RA) approved the Superintendent's recommendation to separate the applicant and directed a recoupment investigation.

	e.  Under the provisions of Department of Defense Directive (DODD) 1332.23, paragraph 6.1.1.3, as an exception to the general rule that cadets separated from the service academies will be ordered to active duty, separated cadets who are found to be not suited for enlisted military service, for reasons of demonstrated unsuitability, unfitness, or physical disqualification, shall be discharged from the Army.  Further, under the provisions of Title 10, USC, section 205, when a cadet does not fulfill the terms of his service agreement, he is subject to the uniform repayment provisions of Title 37, USC, section 303a(e).

	f.  By memorandum, dated 20 March 2013, the Deputy Chief of Staff, G-1, directed the applicant repay his educational benefits in the amount of $175,116.00.
	
	g.  The applicant's administrative separation proceedings complied with the applicable laws and regulations of the U.S. Government.  As a result, the applicant is not entitled to the administrative relief he requests.  

13.  The applicant did not respond to the advisory opinion.

14.  Army Regulation 210-26, chapter 6 (Misconduct, Honor, Disciplinary, and Other Grounds for Separation), section II (Major Misconduct):

	a.  Paragraph 6-6 (Drugs and narcotics) states a cadet who violates Article 112a of the Uniform Code of Military Justice (UCMJ) may be separated from the Military Academy.

	b.  Paragraph 6–14 (Other major misconduct offenses) 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.

	c.  Paragraph 6–15 (Procedures for processing major misconduct offenses) states that cadets subject to separation under the provisions of this section of this regulation may, at the discretion of the Superintendent, be referred to a hearing before an IO under the provisions of this paragraph.  Should the Superintendent elect to proceed under the provisions of this paragraph, cadets concerned will be directed to appear as respondents before an IO appointed by the Superintendent.  The IO will conduct an investigation of the matter in accordance with procedures approved by the Superintendent.  Upon completion of the investigation, the IO will submit the record of the proceedings, including his or her findings and recommendations, to the Superintendent for action pursuant to paragraph 7–3 of this regulation.

15.  Army Regulation 210-26, chapter 7 (Separations and Resignations):

	a.  Paragraph 7–1 states:  

		(1)  Cadets who enter the USMA directly from a civilian status assume a Military Service Obligation (MSO) of 8 years when they enter the Academy.  However, they have no active duty service obligation and will be discharged, with their MSO waived, if they resign or are separated from the Academy prior to the commencement of term 1 of their second class year.  However, cadets have an MSO equivalent to the period for which they are ordered to serve on active duty or in a Reserve component in an enlisted status, if they resign or are separated after the commencement of term 1 of their second class year, but before completing the course of instruction (COI). They may be ordered to active duty for a period of not less than 2 years, but no more than 4 years.
		
		(2)  All cadets regardless of entrance source, who are first class cadets who complete the COI and decline to accept an appointment as a commissioned officer will be transferred to the Reserve component in an enlisted status and ordered to active duty for 4 years.  However, cadets who resign or are separated, and who are, for reasons of unsuitability, unfitness, or physical disqualification, not suited for enlisted service will be discharged.

	b.  Paragraph 7–2 (Delegation of separation and discharge authority) states the Superintendent, USMA, is delegated the authority to separate cadets from the Military Academy, prior to the commencement of term 1 of their second class year, cadets who have no prior service obligation remaining and to discharge such cadets from the Army with issuance of an Honorable Discharge Certificate pursuant to paragraphs 6–18 through 6–22, 6–24, 6–25, 6–28 through 6–30, 6–32, and 7–5 through 7–6 of this regulation, unless such cadets entered USMA from a military service other than the Army, in which case they will be transferred to their parent service upon separation under this paragraph.

