IN THE CASE OF: BOARD DATE: 4 February 2015 DOCKET NUMBER: AR20150005489 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests: * his separation from the United States Military Academy (USMA), West Point, NY, for failures in Military Development (MD) be voided * reinstatement in the USMA Corps of Cadets * entitlement to back pay and allowances 2. The applicant states: a. He believes it was an injustice with regard to the abuse of the Army Physical Fitness Test (APFT) regulation and policy by the misuse of a diagnostic APFT run failure used as a single basis for a summer MD failing grade when he had an in line of duty chronic medical condition. b. Also, it was an injustice in regard to the denial of his Article 31, Uniform Code of Military Justice (UCMJ), rights during an investigation whereby information illegally obtained and denial of due process resulted in adverse administrative action in the form of a second MD failing grade by the tactical (TAC) officer who falsely and unlawfully took and used the information for the adverse action. c. A decision was made to separate him from the USMA without a service or financial obligation. The separation was based on suspect failures in the MD pillar of curriculum. The MD failing grades resulted in his being overall academically deficient (quality point average (QPA) 1.99). The first MD failure was set aside by the Assistant Secretary of the Army Manpower and Reserve Affairs (ASA (M&RA)), and was not considered in the separation decision. This supports his claim that the failure was suspect; however, the ASA (M&RA) offered no explanation why the failure was set aside, nor was a remedy provided for the set-aside failing grade that caused an overall QPA deficiency. d. On 10 May 2011, he was diagnosed with exertion induced compartment syndrome, directed to conservative treatment, and a new running form. His medical records reveal difficulty in adjusting to new mechanics with varying pain levels. No profile was assigned. e. In June 2012, he failed a diagnostic APFT as part of the CBTII cadre training; he failed the run by seconds. He had unexplained numbness during the run that would dissipate minutes after running. He had no feeling in his foot during the run. He was relieved as a squad leader, reassigned duties, and given a D for MD at the end of the detail due to the diagnostic APFT failure. f. On 27 August 2012, the TAC officially counseled him of his CBTII failure due to not passing the diagnostic APFT. Two weeks after the affirmation ceremony, he was placed on conditional status for an MD F. g. In September 2012, he passed both the company diagnostic and record APFT, although he failed to meet the score for a junior of 260 he achieved a 259. He was placed on remedial physical training (PT) for running. This would only worsen his medical condition. h. On 7 October 2012, interim grades were posted and he failed five courses. His parents were contacted by the TAC and his father met with the TAC on 13 October 2012 to discuss the situation and establish a get-well plan. i. On 22 October 2012, he met with Cadet (CDT) AM who lit a substance on a soda can alleged to be Spice. The TAC arrived shortly after they met and accused both of them of multiple acts related to the incident. On 23 October 2012, he invoked his right to remain silent and to be provided legal counsel when he was informed of potential charges being raised against him by Major (MAJ) JB, the investigating officer (IO). j. On 24 October 2012, he was summoned to MAJ JB's office and MAJ JB proceeded to question him about the 22 October 2012 incident after he had invoked his Article 31 rights the day prior. He was unaware that this was illegal and he spoke to MAJ JB in his role as TAC and IO. No counsel was provided to insure the protection of his rights. The information he provided that was taken illegally was used initially in legal, then administrative, charges under U.S. Cadet Corps (USCC) Code, Article 10. k. On 27 October 2012, after many trips to the medical treatment facility at Arvin Gym, West Point, with little or no improvement, no referral to a physician, and increasing numbness and pain, his father took him to the emergency room (ER), Keller Army Community Hospital (KACH), West Point. He was referred to a sports medicine physician, Dr. P, and on 29 October 2012, Dr. P referred him to orthopedics. On 6 November 2012, he was seen by Dr. T, orthopedics, and told he could either stop running or have surgery. He was not given a profile and had to request one later. l. On 13 November 2012, he received the final documented performance counseling for semester AY1-13 MD/leadership grade. No interim or suggested final grade was noted on the form but he understood an interim grade of D, previously provided verbally by MAJ JB, due to failing academic grades had not