ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 October 2019 DOCKET NUMBER: AR20160017941 APPLICANT REQUESTS: the following records be removed from her military records: * ROTC (Reserve Officer Training Course) disenrollment document * All indebtedness resulting from injustice * Requests an appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Advisory Opinion, dated 17 September 2019 * Attorney Letter to ABCMR * Attorney Exhibits FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states through her attorney that she requests that the disenrollment action from ROTC that occurred be expunged and that all indebtedness resulting from this injustice be voided and rescinded. She was removed from ROTC based on information that was entirely incorrect and the result of false assumptions. She was found by the board to be medically unsuitable for continued service based on an allegation that she failed to disclose the existence of asthma, but she did not nor did she ever have asthma and she should not have been removed from the program because of a "failure to disclose asthma" when she did not have asthma, nor did she ever have asthma. This entire situation was entirely from a misunderstanding concerning "asthma". She had tonsillitis, which manifested itself with symptoms similar to asthma, however no asthma existed, and her attached medical records confirm at the time of the dis-enrollment and at this current time that she did not have, nor did she ever have asthma. The entire dis-enrollment board was based on faulty assumptions as to a material fact concerning her medical condition. Since the dis-enrollment, she has been successfully treated for tonsillitis. She has no medical impairment and this new material evidence shows the original dis-enrollment was a grave injustice based on materially false information. She was removed from ROTC based on a complete misunderstanding of the situation by the dis-enrollment board. She should not have been dis-enrolled for failure to disclose the existence of a medical condition, as she disclosed everything she had to the best of my knowledge prior to signing up for ROTC. Additionally, she was a member of the Army Reserves before her selection into ROTC and she was medically cleared for entry into ROTC. At no time did she, as alleged, "fail to disclose" the existence of a medical condition. She was dis-enrolled for "asthma". However she does not have asthma, nor did she ever have asthma. One physician suspected that she might have had a condition with symptoms that manifested itself similar to asthma, but in reality her condition was related to her tonsillitis, and they have been removed, and she no longer has any medically disqualifying condition, nor does she have asthma. Therefore the dis- enrollment by ROTC was based on false assumptions and it was a grave error and a substantial injustice. The applicant requests and appearance before the Board. 3. The applicant provides the following documents through her attorney; * Exhibit 1, DD Form 149 along with Attorney letter stating that they are representing the applicant * Exhibit 2, Power of attorney, dated 19 August 2016 * Exhibit 3, Letter from Physician stating treatment for chronic throat problems, dated 16 March 2014; Letter from Physician, dated 20 March 2014 referral for chronic tonsillitis. * Exhibit 4 and 7, Orders 12-9-1, dated 3 September 2012, discharge from ROTC * Exhibit 5, Disenrollment from ROTC, dated 29 February 2012 * Exhibit 6, Cadet request for medical determination, dated 29 February 2012 * Exhibit 8, Acknowledgment of Disenrollment, dated 12 March 2012 * Exhibit 9, Sworn Declaration of Applicant, dated 28 September 2016 * Exhibit 10, Medical Documents, showing treatment for tonsillitis 4. A review of the applicant’s service record shows the following: a. She enlisted in the U.S Army Reserve (USAR) on 23 March 2010. b. Medical documents shows the applicant medical status on: * DA Form 2807-1 (Report of Medical History) 23 March 2010, Initial physical examination, no asthma noted * DA Form 2808 (Report of Medical Examination), dated 23 March 2010, no asthma noted * General Progress note, dated 8 May 2011, shows the applicant was having reoccurring symptoms of cough, and sore throat; diagnosis right and left tonsils, no asthma noted c. Her DD Form 214 (Certificate of Releases or Discharge from Active Duty) shows that she was released from active duty on 30 July 2010 with an honorable discharge. It also shows that she completed 4 months, and 1 day of active duty service. d. A Cadet Action Request, dated 29 February 2012, for medical determination provided by the Cadet Command Surgeon, determined that the applicant was medically disqualified for continuation in the ROTC program due to asthma, which precludes appointment as a commissioned officer. e. A memorandum, dated 29 February 2012, disenrolls the applicant from the ROTC program due to medical disqualification and breach of contract for failure to disclose a disqualifying medical condition. f. On 12 March 2012, the applicant acknowledged disenrollment from the ROTC program. g. Orders 12-9-1, dated 3 September 2012, show the applicant was discharged from the USAR effective 3 September 2012. h. Nose and Throat Center medical document, dated 16 March 2014 ,shows that the applicant was treated for chronic throat problems. She was diagnosed with astma-like symptoms prior to this. i. West Michigan Family medicine medical document, dated 20 March 2014, shows that the applicant was referred to ENT (Ears Nose and Throat), for chronic tonsillitis. j. Applicant Sworn Declaration, dated 28 September 2016, in effect, details the applicant’s service in the USAR and treatment for respiratory issues. Her doctor prescribed in inhaler to see if that would help her condition and it did not. She spoke with the ROTC cadre and she disclosed her entire diagnosed medical history. As time passed, her breathing difficulties