DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS

                                2 NAVY ANNEX

                          WASHINGTON DC 20370-5100
                                                TRG:jdh
                                                Docket No: 4663-01
                                                22 April 2003








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  A three-member panel of the Board, sitting in executive session,
  considered your application and a majority recommended that your naval
  record be corrected as set forth in the attached report dated 2 April
  2003. In accordance with current regulations, the designated
  representative of the Assistant Secretary of the Navy for Manpower and
  Reserve Affairs conducted an independent review of the Board’s
  proceedings and, as set forth in his memorandum of 21 April 2003,
  approved the minority recommendation that your application be denied.

  You are advised that reconsideration of your case will be granted only
  upon the presentation of new and material evidence not previously
  considered by the Board and approval by the Assistant Secretary.

  It is regretted that a more favorable reply cannot be made.

                                      Sincerely,



                                      W.     DEAN PFEIFFER
                                      Executive Director

  Enclosures
                           DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                2 NAVY ANNEX

                          WASHINGTON DC 20370-5100

                                                TRG
                                               Docket No: 4663-01
                                               2 April 2003

From: Chairman, Board for Correction of Naval Records
To:   Secretary of the Navy

Subj: REVIEW OF NAVAL RECORD 0
      ~mIuu-.m”~
Ref:  (a)   Title 10 U.S.C. 1552
      (b)   Title 10 U.S.C. 2005

End:  (1) Case Summary
        (2) Subject’s naval record

1.    Pursuant to the provisions of reference (a), Petitioner, a former
midshipman in the Naval Reserve Officer Training Corps (NROTC), filed an
application with this Board requesting that his record be corrected to show
that he was not required to reimburse the government for the cost of his
education.

2.    The Board, consisting of Mr. Cooper, Mr. Leeman and Mr. Pfeiffer,
reviewed Petitioner’s allegations of error and injustice on 25 March 2003
and, pursuant to its regulations, a majority determined that the corrective
action indicated below should be taken on the available evidence of record.
Documentary material considered by the Board consisted of the enclosures,
naval records, and applicable statutes, regulations and policies.

3.    The Board, having reviewed all the facts of record pertaining to
Petitioner’s allegations of error and injustice, finds as follows:

     a.    Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and regulations within
the Department of the Navy.

     b.    Petitioner’s application was filed in a timely manner.

     c.    Petitioner enlisted in the Marine Corps on 21 October 1991. He
was released from active duty on 31 August 1994 so he could enter the NROTC
scholarship program.

     d.    Petitioner entered the N~TC program on 1 September 1994. At that
time, in accordance with reference (b), he was required to enter into an
agreement, under the terms of which he was required to complete the course
of instruction and serve on active duty as an officer for a specified
period. Further, if Petitioner failed to complete the course of
instruction, he would be obligated to serve on active duty for a specified
period. Finally, if Petitioner “voluntarily or because of misconduct”
          failed to complete an agreed upon period of active duty, he
          agreed to reimburse the government for the cost of his education.

                e.     Petitioner apparently served without incident until
          21 April 1997, when he was notified that he was being placed on a
          medical leave of absence (LOA). A medical record entry of 17
          April 1998 shows that a Navy orthopedic surgeon found that he was
          not fit for full duty due to an ankle injury, and would not be
          fit without “remedial surgery”.

                f.     On 30 December 1998 Petitioner was notified of a
          pending performance review board. In response, Petitioner stated,
          in part, as follows:

                ...    In the spring of 1997 I participated in a mandatory
                unsupervised training activity at NROTC Unit, Tulane
                University. During the training session, I broke my ankle. I
                proceeded to obtain medical treatment to heal the injury at
                my own expense. I obtained medical opinions from civilian
                and military doctors. I was given the option of surgery or
                not being fit for duty. I chose to get surgery. The surgery
                was scheduled to be performed at Pensacola, FL. I was then
                informed by the military hospital that I was not eligible to
                receive surgery through them ... Surgery is an expensive
                task to complete. As a result of my broken ankle I was
                placed on Medical bOA and had to pay for my entire senior
                year at Tulane University out of my own pocket. Multiple
                loans had to be secured to fulfill this obligation on which
                I still owe.

                    I was found fit for OCS (officer candidate school) in
                1997 if my ankle healed properly. At the time of the exam I
                had removed my cast and was on crutches ...