been recovered and one out of five areas remained deficient. m. The counseling showed he had a weakness in physical fitness although he was scheduled for surgery and had minor personal leadership skills. There were noteworthy achievements but it was not fully acknowledged that he recovered all but one academic grade and was 2 percentage points from passing in Engineering Modeling. The counseling recognized his strengths in leading under adversity, increased self-awareness, and military bearing but appeared to be incomplete and not a thorough documentation of the actual counseling session. n. On 17 November 2012, his father again met with MAJ JB during a parade review and his father expressed his gratitude for the assistance he had been given in recovering all but one failing grade. MAJ JB was curt and disrespectful in tone and stated that he (the applicant) had legal problems. At that point, he was unaware that any action was being taken against him and he did not have legal representation. o. On 26 November 2012, he met with legal counsel. He sought support from the brigade surgeon as he now understood his earlier symptoms of numbness and pain while running were caused by a documented medical condition. He requested the support to appeal his MD failure in July 2012. He was later told by a TAC that they would not consider any appeal because he passed the record APFT. p. On 28 November 2012, the applicant was informed by the chain of command that he would appear before an administrative misconduct board in 48 hours. As he was unaware of the charges against him, he asked for a stay to discuss it with his attorney and the stay was granted. q. On 14 December 2012, an incomplete board packet was sent to his lawyer that was void of the conflicting rights waiver certificates. The violation went unnoticed and was discovered on 4 December 2013, post-separation, during an advisory and legal review on that date. He wonders if this information was willfully withheld by MAJ JB. r. On 14 December 2012, the brigade surgeon recommended he take the indoor obstacle course test, a graduation requirement, and attempt to pass so as not to fall behind in physical pillar requirements due to the scheduled surgery. However, he failed the test by a few seconds due to "syndrome - no relief provided." s. On 9 January 2013, he requested a stay for the administrative conduct board due to his scheduled surgery and inability to appear before the board. A fasciotomy surgery (cutting of the fascia to relieve tension or pressure) was performed to the anterior portion of his leg to correct compartment syndrome. The brigade surgeon initiated a medical leave of absence (MLOA) for recovery. t. On 14 January 2013, the academic board convened and decided to separate him based on academic deficiency in two pillars of MD and physical. On 18 January 2013, the board denied his appeal for retention and ruled to separate him for academic failure that was not willful. u. On 22 January 2013, he was informed by Sergeant First Class (SFC) RA the reason he received a semester MD failing grade was due to the pending administrative board that was used for referral to an academic separation board. On 29 January 2013, he went on a MLOA. v. On 30 January 2013, the administrative conduct board, conducted post separation for the 22 October 2012 incident, found him guilty of errors in judgment, unsatisfactory behavior, and failure to comply with orders and instruction. He was punished with a maximum punishment of demerits, room restriction, and no area tours. He offered no mitigation and withdrew from his classes; his punishment was served. w. On 11 February 2013, he was permitted to sign out and leave West Point and did so without medical or dental records. This would prevent any post-operative care and rehabilitative therapy. Prior to his leaving, his mother went to the TRICARE office, KACH, seeking assistance for his medical care; she was directed to the Department of Veterans Affairs (VA). The VA later stated he could not be seen without medical records as the VA had no digital record capability. No medical care was provided to him post-separation. x. On 28 February 2013, his father had a conference call with the Brigade Tactical Officer (BTO), Colonel (COL) D, regarding the basis for his separation. Upon revealing additional information that was not documented and the BTO was unaware of, the BTO stated had he known it he would have placed him (the applicant) on MLOA to heal physically, emotionally, and spiritually. His father requested answers to his concerns regarding the use of diagnostic APFTs, his chronic medical condition, the award of the failing grade prior to him appearing in front of the board, and the need for his medical/dental records. COL D agreed to follow-up on the concerns but to date none of his concerns