MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 September 2001
         DOCKET NUMBER: AR2001057948

         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. Walter Avery, Jr.		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Eric N. Andersen		Member
Mr. Thomas E. O'Shaughnessy		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, that his Reserve Officers Training Corps (ROTC) scholarship debt be forgiven.

APPLICANT STATES: In effect, that he was unjustly disenrolled from the University of Tampa ROTC program. He states that the Army is protecting the judgement of the Professor of Military Science (PMS), who was later the subject of a review and disciplinary action. He points out that the First ROTC Region Commander was convinced that he had been railroaded and that the Chief of Staff, First ROTC Region supported his request to reenroll in ROTC at another school.

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

He enrolled in the ROTC program in the fall of 1990, and in 1991 he was awarded a 3-year ROTC scholarship. On 10 September 1991, the applicant signed a DA Form 597-3, Army Senior ROTC Scholarship Cadet Contract. He has no current military status.

A Defense Finance and Accounting Service report indicates that as of 5 September 2001, the applicant’s debt was $32,733.88. One payment had been received. The debt has been closed from active collection, but collection action has not ceased.

Between 9 October 1991, and 30 November 1993, the applicant was formally counseled approximately 17 times for missing physical training sessions dozens of times, and other infractions to include failure to complete assignments, failure of physical fitness diagnostic tests, and substandard performance. Only twice did the applicant respond to the counseling with minimal comments to the effect that he agreed that he had missed training, but that he needed more time to work out old habits and he argued that some circumstances justify absence from training sessions without prior notice.

On 22 January 1993, the applicant acknowledged a written notice from the PMS placing him on academic probation pending disenrollment for failing to maintain a semester grade point average (GPA) of at least 3.0. The records do not indicate whether the applicant requested a board of officers review his case or if he declined an expeditious call to active duty.

On 25 July 1993, the applicant successfully completed ROTC Advanced Camp.






On 19 January 1994, an Army Regulation 15-6 investigation officer (IO) recommended that the applicant be disenrolled for failing to maintain a cumulative ROTC GPA of 3.0 or greater.

In an undated letter the applicant responded to the IO. He informed the IO that his ways have always been slightly different, but others have followed them, because he leads well. Some people have taken his differences and either not understood them or have rejected them. He acknowledged that his stay at the school had been plagued with family, health, monetary, and other problems. He reminded the IO that he had completed Advanced Camp and was only one semester away from being commissioned.

On 28 February 1994, the PMS formally requested the disenrollement of the applicant. The PMS remarked that the applicant had been a marginal cadet at best who continually tested the system, daring the ROTC Department to act in the belief that he was needed by them to make mission and that his repeated poor attitude and performance would be tolerated. He was counseled repeatedly to no avail. The PMS stated that waivers and second probation are exceptions to policy that should be granted to exceptional cadets and the applicant did not deserve such consideration. He believed the applicant lacked the self-discipline to be a commissioned officer.

On 21 March 1994, the applicant sent a letter to the ROTC Cadet Command. The applicant concedes that he received a “C” (2.0) in ROTC, which violated his contract. However, he did not believe he deserved that grade. He explained that he was counseled after two physical training absences and at almost every missed training session thereafter. He argues that the usual procedure is a counseling statement by your advisor at five absences and at seven absences by the PMS. No other senior cadet was counseled until his or her tenth absence. The applicant concluded by saying that “when some one is left to learn things on his own, sometimes it takes a little longer. Now I know that I would make a very capable officer.”

On 21 June 1994, Cadet Command approved the applicant’s disenrollment from the ROTC program.

On 11 November 1994, the applicant acknowledged that he had received written notification that he was in breach of his Army ROTC scholarship contract. He promised to make repayment for the educational assistance received.

On 13 February 1995, a new PMS, recommended that the applicant be allowed to return to the ROTC program.



On 23 March 1995, the Chief of Staff, First ROTC Region recommended the applicant be allowed to reenroll at a different school. The recommendation was based on a review of the applicant’s file by the present PMS at the University of Tampa, and his assessment of the overall management of the ROTC program prior to his arrival. Also considered was an interview with the PMS at the University of South Florida, which the applicant was then attending.

