PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 26 September 2002
         DOCKET NUMBER: AR2001062518


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

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Karen Y. Fletcher		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, cancellation of a debt imposed by his failure to fulfill the terms of his Reserve Officers’ Training Corps (ROTC) scholarship contract.

3. The applicant states that the entire matter has been mishandled and, as a result, he has been denied due process and his right to counsel.

4. The applicant also submits a brief from his civilian counsel, dated
7 September 2001. Counsel states that the applicant was the winner of a three year Army ROTC scholarship in June 1987, that he completed his summer camp, and that his ROTC Advanced Camp Cadet Evaluation concluded that the applicant had “tremendous leadership potential” and “strongly recommend active duty.” However, as a result of poor academic performance, the applicant’s scholarship status was terminated in February/March 1990 and he was retained as a non-scholarship cadet. Counsel noted that in February 1989, as part of the reduction in the military, the applicant was offered the opportunity to resign from the ROTC program without financial penalty and he declined the offer. Counsel states that 11 days prior to the applicant’s commissioning, he injured his left shoulder. The applicant’s treating physician did not believe that the injury “will be disqualifying” for commissioning; however, the applicant’s orders for early commissioning were revoked. Due to hospitalization resulting from the injury, the applicant was unable to take the final exams in three courses in the Spring 1990 semester. In the Fall 1990 semester he carried 19 credits and completed all of them with good grades. The applicant only needed to satisfactorily complete three courses remaining from the Spring 1990 semester to enable him to graduate. The applicant arranged to complete and/or retake those courses during the Fall semester of 1991 and to graduate and be commissioned in May of that year. Counsel contends that the applicant enrolled at Tulane University to complete one course and enrolled at Pennsylvania State to complete the other two courses off-campus. There is no dispute that the applicant failed to maintain contact with his ROTC unit commander during this period and that a records problem developed at Pennsylvania State with regard to the completion of the required courses. As a result, a disenrollment board was held on 30 May 1991 and the applicant requested military counsel. The Board recommended that the applicant be retained in the ROTC program and that he be tracked and counseled in accordance with current regulations applicable to his contract and accessions and commissioning status.

5. Counsel also states that following this recommendation, the applicant successfully completed the required courses and completed his education with a 2.0 or better average and he underwent a medical examination on 29 August 1991 and was found qualified for ROTC. Counsel states that the applicant heard nothing further from his ROTC unit or the United States Army until 15 October 1991 when, without further notice, hearing or counsel, he was presented with amended findings and amended recommendations from the disenrollment board which concluded that the applicant should be disenrolled from the ROTC program for other than willful evasion or voluntary breach of the terms of his ROTC contract. Counsel contends that the applicant was never advised as to the reasons for the change in the original recommendations of the Board and that he endorsed the recommendations indicating that he did not desire to respond in writing. Counsel notes that the applicant was not advised that one of the effects of his disenrollment would be the assertion that he was obligated to repay any scholarship funds he had received during his scholarship enrollment period. Counsel contends that had the applicant been so advised, he certainly would have responded in writing. He further states that nine months later, the applicant was advised that the Department of the Army was taking the position that he was in violation of his contract (for failing to maintain a 2.0 average) and would be expected to repay the sum of $22,928.00 or enlist as an E-1. Counsel states that the applicant did in fact graduate with a 2.0 or better cumulative grade average. Counsel goes on to state that the applicant elected to complete his military obligation; however, on the same date, he executed an agreement to make repayment with the specific written condition that it would be “Effective Only if My Disenrollment is Proper.”

6. Counsel further contends that the applicant’s disenrollment without the benefit of counsel and an additional opportunity to be heard clearly raises extremely serious legal and equitable if not constitutional questions. Counsel states that the demands for repayment continued and in May 1996, the applicant requested that his case be reviewed predicated upon the fact that he had in fact graduated with the required academic average and had always been ready, willing and able to accept his commission and carry out his contractual obligation of service. He states that the applicant enlisted the aid of a Member of Congress, who assured him that an inquiry had been initiated; however, the Member of Congress received no response and efforts to determine what if anything was ever done in this regard have resulted only in denials of responsibility and shifting of blame.

