IN THE CASE OF:	  

		BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20150007373 


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, in effect, a partial reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision in Docket Number AR20130010760, dated 1 July 2014.  Specifically, he requests elimination of his United States Military Academy (USMA) educational debt, having enlisted in the United States Navy (USN). 

2.  The applicant states he has enlisted in the USN and requests his USMA debt be eliminated, thereby electing to use active duty service in lieu of the option for repayment.

3.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* USMEPCOM (United States Military Entrance Processing Command) Orders 5034033, issued by Military Entrance Processing Station (MEPS), St. Louis, MO, on 3 February 2015
* an email from Defense Finance and Accounting Service (DFAS), Indianapolis, IN, dated 18 March 2015, subject: Navy Service in Lieu of Debt
* DFAS – Debt and Claims Account Statement, dated 29 December 2014
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a memorandum from Office of the Assistant Secretary, Manpower and Reserve Affairs, Washington, DC, dated 23 January 2013, subject: Army Weight Control Failure Separation, Cadet [Applicant], Company F4, Class of 2013
* a memorandum for SGS (Secretary to the General Staff)(presumed to be the USMA SGS), dated 27 November 2012, from the Chief, Program and Manpower Management, subject: Recoupment of Educational Assistance Costs-[Applicant], Class of 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130010760, dated 1 July 2014.    

2.  The applicant provides a new argument with respect to his request for the elimination of his USMA educational debt as a result of his enlistment in the USN; therefore, this new argument warrants consideration by this Board.  

3.  On 29 June 2009, the applicant enrolled in the USMA at West Point, NY.  In connection with his appointment as a cadet at USMA, the applicant signed a Service Agreement.  He acknowledged that if he were separated from the USMA because of demonstrated unsuitability, unfitness, or physical disqualification for military service, he would be discharged in accordance with the applicable Army regulations.  If such a discharge were caused by voluntary action or misconduct on the part of a cadet subject to an active duty obligation, the reimbursement provision of the agreement to serve would apply, which states, in part:

     a.  If he is separated from USMA for breach of his service agreement and the Army decides he should not be ordered to active duty because such service would not be in the best interest of the Army, he shall be considered to have either voluntarily or because of misconduct failed to complete the period of active duty and may be required to reimburse the United States.

	b.  A breach of service agreement includes separation resulting from resignation for any of the bases for separation listed in Army Regulation (AR) 210-26 (USMA), table 7-1, which includes failure to meet Army weight and body composition standards or make satisfactory progress in an Army Weight Control Program (AWCP) in accordance with AR 600-9 (Army Weight Control Program) (now known as the Army Body Composition Program).

4.  On 22 March 2012, the applicant received a memorandum, subject:  Enrollment in the AWCP.  This memorandum informed him that, as of 21 March 2012, he was not in compliance with the body fat standards of AR 600-9 and he was officially enrolled into the AWCP.  He signed the memorandum on 27 March 2012.  The memorandum further advised him that separation procedures would be initiated if satisfactory progress was not accomplished.  

5.  On an unknown date, the USMA Commandant formally notified him that he was being considered for separation from USMA for failing to make satisfactory progress in the AWCP.  The memorandum stated he had been enrolled in the program since 22 March 2012 and had made no significant progress.  On 24 October 2012, he acknowledged receipt of the recommendation for separation and indicated his desire to include a response to the memorandum.

6.  On 31 October 2012, he authored a response to the Commandant's memorandum.  In the note he stated:

     a.  He passed the body fat test on 31 October 2012 and lost 8.5 lbs since his September weigh-in.

     b.  He had been following the plan of action outlined by his chain of command and working hard.

     c.  He admitted that prior to the separation processing he had not been trying hard enough and that he was willing to keep up the progress and lose the weight he gained.  

     d.  He admitted to struggles in academics, military and physical areas, but believed his other attributes would make him a good officer.

7.  On 26 November 2012, the Superintendent recommended his separation to Headquarters, Department of the Army, Deputy Chief of Staff, G-1.  He also attended his final day of classes.  

8.  In a memorandum, dated 27 November 2012, subject:  Recoupment of Education Assistance Costs, [Applicant], the USMA Program and Manpower Management Chief informed the USMA SGS that he was in debt for $169,081.00.

9.  On 23 January 2013, the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA (M&RA)) approved the applicant's separation action for failure to make satisfactory progress in the AWCP.  He found that the applicant was unsuited for active duty service.  Therefore, he directed the applicant's discharge from the Army with an honorable discharge.  He also directed initiation of a recoupment investigation.

10.  Headquarters, USMA, Orders 029-4, dated 29 January 2013, discharged the applicant from USMA, effective 23 January 2013.

11.  In a memorandum, dated 30 January 2013, subject:  Recoupment of Education Assistance Costs, (Applicant), the USMA Program and Manpower Management Chief informed the USMA SGS that the applicant was in debt for $169,081.00.

