PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           1 August 2000                   
	DOCKET NUMBER:   AR2000037755

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his $100,000.00 plus debt for reimbursement of his West Point education be cancelled.

3.  The applicant states that he was involuntarily separated due to a medical problem even though he asked to remain on active duty.  His records do not state anything about having to pay back the cost of his education as a result of his separation.  

4.  The applicant’s military records show that he entered the U. S. Military Academy in 1994.  

5.  The applicant apparently suffered a stress fracture to his left tibia in July 1995 and a month later he was diagnosed with a benign tumor.  

6.  The applicant graduated from the Academy and entered active duty on         30 May 1998.  While attending the Field Artillery Officer Basic Course, he was diagnosed with another stress fracture as well as multiple contusions to his knee. 

7.  On 11 December 1998, a Physical Evaluation Board (PEB) found the applicant unfit for duty due to a painful left proximal tibial lesion.  The PEB also determined that there was compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated by such service.  The PEB recommended his separation from the service without disability benefits.

8.  On 5 February 1999, the applicant was discharged due to a disability, EPTS.
Apparently at this time, action was taken to recoup the costs of his West Point education.

9.  Department of Defense Directive 1332.23 dated 19 February 1988, Service Academy Disenrollment, 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 4.1 states that active duty service is the primary means of reimbursement for education.  Paragraph 4.3 states that individuals failing to complete the required active duty period or who are ordered by the Secretary of the Military Department concerned to reimburse the United States under Title 10, U. S. Code, section 2005 ordinarily shall be required to reimburse the Government for education costs commensurate with time remaining on the active duty obligation when discharged.  Paragraph 6.1.4.2 states that persons medically disqualified from further military service shall be separated and shall not be obligated further for military service or for reimbursing education costs (absent evidence of fraud, concealment, gross negligence, intentional misconduct or misrepresentation).  

10.  On 5 July 2000, the Office of the Staff Judge Advocate, Administrative Law Division, stated that ordinarily the West Point Staff Judge Advocate reviews recoupment actions prior to action being taken on such recoupment.  However, since the applicant was no longer at West Point when he was discharged, it appears his local finance office took recoupment action without first referring the case to West Point for review.  

CONCLUSIONS:

1.  The Board concludes that a Government error and injustice have occurred in this case.  There is no evidence of record to show that the applicant was found medically unfit for duty due to fraud, concealment, gross negligence, intentional misconduct or misrepresentation and so he was not obligated to reimburse his West Point education costs in accordance with paragraph 6.1.4.2, Department of Defense Directive 1332.23.

2.  The Board further concludes that, based on the foregoing, any monies erroneously collected from the applicant in regards to his U. S. Military Academy education should be refunded.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

     a.  showing that, under the provisions of paragraph 6.1.4.2, Department of Defense Directive 1332.23, there is no requirement for the applicant to reimburse the cost, plus any interest, of his U. S. Military Academy education at West Point; and

     b.  refunding to the applicant any erroneous payments collected by the Government against his U. S. Military Academy education, as appropriate.

BOARD VOTE:  

__dsj___  __kak___  __ewl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Deborah S. Jacobs
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000037755	
SUFFIX		
RECON		
DATE BOARDED	20000801	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	104.00	
2.		
3.		
4.		
5.		
6.