MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 July 2000                  
	DOCKET NUMBER:    AR1999033401

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms.Ann M. Campbell 		Member	
	Mr. Kenneth L. Wright		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 the decision of his ROTC disenrollment hearing be corrected to a finding that he did not willfully evade the terms of his scholarship contract, that he did not conceal a medical disqualification, and that he be commissioned as a second lieutenant, USAR, upon his graduation from college.  If the Board does not approve this request, he asks that the Board remit his $30,000.00 debt to the Army.  If the Board does not recommend full remittance of that debt, he offers a settlement of paying the Army $10,000.00 as satisfaction of the debt in full.

APPLICANT STATES:  That he never had any intention to evade his ROTC contract.  He points to his achievements in ROTC, which include elective activities, and the honors he received as a cadet as proof that he intended to accept his commission and serve as an Army officer.  As for the concealment of the seizures he suffered as a child, he states that his physician submitted a letter in which he stated that he had not told him that he may have had a childhood condition prior to him applying for his scholarship; that he had never been medically certified as having suffered from an epileptic condition; that his physician has stated in writing that he has never suffered from epileptic seizures; that because he hasn’t had any seizures within 5 years he is medically qualified for commissioning; that he had his last “febrile convulsion” when he was 7 years old; and that he had been removed from febrile convulsion medication 3 years prior to his first military physical examination.  He concludes that he believes that his Professor of Military Science (PMS) had a personal bias against him which was evident at his hearing, and that his disenrollment hearing was not a fair tribunal since the hearing was scripted.

In support of his application he submits letters written by his counsel to Cadet Command contesting the findings and recommendation of his disenrollment hearing; letters counsel wrote to the Defense Finance and Accounting Service contesting the applicant’s debt to the Army; a letter from one physician who stated that he was the applicant’s primary care physician and “did not inform him that he had a seizure disorder which may be a disqualifying condition”; and a letter from another physician who stated that he has treated the applicant since 1992, that there is no evidence that he suffered from a seizure when he had his accident in 1995, that he has not had a seizure since that date, and that epilepsy is not a diagnosis for the applicant.  The applicant also submits a copy of his ROTC flight physical examination in which he marked “No” to “epilepsy or fits” as well as any other physical or mental injury, illness or impairment.  On that form he also attested that “Examinee denies . . . history of convulsions, unconsciousness, dizziness . . .”

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  The following information is derived from the applicant’s 

disenrollment hearing’s verbatim transcript provided to the Board by the applicant’s counsel.

On 15 December 1995 a hearing was convened to determine whether the applicant should be disenrolled from the ROTC and, if so, whether the reason for his disenrollment should require the recoupment of his scholarship monies.

During the disenrollment hearing the allegation that the applicant had an indifferent attitude or lack of interest in military training as evidenced by frequent absences from military science classes or drill, an established pattern of shirking, or similar acts, was raised by the Government.  The Government provided six counseling statements to substantiate these allegations.  Of those six counseling statements, one counseling statement was not admitted as evidence and another was (unsuccessfully) challenged because the individual who had given the counseling was not present to be cross examined.  Also admitted as evidence was a letter dated 20 March 1979 which stated “ . . . but this youngsters continuation of having seizures at a later age in childhood points to a true idiopathic seizure disorder or a form of epilepsy.”

The applicant and his counsel argued the validity of the counseling statements, submitting documentation which showed that the applicant was sick with bronchitis and the beginning stages of pneumonia in the spring of his senior year; that he was later injured in a car accident, an injury which left him bruised but without any broken bones; that one counseling was for a class for which he had received prior approval to miss; and that he didn’t attend ROTC classes on occasion in January and February of his senior year because of adverse driving conditions.  The PMS responded by stating that there is a designated area for the counseled individual to rebut the counseling, which the applicant never did.  The PMS continued that other cadets who lived off campus made the classes that the applicant missed during inclement weather.  The PMS concluded that “The reason you received an ‘F’ is because of your attendance, the fact that you did not turn in I believe any of the required written or oral presentations required that semester and you didn’t take the midterm or final.”

The PMS testified that the applicant had performed well as a freshman and sophomore, receiving an “A” for both years.  In his junior year his performance started to go down hill, with him starting to have many reasons why he was not at required activities in ROTC.  In his senior year his performance declined further due to his not meeting his obligations including not coming to physical training, not coming to class, not coming to some labs, and not supporting his chain of command and his peers in responding to the ROTC cadre.  The PMS testified that he informally counseled the applicant many times, particularly during his senior year, in addition to formally counseling him.  In response to the PMS’s statement that the applicant never rebutted his counseling, the applicant testified that he did not because the core issues were always true:  he did miss the class or lab or had done or didn’t do whatever the counseling session had alleged.

