Prestonback v. United States, No. 19-1166 (Fed. Cir. 2020)
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In 2005, Prestonback was appointed as a West Point cadet and signed USMA Form 5-50, agreeing that “if [he] voluntarily fail[s], or because of misconduct fail[s], to complete the period of active duty . . . [he] will reimburse” the proportional amount of his educational scholarship and that “voluntarily fail" includes, "but is not limited to," failure to complete active duty because of conscientious objection, resignation, or marriage while a cadet. Form 5-50 derived from 10 U.S.C. 2005. After graduating, Prestonback was deployed to Iraq in 2010 and was promoted to First Lieutenant. He received his first negative officer evaluation report (OER), stating that he repeatedly “failed to follow direct lawful orders,” “lack[ed] initiative,” and that he had “received no fewer than six" counseling sessions. Prestonback acknowledged that these statements were correct. A third negative OER noted Prestonback’s repeated failure of physical fitness tests.
In 2013, the Army discharged Prestonback, who was notified that he owed $30,352.01 in recoupment, based on the uncompleted time remaining on his service agreement. Prestonback filed an Application for Correction of Military Record, arguing that he was eliminated involuntarily, and Form 5-50 only requires recoupment for voluntary action or misconduct. The Federal Circuit affirmed a judgment in favor of the government. Because tuition assistance is encapsulated by military pay and benefit entitlements, Prestonback’s case is governed by statutory principles. Prestonback voluntarily failed to complete his active duty by substandard performance.
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