BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140014378 


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 reconsideration of his earlier request for waiver of recoupment of the debt for the cost of his education at the U.S. Military Academy (USMA) at West Point, NY.

2.  The applicant states:

	a.  At West Point he was involved in an incident during an off-duty weekend which led to a misconduct board hearing and his dismissal.

	b.  Since then he has graduated from James Madison University (JMU) and he was commissioned through the Reserve Officers' Training Corps (ROTC) in the Virginia Army National Guard (VAARNG) where he has been serving on active duty since June 2012.

	c.  He was recruited out of high school by West Point to play football.  He chose to attend West Point mostly to play football at the highest level (Division I football program).  At West Point he focused on being successful at football while his performance as a cadet and student suffered greatly.

	d.  Two weeks into his junior year, he was involved in an incident during an off-duty weekend which involved accusations of assault, unauthorized use of a privately-owned vehicle, and disobeying direct orders.  He was given a misconduct board hearing and he pled guilty to all charges except assault.  The investigating officer recommended his suspension for the rest of the year and his return the next fall.  The Commandant and Superintendent disagreed and he was separated from West Point.  He was told by the Commandant that he would not have to pay back the cost of his education because the incident occurred so close to the first class of his junior year.

	e.  Following this separation, he received a football scholarship at JMU.  He approached the ROTC Department Commander his first day at JMU and explained what happened at West Point and asked for a second chance.  He agreed and let him participate for a trial semester where he would be closely evaluated.  After a semester he passed this evaluation and was offered enrollment as a non-scholarship cadet.

	f.  Upon graduation, he was commissioned in the VAARNG.  He has been serving on active duty since June 2012.  He graduated from Air Assault School and passed an ARNG pre-qualification course for the Special Forces Assessment and Selection Course.  He has also been offered admission into several law schools and will be attending the University of Richmond Law School.  He plans on continuing his service in the ARNG throughout law school and many years after.

	g.  In the summer of 2009, he received a call from a collection agency notifying him that he owed $118,000.00 due to his separation from the USMA.  He explained to the agency he was in school and could not pay this debt.  He submitted a packet to the Army Board for Correction of Military Records (ABCMR) requesting relief from this debt.  His request was denied in November 2013.  In February his wages were garnished by two-thirds without notification.  His debt has been temporarily suspended to allow him to attempt to resolve it.

	h.  He made serious mistakes at West Point and he takes responsibility for all of them.  He was separated because of his actions and he is technically subject to recoupment of the cost of his education at West Point.

	i.  Since his separation, he has made significant progress and was commissioned in the military where he served honorably in the ARNG as an officer.  This debt will make his plans and aspirations of serving very difficult.  If this debt is placed against him, it will make it virtually impossible to obtain loans to go to law school.  He also will not be able to receive tuition assistance from the ARNG.  The debt will also affect his credit rating severely which will affect his future hopes of passing the bar and becoming an attorney or obtaining a Top Secret clearance.

3.  The applicant provides:

* personal letter
* letters of recommendation
* Assistant Secretary of the Army's decision
* debt notification/documentation
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 7 July 2009 and 12 October 2012
* appointment orders in the VAARNG
* Officer Evaluation Report
* active duty orders
* DA Form 1059 (Service School Academic Evaluation Report)
* diploma
* ROTC contract/transcripts

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130000912 on 19 November 2013.

2.  The applicant provided a letter of recommendation from the Chief of Staff, U.S. Army Combined Arms Support Command, dated 2 July 2014, who states:

* it is an honor to recommend the applicant and speak to his attributes as a quality young officer with great potential
* he has known the applicant for 6 years
* when he first met the applicant he was being separated from the USMA in November 2008
* he has followed his education and career closely since then
* he has a variety of qualities that set him apart as an officer in the Army and will serve him well in any endeavor
* the qualities include a strong work ethic, leadership skills and experience, integrity, loyalty, and resiliency
* he is a well-rounded officer
* he has demonstrated a consistent level of quality performance in every aspect of being an officer 

3.  He also provided an undated letter of recommendation from his commanding officer who states:

* the applicant is currently serving as a platoon leader in one of his transportation companies
* he is the best first lieutenant he has in the battalion
* he will undoubtedly do great things in his career
* he only recently learned of the challenges he is encountering as a result of his separation from the USMA and believes the applicant should be relieved of this financial burden
* he has dedicated himself to self-improvement and preparing for a career in the military since his separation from the USMA
* he does not believe the financial recoupment was intended for persons in this situation
* he has demonstrated selfless service and is motivated to maximize his potential as an officer
* he most assuredly uses the knowledge and skills he learned at the USMA while he served in the Army National Guard
* the negative impact of recoupment would certainly outweigh any short-term gain made by this action

4.  This documentation is new evidence that will be considered by the Board.

5.  The applicant enlisted as a cadet in the U.S. Army Reserve (USAR) on 15 July 2005 for a period of 8 years to attend the USMA Preparatory School (Class of 2006).

6.  A DD Form 214 shows he was honorably released from active duty on 25 June 2006 to enter a service academy.

7.  His cadet records are not available for review by the Board.

8.  USMA memorandum, dated 6 November 2008, subject:  Commandant Recommendation in the Misconduct Investigation of Cadet (Applicant), shows the Commandant of Cadets recommended the applicant's separation from the USMA based on the findings and recommendations of the investigating officer.

9.  On 7 July 2009, the Assistant Secretary of the Army approved the applicant's discharge from the USMA and directed the issuance of a discharge under honorable conditions (general) and recoupment of $118,395.00.

10.  A DD Form 214 shows he was discharged under honorable conditions (general) for misconduct on 7 July 2009.

11.  Records show he owes a Federal debt in the amount of $118,395.00 for his educational costs at the USMA.

12.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he enlisted as a cadet in the USAR ROTC on 30 November 2009 for a period of 8 years.

13.  He was appointed in the VAARNG in the rank of second lieutenant on 25 May 2012.  He was promoted to first lieutenant on 25 November 2013.

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.  Paragraph 7-9 (Breach of Service Agreement and Reimbursement of Educational Costs) of Army Regulation 210-26 (U.S. Military Academy) states 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.

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.  The letters of recommendation provided by the applicant and his service in the VAARNG were carefully considered.  However, the evidence of record supports his contention that he was separated from the USMA because of his actions and he is subject to recoupment of the cost of his education at West Point.

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

4.  The evidence shows the applicant incurred a debt in the amount of $118,395.00 for educational costs at the USMA because he was dismissed from the military on 7 July 2009 due to misconduct.

5.  Based on the foregoing, there is insufficient evidence on which to grant his request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20130000912, dated 19 November 2013.



      _________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)                                         AR20140014378



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ABCMR Record of Proceedings (cont)                                         AR20140014378



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