7. The applicant’s military records show that in 1987 the applicant was awarded a three year ROTC scholarship.

8. 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. That form contains the promises made between the Army and the potential cadet, and includes what action the Army will take in the event that a cadet fails to successfully complete the terms of the contract. The applicant acknowledged that he understood and agreed to maintain a minimum semester/quarter academic grade point average of 2.0 or higher until the completion of the academic requirements for his degree. The applicant also acknowledged that he understood if he failed to complete the educational and/or ROTC requirements specified in this agreement, the Secretary of the Army has the option to order him to reimburse the United States without first ordering him to active duty.

9. The applicant completed ROTC Advanced Camp in July 1989.

10. Records show that the applicant was placed on academic probation for the Fall 1987 and Fall 1988 semesters and should have been placed on probation after the Spring 1989 semester. Records state that during the Fall 1989 semester, the applicant again failed to achieve academic standards set forth in his contract.

11. On 14 March 1990, the applicant’s ROTC scholarship was terminated for failure to maintain academic standards. He was retained in the program in a non-scholarship status.

12. On 19 March 1991, a request for a disenrollment board to determine if the applicant should be retained or disenrolled from the ROTC program was initiated by the Senior Instructor at the Pennsylvania State University. He cited the applicant’s failure to maintain a cumulative grade point average of 2.0 and that he had a cumulative grade point average of 1.94, that the applicant failed to maintain the requirements for enrollment and willfully evaded or breached his contract by leaving Pennsylvania State University without prior approval of the Professor of Military Science, and that the applicant displayed an indifferent attitude and lack of interest in the military as evidenced by his failure to maintain contact with representatives of the ROTC program.

13. On 30 May 1991, a board of officers convened to determine if the applicant should be disenrolled for evasion of the terms of his ROTC contract. The board found: (1) that the applicant had failed to maintain at least a 2.0 cumulative grade point average; however, determined that family and financial problems interfered with his academic performance; (2) that the applicant did not fail to maintain the requirement for enrollment. He had been continuously enrolled, although his Spring 1991 enrollment was less than full-time for degree completion only. Furthermore, the Spring 1991 enrollment was postponed until Summer 1991 due to late registration payment, precipitated by financial difficulties; (3) the applicant had not displayed an indifferent attitude or lack of interest by his failure to maintain contact with Pennsylvania State Army ROTC representatives. Both he and Major [last name omitted] were unaware of the requirement for not yet commissioned ECP cadets to be counseled monthly or maintain contact with ROTC cadre until after the applicant had departed the University Park area. He repeatedly testified of his strong interest to be a career military officer. Additionally, he testified that he had gone to extreme lengths to personally finance and finish his college education and get commissioned, while under the duress of severe family problems; (4) the applicant did not willfully evade or voluntarily breach the terms of his contract by leaving Pennsylvania State without prior approval from his Professor of Military Science. He was still enrolled at Pennsylvania State, was taking less than full-time studies for degree completion and had completed all ROTC courses and Advanced Camp; and (5) if retained in the ROTC program the applicant would require a medical determination for a shoulder injury sustained during Spring semester 1990.

14. The board recommended that the applicant be retained in the ROTC program and that he be tracked and counseled in accordance with current regulations applicable to his contract and accessions and commissioning status. On 25 June 1991, the applicant indicated he did not desire to submit a response in writing.

15. On 26 September 1991, the board of officers findings and recommendations were amended. The amended findings stated that: (1) the applicant failed to maintain a 2.0 cumulative grade point average as required; (2) the applicant was continuously enrolled through Spring 1991, but his enrollment was not in a full-time status as required. Also, due to late registration payment, the university Registrar did not credit the two correspondence courses to the Spring 1991 semester, rather to the Summer 1991 semester; (3) the applicant displayed an indifferent attitude or lack of interest by failing to maintain contact with a Pennsylvania State Army ROTC representative; (4) the applicant did not willfully evade or voluntarily breach the terms of his contract by leaving Pennsylvania State without proper approval from the Professor of Military Science. He was still enrolled at Pennsylvania State even if he was not in the area. He showed poor judgment by failing to contact anyone at Pennsylvania State Army ROTC to report his whereabouts or status; and (5) the applicant would require a medical examination and determination concerning a shoulder injury he sustained during the Spring 1990 semester. The amended recommendation stated that the applicant should be disenrolled from the ROTC program for other than willful evasion or voluntary breach of the terms of his ROTC contract. On 15 October 1991, the applicant indicated that he did not desire to submit a response in writing.

