DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100 GE
MEH
Docket No. 7773-10
30 Aug 2011

 

 

This is in reference to your application for correction of naval
record pursuant to the provisions of 10 USC 1552.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 8 August 2011. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted
of your application, together with all material submitted in
support thereof, your naval record and applicable statutes,
regulations and policies. In addition, the Board considered the
advisory opinion furnished by NSTC memo 1533 OoD/0707 of 13 Jun
2011, a copy of which is attached. The Board also considered

your reply to the advisory opinion, submitted through counsel on
14 July 2011.

The Board members also considered your request for a personal
appearance, however they found that the issues in the case were
adequately documented and that a personal appearance with or
without counsel would not materially add to the Board’s >

understanding of the issues involved. Thus, your request for a
personal appearance has been denied.

After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice. In this connection the Board substantially
concurred with the comments contained in the advisory opinion
provided by the Naval Service Training Command (NSTC).

Review of the records in this case reveal that in January 2005,
you received an academic warning because your Fall 2004 grade
Docket No. 7773-10

point average fell to 2.33. On or about 13 March 2006, you
appeared before a Performance Review Board {PRB} convened to
inquire into your aptitude and performance. The PRB cited a
history of professional and performance shortcomings including
unprofessional behavior towards peers, failure to follow the
chain of command and lack of respect for unit leadership.

Review of the PRB proceedings reveals that you showed declining
physical fitness scores, you embraced a policy of “doing the
minimum” to just “get by,” and you displayed an immature pattern
of questioning behavior that went beyond common sense. The PRB
recommended that you be disenrolled from the program. However,
on 16 March 2006, rather than being disenrolled, you were placed
on a Leave of Absence (LOA). You were advised that during the
LOA, among other things, you would be expected to place renewed
emphasis on your overall performance, demonstrate a more
‘positive attitude, demonstrate willingness to carry out
direction, give a lecture regarding compliance with orders and
meet with your leadership weekly for counseling and aptitude
remediation. .

Approximately two weeks later, on 29 March 2006, during a
counseling session with a. US Navy, you
indicated a “desire to drop” (disenroll) from the NROTC program.
On 31 March 2006, you submitted the following statement “For
both pending medical reasons and reasons of personal conscious I
respectfully request to drop on request from the program. If
given the option, I would choose (to) repay tuition to resolve
my indebtedness to the US Government for participation in the
NROTC program.”

As a result of your statements, another PRB was convened. You
were advised of your right to appear before the PRB, but waived
your right to appear. The PRB recommended that your request for
voluntary disenrollment be approved. The endorsement to the PRB
indicates that you had requested to fulfill your obligation by
repayment of funds paid by the government for your participation
in the NROTC program.

As a result of your request, you were ultimately disenrolled
from the NROTC program and a debt of $88,466.14 was established.

Your application avers that the debt should now be extinguished
for the following reasons. You aver that your disenrollment
request was not voluntary because you were suffering from a
medical condition that impaired your judgment. You aver that
your disenrollment request was not voluntary because wae
Wy failed to advise you to wait until a more thorough
Docket No. 7773-10

assessment of your medical condition was conducted. Further, you
aver that even if the disenrollment is considered voluntary, the
debt should be excused because, in light of your impaired
judgment, “fairness and justice” demand that the debt be waived.
The Board carefully considered your request and your arguments.
However, the Board found there was no error or injustice in your
disenrollment from the NROTC Program and no error or injustice
in the decision to establish the educational debt. In the
Board's view, your request to disenroll was a voluntary decision
made of your own free will. No one forced or coerced you into
requesting disenrollment. You could have continued in the NROTC
program if you had wanted to. You are the party that initiated
the voluntary disenrollment.

The Board was not persuaded that the voluntary nature of your
disenrollment request was somehow overcome by Gnas.
Aside from your unsubstantiated claim, there is no evidence that
“advised you to voluntarily initiate
disenrollment.” Aside from your unsubstantiated claim, there is
no evidence that you were “miscounseled” by Qa
You have complained that Waa “should have advised
you” to wait until a more thorough assessment of your medical
condition was conducted. The Board found no evidence of an
omission by QB) that would impact on the
voluntariness of your disenrollment. In the Board's view, you
were aware of your situation. The option of continuing in the>
program while your medical condition was assessed was available

to you with or without any advice from  .*

Likewise, The Board was not persuaded that the voluntary nature
of your disenrollment request was somehow overcome by the undue
stress you experienced when you discovered your high blood
pressure and other medical symptoms. You appear to have been
able to make other important life decisions, such as the
decision to continue your education at the University of
Michigan after your disenrollment. In the Board's view, you

 

2 In fact, by voluntarily disenrolling so quickly, you deprived
the NROTC leadership the opportunity to properly assess whether
your new found medical condition would interfere with your
eventual service. It is not a foregone conclusion, as you
claim, that your “symptoms and persistent high blood pressure
would have medically disqualified” you from further service.
That is a determination that could not be made due to your
request for disenrollment.
Docket No._7773-10

were aware that you could continue in the NROTC program as well.?

You simply made a choice not to do so.

Finally, the Board was not persuaded that in light of all the
circumstances, “fairness and justice” demand that the debt be
waived. The regulations implementing the NROTC scholarship
program provide that a scholarship recipient who fails to
complete the program requirements as specified in the
scholarship agreement shall, at the discretion of the Secretary
of the Navy, either serve on active duty for a specified period
or reimburse the United States for the educational costs it has
expended on the scholarship recipient’s behalf. In such cases,
the Secretary of the Navy has the discretion to render a case-
by-case determination as to whether the reimbursement
requirement and/or the enlisted service requirement should be
waived due to mitigating circumstances.

You received substantial education at government expense before
your disenroliment. Your disenrollment was voluntary. You
initiated the voluntary disenrollment before completing the
scholarship program. You did not serve on active duty after
your disenrollment or otherwise complete the military service
obligation specified in your scholarship agreement. You
certified that “If given the option, I would choose (to) repay
tuition to resolve my indebtedness to the US Government for
participation in the NROTC program.” You have benefitted and
been enriched from the education you received at government
expense while the government has not received the benefit of
your active service after your disenrollment. The Board finds
that, in light of the educational benefit you received, the
regulations implementing the NROTC program and the terms of the
scholarship agreement, it is not an error or an injustice for
the Secretary of the Navy to require reimbursement of the costs
expended by the United States for your education. The Board
also finds that a waiver of the reimbursement of those costs is
not warranted under the circumstances. Accordingly, your
application has been denied. The names and votes of the members
of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
the Board reconsider its decision upon submission of new and

2 Of course, such continuation would have been in a “Leave of
Absence” status where your attitude and performance would be
more closely monitored.
Docket No. 7773-10

material evidence or other matter not previously considered by
the Board. In this regard, it is also important to keep in mind
that a presumption of regularity attaches to all official

records. Consequently, when applying for a correction of an
official naval record, the burden is on the applicant to

demonstrate the existence of probable material error or
injustice.

Sincerely,

ls Doon

W. DEAN PF F
Executive Di r

Bnclosure