12. On 13 February 2013, the USMA Chief of Staff appointed an Investigating Officer (IO) to conduct an informal investigation to determine the validity the applicant's alleged debt.  The IO was to answer the following questions:

     a.  Whether the applicant was on notice concerning the military service obligation (MSO) and the financial recoupment requirement if the applicant failed to fulfill his MSO.

     b.  Whether the applicant in fact failed to fulfill the MSO.

     c.  Whether the applicant's separation from USMA and subsequent inability to complete the period of military service specified in the service agreement was the result of misconduct, volitional act or omission, or due to no fault of the applicant.

     d.  Whether the amount of the recoupment is rationally based.

13.  On 19 February 2013, the applicant was notified of an informal investigation being conducted under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).  On 6 March 2013, he acknowledged receipt of the notification of the investigation.  He signed the receipt acknowledging that he understood the purpose of the investigation was to determine the validity of the debt to the U.S. Government that he owed as a result of his education at USMA.  He checked the block indicating that he disputed the validity of the debt and desired to submit statements, testimony, or evidence, either physical or documentary, which was enclosed.

14.  On 6 March 2013, the applicant disputed the validity of the debt imposed against him by the academy.  He stated he did not commit any act while at the academy that would warrant separation due to misconduct, and in no way was his separation voluntary.  He reiterated the information contained in his appeal to the ABCMR and added that a recoupment would be a financial hardship based on his current debt and assets as evidenced by his personal financial statement.

15.  On 6 March 2013, the applicant's parents wrote a letter to the IO explaining the applicant's struggles with his body mass index (BMI) and APFT since his time in the academy.  Additionally, they opined that taping a cadet was shown to be one of the least accurate methods of determining body fat percentage.  His parents stated that he is exactly the type of youth America needs in leadership positions.  Further, they said it would be a great loss to strap him with a recoupment that he has no means to repay and will effectively prevent him from being an effective citizen in the private sector.

16.  In an email from the IO, dated 18 March 2013, he explained to the applicant that he was not appointed to re-investigate the underlying basis for his separation or separation action.  Additionally, the IO asked the applicant if he had copies of his DA Form 5500 from 2009-2011 and if the applicant could currently pass the height/weight and body fat standards.  On 25 March 2013, the applicant responded stating he did not have copies of the DA Form 5500.  He stated that while he had never made the height/weight standards, he passed the body fat standards until January 2012.  Additionally, since leaving USMA, he had been working a full-time job and taking a full course load so physical fitness had not been a priority and he was not sure he could pass a tape test.  

17.  On 29 March 2013, the IO said he had completed his investigation and attached his findings on a DA Form 1574 (Report of Proceedings by IO).  He sent a copy to the applicant.  The IO found:

     a.  The applicant signed a valid service agreement putting him on notice that if he breached the service agreement he may be required to reimburse the Government for the total cost of education provided to him.

     b.  The applicant failed to fulfill his MSO.

     c.  The failure to make satisfactory performance in the AWCP is a volitional act.

     d.  The debt is rationally based.  The Government spent $169,081.00 on the education of the applicant.  The calculations were confirmed and approved by the USMA Director of Resource Management.

     e.  The applicant’s contentions were noted; however, the IO did not believe they changed his findings for the limited scope of the investigation.

18.  On 29 August 2013, Headquarters, Department of the Army, Deputy Chief of Staff, G-1, directed recoupment of $169,081.00 from the applicant.

19.  The applicant provides a DD Form 4, dated 3 February 2015, which shows he enlisted in the USN in pay grade E-3 for a period of eight years, of which the first 4 years are considered an active duty obligation with the second 4 years to be served in the Reserve Component.  There are no annexes available for review to determine if he is receiving any bonuses or other benefits as a result of this enlistment.  

20.  He provides USMEPCOM Orders 5034033, dated 3 February 2015, stating that, having enlisted in the USN, he was assigned and would report to the Navy Recruit Training Command, Great Lakes, IL, with a report date of 3 February 2015.  

21.  There is no other documentation available for review that discusses his current status or location with the USN. 

22.   He provides an email from DFAS that states, in pertinent part:

* when a member with education debt becomes active duty, they may apply for a suspension of collection activities
* that his account has been placed in a suspended status pending the completion of his obligated service time
* that he may apply to this Board for suspension or termination of the indebtedness
* that failure to complete the service obligation will require debt collection to resume

23.  He provides a DFAS – Debt and Claims Account Statement, dated              29 December 2014 that indicates his debt balance, with interest and a payment received of $100, is $170,438.49.

24.  He provides his DD Form 214 that lists his separation from USMA as          23 January 2013, with an honorable discharge for reason of weight control failure.  Item 18 (Remarks) has the entry: USMA Cadet from 20090639 to 20130123.  This is a net active service time of 3 years, 6 months, and 25 days.