16. On 22 November 1991, a legal officer reviewed the applicant’s disenrollment proceedings and found the procedures not to be legally sufficient and that the proceedings did not comply with all applicable laws and regulations.

17. On 9 December 1991, the Chief of Staff of the First Army Region of the U.S. Army ROTC Cadet Command recommended that the applicant be disenrolled from the ROTC program for reasons other than willful evasion or voluntary breach of contract.

18. On 15 June 1992, the Director of the Cadet Personnel and Administration Directorate approved the disenrollment from the ROTC program. The Director also indicated that the applicant’s board action was reviewed legally and administratively.

19. On 22 September 1992, 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 $22,928.00 educational assistance received.

20. In the processing of this case, a staff advisory opinion was obtained from the United States Army Cadet Command. This office determined that after review of the applicant’s disenrollment proceedings, which consisted of the complete record to include the original and amended findings and recommendations, there was a sufficient basis to disenroll the applicant for failure to maintain the minimum 2.0 grade point average. The opinion points out that the applicant breached the terms of his scholarship contract in accordance with Army Regulation 145-1, paragraph 3-43a(6) and paragraph 1e of the scholarship contract. The opinion further points out that the applicant’s transcript, dated
7 June 1991, reflects that he failed to maintain the requisite 2.0 grade point average during several semesters (Spring 1987, Fall 1987, Fall 1988, Spring 1989 and Spring 1990). Although the disenrollment proceedings did not support disrenrollment for an indifferent attitude or lack of interest as reflected in the amended findings, it did support the applicant’s disenrollment for failure to maintain the minimum 2.0 grade point average. The opinion states that the applicant was offered an opportunity on 10 July 1992 to repay his scholarship benefits in lieu of enlisted active duty service and he accepted that opportunity on 22 September 1992. Since the applicant elected to monetarily repay his scholarship benefits, a debt was established in his name with the Defense Finance and Accounting Service. Once a debt is established, the applicant has legally completed all administrative requirements.

21. On 21 May 2002, the advisory opinion was provided to the applicant for comment and possible rebuttal. On 31 July 2002, the applicant submitted a rebuttal. In summary, the applicant does not agree with the findings of the advisory opinion that he was in breach of any contract he had with the United States Army. He contends that paragraph 2 of the advisory opinion states that he was disenrolled specifically for failure to maintain a minimum 2.0 grade point average; however, paragraph 3 states that he was disenrolled for reasons other than willful evasion, indifferent attitude or lack of interest. He also contends that the disenrollment paperwork he received from the Army stated the same thing; however, made no mention of failure to maintain a 2.0 grade point average or “if you sign this document … you will be forced to pay back the Army for costs incurred.” He contends that he would never have signed the document if it was clearly stated in the paperwork that by signing the disenrollment form he would owe a large sum of money to the Army and also that he was being disenrolled for a minimum 2.0 grade point average. His final transcripts reflect a grade point average of greater than a 2.0 cumulative, which was required by the Pennsylvania State University to receive his degree.

22. The applicant also reiterates contentions that were provided in his counsel’s brief. He further states that the disenrollment form said nothing of repayment of funds or anything to do with failure to maintain a 2.0 grade point average, that he feels the Army mishandled this portion of the proceedings and should not hold him responsible for signing the document when they failed to explain exactly what he was signing and the ramifications of doing so. He contends that the advisory opinion states that he signed an agreement to repay the requested sum to the Army; however, he questions why it took the Army so long to send this request as a follow up to his disenrollment and why this information was not included with the disenrollment paperwork? He states that he did not have any choice but to sign this paperwork to avoid the military police picking him up and that if this information had been presented at the time of the disenrollment paperwork, he would not have signed it but rather requested a board hearing to resolve the issues. He points out that the advisory opinion states that in accordance with Army Regulatioin145-1, paragraph 3-43a(6) and paragraph 1e of his scholarship contract he breached the scholarship contract due to not having a 2.0 grade point average. He contends that this is also the reason he was told that he was disenrolled. He further contends that this statement as well as the entire paragraph should be removed from the enclosure as well as the demand for his repayment of any monies to the Department of the Army. At the time of the transcript mentioned in the advisory opinion and at the time of his disenrollment he was not a scholarship cadet, he was in full non-scholarship status. He fails to see how he is being held to requirements of a scholarship cadet if he was not one.

