MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 October 2001
         DOCKET NUMBER: AR2001058839

         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:

Ms. Margaret K. Patterson		Chairperson
Ms. Karol A. Kennedy		Member
Mr. Richard T. Dunbar		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 the decision to disenroll him from the Reserve Officers Training Corps (ROTC) be reversed and that his ROTC scholarship debt of $9,450.00 be forgiven.

APPLICANT STATES: In effect, that the Professor of Military Science (PMS) failed to follow the instructions in Cadet Command Pamphlet 145-4, which dictates that four adverse/negative counseling sessions must be conducted prior to placing a cadet on a leave of absence for the purpose of termination or disenrollment. In addition, he states he was not given counsel and a chance to defend himself.

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

He was awarded a two-year ROTC scholarship and enrolled in the ROTC program at Fordham University on 27 August 1996. On that same date, he signed a DA Form 597-3, Army Senior ROTC Scholarship Cadet Contract. Currently, he has no military status.

On 27 April 1997, the PMS informed the applicant that action was being initiated to disenroll him from the ROTC program due to his demonstrated indifferent attitude or lack of interest in military science. The notification letter, which was sent to him by certified mail, also advised the applicant that he may be required to repay the scholarship benefits received or that he may be eligible to choose an expeditious call to active duty.

On 29 October 1997, the applicant was notified by certified mail, that a board of officers had been appointed to hear evidence and determine his suitability for retention in the Army ROTC program.

The applicant withdrew from Fordham University on 3 November 1997.

On 18 November 1997, the applicant requested the disenrollment board be rescheduled from 18 November to 16 December 1997, but then failed to appear for the board. He later requested that the board be rescheduled for 13 January 1998.

The disenrollment board was held on 13 January 1998 although the applicant failed to appear again. The board found that the applicant failed to complete his military science (MS) III year, failed to attend the spring 1997 field training exercise and since he had withdrawn from the university, was no longer an undergraduate student. The board’s recommendation was that the applicant be disenrolled from the ROTC program for voluntary breach of his ROTC contract.

On 6 April 1998, the Fordham ROTC program informed First ROTC Region that they had sent the notification of disenrollment proceedings to the applicant, but he had not responded.

On 20 April 1998, First ROTC Region recommended approval of the applicant’s disenrollment to Cadet Command. The records do not contain Cadet Command’s response.

On 27 April 2000, the disenrollment proceedings were found legally sufficient. The reviewer noted, however, that the original disenrollment packet prepared cited the incorrect paragraph in AR 145-1. When brought to the schools attention they made pen and ink changes and returned the packet to Cadet Command. The PMS had failed to send the corrected documents to the applicant and provide him with another opportunity to note the corrections and rebut his disenrollment. But, it was also noted that the first notice of disenrollment sent to the applicant was returned unopened and unclaimed. Therefore, the applicant had effectively waived any additional opportunity to provide a rebuttal or complaint of errors.

A DA Form 5315-R (US Army Advanced Education Financial Assistance Record) indicates that as of 5 July 1998, the applicant’s debt for scholarship benefits received was $9,450.00.

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 ROTC cadet. The form contains the promises made between the Army and the cadet, and includes the action the Army will take in the event the cadet fails to successfully complete the terms of the contract. The applicant acknowledges that he will remain a full-time student until he receives his degree. This includes completing the required ROTC classes, which may be part of or in addition to those courses, required for his degree. The applicant also agrees that if for any reason he fails to maintain the academic standards required by the contract or he fails to complete the educational requirements, he will have breached his contract.

Cadet Command Pamphlet 145-4 provides, in pertinent part, that when considering a cadet for a leave of absence, the PMS will recommend the termination of obligated cadets based on the minimum of four documented adverse/negative counseling sessions during a single semester/quarter.

The same pamphlet provides that the PMS must place a scholarship cadet on a leave of absence (LOA) when requesting termination of his scholarship status. A cadet is not to be placed in a LOA status on the cadet’s own desire to terminate the ROTC scholarship. Rather, after a breach of contract, the cadet is to be placed on LOA until a final determination is made in the case.

The same pamphlet provides that upon notification of initiation of disenrollment proceedings, the cadet may consult with any reasonably available military officer (who need not be an attorney) or civilian counsel at no expense to the Government.

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 accepted the ROTC scholarship and agreed to remain a full time student and complete the required ROTC classes. When he disenrolled from the University and failed to attend ROTC classes, he was in breach of his ROTC contract, which resulted in the PMS placing him in a LOA status pending disenrollment.

2. The applicant has submitted no evidence or information to show that the basis for his disenrollment was improper. The applicant states that Cadet Command Pamphlet 145-4 dictates that he must receive four adverse counselings and be provided counsel before he can be disenrolled. The same pamphlet also provides, however, that the PMS will place a cadet in a LOA status pending disenrollment for a breach of contract. When the applicant withdrew from school, he breached his ROTC contract.

3. As to his contention that he was not provided counsel, there is no evidence available to indicate that the applicant requested consultation with a military officer or sought the services of a civilian counsel. His assertion that he was not given an opportunity to defend himself is also without merit. The record shows that he was provided the opportunity to defend himself prior to the convening of the disenrollment board, to appear before that board, and to rebut the board’s findings. He failed to take advantage of any of these opportunities to present a defense or provide evidence mitigating the allegations against him. The Board finds that the applicant has not shown that he was denied counsel, due process, or the opportunity to defend himself.

4. The Board finds no question of fairness in the preparation or processing of the applicant’s disenrollment for breach of contract. Further, the Board concludes that his disenrollement from ROTC was proper and in accordance with regulatory requirements and there is no basis to relieve him of his ROTC indebtedness.

5. 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.


6. 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

____mkp_ ____kak_ ____rtd__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058839
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011002
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.