BOARD DATE: 9 March 2017 DOCKET NUMBER: AR20150015080 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ____x____ ____x_ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 9 March 2017 DOCKET NUMBER: AR20150015080 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 9 March 2017 DOCKET NUMBER: AR20150015080 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, in effect, a waiver of her Reserve Officers' Training Corps (ROTC) scholarship debt. 2. The applicant states it was stated that she was disenrolled from the ROTC for failure to maintain academic standards. However, she voluntarily disenrolled after receiving a serious injury while attending a joint field training exercise for the Kennesaw State ROTC. She informed her company commander of this injury and nothing was done in an attempt to accommodate her. She underwent weekly doctor visits and physical therapy in an attempt to correct the injury. Her academics were in good standing when she resigned from ROTC. Had she not suffered this injury she believes she would have been very successful in her ROTC career. She is currently working through this injury. She has been responsible for all medical bills as a result of the injury. She believes that because the injury was the result of an ROTC event, she should not be responsible for any monies due. 3. In a subsequent letter to her member of congress, she states she received notification from a collection agency that she has a debt to the U.S. Treasury. She was informed her wages could be garnished if she did not repay the debt. She states she never received an initial demand letter or an intent to garnish wages letter. She has tried to work with the U.S. Treasury who stated they do not send notifications by certified mail. Their records show letters were sent to her. In addition, she states she never signed disenrollment paperwork for the ROTC program. She is confused as to how she can be charged for a program she never officially disenrolled from. 4. The applicant provides 21 pages of medical documentation from Pinnacle Orthopedics and Sports Medicine Specialists. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the ROTC Program on 28 October 2010. She executed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) for scholarship benefits for 4 academic years. a. Part II (Agreement of Scholarship Cadet Contracting in the Senior ROTC Program) paragraph 2f (General Cadet Agreement – Medical and Physical Fitness Standards) states the applicant agreed to meet and maintain the Army Physical Fitness Test (APFT) standards and the screening weight or body fat percentage required by the Army Weight Control Program. These will be continuous requirements. The applicant indicated she understood failure to maintain the weight and physical fitness requirements may subject her to disenrollment from the ROTC program. b. Part II, paragraph 5 (Terms of Disenrollment) states that if the individual was disenrolled for breach of contractual terms or any other disenrollment criteria, the individual could be ordered to active duty or be required to reimburse the U.S. Government through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid for their advanced education. 2. On 7 February 2012, as a Military Science III cadet, she received counseling for her failure to pass the APFT and meet height/weight standards. This counseling was documented on a DA Form 4856 (Development Counseling Form) which she acknowledged in writing. She was advised that as a scholarship recipient she was required to maintain a passing score on her APFT. In addition, she was informed that all funds would remain suspended until she obtained a passing score to fulfill her scholarship obligations. As she did not meet standards she was told she would participated in the special fitness program and would be placed on probation. The counseling concluded by informing her that disenrollment proceedings could be initiated if she did not comply with established standards. 3. On 13 April 2012, she failed the APFT and did not meet established height/weight standards. On this specific date, she failed the push-up event and she was over the authorized body fat standard by 5 percent. 4. She provided medical documentation from Pinnacle Orthopedics and Sports Medicine Specialists, dated between 22 August and 13 September 2012, stating she was receiving treatment for left knee pain that began in April 2012 as a result of an athletic/recreational injury. Her primary diagnosis was patellofemoral syndrome. The pain began when she was participating in ROTC training where she had to carry 60 pound bags requiring a lot of transitions from kneeling to standing, prolonged walking and standing with weighted packs on her back. The applicant complained of chronic pain that was worse when ascending stairs. She is required to run 5 days a week for the ROTC program and on the weekends. She had also completed a marathon. Throughout the medical exams there was no apparent swelling of the knees. During her treatment she received cortisone injections, anti-inflammatory medications, physical therapy and electrical stimulation. Her medical doctor ordered a magnetic resonance imaging (MRI) because physical therapy appeared to minimally help her though these results are not available for the Board’s review. She was provided letters by her physical therapist releasing her from the running portion of physical fitness training. However, she was encouraged to walk on a treadmill at a fast pace with kinesio taping to support her knee. 5. She received the following counseling on/for: * 8 October 2012 – performance based counseling for failure to attend required physical fitness training events on 12, 17, and 24 September and 4 October 2012 * 10 October 2012, for failing to maintain weight control standards (her new body fat percentage had increased by 10 percent over the standard) * 13 December 2012 – record APFT failure (all events) on 12 December 2012 6. By memorandum, dated 7 February 2013, the applicant was advised ROTC leadership was considering initiating disenrollment proceedings for three consecutive APFT failures and failure to maintain Army height/weight control standards. The official stated there were no medical conditions preventing her participation in record APFTs nor was there medical evidence to support her inability to maintain weight control standards. She was advised she had 90 days from the date of her last AFPT failure to attain a passing score and that her failure to comply would result in formal disenrollment proceedings. 