23. In closing, he requests a change of military records and forfeiture of any repayment of any type. He contends that he enrolled in the ROTC program in hopes of serving his country as an officer in the Army, that he completed all of the required ROTC classes and performed well at Advanced Camp. He feels the Army took this wish from him and breached the contract it had with him in not delivering what the Army had promised in the contract. He also finds it interesting that an organization as well regarded as the United States Army would send him incomplete paperwork to sign and then hold him responsible for missing information not clearly conveyed in the communication. Then to come back many months later and say, “oh, by the way … sign here to enlist or pay us this enormous amount of money.” This is not a case of where he neglected to read the small print but rather an exclusion of some extremely important information, which would have affected his actions in an entirely different manner.

24. Army Regulation 145-1, Senior ROTC Program, Disenrollment, Discharge, Separation, Transfer, and Leave of Absence, provides, in pertinent part, that a nonscholarship cadet may be disenrolled by the Professor of Military Science for failure to maintain a minimum semester cumulative academic grade point average of 2.0 on a 4.0 scale and at least a 3.0 on a 4.0 scale in all ROTC courses.

CONCLUSIONS:

1. The applicant’s ROTC contract clearly states that he agreed to maintain a minimum semester/quarter academic grade point average of 2.0 or higher until the completion of the academic requirements for his degree. The contract also states that if he failed to complete the educational and/or ROTC requirements specified in this agreement, the Secretary of the Army has the option to order him to reimburse the United States without first ordering him to active duty.

2. The governing Army regulation clearly indicates that failure to maintain a minimum semester cumulative academic grade point average of 2.0 would result in disenrollment for non-scholarship and scholarship cadets.

3. Evidence of record shows the applicant was placed on academic probation for failing to achieve academic standards set forth in his ROTC contract.

4. Evidence of record shows that the applicant’s ROTC scholarship was terminated for failure to maintain academic standards on 14 March 1990.

5. Evidence of record also shows that the applicant was retained in the ROTC program in a non-scholarship status.

6. The Board notes that the applicant’s disenrollment board, conducted on
30 May 1991, recommended that he be retained in the ROTC program and that he be “tracked and counseled IAW [in accordance with] current regulations.”

7. However, on 26 September 1991, the board, for reasons unknown, prepared amended findings and recommendations. These amended findings and recommendations were once again approved by the appointing authority. They essentially reversed the board’s original findings and recommended disenrollment.

8. The Board concluded that if a new basis for disenrolling the applicant had emerged, the applicant should have received notice that a new board was being convened, he should have been given a reasonable time to prepare for the new board and obtain counsel and he should have been given the opportunity to personally appear before the board. Also, the applicant should have been given the opportunity to examine any witnesses or documentary evidence that was being considered and he should have been given an opportunity to personally argue on his own behalf. Unfortunately, none of these regulatory due process rights were extended to the applicant.

9. The Board also noted that the legal insufficiency of the disenrollment board, as amended, was noted upon initial legal review in November 1991. There is no evidence that actions were taken to remedy the board’s defects.

10. Thus, the Board finds that the amended findings and recommendations of the disenrollment board were improper and concludes that it would be appropriate to rectify this injustice at this time. Therefore, in the interest of justice and equity, the Board concludes that it would be appropriate to terminate the recoupment action and refund any monies thus far recouped from the applicant.

11. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

         a. by voiding the amended findings and recommendations of the disenrollment board, dated 26 September 1991, of the individual concerned;

         b. by terminating the recoupment action by the Defense Finance and Accounting Service (DFAS) in the amount of $22,928.00 since the basis for the debt is now erroneous; and

         c. upon completion of paragraphs a and b above, that the DFAS refund any monies recouped from the individual concerned.

BOARD VOTE:

RVO___ RJW____ KYF____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Raymond V. O’Connor__
                  CHAIRPERSON

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INDEX

CASE ID	AR2001062518
SUFFIX
RECON
DATE BOARDED	20020926
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	128.1000
2.
3.
4.
5.
6.