	c.  Paragraph 7–3 (Action by the Superintendent) states the summarized record of a proceeding before a Misconduct Hearing, Honor Investigation Hearing, or Conduct Investigation will be reviewed by the Staff Judge Advocate.  A copy of the summarized record, along with the Staff Judge Advocate’s review, will be forwarded to the Commandant of Cadets for consideration.  Thereafter, the record, the recommendations and comments of the Commandant, if any, and the Staff Judge Advocate’s review will be provided to the respondent for consideration and an opportunity for rebuttal.  The Superintendent will review the entire record, including the Staff Judge Advocate’s review, the Commandant’s recommendation, and any matters offered by the respondent prior to taking action on the case.  Except in cases where the Superintendent is the separation authority, all documents pertinent to the separation of a cadet from the Academy will be forwarded to HQDA, for final action.  The Superintendent will make recommendations concerning separation from the Academy and discharge from the Service.  If discharge is recommended, the type of discharge recommended will be specified.

	d.  Paragraph 7–9 (Breach of service agreement and reimbursement of educational costs) states:

		(1)  Cadets who resign from the Military Academy, or who are separated from the Academy under the procedures contained in table 7–1, will be deemed to have breached their service agreement.

		(2)  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 Government for educational costs pursuant to 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.

   e.  A cadet who may be subject to this reimbursement requirement will be advised, in writing, of such requirement before making a decision on a course of action regarding personal involvement in administrative or judicial action resulting from alleged misconduct.

		(3)  When the Superintendent recommends reimbursement of educational costs and the cadet disputes the validity of the debt, the Superintendent is authorized to appoint an IO to hear evidence concerning the validity of the debt under 10 USC 2005(g)(1).

	f.  Table 7–1 states that separations are deemed to be a breach of service contract when the reason for separation involves misconduct in accordance with paragraphs  6–9 through 6–19, this regulation.

	g.  Table 7–2 (Delegation of separation and discharge authority), rule 5 states that if the separation will occur after commencement of the term 1 of the second class year (junior year) and the cadet entered USMA from any source, and the military service obligation is in effect (all cases), and the cause for separation is any case under chapters 6 and 7, the separation authority is the SA and the discharge authority is the SA.  However, note 3 states the ASA (M&RA) is delegated the authority to separate first and second class cadets where separation and a call to active duty is recommended.  If no call to active duty is recommended, first and second class cadets recommended for separation, except for medical separations, may be separated by DCS, G–1.

16.  Title 10, USC, Section 2005 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 with the Secretary concerned under the terms of which such person shall agree to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement; 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; 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 pursuant to paragraph (4), such person shall be subject to the repayment provisions of section 303a(e) of title 37; and to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel, including USMA cadets.  

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged for using cocaine and possessing drug paraphernalia.  He had not provided sufficient evidence to show his reasons for separation were untrue or incorrect.  

2.  He provided several documents from the court that show the tests for drugs were negative in accordance with Florida laws.  However, he did not provide any evidence to show what was being tested, presumably the contents of his car.  He also provided evidence to show that all charges were dropped.  However, he did not provide any evidence to show what he was charged with.  

3.  It should be noted that while the ingestion (not possession) of certain drugs may be legal in some states, and while it may also be legal to possess drug paraphernalia, that does not mean it is permitted of considered for military personnel.  There is a clear distinction between what the military finds "legal" and permissible for military personnel and what various states find legal.

4.  The applicant's full separation packet was not available for review in this case. Nor were the majority of the records pertained to the validity of his debt.  Nevertheless, the available evidence shows the applicant was appropriately discharged for misconduct, that he failed to adhere to the terms of his agreement, he received a general discharge due to his use of cocaine and possession of drug paraphernalia, and was issued a general discharge as a result of his misconduct.  

5.  Furthermore, due to his drug use, he was found unfit for continued military service and failed to fulfill his service obligation, which constituted a breach of his contract and resulted in his valid debt for his education.

6.  Based on the foregoing, there is insufficient evidence to grant 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 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)                                         AR20140009147





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ABCMR Record of Proceedings (cont)                                         AR20140009147



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