continued. She was informed by an ENT doctor that her tonsils were rotten and believed that to be the cause of her breathing issues and recommended a tonsillectomy. She tried to appeal the ROTC disenrollment which caused financial hardship because it was her only means of income at the time. She lost the Army commission that she was working hard to obtain. The egregious disenrollment has cost her substantial more than money, but stability, peace, and prosperity. k. DA Form 4836, dated 7 March 2018, shows that the applicant extended her enlistment from 22 March 2018 to 22 March 2019. l. Orders D-07-917750, dated 23 July 2019, discharged the applicant from the USAR with an honorable character of service effective 23 July 2019. m. A medical advisory opinion, dated 19 September 2019, states that after careful review of this case, the Army Deputy Chief of Staff, G-1, recommend that Board approve the applicant’s request for relief. 5. USACC (U.S Army Cadet Command) Regulation 145-1 (Reserve Officer’s Training Corp – Army ROTC Incentives Policy) states that medical qualification: a. Scholarship applicants must successfully pass a medical examination reviewed by the Department of Defense Medical Examination Review Board (DODMERB) or be granted a medical waiver by HQCC (DOD Dir 1215.8). Procedures are outlined in Appendix A, reference R (located on DODMERB document site (https://dodmerb.tricare.osd.mil/default.asp). Students may be contracted after two consecutive days of qualified status on the DODMERB website. b. Applicants should have completed the entire physical process within six months of their initial physical. If after six months, the Cadet is not qualified, the professor of military science (PMS) may extend the medical determination for 30 days. Holding a scholarship after the seven-month period requires approval by HQ USACC. High school applicants who arrive on campus not already medically qualified must be screened. 6. USACC 145-1 states that to be medically disqualified a student with a known disqualifying medical defect, unless proper authority has approved a medical waiver. 7. DOD 7000.14-R (Department of Defense Financial Management Regulation) states that if a member under a written agreement for a pay or benefit incurs an injury or illness, through no misconduct of the member, that precludes the member from fulfilling the service conditions specified in the written agreement and the member is separated, other than [for disability], for medical reasons as a result of an injury or illness then repayment of the unearned portion of the pay or benefit will not be sought, unless the Secretary of the Military Department concerned determines that repayment of the unearned portion is appropriate due to a personnel policy or management objective, equity or good conscience, or it is in the best interest of the United States. Department of Defense Financial Management Regulation 7000.14- R, Volume 7A, Chapter 2, Rule 3, Emphasis added. 8. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s and her counsel’s contentions, and the advisory opinion were carefully considered. The Board determined the evidence shows she was diagnosed/treated for asthma prior to entering ROTC; however, she did not disclose that information. The asthma diagnosis would have precluded her from entering the ROTC program. Notwithstanding the advisory opinion, the Board agreed the applicant’s “past medical history” was pertinent to the disenrollment and not the subsequent medical diagnosis/treatments received while in ROTC. The Board also determined her service in the USAR is not equivalent to the 4 years of active Army service she would have been required to perform (if approved) to relive the debt. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 1/14/2020 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. USACC (U.S Army Cadet Command) Regulation 145-1 (Reserve Officer’s Training Corp – Army ROTC Incentives Policy) states that medical qualification: a. Scholarship applicants must successfully pass a medical examination reviewed by the Department of Defense Medical Examination Review Board (DODMERB) or be granted a medical waiver by HQCC (DOD Dir 1215.8). Procedures are outlined in Appendix A, reference R (located on DODMERB document site (https://dodmerb.tricare.osd.mil/default.asp). Students may be contracted after two consecutive days of qualified status on the DODMERB website. b. Applicants should have completed the entire physical process within six months of their initial physical. If after six months, the Cadet is not qualified, the professor of military science (PMS) may extend the medical determination for 30 days. Holding a scholarship after the seven-month period requires approval by HQ USACC. High school applicants who arrive on campus not already medically qualified must be screened. 3. USACC 145-1 states that to be medically disqualified a student with a known disqualifying medical defect, unless proper authority has approved a medical waiver. 4. DOD 7000.14-R (Department of Defense Financial Management Regulation) states that if a member under a written agreement for a pay or benefit incurs an injury or illness, through no misconduct of the member, that precludes the member from fulfilling the service conditions specified in the written agreement and the member is separated, other than [for disability], for medical reasons as a result of an injury or illness then repayment of the unearned portion of the pay or benefit will not be sought, unless the Secretary of the Military Department concerned determines that repayment of the unearned portion is appropriate due to a personnel policy or management objective, equity or good conscience, or it is in the best interest of the United States. Department of Defense Financial Management Regulation 7000.14- R, Volume 7A, Chapter 2, Rule 3, Emphasis added. 5. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. //NOTHING FOLLOWS//