On 11 June 1995, the Commander, First ROTC Region recommended the applicant be allowed to reenroll based on the applicant’s potential and the recent AR 15-6 investigation findings.

On 19 June 1995, a legal officer with First ROTC Region reviewed the applicant’s disenrollment action. He concluded that the two AR 15-6 investigations were legally sufficient. The disenrollment action was also facially sufficient, but the second AR 15-6 investigation (a copy of which is not contained in the file) revealed fundamental flaws in both the evidence and the disenrollment process which should render the disenrollment action void. The second investigation concluded that the cadet had been unfairly treated and singled out for disenrollment by the PMS, and that the applicant had received written counseling statements when cadets in similar circumstances received oral counseling. The investigation concluded that the PMS “was out to get” the applicant, and did not act as a “reasonable, prudent PMS.”

Notwithstanding the foregoing, Cadet Command approved the applicant’s disenrollment from ROTC on 21 June 1994. Over the next several years the applicant sought reenrollment first at the original school and then in another ROTC program and finally he obtained counsel and appealed the disenrollment to the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA).

On 28 October 1997, the ASA (M&RA) informed the applicant, through his counsel at that time, that she had reviewed his record and believed that his disenrollment from the ROTC program was appropriate. It was noted that his low military grades began with the Spring Semester 1992 and that he had unexcused absences from required training, documented in numerous counseling statements. The applicant was given every opportunity to correct his substandard performance. The investigation into the command climate at the University of Tampa was reviewed for evidence of bias against him. While some allegations were supported no evidence was found to support the assertion that the applicant was singled out and disenrolled, while other cadets who may have had equal performance records were not.




As part of a scholarship enlistment in the ROTC, an individual must sign a DA Form 597-3, which is the agreement between the Army and a potential ROTC cadet. The form contains the promises made between the Army and the potential cadet, and includes the action the Army will take in the event a cadet fails to successfully complete the terms of the contract. The applicant acknowledges that he understood and agreed that he would maintain at least a 3.0 on a 4.0 scale in all ROTC courses. The applicant also agrees that if for any reason he failed to maintain the academic, physical, mental, or moral standards required by the contract or specified by the Army and, as a result, he failed to complete the educational requirements, he would have breached his contract and could be ordered to active duty for the period specified in the contract or he may be required to reimburse the United States an amount of money, plus interest, that is equal to the total cost of the financial assistance provided to him.

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

1. The applicant’s contentions have been noted by the Board. However, they are not supported by either the evidence submitted with his application or the evidence of record. On 10 September 1991, the applicant accepted a 3-year ROTC scholarship; by 9 October 1991, he was counseled for having missed physical training seven times. The applicant responded to the counseling by missing physical training five more times and committing other infractions, resulting in another formal counseling in February 1992. This pattern of counseling and nonresponsive behavior continued until he was placed on leave of absence in 1993. The Board finds it was this behavior pattern that was the primary basis for the applicant’s disenrollement which does not support granting his request.

2. Notwithstanding, the First ROTC Region legal review, the records strongly support the basis for the PMS’s disenrollment recommendation. The PMS remarked that his decision to recommend disenrollment was not based solely on the applicant’s failure to maintain a ROTC 3.0 GPA, but in addition, the applicant’s repeated poor attitude and performance. He asserted that the applicant lacked the self-discipline to be a commissioned officer. In an earlier counseling statement, the PMS noted that the applicant had tremendous potential but had not participated in ROTC to the required level and had not responded to counseling. In 1992, the applicant acknowledged that he was probably the worst cadet in the program and again in 1993, he acknowledged that his ROTC experience had been plagued by family, health, monetary and other problems. The Board cannot determine what evidence the legal officer used to determine that there were other scholarship cadets with counseling packet as extensive as that of the applicant who were not treated similarly. In the absence of such evidence, the Board can not conclude that the applicant was treated unfairly or singled out for disenrollment.

3. The Board finds no legitimate reason or question of fairness to negate the applicant’s breach of contract and concludes that his disenrollement from ROTC was proper and there is no basis to relieve him of his ROTC indebtedness.

4. 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 records are in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

5. 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

___rvo___ ___teo __ ____ena_ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057948
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010927
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	104.03
2.
3.
4.
5.
6.