7. In a disenrollment of scholarship cadet from ROTC memorandum, dated 15 March 2013, the Professor of Military Science (PMS), advised the applicant of her disenrollment and discharge from the ROTC program under the provisions of Army Regulation (AR) 145-1 (Senior ROTC Program), paragraph 3-43a(16), based on her failure to maintain APFT standards and failure to meet height/ weight standards. The PMS further advised that he was placing the applicant on a leave of absence pending disenrollment effective 13 March 2013. He also advised the applicant of her rights and the amount of debt owed ($23,000). She had 10 working days to respond to the memorandum. If she failed to respond, disenrollment proceedings would continue and her lack of action would be considered a waiver of her rights to present matters regarding her indebtedness or disenrollment. This memorandum was mailed to her address of record in Douglasville, GA. 8. The applicant acknowledged the memorandum of disenrollment sent by certified mail on 23 March 2013 to her residence in Douglasville, GA. The U.S. Postal Service certified mail receipt tracking number ends in 4979. 9. On 10 October 2013 by memorandum, the PMS informed the applicant that a board of officers had been appointed to hear evidence and determine her suitability for retention in the Army ROTC Program. Her hearing date was set for 30 March 2013 at 1000 hours. She was advised she could seek the assistance of counsel and that she must keep the PMS informed of her current mailing address and telephone number. She was advised the following specific matters would be investigated. a. Whether she entered into a valid Army Senior ROTC Cadet Contract (DA Form 597-3), on her own volition. b. Whether there were grounds for her disenrollment based on AFPT failures and failure to maintain height/weight standards as prescribed by regulation. c. Whether she should repay her debt to the U.S. Government of $23,600 or be ordered to active duty as an enlisted Soldier. d. Whether her behavior qualifies for misconduct under Title 10, U.S. Code, section 2005(a)(3) warranting recoupment of financial assistance. 10. The aforementioned memorandum and allied documents were mailed to the applicant's Douglasville, GA address by certified mail. The U.S. Postal Service returned the memorandum and allied documents because it was not claimed. The certified receipt number ends in 4603. 11. On 30 October 2013, a board of officers convened under the provisions of AR 15-6 (Procedures for Administrative Investigations and Boards of Officers) without the applicant's physical appearance and found the applicant: (1) Did enter into a valid Army Senior ROTC scholarship contract. (2) Did receive educational assistance in the form of ROTC scholarship monies from the U.S. Government in the amount of $23,600. (3) Did voluntarily fail to complete the requirements of the ROTC Cadet Contract. (4) The board recommended the applicant not be retained in the ROTC as a scholarship cadet, she be disenrolled, she not be ordered to active duty, and that she be ordered to repay all of her valid debts to the U.S. Government received in the form of scholarship benefits in the amount of $23,600. 12. By memorandum dated 28 February 2014, the applicant was afforded an opportunity to rebut the findings and recommendation of the board of officers. She was given 10 days to respond from receipt of the action. If she failed to respond, she was informed that the disenrollment packet would be forwarded to higher headquarters for further action. This memorandum was mailed to the applicant at her Douglasville, GA address by certified mail receipt ending in 5975. A women, not the applicant, signed for this memorandum. 13. By memorandum dated 20 May 2014, the PMS informed higher headquarters of the applicant's the disenrollment proceedings and the board’s recommendation to recoup the scholarship funds in the amount of $23,600. The PMS also completed Cadet Command Form 131-R (Cadet Action Request). 14. In a disenrollment recommendation memorandum, dated 10 December 2014, the applicant's brigade commander recommended approval of the board’s recommendation to disenroll her from the ROTC program. He stated the applicant attempted and failed three consecutive record APFT events and failed to meet height/weights standards by being over the authorized 30 percent body fat standard. He also stated that he supported the PMS and board's recommendation to disenroll the applicant and that she be required to repay her scholarship. The disenrollment packet was forwarded to the Commander, U.S. Army Cadet Command, a major general. 