have been addressed with regard to regulatory or legal basis. y. After 9 weeks of waiting, his medical records arrived in the mail. At this point all medical care was paid out of pocket by his family and he was cleared for full activity with no limitations. On 22 April 2013, the applicant sent a letter to the USMA superintendent requesting retroactive MLOA and reinstatement based on the highly suspect basis used for awarding failures in MD. In June 2013, after receiving no response, a senior Army official interceded on his behalf. z. In June 2013, the USMA Chief of Staff (CoS) sent a reply that did not address his points for reinstatement and just summarized the academic separation board memorandum and made him an offer to reapply; he was told to await directions. The CoS agreed in principal that had the APFT failure and medical condition been resolved, he would never have appeared in front of the academic board and, had all things remained the same, he would have been reconditioned for leadership and judgment failure for the Spice incident with CDT AM. He received an email directing the steps for readmission as an out of cycle admission and was directed to contact the brigade surgeon for post-surgery medical assessment. aa. On 2 July 2013, he contacted admissions and began to receive a list of actions to complete. He spoke with the brigade surgeon and was assessed to be making enough progress to order a Department of Defense Medical Examination Review Board (DODMERB) physical. On 12 July 2013, the DODMERB physical and Candidate Fitness Assessment (CFA) were both taken. His surgery occurred on active duty and his medical condition, although resolved with no limitations, would require a medical waiver by the admissions superintendent; however, it was not used. bb. On 17 July 2013, USMA officials notified him he was denied readmission. Over the course of a week he received three different reasons: (1) Director of Admissions - no record of academic remediation at another university. (2) Admissions Office - letter mailed indicating not qualified for medical conditions stated "None." (3) USMA CoS - other disciplinary issues, not specified. There was no record of counseling or other source document; perhaps this was the 22 October 2012 incident but no specification of the disciplinary issue was made. cc. On 24 July 2013, he was introduced to the Executive Officer (XO), ASA (M&RA), and was informed the Army G-1 had elevated the appeal of his separation to the ASA (M&RA) level. On 26 July 2013, his father met with Brigadier General (BG) M (Retired), the former USMA Social Sciences department head and member of the USMA Academic Board that reviewed his case in January 2013. Information was provided as to his concerns with the basis for his separation. BG M recalled none of it and could not disclose proceedings of the board. Many times he put his head in his hands and shook it back and forth. His father interpreted this as disbelief of what he was being told and later he indicated that he (the applicant) was not the first to be "consumed by process and separated." dd. On 26 August 2013, he was notified that an Army Regulation (AR) 15-6 (Procedures for IOs and Board of Officers) investigation was being conducted for the recoupment of education costs. On 9 October 2013, he received an AR 15-6 decision and recommendation to seek full recoupment of educational costs as he violated his agreement and was separated for misconduct. He addressed this unfair act with the USMA Staff Judge Advocate (SJA). On 25 October 2013, his father received a letter from the USMA Superintendent stating that per his direction a commander's inquiry (CI) and inspector general (IG) investigation were conducted into his and his father's concerns. The findings concurred with the separation action taken and he was not recommending recoupment; however, the final decision rested with the ASA (M&RA). ee. His father replied to the USMA Superintendent and stated he remained concerned that the primary questions for the basis of his separation and concerns surrounding the impact of a chronic medical condition had not been addressed. His father also asked if the inquiry was fair then why had he (the applicant) not been contacted by the IO or IG. His father followed up with another email in November 2013 when he did not receive a response. ff. On 4 December 2013, he received a letter that stated upon review of the entire AR 15-6 case file by advisors and lawyers providing assistance to him, the file revealed a violation of Article 31 rights and lack of due process to protected communications and reprisal taken in the form of administrative separation based on information illegally obtained during questioning on 24 October 2012. At the time, he was under the impression that MAJ JB could question him even though he