As for the concealment of his youthful seizures, the applicant testified that he had never seen the letters from his physicians which said that he suffered from seizures, and he testified that he was unaware that he had ever suffered from seizures until he saw those letters when they were submitted to ROTC officials after his accident in 1995.  He also testified that he was never told why he was taking medications and he never discussed the issue with either his parents or his physician.

When questioned the applicant admitted to having received medical care as a child for chicken pox; to being taken to the emergency room after being dropped on his head during a wrestling match, a visit which was strictly precautionary since he was found to be uninjured; to having his tonsils removed; and to being treated for a suspected broken bone which was actually a bone chip.  The applicant also testified that “I know I visited the doctors a lot, but that was directly related to the medication I was taking.  But again, I had been doing it all my life, it was not something that was unusual to me, because I started before I began speaking and it went on from there.”  When the applicant was informed by the President of the disenrollment hearing that his testimony would indicate that he did not complete the questionnaire on his physical examination accurately, the applicant responded that he answered them truthfully since neither his childhood injuries nor illnesses were serious.

The applicant’s disenrollment hearing resulted in a finding that he “. . . did demonstrate an indifferent attitude or lack of interest in military training as evidence by frequent absences from military science classes, physical training, and leadership labs in the Spring semester 1995” and that he “. . . failed to disclose a disqualifying condition prior to entering into the ROTC Scholarship program.”  The disenrollment hearing resulted in a recommendation “That [the applicant] should be disenrolled from the ROTC program for reasons which indicate voluntary breach (to include willful evasion) of the terms of his ROTC contract.”

Army Regulation 40-501, chapter 2 prescribes the standards for procurement, to include enlistment and commissioning.  Paragraph 2-29k of this regulation states that it is medically disqualifying for an applicant to have paroxysmal convulsive disorders, disturbances of consciousness, all forms of psychomotor or temportal lobe epilepsy, or history thereof, except when there have been no seizures since age 5.  If seizures have been experienced since age 5, these medical conditions may only be waived by the Surgeon General of the Army on an individual case basis.

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

1.  The applicant was properly disenrolled from the ROTC due to his failure to complete the academic requirements of Military Science and due to his preexisting medical disqualification.

2.  The findings of the disenrollment hearing that the applicant willfully evaded the terms of his contract due to his failure to attend classes and his failure to provide coursework is supported by the evidence of record.  While the applicant may have been injured in his car accident, he did not supply any medical evidence which would show that he was not physically capable of attending military science classes.  While the applicant may have lived a fair distance from the school, other cadets who also lived in the country managed to come to school on days where the weather was less than ideal.  And while the applicant may have had other academic obligations, he could have made arrangements with his ROTC instructors to complete coursework on an alternate schedule if he had the desire to do so.

3.  As for the disenrollment hearing’s finding that he failed to disclose a disqualifying medical condition prior to entering into his ROTC Scholarship, the applicant admitted under oath that he had not accurately answered other questions on his physical examination.  While the applicant had an explanation for his inaccurate answers, that rationalization puts his statement that he was unaware that he suffered from seizures in question.  In addition, the applicant stated that his seizure medication was discontinued “approximately three years before my first military physical.”  That statement leads the Board to believe that his medication was discontinued when he was about 15 or 16 years old.  While the applicant testified that he never questioned his medication, it is hard to believe that a teenager would take medicine without questioning what that medication was for, especially in consideration of the applicant’s statement that he went to the doctor a lot as a child because of the medicine he was taking.

4.  Contrary to the applicant’s contention, since he suffered from seizures after age 5 he required permission from the Surgeon General of the Army to be commissioned.  Considering the fact that he concealed his youthful seizures, the fact that he had what arguably appeared to be a seizure of unknown etiology which resulted in an automobile accident in which he sustained personal injury, and the fact that he was failing his military science courses, it is highly unlikely that the Surgeon General of the Army would have granted him permission to be commissioned.

5.  As for the procedural errors the applicant and his counsel perceived in the proceedings of the disenrollment hearing, the hearing was administrative, not legal, and was not therefore bound by rules of evidence.  This reduces the question to whether the applicant’s material rights as a respondent were violated.  The Board sees no evidence of such a violation.

6.  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

__sac ___  __amc __  __klw ___  DENY APPLICATION

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

INDEX

CASE ID	AR1999033401	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000720	
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.	128.14	
2.		
3.		
4.		
5.		
6.