ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 16 April 2019 DOCKET NUMBER: AR20160019309 APPLICANT REQUESTS: Vacation of the Defense Finance and Accounting Service (DFAS) and Army debt for educational benefits received from the U.S. Military Academy (USMA). APPLICANT'S SUPPORTING DOCUMENTS SUBMIITED BY COUNSEL CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * USMA Prep School (USMAPS) letter * USMAPS acceptance letter * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 June 2002 * USMA Form 2-50 (Cadet Observation Report), dated 22 April 2003 * Demerit review, dated 4 November 2003 * DA Form 2823 (Sworn Statement), dated 3 November 2003 * USMA Form 2-50, dated 18 October 2003 * USMA Form 2-3 (Record of Formal Proceedings Under Article 10, Cadet Disciplinary Code), dated 19 November 2003 * Memorandum, Subject: Disciplinary Award Number 72 for the applicant, dated 25 November 2003 * USMA Form 2-3, dated 26 March 2004 * Memorandum, Subject: Disciplinary Award Number 200, dated 12 April 2004 * Memorandum, Subject: Initiation of Special Leader Development Program, dated 23 March 2004 * Memorandum, Subject: Commandant Recommendation in Misconduct Investigation of the applicant, dated 13 September 2004 * Memorandum, Subject: Commandant’s Final Action in the Misconduct Investigation of the applicant, dated 21 September 2004 * Memorandum, Subject: Conduct Probation in Lieu of Conduct Investigation, dated 27 September 2004 * Memorandum, Subject: Deficient in Conduct: Conduct Probation in Lieu of Conduct Investigation, dated 5 October 2004 * Memorandum, Subject: Disciplinary Award Number 236, dated 2 June 2005 * USMA Form 2-3, dated 26 May 2005 * Cadet Observation Report, dated 24 May 2005 * Memorandum, Subject: Request for Active Duty in Lieu of Recoupment, dated 22 June 2005 * Memorandum, Subject: Separation of the applicant, USMA Class of 2006, dated 8 September 2005 * Orders Number 252-11, dated 9 September 2005 * Memorandum, Subject: Dispute Validity of Debt, dated 1 September 2005 * Self-authored letter to Major B- F-, dated 28 September 2005 * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) and allied documents, dated 4 October 2005 * Email, dated 23 August 2006 * USMA letter to the applicant, dated 23 August 2006 * USMA letter to the applicant, dated 6 February 2007 * DD Form 214, dated 8 September 2005 * University of Texas at San Antonio transcripts, dated 10 January 2008 * DA Form 71 ( Oath of Office – Military Personnel) * Officer Record Brief (ORB) * Leave and Earnings Statement * Spouses letter 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 counsel: a. On 6 April 2001 the Applicant was accepted into the USMAPS. The Applicant accepted this invitation and agreed to enlist in the U.S. Army Reserve (USAR) for a period of eight years of active duty. The Applicant completed 1 year with the USMAPS and was discharged honorably on 30 June 2002 so he could enter the USMA. b. The Applicant entered the USMA and excelled during his first year as a cadet. He received negative cadet observation reports in April 2003 for minor incidents - not putting bread on a table and for not sitting at his assigned lunch table. As a result, he received the minor punishment of five demerits. c. While attending the USMA, he was a member of the rugby team. As part of the rugby team, he would often travel to other schools for matches. In October 2003 he and his teammates were at Dartmouth College for a rugby match. Following the match, he and several teammates attending a local party at Dartmouth College and consumed alcohol while underage. While checking on one of his teammates, he was approached by local authorities and questioned as to whether he had been drinking alcohol. He admitted he had been drinking, and was administered a breathalyzer test and registered a .18 Blood Alcohol Content (BAC). Resultantly, he received an Article 10 on 4 November 2003 and received 35 demerits, 56 extra duty hours, 45 days of restriction, and a reduction in rank to private. d. He received a second Article 10 on 26 March 2004. He was found guilty of consuming alcohol while underage at the Back Fence Bar in New York City on or about 20-22 August 2003. As a result, he received 40 hours of extra duty and 40 days of restriction. He was placed in the Special Leader Development Program in order to identify his leadership issues and how to address them. Following the second Article 10, a misconduct investigation was commenced and ultimately recommended he not be discharged from the USMA. Instead, the recommended punishment was a suspended reduction in rank, 90 days of restriction, 120 days of deprivation of privileges, 35 demerits, and 120 hours of punishment/fatigue. This recommended punishment