previously invoked his right for a lawyer and to remain silent. gg. On 23 December 2013, the ASA (M&RA) signed the decision to separate him based on a second semester MD failure and overall failing QPA. He did not receive notification until February 2014. The failures associated with the diagnostic APFT were not considered but no relief was granted for them being waived. Oddly enough, even with all the legal reviews, no finding of the Article 31 rights violation was made even though it was brought to the attention of the ASA (M&RA) office. hh. In 2014, he subsequently had an office call with the XO and the Deputy, ASA (M&RA). A Congressional inquiry was submitted and an inquiry was initiated with the USMA Superintendent and Army Secretary. An IG complaint was initiated through the DOD Hotline and points were to be investigated were discussed with the DODIG point of contact. The DODIG found no reason to investigate and passed the information to the Department of the Army (DA) IG; however, no action was taken. In August 2014, the Congressional response was to direct his concerns to the ABCMR. In September 2014, based on a second Congressional inquiry request, he was again told to direct his concerns to the ABCMR. ii. On 21 January 2015, he submitted a complaint of reprisal to the DODIG for the violation of protected communications he was not afforded under the violation of his Article 31 rights on 24 October 2012 by MAJ JB and SFC RA. On 4 March 2015, he received a response from the DODIG that the reprisal claim could not be reviewed due to lack of timeliness of the complaint and directed relief through the ABCMR. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) * Honorable Discharge Certificate * Information Paper, dated 7 February 2016 * four orders, dated between 17 January 2013 and 6 February 2014 * six pages of personal records * 15 memoranda, dated between 18 October 2011 and 23 December 2013 * a draft memorandum, dated 29 December 2012 * 24 letters, one undated and 15 dated between 25 January 2013 and 3 November 2014 * USMA Form 2-3 (Record of Formal Proceedings Under Article 10, Cadet Disciplinary Code (CDC)) * two DA Forms 3881 (Rights Warning Procedure/Waiver Certificate) * two DA Forms 2823 (Sworn Statement) * DA Form 1574 (Report of Proceedings by IO/Board of Officers, dated 1 October 2013 * six DA Forms 4856 (Developmental Counseling Form), dated between 14 August 2012 and 14 January 2013 * DD Form 785 (Record of Disenrollment from Officer Candidate-Type Training) * 38 pages related to DODIG Hotline complaints filed by the applicant and/or the applicant's father * 252 pages of emails, dated between 4 August 2012 and 23 July 2014 * 206 pages of various medical records, dated between 26 August 2005 and 2 January 2014 * 35 pages of a U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI), dated between 22 October 2012 and 25 January 2013 * 27 pages documenting meetings/conversations between various military and civilian leaders and the applicant and/or the applicant's father * 11 pages from AR 600-100 (Army Leadership) * nine pages from AR 350-1 (Army Training and Leader Development) * one page from Field Manual 21-20 (Physical Fitness Training) * seven pages titled Army Physical Fitness Training Program * three pages titled Title 10, U. S. Code (USC), section 3583 (Requirement of exemplary conduct) * four pages titled Synopsis of Policy, Regulatory, and UCMJ Code Violations * two pages titled Counseling Sample for Diagnostic APFT Failure * three pages titled UCMJ, Article 31 Compulsory Self-Incrimination Prohibited * 13 pages titled Compartment Syndrome * a page titled Helpful Hints for Former Cadets * a page titled Former Cadet Application Checklist CONSIDERATION OF EVIDENCE: 1. The applicant's Official Military Personnel File (OMPF) contains only his DD Form 214, DD Form 215, and separation orders. However, the applicant provided sufficient documents to conduct a fair and impartial review of this case. 2. On 28 June 2010, the applicant was appointed as a cadet, USMA, West Point. The highest rank/grade he held was specialist (SPC)/E-4. On 6 May 2011, he was seen at the Physical Therapy Clinic, West Point, for a complaint of problems with his legs and was subsequently diagnosed with compartment syndrome, non-traumatic leg anterior. He was prescribed potassium and amoxicillin, instructed to modify his running form, and to follow-up as needed with the clinic. He was released with no duty limitations and no profile. 