MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            2 November 2000                  
	DOCKET NUMBER:    AR2000040544

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

	Mr. Carl W. S. Chun		Director	
	Mr. Walter Avery, Jr. .		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. William D. Barr		Member	
	Mr. Ted S. Kanamine		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS: That he be relieved of a debt imposed by his failure to fulfill the terms of his Reserve Officers' Training Corps (ROTC) scholarship contract.

APPLICANT STATES: That he was improperly dismissed from the Norwich University ROTC program for failure to meet the Army Weight Control Program and Army Physical Fitness Test (APFT) standards.  He states he was not allowed to retest after 30 days as directed by US Army Cadet Command (USACC) regulations.  In his case he was directed to take an APFT on 14 May and retake it on 29 May 1996, after only a 12-day period.  He failed the retest, but believes that his travel from Florida to Vermont and his losing 12 pounds in 2 weeks negatively impacted on his performance.  He contends that overweight active duty soldiers are given a schedule for weight lost, an opportunity not given him.  He contends that he was not informed of the weight standards and taping (measuring of the body to determine percentage of fat) until 14 May 1996.  Further, if he as a cadet is held to the same weight standard as active duty soldiers then like them he should have been placed on a weight loss program.

EVIDENCE OF RECORD:  The applicant's military records show:

On 24 September 1992 the applicant signed a DA Form 597-3, Army Senior ROTC Scholarship Cadet Contract.  The following are paraphrased excerpts of that contract.

I must meet the same requirements of the Army Weight Control Program and the APFT as are required of active duty soldiers prior to the end of the last school term of my Military Science (MS)III year.

I understand that I may be deemed to have failed to comply with the terms and conditions of this contract (breach of contract) regardless of whether I knew that the failure violated the contract.

If my ROTC scholarship contract is terminated for any reason, but I am qualified and am allowed to remain in the ROTC program as a nonscholarship cadet; I understand that I will not be required to reimburse the United States for any financial assistance I received provided that I successfully completed the ROTC program.

On 31 October 1995, the USACC notified the applicant that his request for a third probation was disapproved and his scholarship terminated for failure to maintain academic standards.  It was noted that the applicant had been placed on a second probation for having a semester Grade Point Average (GPA) of 1.11 and a cumulative GPA of 1.67 in fall 1993.  Therefore, the actual second probation should have been a third probation.  Furthermore, the applicant had required a fourth probation for having a semester GPA of 1.28 and a cumulative GPA of 1.898 in fall 1994, in addition to the probation requested for spring 1995.  The applicant actually required a fifth probation.  The applicant was retained in the program in a nonscholarship status.

On 14 May 1996 the applicant was unable to pass the 2-mile event of the APFT and he exceeded the maximum allowable screening weight by 30 pounds and the Army body fat content by 2.15 percent. 

On 14 May 1996, the applicant was counseled concerning his pending disenrollment.  At that time the applicant requested a board of officers be appointed to review his case and declined an expeditious call to active duty.

On 29 May 1996 the applicant was unable to pass the 2-mile event of the APFT and he exceeded the maximum allowable screening weight by 23 pounds and the Army body fat content by 1.71 percent. 

On 29 May 1996, a board of officers convened.  The board recommended the applicant for disenrollment based on violation of contract for failure to meet the same requirements of the Army Weight Control Program and the APFT as required of active duty soldiers prior to the end of the MSIII year.

On 26 August 1996, a legal officer with the XVIII Airborne Corps, administrative law section reviewed the applicant’s 29 May 1996 disenrollment proceeding and found it to be legally sufficient. 

On 2 December 1996, the USACC approved the disenrollment from the ROTC program.

On 27 February 1997, the applicant acknowledged that he had received written notification that he was in breach of his Army ROTC scholarship contract.  He promised to make repayment for the $39, 889.40 educational assistance received.

On 8 December 1997, a legal officer with the USACC, reviewed the applicant’s appeal.  She states that there did exist a basis for disenrollment for failure of the applicant to meet the Army’s physical fitness and weight standards prior to the end of the last school term.  The school may have appropriately counseled the applicant; however, there is no evidence in the record of a physical fitness or weight counseling other than that which was provided immediately prior to his board.  She opines that given the circumstances of this case, a strong argument can be made that recoupment would not be an equitable resolution.  The applicant should have been provided with written counseling.  He should have been counseled so that he understood his physical fitness and weight shortcomings so that he could have overcome those shortcomings.  She recommended that recoupment be waived.
AR145-1, Senior ROTC Program, Disenrollment, Discharge, Separation, Transfer, and Leave of Absence, provides, in pertinent part that a nonscholarship cadet may be disenrolled by the Professor of Military Science for failure to maintain a minimum semester cumulative academic GPA of 2.0 on a 4.0 scale and at least a 3.0 on a 4.0 scale in all ROTC courses.

The same regulation provides that cadets may be disenrolled for failure to meet the same requirements of the Army Weight Control Program and the APFT as required of active duty soldiers prior to the end of the last school term of the MSIII year. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the records are in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant’s contract and the governing Army regulation clearly indicate that the applicant had until the end of his MSIII school year to meet the active duty fitness and weight standards.  Further, there is no requirement to place cadets who fail the weight standards into the Army Weight Control Program.  The applicant was given a second opportunity on 29 May 1996 to meet the fitness and weight standards.  This was a gratuitous opportunity given to the applicant.  The ROTC staff was under no regulatory obligation to wait 30 days or give the applicant the second opportunity.

3.  The applicant’s argument that he only became aware of the Army’s weight standards weeks before the 14 May 1996 APFT is rejected.  First, the applicant’s ROTC contract forewarned him that he must meet the active duty soldier fitness and weight standards.  Second, this was the applicant’s second year of eligibility to attend ROTC Advanced Camp.  The Board concludes he was counseled on the standards necessary to attend ROTC Advanced Camp the previous year.  Third, it is highly unlikely that during the applicant’s four years in ROTC he was never counseled by the ROTC staff on the standards necessary to attend ROTC Advanced Camp, the most important training event in the commissioning process.  Lastly, the ROTC contract clearly states that even if the applicant was unaware that he was in violation of the contract he could be found in breach of the contract.  The Board concludes his disenrollment was both regulatory correct and fair.

4.  The 8 December 1997, USACC, legal review raised the possibility that the applicant may or may not have been appropriately counseled for his physical fitness and weight problems.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing in the records or in the evidence submitted that overcomes this presumption.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_fne  ____  ___wdb_  ___tsk___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000040544	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001102	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	104.03	
2.		
3.		
4.		
5.		
6.