MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 September 2001
         DOCKET NUMBER: AR2001053545

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, remission or cancellation of a $25,354 debt due the United States (U.S.) government.

APPLICANT STATES: In effect, that his debt to the government, which was based on his transfer to a higher cost school, and determined to be in violation of his Reserve Officer Training Corps (ROTC) contract, is in error and unjust. He claims that he graduated from Washington University, St. Louis, Missouri in December 1996, was commissioned a second lieutenant (2LT) in the United States Army Reserve (USAR) and concurrently entered active duty, a status in which he served honorably. He also indicates that he served his entire active duty tenure at Fort Polk, Louisiana with the exception of 10 months he spent in Bosnia. He states that he filed suit against the government in 1994, in the U.S. District Court for Eastern Arkansas and again in 1998, in the U.S. Court of Federal Claims, alleging that the Army had breached his ROTC contract but these court cases were never completed. He indicates that the basis for the litigation was that the ROTC refused to pay 80 percent of his tuition requirements at Washington University, St. Louis, when other persons in the same situation were allowed to transfer from one institution to another with ROTC paying at least 80 percent of the higher tuition. He states that the government had two opportunities to file counter-claims for payment of the debt or to prove he breached his contract during these court cases but failed to do so. In fact, he claims that the Army had agreed to pay the difference in costs from one school to the other pending the outcome of the lawsuit and that neither side was permitted to complete the litigation to a final conclusion. He also claims that based on the legal actions taken, the Army is now prevented from collecting the debt because a counter-claim to his complaints were never filed by the Army in court. As a result, he contends there is no legal justification for the current Defense Finance and Accounting Service (DFAS) debt collection action. He concludes that he has now completed the terms of the original ROTC contract, with the exception of USAR time, which he is now in the process of completing and has satisfied his contracted commitment. Finally, he comments that although he enjoyed his tour of duty and is proud to have served as a member of the active Army and the USAR, as a result of these on going claim disputes he no longer wishes to serve on active duty.

COUNSEL CONTENDS: In effect, that the applicant owes no debt to the government because the Army failed to file a counter-claim when the applicant filed his suit in the Court of Federal Claims. Counsel further indicates that this information was provided along with court documents and given there had been no debt collection action taken by the government for an extended period, he had assumed that the Army had concluded that no debt was owed.

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EVIDENCE OF RECORD: The applicant's military records show:

On 24 August 1992, he entered into an ROTC contract that provided for the Army to pay his undergraduate tuition and fees in consideration for his commitment to serve for a term of years after graduation. The applicant’s ROTC contract required him to attend the University of Arkansas-Fayetteville and to remain a full time student at that institution until he received his degree. The contract also specified that the applicant would normally not be permitted to transfer to a higher-cost school at Army expense.

During the spring semester of the applicant’s sophomore year, he requested a transfer from the University of Arkansas-Fayetteville to Washington University, St. Louis, Missouri. On 1 April 1994, an addendum to Part I of his ROTC scholarship contractual agreement was completed. This addendum included a signed statement from the applicant, dated 31 March 1994. In it, he agreed that the Army’s cost as a result of his being allowed to transfer was limited to the cap provision of his original contract. He further acknowledged and agreed that he would incur any costs above this cap provision.

In addition, this contract addendum included confirmation, by the Professor of Military Science (PMS), University of Arkansas-Fayetteville, that the applicant had been accepted and would transfer to Washington University, St. Louis. The PMS also confirmed that he had coordinated with the gaining PMS at Washington University, St Louis, who had verified that the applicant would be accepted there. The PMS, University of Arkansas-Fayetteville also verified that the tuition and mandatory fees at Washington University, St. Louis were $15,564 higher than the same tuition and fees for the same period at the University of Arkansas-Fayetteville.

In December 1996, the applicant was commissioned a 2LT in the USAR and on 26 January 1997, he entered active duty in that status. He continuously served on active duty for 4 years until 25 January 2001, when he was honorably released from active duty (REFRAD) and transferred to the USAR in the rank and pay grade of captain/0-3 (CPT/03).

In 1994, the applicant filed a claim with the U.S. District Court for Eastern Arkansas, contesting the military pay a debt of $25,354 he incurred as a result of the difference in the tuition and fees paid by the Army as a result of his transfer from the University of Arkansas-Fayetteville to Washington University, St Louis. After a trial on the merits, on 29 September 1996, this court dismissed the applicant’s complaint with prejudice.