was approved on 21 September 2004. He was then placed on conduct probation on 27 September 2004 because of his two alcohol related Article 10’s. The probation period would remain in effect until 27 May 2006. He acknowledged this probationary period on 5 October 2004. e. On 14 May 2005, he was found operating a motor vehicle on post while under the influence of alcohol. He had a BAC of .13 at the time. Subsequently, he received 35 demerits, 120 hours of extra duty, 90 days of restriction, withdrawal of privileges for 120 days, and a reduction in rank. On 27 May 2005, he received a cadet observation report for missing breakfast morning formation. f. As a result of his latest misconduct, separation proceedings were initiated against him. On 22 June 2005, he requested that he be sent to the Regular Army to serve out his enlistment contract. He explained that he has always had a strong desire to serve his country and he believed he had a lot to offer to the Army. On 8 September 2005, Assistant Deputy Chief M- L- recommended he be separated from the USMA and receive a general, under honorable conditions discharge. He was subsequently discharged and an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was ordered to determine if he should have to pay back the amount of tuition he received while attending the USMA. g. He drafted a letter on 1 September 2005 disputing the validity of the debt against him. He argued that a formal 15-6 investigation should have been initiated rather than an informal 15-6. Further, he averred that the Investigation Officer (IO) could not be adequately unbiased because he directly served the appointing officer, the USMA Superintendent. He additionally argued that the first 2 years of his debt should be waived because cadets that separated from the USMA during their first 2 years were not required to pay back the tuition, so he also should not have to pay this debt. Lastly, he objected to the debt amount of $133,890.00 because he did not receive proper notice of how the debt was calculated. He submitted an additional response on 28 September 2005 in which he reaffirmed his previous contentions with the debt, and also explained that he was unaware of certain fees and costs for services such as the chaplain, corps support, and operations support. He further argued he should not be held liable for fees for buildings he did not use such as Cullum Hall, the rifle/pistol range, Holleder Center, Truxton Hall, Cadet Chapel, Benton Hall, and the ODIA Building. h. The IO submitted his AR 15-6 report on 4 October 2005. The IO ultimately found he was aware of the fees and costs levied against him, and he should be held liable for the recoupment amount proposed. On 1 November 2005, the USMA senior commander, requested that the Department of the Army direct he reimburse the Government for the cost of his education in the amount of $133,890.00. On 6 December 2005 Mr. M- L- directed the applicant reimburse the Government for the total amount proposed. The applicant received notice of this determination on or about 14 December 2005. i. He requested his file be reopened and he be allowed to reenter the USMA to complete his Army commitment on 23 August 2006. The USMA admissions office responded to him and requested he complete his application and submit the information no later than 1 February 2007. Unfortunately, he was unable to submit his packet in time before his case was closed. He ultimately served 3 years, 2 months, and 8 days at the USMA, not including the 11 months and 18 days at USMAPS. He was discharged on 8 September 2005 with a general, under honorable conditions discharge with the narrative reason for separation of "misconduct." j. In the instant case he has been the victim of a material error of law regarding the debt recoupment action. According to AR 612-205 (Personnel Processing – Appointment and Separation of Service Academy Attendees), table 3, a cadet that is separated after the commencement of his third academic year, but before commencement of the fourth academic year, will be transferred to the Reserve component for 2 years or may be ordered to active duty for not less than 2 years. After being discharged from the USMA, he received his Bachelor's degree from The University of Texas at San Antonio. Afterwards, he began his Army active duty service on 30 May 2008 and received his commission on 15 May 2009. He has served honorably and with distinction as an Army officer since this time and has now reached the rank of captain CPT). During his years of service, he has served in Germany for 36 months and in Afghanistan for 11 months. His stellar service is further evinced by the awards and decorations he has received during his Army career. These