3. On 27 August 2012, he was counseled by MAJ JB for the MD F he received in summer training for failing his initial APFT (emphasis added). The DA Form 4856, dated 27 August 2012, also stated that additionally, he failed a second APFT offered to remediate the first APFT and shows MAJ JB stated: a. He was flagged and his privileges would be reduced until he demonstrated he could pass his record APFT with a C or better, maintain a C or better on any diagnostic APFT, maintain satisfactory academic grades, and perform well in his military duties. Any downward trend or a second point of failure in any pillar could result in separation from the USMA. b. He would take a diagnostic APFT on 30 August 2012 and a record APFT on 24 September 2012. Should he fail the record APFT, he would have 90 days and be retested. Should he fail twice, he would be administratively separated. c. The plan of action was for him to take the diagnostic APFT to determine his level of performance, to pass the record APFT with a minimum goal of 14:30 or faster on his run time, pursue high standards, and to maintain satisfactory academic standing. d. The applicant signed this form on 27 August 2012 and checked the block of the form to indicate that he agreed with counseling. 4. On 9 October 2012, he was counseled by SFC RA for his poor academic performance. The DA Form 4856, dated 9 October 2012, shows SFC RA stated: a. His performance during that term had not met the TAC team expectations. He was currently failing four classes (he received an F in each) and the situation was extremely concerning since he also earned an MD F for his summer detail. He must know that separation would be considered when cadets received two points of failure. b. The plan of action was for him to schedule additional instruction, schedule an appointment with the Center for Enhanced Performance, identify the company tutor for assistance, and he was restricted from pass privileges until he demonstrated satisfactory performance in all his classes. c. The applicant signed this form on 9 October 2012 and checked the block of the form to indicate that he agreed with counseling. 5. On 11 October 2012, a DD Form 785 was initiated to disenroll the applicant from the USMA based on his academic deficiency. 6. On 22 October 2012, the applicant was discovered in the room of CDT AM with the door locked when a TAC smelled smoke. An investigation was conducted by CID and they found Spice and drug paraphernalia in the CDT AM's room and drug paraphernalia in the applicant's backpack. 7. A DA Form 3881, dated 23 October 2012, shows: a. The applicant was advised on that date by an investigator with CID that he wanted to question him reference the wrongful use, possession, and distribution of a controlled substance. The form states it was made clear to the applicant that he had the right to: * not have to answer any questions or say anything * anything he did say or do could be held against him in a criminal trial * he had the right to talk privately to a lawyer, before, during and after questioning * if he was willing to discuss the offenses under investigation, with or without a lawyer present, he had the right to stop answering questions at any time even if he signed the waiver below b. The applicant signed the form on 23 October 2012 and checked the blocks of the form to indicate he wanted a lawyer and did not want to be questioned or say anything. 8. On 23 October 2012, in a sworn statement, CDT II stated he knew that CDT AM and presumably the applicant were using the illegal substance (Spice) throughout the semester. He never saw the substance itself or the use of the substance in person but he had confirmation from the applicant that he abused illegal substances. At times when he returned to his room, a distinct odor was in the air, the fan was on, and his [roommate] did not seem normal. He did not have the personal courage to turn him in and instead would confront and argue with him in hopes he would change his behavior. 9. A DA Form 3881, dated 24 October 2012, shows: a. The applicant was advised on that date by MAJ JB that he wanted to question him about the following offenses he was suspected or accused of - his possibly using Spice in the barracks or knowledge of others using Spice. The form states it was made clear to the applicant that he had the right to: * not have to answer any questions or say anything * anything he did say or do could be held against him in a criminal trial * he had the right to talk privately to a lawyer, before, during and after questioning * if he was willing to discuss the offenses under investigation, with or without a lawyer present, he had the right to stop answering questions at any time even if he signed the waiver below b. The applicant signed the form on 24 October 2012 under Section B (Waiver) that stated he understood his rights as stated above. He was now willing to discuss the offenses under investigation and make a statement without talking to his lawyer first and without having a witness present with him. 10. On 24 October 2012, in a sworn statement, the applicant stated he was not smoking Spice in CDT AM's room; he was there saying