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On 28 April 1998, the applicant filed another complaint with the U.S. Court of Federal Claims for essentially the same reasons he alleged in his earlier filed complaint. He alleged a breach of his ROTC scholarship cadet contract based on the Army’s failure to pay increased tuition and fees upon his transfer to a higher-cost institution; res judicata; collateral estoppel.

In a declaration prepared for the U.S. Court of Federal Claims, a budget analyst of the Army’s 2^nd ROTC Region Headquarters, responsible for reviewing benefits paid by the Army to ROTC scholarship recipients in the 2^nd ROTC Region, confirmed that the Army had paid $30,260, the cost of the applicant’s tuition and fees for four semesters at Washington University, St. Louis and that the corresponding cost for the same period at the University of Arkansas-Fayetteville would have been $4,906. Therefore, the applicant owed the Army $25,354, the amount which represented the difference in these amounts.

The court order issued by the U.S. Court of Federal Claims confirmed that the applicant’s case had been heard and dismissed with prejudice by the U.S. District Court for Eastern Arkansas based on essentially the same facts under consideration by their court. A Judge of the U.S. Court of Federal Claims granted the Army’s motion to dismiss this case and entered a judgement for the defendant (Army) dismissing the complaint made by the applicant with prejudice.

In connection with the processing of this case an advisory opinion was requested of and received from the Director, Cadet Personnel and Administration Directorate, Headquarters, Cadet Command, Fort Monroe, Virginia, dated
6 August 2001. It stated that the applicant was a scholarship cadet who transferred to a higher cost school after agreeing to pay the tuition difference between the two schools. Based on information received from the Army Litigation Division, a debt was properly established with the DFAS, Denver, Colorado, which required the applicant to repay the excess scholarship funds expended on his behalf. It also refers to the contract addendum signed by the applicant and the court-order from the U.S. Court of Federal Claims that dismissed the applicant’s complaint that he should not have to repay the scholarship funds.

The applicant was provided a copy of the Cadet Command advisory opinion in order to be given an opportunity to respond, which he did through his counsel on 27 August 2001. Counsel suggests that the applicant has no debt to the government. He bases his conclusion on the fact that the applicant filed a pleading with the U.S. Court of Federal Claims contending he did not owe the money and the Army failed to file a counter-claim during the litigation process, which he claims was compulsory under the doctrine of res adjudicata.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The Board notes the contentions of the applicant and his counsel that the applicant’s debt to the government is an error and unjust because the Army paid 80 percent of the tuition for other persons in the same situation who transferred to a higher cost school and given the Army failed to a file a counter-claim to collect the debt during the litigation process.

2. The evidence of record confirms that the applicant entered into a valid ROTC scholarship contract, in which, the Army agreed to pay his tuition and fees at the University of Arkansas-Fayetteville and that a modification of this contract was agreed to that allowed his transfer to Washington University, St. Louis, a higher cost school.

3. However, the record also confirms that the contract addendum, which documents the modification to the original contract, allowed the applicant to transfer to Washington University, St. Louis, a higher cost school, with the stipulation that the Army ‘s cost would be limited to the cap provision of his original contract. The applicant signed a statement agreeing to this stipulation and, in which, he acknowledged and agreed that he would incur any costs above this original cap provision. Thus, the Board finds the applicant should have had no expectation that the Army would pay for any of the higher tuition and fee costs incurred as a result of his school transfer.

4. In addition, the record clearly shows that both court complaints filed by the applicant, with the U.S. District Court for Eastern Arkansas and the U.S. Court of Federal Claims, were dismissed with prejudice. In the opinion of the Board, this clearly establishes the validity of the applicant’s debt to the Army, which had been established prior to either court action.

5. Further, both court decisions, which dismissed the applicant’s complaints with prejudice, were favorable to the Army and did nothing to impeach the validity of the debt. Therefore, the Board concludes no court counter-claim action by the Army was required to proceed with debt collection in this case.

6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JHL___ __MHM_ __KAH___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001053545
SUFFIX
RECON
DATE BOARDED	2001/09/18
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2001/01/25
DISCHARGE AUTHORITY	AR 600-8-24
DISCHARGE REASON	Completion of required service.
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.1000
2.
3.
4.
5.
6.