include: the Meritorious Service Medal; two Army Commendation Medals; Army Achievement Medal; Meritorious Unit Commendation; National Defense Service Medal; Global War on Terrorism Service Medal; Army Service Ribbon; Overseas Service Ribbon; North Atlantic Treaty Organization Medal; Air Assault Badge; Combat Action Badge; Expert Field Medical Badge; and Parachutist Badge. k. Despite not being ordered to active duty immediately upon his discharge from the USMA, he has more than fulfilled his service obligation to the U.S. Army at this point. He has continuously served on active duty since May 2008 and has done so honorably. The intent of AR 612-205 is to ensure the Army receives a proper return-on investment for cadets that are separated from the USMA during their third academic year. He has undeniably provided the Army with a complete return-on-investment, which is demonstrated by a thorough evaluation of his military service in the past eight years. As such, he has completed his obligation to the U.S. Army and the current debt that remains should be voided and he should be refunded the total amount that he has had to pay back to the U.S. Government stemming from his attendance at the USMA. l. He has also been the victim of a material injustice regarding the debt recoupment at issue. Upon his discharge from the USMA, he owed a total of $133,890.00. Including interest charges, this amount has ballooned to over $200,000.00 currently. The amount he is supposed to pay is $3,944.04 each month. This amount is obviously unpayable on an Army CPT’s salary. He currently has $781.06 deducted from his pay each month that goes toward the debt he owes from his time as a USMA cadet. To continue to penalize him after more than 8 years of active duty service is a prima facie example of an unjust act. He is a family man and is responsible for providing for his wife, and their 18-month old son. The debt recoupment has placed an inequitable financial burden on him and significantly impacts the way that he can provide for his young family. At the current rate, he will have a significant portion of his pay deducted every month for this debt for his entire life. This debt recoupment action has negatively- impacted his quality of life, ability to care for his family, and ability to secure financing for any other needs that may arise in the future. He has been disparately punished regarding this debt, and this punishment will continue into the future, indefinitely. Thus, he now seeks relief from the Board so that he may gain control of his financial future and be given the chance to provide for his family without this massive amount of debt constantly hanging over his head. 3. A review of the applicant’s service record shows the following on: * 1 July 2002 – Orders Number 182-114, issued by Headquarters, USMA, West Point, NY, released the applicant from active duty and reassigned him to the USAR Control Group (Reinforcement), he was currently serving as a cadet at the USMA * his record is void of documentation of proceedings leading to his separation from the USMA * 18 May 2009 – Accepted a commission as a Medical Corps Officer in the Regular Army * 9 June 2009 – the University of Texas at San Antonio conferred a Bachelor’s of Business Administration upon the applicant * DA Form 67-9 (Officer Evaluation Report) indicating he was appointed as a commissioned officer on or about 12 May 2009 4. The applicant provides documents previously summarized by counsel in the record of proceedings. 5. On 11 March 2019, the Office of the Deputy Chief of Staff, G-1 reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Deputy, Compensation and Entitlements Division opined that, based on the information provided, the amount of the debt collected while the applicant was on active duty should be credited back to him, because the terms of his service agreement did allow him to serve on active duty in lieu of repaying his advance education expenses. The applicant did fulfill an active duty requirement, even though the active duty commitment did not begin immediately after being separated from the USMA. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. The applicant through counsel in effect agreed with the G-1 advisory opinion. 