                    Ifind it grossly unfair that I break my ankle training
                with the NROTC Unit, Tulane University and then am subject
                to a disenrollment hearing because I cannot afford to have
                surgery at this time.

                g.     On 22 June 1999, the Marine Corps Recruiting Command
          reported that Petitioner desired to reimburse the government in
          the amount of $63,369 instead of being called to active enlisted
          service, and recommended that the Secretary of the Navy terminate
          his appointment as a midshipman and direct recoupment of the
          amount paid for his education. On 9 September 1999 the Assistant
          Secretary of the Navy (Manpower and Reserve Affairs) approved
          this recommendation. Petitioner was informed of this action on 22
          September 1999.



                                      2
     h.    In June 1999, while separation action was pending Petitioner was
examined by a civilian sports medicine clinic. The report of that that
examination states, in part, as follows:

     HISTORY OF PRESENT ILLNESS:  (Petitioner) was injured in February
     1997, with a fracture of the fibula. He also sustained a twisting
     injury in 1995. He said that he fully recovered from the twisting
     injury and he has had trouble ever since he sustained a fracture of
     the fibula. He was told at that time it was undisplaced, treated
     minimally and conservatively, and he was soon returned to duty as a
     Marine. Now, he has increased difficulty with any amount of extensive
     standing or walking. He has tenderness in the ankle after twisting
     episodes. His ankle may give suddenly with him as he is walking for no
     reason, that is, he does not have to step in a hole for it to give
     way. ...

     PHYSICAL EXAMINATION:  Examination reveals that he has on stress x-
     rays, 3 (degree) of widening of the lateral aspect of the talotibiel
     joint under varus stress. This is also palpable clinically ... I will
     review this patient’s MRI with the radiologist but he is, in my
     opinion, a candidate for surgical repair of his lateral ankle
     ligaments ...

     RECOMMENDATIONS:  Anterior ... ligament repair left ankle. I think
     this stands approximately 90% chance of relief of the Patient’s
     symptoms and of returning him to athletics or active duty in the
     military service ...

     i.    In response to congressional interest in Petitioner’s case,
Headquarters Marine Corps stated, in part, as follows:

     ...   On September 22, 1999, (Petitioner) was disenrolled from the
     Tulane NROTC unit on the basis of inaptitude and unsuitability. He
     desires to change his record to indicate his disenrollment was for
     medical reasons due to an ankle injury. There is no basis to change
     the status of (Petitioner’s) disenrollment. The decision in this case
     is consistent with the current Navy and Marine Corps policy.

            (Petitioner) stated that he broke his ankle at Tulane
     University during a mandatory unsupervised military training exercise,
     a formation run. The Government covers injuries for midshipmen only
     when they are on active duty for training. Since midshipmen in NROTC
     programs are not in a duty status, any injury that occurs is the
     responsibility of the injured.


                                      3
     While on an NROTC scholarship, the scholarship pays for medical
     insurance provided by the university.

            Over the last 2 years, (Petitioner) has repeatedly assured the
     officers at Tulane University and this Headquarters that he had
     scheduled surgery on his ankle. This surgery never took place.
     Further, after a thorough medical review, (Petitioner) was found
     physically qualified for military service, the surgery is purely an
     elective procedure ...

     j.    In response to Petitioner’s letter to the Secretary of the Navy,
on 19 May 2000 the NROTC program manager stated, in part, as follows:

     ...   It was unfortunate that you were not able to fulfill your active
     duty obligation with the Marine Corps. Our records indicate that you
     were physically qualified for commissioning and given an opportunity
     to return to (OCS) in August 1998, but failed to return after
     graduation from Tulane, in May 1998 ...

Copies of these letters are attached to enclosure (1).

     k.    In response to the Board’s request, on 19 August 2002, the NROTC
Unit, Tulane University stated that that in accordance with the records
provided, Petitioner was given plenty of opportunity to seek correction of
his medical situation, and even misinformed the command about his
intentions to become medically qualified. Further, this information would
result in a disciplinary or punitive disenrollment from the NROTC unit even
today. The NROTC unit provided the name of a Marine lieutenant colonel who
was attached to the NROTC unit at the time who might be able to provide
further details. However, this officer’s name was misspelled. Coordination
with Headquarters Marine Corps finally revealed a lieutenant colonel with a
similar name and duty assignment. However, this individual is now
commanding a unit in Iraq, and was not contacted by the Board. It is
unknown whether or not he would remember Petitioner’s case.