15. On 11 April 2015, the Commander, U.S. Army Cadet Command, directed the applicant's disenrollment from the ROTC program under the provisions of AR 145-1, paragraph 3-43a(16), for failure to maintain APFT standards and failure to meet height and weights standards. The major general informed the applicant by memorandum she had a valid debt and must repay it. The applicant was provided with options to pay the total amount immediately or defer payment. The applicant was informed she had 14 days to acknowledge receipt of the notification and that failure to respond by the established suspense date could result in the initiation of involuntary collection action. She was provided an address to submit a rebuttal or notification to dispute the debt. This memorandum was mailed to the applicant’s Douglasville, GA address of record. REFERENCES: 1. AR 145-1 prescribes policies and general procedures for administering the Army’s Senior ROTC Program. The cadet will not be discharged/disenrolled from ROTC until a determination has been received from Headquarters, Cadet Command. If it is determined that the cadet will be ordered to active duty, the cadet will not be discharged, but Headquarters, Cadet Command will issue orders ordering the cadet directly to active duty. a. Non-scholarship and scholarship cadets will be disenrolled for a breach of contract. Breach is defined as any act, performance, or nonperformance on the part of a student that breaches the terms of the contract regardless of whether the act, performance, or nonperformance was done with specific intent to breach the contract or whether the student knew that the act, performance, or nonperformance breaches the contract. b. A medical disqualification must be approved the Headquarters, Cadet Command. c. Terms for disenrollment include failure to meet the same requirements of the Army Weight Control Program and APFT as required by active duty Soldiers prior to the end of the last school term of the Military Science III year. d. Additional terms include inaptitude for military service as demonstrated by lack of general adaptability, skill hardiness, ability to learn, or leadership abilities. 2. Title 10, U.S. Code, section 2005(a), states that the Secretary concerned may require, as a condition to the Secretary providing advanced education assistance to any person, that such person enter into a written agreement under the terms of which such person shall agree: (1) to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement and (2) that if such person fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement. 3. Title 10, U.S. Code, section 2005(f), states that the Secretary concerned shall require, as a condition to the Secretary providing financial assistance under section 2107a (Financial Assistance Program for Specially Selected Members: Army Reserve and Army National Guard; i.e., ROTC) of this title to any person, that such person enter into an agreement described in subsection (a). In addition to the requirements of clauses (1) through (4) of such subsection, any agreement required by this subsection shall provide (1) that if such person fails to complete the education requirements, the Secretary shall have the option to order such person to reimburse the United States in the manner provided for without the Secretary first ordering such person to active duty as provided for under clause (2) of such subsection. DISCUSSION: 1. The evidence of record confirms the applicant was accepted into an Army ROTC Scholarship Program. She was a 4-year scholarship recipient and she fully understood and accepted the terms of her enrollment. 2. She agreed that if she were disenrolled from the ROTC program for any reason she would have to repay her scholarship debt or be ordered to active duty in the rank/grade of PV1/E-1 for an appropriate number of years. As she was found in breach of her ROTC contract, she was accordingly notified of her disenrollment from the program. A board of officers found that she voluntarily failed to complete requirements of her ROTC Cadet Contract and recommended her disenrollment. Her disenrollment was ultimately approved by the appropriate official. 3. She provides medical records indicating she received physical therapy treatment for patellofemoral syndrome of her left knee during a 6 week period in 2012. The physical therapist stated she provided letters excusing the applicant from the running portion of the APFT; however, she was encouraged to complete various exercises including walking on a treadmill at a fast pace to rehabilitate her knee. Her treatment included cortisone injections, anti-inflammatory medications, and electrical stimulation. There is no evidence in her record showing Headquarters, Cadet Command, considered medically disenrolling her from the ROTC program based on a medical disability incurred while conducting field or physical fitness training. 4. There is no evidence showing she was unjustly or erroneously disenrolled from the ROTC program. She was well aware that if she was disenrolled for breach of contract that recoupment of scholarship costs could occur. She stated in her letter to her member of Congress that she never received notification of the debt. Her record shows she was mailed several notifications by certified mail and she and another member of her household signed for at least two notifications. One notification was returned to her PMS because it went unclaimed. 5. Cancelling her debt – in effect, providing her a free education without having to become an officer or called to active duty as an enlisted Soldier – would be a windfall. Since her disenrollment from the ROTC program was due to her failure to maintain APFT standards and failure to meet height and weight standards, the law requires U.S. Government officials to recoup the monies expended due to breach of her contract. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015080 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015080 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2