US v. Gears, S92-732M.
| Decision Date | 26 October 1993 |
| Docket Number | No. S92-732M.,S92-732M. |
| Parties | UNITED STATES of America, Plaintiff, v. Charles C. GEARS, Jr., Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Clifford D. Johnson, Asst. U.S. Atty., South Bend, IN, Orest S. Szewciw, Asst. U.S. Atty., Dyer, IN, for plaintiff.
Robert W. Mysliwiec, South Bend, IN, for defendant.
On September 23, following hearing, the court denied cross-motions for summary judgment, finding varying inferences permissible from largely undisputed facts. See Glass v. Dachel, 2 F.3d 733, 740 (7th Cir. 1993). The parties agreed to submit the case for decision on the summary judgment record, with supplemental briefing. This memorandum is intended to satisfy the court's obligations under Fed.R.Civ.P. 52(a). The case involves the government's claim for reimbursement of education expenses against a former United States Naval Academy midshipman. For the reasons that follow, the court finds for the defendant, the former midshipman.
Defendant Charles Gears, Jr. enlisted in the United States Navy in 1982. In 1985, while still enlisted in the Navy, Mr. Gears applied for and was accepted into the United States Naval Academy ("Academy"). Before entering the Academy, Mr. Gears executed an "Agreement to Serve and Degree Requirements for All Midshipman Who are Citizens or Nationals of the United States" ("Agreement"), which provided, among other things:
It is further agreed as a condition to receiving advanced education assistance, as these terms are defined in Title 10 U.S.Code Annotated, Section 2005(e)(1), (2), that should I voluntarily or because of misconduct fail to complete the applicable period of active duty incurred as the result of graduation or disenrollment, I will, if required by regulation, reimburse the United States for the cost of the education received at the Naval Academy in an amount that bears the same ratio to the total cost of the education provided me as the unserved portion of active duty bears to the total period of active duty for which I hereby agree to serve.
On November 9, 1988, the Brigade Military Performance Board ("BMPB") recommended to the Commandant of Midshipmen that Mr. Gears be disenrolled from the Academy because of his non-compliance with the Academy's weight standards and his less than satisfactory performance in physical education and military performance. The BMPB also recommended that Mr. Gears be assigned to three years active duty following disenrollment. The Commandant placed Mr. Gears in a probationary status, and ordered him to reduce his weight below 200 pounds and complete all physical education tests. Mr. Gears' inability to comply with this order served as the basis for the Commandant's January 10, 1989 recommendation to the Academic Board that Mr. Gears be disenrolled from the Academy and, further, that he not be assigned to active duty.
In March 1989, during his first class year (his fourth academic year at the Academy), based upon the Academic Board's unanimous recommendation, the Academy Superintendent recommended Mr. Gears' discharge from the Academy based upon a finding of "insufficient aptitude to become a commissioned officer in the Naval service." The Academic Board based its finding of insufficient aptitude on the following grounds:
As part of the disenrollment process, Mr. Gears had the right to submit a "show cause statement" to the Secretary of the Navy. See 10 U.S.C. § 6962(b). Mr. Gears declined to exercise this right. Based upon the Academy Superintendent's recommendation, the Secretary of the Navy "discharged Mr. Gears from the Naval Academy and the Naval Service because of insufficient aptitude", and also demanded that Mr. Gears reimburse the government for the cost of his education at the Academy. Although Mr. Gears knew that the Superintendent was recommending that he be discharged from the naval service, as well as from the Academy, Mr. Gears took no steps to request active duty placement.
Mr. Gears has refused to pay the government the cost of his education at the Academy, which totals $47,570.00; thus, the government filed this suit. The recovery of prejudgment penalty and interest is mandated pursuant to 31 U.S.C. § 3717, but the government has waived its right to recover these additional amounts because the demand notice mailed to Mr. Gears failed to comply with the requirements of 4 C.F.R. §§ 102.2 and 102.13.
The only statute directly addressing the matter of reimbursement is 10 U.S.C. § 2005(a)(3), which provides:
Congress did not define the terms "voluntarily" or "misconduct".
Mr. Gears originally raised several affirmative defenses to this action — waiver, estoppel, and the statute of limitations — but abandoned those in the face of the authorities cited in the government's summary judgment brief.
Neither § 2005(a)(3) nor the Agreement between Mr. Gears and the Navy calls for reimbursement of educational expenses based simply upon the failure to complete the course of study at the Academy. Accordingly, Mr. Gears' discharge from the Academy is not at issue; his obligation to reimburse turns on his discharge from the service. Thus, 10 U.S.C. § 6962, which governs the process for discharge from the Academy, touches the case only insofar as it might assist in determining the reasoning behind Mr. Gears' discharge from the service.
The obligation to reimburse arises under § 2005(a)(3) only if (1) the midshipman fails to complete "the period of active duty specified in the agreement" (which, under Mr. Gears' Agreement, was not more than four years, with no minimum term), and (2) that failure was either (a) voluntary on the midshipman's part or (b) because of misconduct on the midshipman's part. Mr. Gears argues that the government has failed to meet its burden of proof on either of these elements of recovery.
First, Mr. Gears argues that he did not fail to complete his period of active duty because the Secretary denied him the opportunity to do so. He maintains that to gain the benefit of the reimbursement provisions of § 2005(a)(3), the Secretary must assign a "disenrolled" Academy midshipman to active duty. If the midshipman then fails to complete that period of active duty voluntarily or because of misconduct, the obligation to reimburse arises. In short, Mr. Gears argues, no active duty, no reimbursement. He attempts to bolster that argument by pointing to § 2005(f), which was amended to provide Secretaries of the Armed Forces with the authority to claim reimbursement from Reserve Officer Training Corps students without first assigning them to active duty.
United States v. McCrackin, 736 F.Supp. 107 (D.S.C.1990), aff'd, 929 F.2d 695 (4th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 195, 116 L.Ed.2d 155 (1991), is the only reported case to have interpreted § 2005(a)(3). In McCrackin, the defendant Air Force Academy cadet had signed a "Statement of Understanding" that provided that if he failed to complete the prescribed period of active duty because of misconduct, he would reimburse the government for the cost of his education.
After three years at the Air Force Academy, the defendant was accused of using marijuana, lying under oath, and failing to report a fellow cadet's use of marijuana as required by the Air Force Academy Honor Code. The defendant tendered his resignation with the understanding that a recommendation would be made that his active duty service commitment be waived. The Air Force Academy Superintendent recommended to the Secretary of the Air Force that the defendant receive an honorable discharge and that his active duty service commitment be waived. The Superintendent also recommended that the defendant be required to reimburse the government for the cost of his education because the defendant did not meet the standards for enlisted status. The Secretary accepted the defendant's resignation, and directed the defendant to reimburse the government for his education.
The defendant argued that the terms of the Statement of Understanding required the Secretary to order the defendant to active duty prior to requesting reimbursement. The defendant also contended that reimbursement should not be required because he was eligible for enlistment at the time of the Secretary's determination. The court rejected these arguments, and ordered the defendant to reimburse the government for the costs of his education. United States v. McCrackin, 736 F.Supp. at 114. The court stated:
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