     1.    At enclosure (1), Petitioner cites the medical evaluations of
April 1998 and June 1999 and notes that both of them show that he was
having serious problems with his ankle. He further contends that he was
never found medically fit for duty, the Navy would not perform the
necessary surgery, and he was not covered by Tulane’s health plan since the
university changed insurers and preexisting conditions were not covered. He
could not pay the $5,000 cost of the surgery himself because he had just
borrowed $25,000 in order to complete his senior year. In view of the
foregoing, Petitioner contends that recoupment is


                                      4
unjust.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, the majority,
consisting of Mr. Leeman and Mr. Cooper, concludes that Petitioner’s
request warrants favorable action. The majority notes that in April 1998 he
was not physically qualified, and there is no documentation to support the
Navy’s position that he was later deemed physically qualified. In fact, the
civilian evaluation of June 1999 seems to indicate that he was not
physically qualified at that time. Further, his assertion that he was not
covered by Tulane’s health plan has not been refuted. The majority is also
unconvinced that Petitioner willfully avoided the opportunity to have
corrective surgery. Given the circumstances, the majority believes that it
was unjust to require recoupment in this case, and the record should be
corrected to show that recoupment of $63,369.00 was waived.

In view of the foregoing, the majority finds the existence of an injustice
warranting the following corrective action.

MAJORITY RECOMMENDATION:

     a.    That Petitioner’s naval record be corrected to show that on 9
September 1999 the Assistant Secretary of the Navy (Manpower and Reserve
Affairs) waived the requirement that Petitioner reimburse the government
for his education in the amount of $63,369, vice the action actually taken
on that date directing recoupment in that amount.

     b.    That any material or entries inconsistent with or relating to
the Board’s recommendation be corrected, removed or completely expunged
from Petitioner’s record and that no such entries or material be added to
the record in the future.

     c.    That any material directed to be removed from Petitioner’s naval
record be returned to the Board, together with this Report of Proceedings,
for retention in a confidential file maintained for such purpose, with no
cross reference being made a part of Petitioner’s naval record.


MINORITY CONCLUSION:

Mr. Pfeiffer disagrees with the majority and concludes that Petitioner’s
request does not warrant favorable action. He initially notes that over
$63,000 was spent on Petitioner’s education. Reference (b) clearly intends
that if someone in his situation, fails to complete the NROTC course of
instruction and


                                      5
accept a commission, either active duty or reimbursement should be
directed. Further, although documentation showing that he was physically
qualified is not available, it is clear that the NROTC unit had good reason
to believe that he was so qualified. The minority member also believes that
if Petitioner had reported to OCS, as noted in the letter of 19 May 2000,
the issue of his physical qualification would have been resolved at that
time and if not physically qualified recoupment would not be an issue.
However, he did not do so. Based on the foregoing, the minority member
concludes that the decision to direct recoupment was appropriate.

In view of the foregoing, the minority finds no injustice warranting
corrective action.

MINORITY RECOMMENDATION:

That Petitioner’s request be denied.

4. It is certified that a quorum was present at the Board’s review and
deliberations, and that the foregoing is a true and complete record of the
Board’s proceedings in the above entitled matter.
ROBERT D. ZSALMAN      ALAN E. GOLDSMITH
Recorder    Acting Recorder

5. The foregoing report of the Board is submitted for your review and
action.






MAJORITY REPORT:
Reviewed and approved:






MINORITY REPORT:
Reviewed and approved:





                                      6
DEAN r
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K)


                           DEPARTMENT OF THE NAVY

I
                      OFFICE OF THE ASSISTANT SECRETARY
                       (MANPOWER AND RESERVE AFFAIRS)
                             1000 NAVY PENTAGON
                         WASHINGTON, D.C. 20350-1000

                                                               April 21,
                                                               2003

      MEMORANDUM FOR THE RECORD

      SUBJECT:   BCNR CASE OF ~

      I have carefully reviewed the material provided in the above captioned
      case and the recommendations made by BCNR. For the reasons outlined
      below, I concur with the minority recommendation and deny the
      requested relief.

      Upon enrollment into the NRQTC program in 1994, the Petitioner was, in
      pertinent part, placed on notice that a voluntary failure to complete
      the course of instruction would result in the recoupment of
      educational costs. Both the Petitioner and the Marine Corps have
      opposing viewpoints on the extent of Midshipman nkle injury and the
      role it played in preventing him from completing the NROTC program.
      What is not in dispute however, is Plaintiff’s duty to report to OCS
      in 1998 for training. His voluntary failure to do so precluded any
      opportunity for the Marine Corps to address and resolve the injury and
      to determine Midshipman ~UUP~ future service. This voluntary action on
      Petitioner’s part is clearly inconsistent with the guidelines he
      agreed to upon entry into the NROTC program. Disenrollment from the
      program and recoupment of educational costs, an option agreed to by
      the Petitioner, was therefore appropriate.

      Accordingly, I concur with the minority recommendation that under the
      facts and circumstances of this case, waiver of recoupment is not
      warranted.