25.  On 18 May 2015, in connection with the processing of this case, an advisory opinion was obtained from the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1.  The advisory official noted that:

     a.  The applicant served as a USMA cadet from 29 June 2009 until he was separated from USMA on 23 January 2013 for failure to make satisfactory progress in the AWCP.  Under the provisions of paragraph 6-24a, AR 210-26, a cadet who, with no underlying or associated disease process, fails to make satisfactory progress in a weight control program, or following removal from a weight control program exceeds the screening table weight and the body fat standard contained in AR 600-9, may be separated from USMA.  At the time of applicant's separation from USMA he was a first classman, meaning he was in his final or senior year at USMA.  

     b.  In accordance with paragraph 6.1.1.3., Department of Defense Directive (DODD) 1332.23, any second or first classman who is disenrolled and who, for reasons of demonstrated unsuitability, unfitness, or physical disqualification, is not suited for enlisted Military Service, shall be discharged in accordance with the current Military Service regulations that implement this Directive.  Other second or first class cadets and midshipmen disenrolling after the beginning of the second class academic year, but before completing the course of instruction, may be transferred to the Reserve component in an enlisted status and ordered to active duty for not less than 2 years, but not more than 4 years, under Title 10, U.S. Code (USC), section 4348(b).

     c.  On 13 January 2013, Mr. T.R.L., then the ASA (M&RA), approved the applicant's separation from USMA, determined he was unsuited for active duty service, and directed the USMA Superintendent to conduct a recoupment investigation.  As a result, the applicant's debt to the Government was established at $169,081.00, computed as of his last day of class.

     d.  Paragraph 4.1, DODD 1332.23, states active duty service is the primary means of reimbursement for education.  Since the applicant) was found unsuited for active duty service by the ASA(M&RA), he was incapable of reimbursing the Government through service on active duty in the United States Army.  However, since the applicant has enlisted for 8 years in the USN with 4 years of service on active duty, he may satisfy his debt to the Government in this manner in accordance with paragraph 4.1, DODD 1332.23.

     e.  Based upon the facts outlined above, the Army G-1 recommends the following partial relief in response to the applicant's request for elimination of his debt to the Government:  that his debt be placed in a suspended status pending his completion of 4 years of active duty service in the USN; that should he fail to satisfactorily complete any portion of 4 years of active duty service in the USN the debt be reinstated by DFAS at a prorated amount, including any additional interest incurred in the interim, and that debt collection be resumed; that should he satisfactorily complete 4 years of active duty service in the USN, his service be deemed to have satisfied his debt to the Government.

26.  Another advisory opinion was obtained in processing this case.  On 20 May 2015, the Deputy Director, Accession Policy, Office of the Under Secretary of Defense, opined that the law (Title 10, USC) states an individual may be ordered to serve a period of active duty but does not say in what service.  As such, they see no law or policy that would constrain the Board from approving the applicant's request provided the prescribed period of active duty service is completed.  

27.  On 21 May 2015, the applicant was provided a copy of the advisory opinions for information and to allow him the opportunity to submit comments or a rebuttal. However, he did not respond.

28.  AR 210-26 provides policy and procedures for the general governance and operation of USMA.

	a.  Paragraph 3-14 states cadets will sign a service agreement to complete the course of instruction and to serve in the United States Army in accordance with applicable regulations.  

     b.  Paragraph 6-24 states a cadet with no underlying or associated disease process who fails to make satisfactory progress in a weight control program or following removal from a weight control program exceeds the screening table weight and the body fat standard contained in Army Regulation 600-9 may be separated from USMA.

	c.  Paragraph 7-9 states cadets who resign from USMA or who are separated from USMA under the procedures contained in table 7-1 will be deemed to have breached their service agreements.

	d.  Table 7-1 states that failure to meet Army weight and body fat composition standards or make satisfactory progress in a weight control program in accordance with AR 600-9 will be deemed a breach of service contract.

	e.  Prior to initiation of separation action, the USMA Commandant will prepare a letter stating that separation proceedings are being considered.  All documentation that provides the basis for the determination of failure to make satisfactory progress in a weight control program will be attached to the letter.  The Commandant will consider the cadet's response to this letter prior to forwarding a recommendation for separation to the Superintendent.

	f.  A cadet who voluntarily or because of misconduct fails to complete the period of active duty service specified by the Secretary of the Army 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 of the Army 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 U.S. Government for educational costs.

	g.  When the USMA 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 Title 10, U.S. Code, section 2005(g)(1).

29.  Army Regulation 37-104-3 (Finance Update) provides policies and provisions for entitlements and collections of pay and allowances of military personnel.  Chapter 59 provides for recoupment of educational expenses (e.g., Senior Reserve Officers' Training Corps, USMA, and advanced civilian schooling) under a previous agreement when obligated active duty service has not been completed.