goodbye as CDT AM was outprocessing. He did observe CDT AM using Spice and in the past month had been aware of him using drugs on about 10 occasions. The only other person he was aware of that had used Spice was the former CDT CC. 11. On 24 October 2012, by memorandum, MAJ JB requested the Commander of Cadets conduct an misconduct investigation of the applicant for being found in CDT AM's locked room. Upon investigation by CID, quantities of Spice and paraphernalia were found. The applicant denied using Spice but admitted to seeing CDT AM using Spice that day and at least 10 other occasions. Such use was a violation of the UCMJ and the behavior was inconsistent with Army Values. Failure to address or correct such behavior was a gross dereliction of duty. The applicant had only minor pervious disciplinary actions and was currently deficient in all three pillars and received and MD F during summer training. 12. On 6 November 2012, he was seen at the Orthopedic Clinic, West Point, for a compliant of leg pain down the left leg while running with some numbness at the end of a run that resolved within minutes. The examining physician discussed conservative treatment versus surgical intervention. The applicant opted for surgery to be scheduled for the January to February 2013 time-frame. 13.. On 6 December 2012, the applicant was notified by Lieutenant Colonel (LTC) NM, the BTO was considering whether he should be punished under Article 10, CDC, for one specification each of failure to comply with a regulation, orders, or instructions; unsatisfactory behavior; and error in judgment. 14. On 9 January 2013, he underwent a left leg compartment syndrome repair at KACH, West Point, and incisions were made on his left leg to release the muscle compartments. 15. On 14 January 2013, the USMA Academic Board found the applicant deficient academically and recommended he be separated from USMA. On 16 January 2013, he acknowledged the board's findings and recommendation. On 22 January 2013, he requested reconsideration by the board. The USMA dean subsequently approved the board's fining and recommendation. 16. Order 017-2, dated 17 January 2013, issued by Headquarters (HQ), USCC, released the applicant from active duty as a cadet effective 11 February 2013 and transferred him to the U.S. Army Reserve (USAR). 17. USMA Form 2-3, dated 30 January 2013, shows on that date a hearing was held under Article 10, CDC, for the applicant's failure to comply with a regulation, orders, or instructions; unsatisfactory behavior; and error in judgment. He did not request a person to speak on his behalf and did not present any matters, in defense, mitigation, and/or extenuation. The punishment imposed was 100 hours of extra duty, 60 days restriction, reduction to the rank/grade of private first class (PFC)/E-3, and command referral to the Army Substance Abuse Program (ASAP). The applicant signed this form on 30 January 2013 and checked to block of the form to indicate he did not wish to appeal the punishment imposed. 18. He was honorably released from active duty on 11 February 2013 in the rank of PFC and he was transferred to the USAR. The DD Form 214 he was issued shows the narrative reason for his separation as academic. He subsequently appealed the separation action through the USMA and various other avenues. 19. In a memorandum, dated 23 October 2013, the SJA, USMA, stated a legal review of the applicant's separation found, in part: a. In addition to being found deficient by the Academic Board, the applicant was a consistently poor performer in all three pillars. In his last grey book evaluation, dated 4 January 2013, his TAC recommended he be separated because his leadership was well-below average. The TAC wrote that he failed in his leadership responsibilities as a noncommissioned officer (NCO) in the Corps by failing to correct or report known violations of ARs and failing to seek help for a fellow cadet. A CID investigation found he was with a fellow cadet who was smoking spice and he failed to report it. For this misconduct, the applicant received a brigade-level Article 10 under the CDC. b. The applicant was struggling in all three pillars even before the misconduct that is referenced above. In an evaluation made by his TAC on 21 August 2012, he was rated as a weak retain and was placed on a conditional status. c. On 7 February 2013, LTG H, USMA Superintendent, signed a memorandum separating the applicant from USMA and transferring him to the Individual Ready Reserve (IRR) for 2 years. On 7 February 2013, the ASA (M&RA) was the appropriate separation authority for first and second class cadets. Accordingly, this action is necessary to request the ASA (M&RA) separate the applicant. 20. On 23 December 2013, the Acting ASA (M&RA) approved the applicant's separation for military deficiency in MD 301 and MPSC and directed the issuance of an Honorable Discharge Certificate. 