7. AR 210-26 (U.S. Military Academy) provides policy and procedures for the general governance and operation of the USMA. a. Paragraph 3-14 states cadets will sign a service agreement to complete the course of instruction and to serve in the United States Army in accordance with applicable regulations. b. Chapter 6 provides for separation for misconduct, honor, disciplinary, or other grounds for separation of cadets. c. Paragraph 7-9(c) states that a cadet who voluntarily or because of misconduct fails to complete the period of active duty service specified in the cadet's agreement to serve may be required to reimburse the government for educational costs pursuant to Title 10 USC, section 2005. d. Paragraph 7-9(e) states that when the Superintendent, USMA, recommends reimbursement of educational costs and the cadet disputes the validity of the debt, the Superintendent is authorized to appoint an investigating officer to hear evidence concerning the validity of the debt. 8. AR 600-4 (Remission of Cancellation of Indebtedness) states, the objectives of remission or cancellation of debt are to remit or cancel debts to the U.S. Army that are considered to be unjust and in the best interest of the United States. A Soldier’s debt to the U.S. Army may be remitted or canceled in cases arising from payments made in error or in excess of an allowance, and debts in which an appeal has been denied to the Soldier. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions and that of his counsel, and the advisory opinion were carefully considered. 2. The applicant was disenrolled from USMA for misconduct. The Board concluded all actions taken by the USMA chain of command, including the AR 15-6 investigation, and the later determination to have him repay the cost of tuition was just. 3. The applicant entered military service as a commissioned officer four years after his disenrollment from USMA. The accession process of his reentry are not available for review. He and his counsel contends he should have his debt cancelled based upon his current service with the Regular Army IAW AR 612-205. The Board did not consider the subject regulation as it was published in 1983 and was not in effect during the applicant’s termination. 4. Title 10, U.S. Code, section 2005, in effect at the time, states 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 with the Secretary concerned under the terms of which such person shall agree: a. to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement; b. that if such a person fails to complete the education requirements specified in the agreement, such person will serve on active duty for period specified in the agreement; c. that if such person does not complete the period of active duty specified in the agreement, or does not fulfill any term or condition prescribed pursuant to paragraph (4), such person shall be subject to the repayment provisions; and d. to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States. 5. There is no evidence the applicant entered an agreement to serve on active duty in lieu of the debt. Therefore, once again, the Board concluded the debt was just. 6. The applicant has served in the Regular Army as a commissioned officer, and is currently a CPT promotable to the rank of Major. The Board agreed based upon AR 600-4, cancelling his debt would be in the best interest of the United States. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by cancelling his debt resulting from disenrollment from the United States Military Academy, by showing his service in the Regular Army fulfilled a term or condition of his release from the academy, and reimbursing him all payments made. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. AR 210-26 (U.S. Military Academy) provides policy and procedures for the general governance and operation of the USMA. a. Paragraph 3-14 states cadets will sign a service agreement to complete the course of instruction and to serve in the United States Army in accordance with applicable regulations. b. Chapter 6 provides for separation for misconduct, honor, disciplinary, or other grounds for separation of cadets. c. Paragraph 7-9(c) states that a cadet who voluntarily or because of misconduct fails to complete the period of active duty service specified in the cadet's agreement to serve may be required to reimburse the government for educational costs pursuant to Title 10 United States Code (USC), section 2005. d. Paragraph 7-9(e) states that when the Superintendent, USMA, recommends reimbursement of educational costs and the cadet disputes the validity of the debt, the Superintendent is authorized to appoint an investigating officer to hear evidence concerning the validity of the debt. 3. AR 600-4 (Remission of Cancellation of Indebtedness) states, the objectives of remission or cancellation of debt are to remit or cancel debts to the U.S. Army that are considered to be unjust and in the best interest of the United States. A Soldier’s debt to the U.S. Army may be remitted or canceled in cases arising from payments made in error or in excess of an allowance, and debts in which an appeal has been denied to the Soldier. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019309 2 1