30.  Title 10, U.S. Code, section 2005, serves as the authority for reimbursement for advanced education assistance.  It states that individuals who fail to complete the terms of their advanced education assistance agreements will reimburse the United States for the unserved portion not fulfilled.

31.  Title 10, U.S. Code, section 4348, states that each cadet shall sign an agreement with respect to the cadet's length of service in the Armed Forces.  The agreement shall provide that the cadet will complete the course of instruction at USMA.  It also states a cadet shall be considered to have breached an agreement if the cadet is separated from USMA under circumstances which the Secretary determines constitute a breach by the cadet of the cadet's agreement to complete the course of instruction at the Academy.  A cadet or former cadet who does not fulfill the terms of the agreement shall be subject to the repayment provisions of Title 37, U.S. Code, section 303a(e).

32.  DODD 1332.23 (Service Academy Disenrollment) provides uniform policies and reporting procedures for disenrolling U.S. Military, Naval, and Air Force Academy cadets and midshipmen before completing the course of instruction or after graduation if they do not accept or are not offered appointments as commissioned officers and establishes reimbursement policies for cadets and midshipmen failing to complete their required active duty period when called to active duty, and for those not called to active duty.  Paragraph 6 (Procedures), subparagraph 6.1.1.3, Second or First Classmen (Third and Fourth or Subsequent Years), states that any second or first classman who is disenrolled and who for reasons of demonstrated unsuitability, unfitness, or physical disqualification, is not suited for enlisted Military Service, shall be discharged in accordance with the current Military Service regulations that implement this Directive.  Other second or first class cadets and midshipmen disenrolling after the beginning of the second class academic year, but before completing the course of instruction, may be transferred to the Reserve component in an enlisted status and ordered to active duty for not less than 2 years, but not more than 4 years, under Title 10, USC, sections 4348(b), 6959(b), or 9348(b).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his USMA educational debt be eliminated since he is now enlisted in the USN, thereby electing to use active duty service in lieu of the option for repayment, was carefully considered.   

2.  The evidence of record confirms he was enrolled in the USMA and was separated for breaching his service agreement.  He was found unsuitable for active duty service with the U.S. Army and therefore failed to complete the terms of his cadet agreement.  As such, he was subject to reimbursing the Government for his educational costs pursuant to Title 10, USC, section 2005.  

3.  He contends his enlistment and current active duty service in the USN should fulfill his obligation under his breached USMA contract.  He enlisted in the USN for 8 years (the first 4 years on active duty) on 3 February 2015 in pay grade E-3, and the portion of his contract provided did not show whether or not he received any cash bonuses or other entitlements.  

4.  His enlistment in the USN serves the same purpose as an order to active duty in the U.S. Army.  In other words, the Department of Defense is still getting the benefit of his service.  Therefore, as a matter of equity only, and in accordance with the advisory options, it would be appropriate to consider his enlistment in the USN to have met the active duty obligation required by his USMA agreement. 

5.  Notwithstanding the fact that he entered a contractual agreement to serve in the USN, it would be premature and unfair to forgive his debt prior to his completion of his service requirements with the USN.  With regard to a possible USN enlistment bonus, while the Board has no jurisdiction to stop any enlistment bonus, a USN enlistment bonus would be a legitimate factor to consider in granting or denying equitable relief regarding his debt, since this would be considered in essence a windfall.

6.  As a result, his debt to the Government should be placed in a suspended status pending his successful completion of 4 years of active duty service in the USN.  If he fails to satisfactorily complete any portion of 4 years of active duty service with the USN, his debt is to be reinstated by DFAS at a prorated amount, including any additional interest incurred in the interim, and debt collection should be resumed.  If he satisfactorily completes 4 years of active duty service in the USN, his service will have satisfied his debt to the Government.  

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20130010760, dated 1 July 2014.  As a result, the Board recommends that:

     a.  All Department of the Army records of the individual concerned be corrected by showing he would satisfy his USMA service obligation as an enlisted USN Sailor upon successful completion of his USN 4-year active duty service obligation.

     b.  DFAS determine if he has been paid or is due to be paid a USN enlistment bonus.  In the event that he has been paid an enlistment bonus or becomes due for payment of the enlistment bonus, that bonus payment should offset an equal portion of his USMA educational debt.  

     c.  DFAS reimburse him for any payments he has made toward resolving his USMA educational debt.

2.  If he fails to complete the 4-year period of enlisted service obligated as a result of his USMA contract either voluntarily or because of misconduct, his USMA debt would be required to be recouped on a pro-rated basis, including any additional interest incurred in the interim.   


      ____________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)                                         AR20130010760



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150007373



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1