21. On 7 February 2014, a DD Form 215 was issued that corrected the applicant's DD Form 214 to show he was released from active duty on 23 December 2013. 22. In the processing of this case an advisory opinion, dated 9 September 2015, was received from the Chief, Officer Accessions Branch, Officer of the Deputy Chief of Staff, G-1, recommending the applicant not be granted the requested relief. The advisory official opined that: a. The Acting ASA (M&RA) separated the applicant from USMA in December 2013, for military deficiency in MD 301 (Second Class Military Performance I) and MPSC. The applicant asserted that under the provisions of Title 10, USC, section 1552, his separation was unjust and was partly based on his physical program deficiencies and medical concerns. However, his separation was solely based on his MD 301 failure and his MPSC which was below 2.00. His MD 300 failure was not considered as the basis for his separation. b. In December 2012, the applicant received an F in MD 301 based on his failure to report another cadet's Spice use and his failure to seek help for a fellow cadet whom he confessed was depressed and suicidal. He waived his right under Article 31b, UCMJ, and rendered a written sworn statement admitting to these actions. In addition to the MD 301 F grade, his MPSC was 1.57 at the conclusion of the fall 2012 term. c. In accordance with AR 210-26 (USMA) cadets who fail to meet the requirements of the academic, military, or physical program may be separated from USMA. The USMA Academic Board found the applicant's performance and circumstances merited separation. Accordingly, the applicant was separated based on his military performance. 23. In a response to the advisory opinion, dated 10 October 2015, the applicant stated, in part: a. His first major concern was the misuse of a diagnostic APFT when he received an F in MD 300 in July 2012, the illegal flagging action in August 2012, and the adverse administrative action in the form of separation in December 2012 based on a cumulative MPSC failure of which the MD 300 score contributed 15 percent. The ASA (M&RA) set aside the MD 300 leadership grade but no explanation or relief was provided for the illegal flagging action for a non-record APFT. b. His second major concern was the investigation of the alleged Spice incident on 22 October 2012. On 23 October 2012, he invoked his rights with CID to have counsel and not be questioned further; however, on 24 October 2012, MAJ JB began to discuss the same incident for which he invoked his rights and he was never afforded counsel. MAJ JB used the power of his office and authority to influence him to speak of the incident after invoking his rights with CID. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his separation from the USMA should be voided and he should be reinstated as cadet as adverse action was taken against him in August 2012 based on a diagnostic APFT and his right to remain silent was violated by MAJ JB on 24 October 2012. 2. The evidence of record, provided by the applicant himself, confirms he was counseled on 27 August 2012 for receiving an MD F in summer training for failing his initial APFT and that he also failed a second APFT. The counseling stated his privileges would be reduced until he demonstrated he could pass his record APFT with a C or better, maintain a C or better on any diagnostic APFT, maintain satisfactory academic grades, and perform well in his military duties. There is no evidence that shows any adverse action was ever taken against him for failing a diagnostic APFT. 3. Although he may have invoked his right to remain silent when CID requested he answer questions on 23 October 2012, the DA Form 3881 the applicant provided clearly shows that on 24 October 2012, when MAJ JB stated he wanted to question him, he stated he understood he had the right not to not have to answer questions and he waived those rights and chose to submit a sworn statement admitting he failed to report another cadet's use of Spice. There is no evidence that shows his rights were violated. 4. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable performance and academic standards required of cadets as evidenced by his failure to report another cadet's drug usage and sub-standard MPSC. Accordingly, separation action was initiated against him. 5. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The separation directed and the reason for his separation were appropriate considering all the facts of the case. There was no error or injustice. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ __X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150005489 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005489 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1