PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 5 February 2002
         DOCKET NUMBER: AR2001064789


         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
Mr. Walter Avery		Analyst

The following members, a quorum, were present:

Ms.June Hajjar		Chairperson
Ms.Karol A. Kennedy		Member
Mr. Roger W. Able		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, the acceptance of his current service in the US Army Reserve (USAR) in lieu of repayment of his Reserve Officers Corps (ROTC) debt of approximately $50,344.00.

3. The applicant states, in effect, that his service as a commissioned officer in the USAR should erase his ROTC debt by fulfilling his military obligation. He attended Boston College, accepted a ROTC Scholarship and joined the USAR.

4. Counsel Contends, in addition to the applicant’s statement, that the applicant accepted a ROTC scholarship on 3 September 1991 with the goal of becoming an officer. He obtained training not usually given to ROTC cadets and became 11B (Infantry) qualified. He was then asked to increase his participation in the ROTC program. The applicant was one of the few in his class assigned to a leadership position and he was strongly encouraged to compete in the Ranger Challenge Competition. This increased participation amounted to a minimum twenty to thirty hours per week that he was devoting to ROTC. In addition to this, the applicant was carrying a full academic load, and in order to defray the cost of college worked an additional twenty-five to thirty-five hours per week. As a result, he had some academic difficulty and was eventually disenrolled from ROTC. Notwithstanding his disenrollment from ROTC, he continued in college and graduated in 1995. He also continued his interest in the military and was commissioned an officer in the USAR. The Defense Finance and Accounting Service (DFAS) has initiated a collection action against the applicant to recoup the ROTC scholarship funds and is currently garnishing virtually all of the applicant’s military pay. On behalf of the applicant, counsel respectfully requests the Board, utilizing its equitable powers, order DFAS to stop its recoupment action and that his debt be forgiven together with interest and penalties and further, that the monies garnished from his military pay be returned to him.

5. In support of his request, he submits a supporting letter, a copy of a leave and earning statement, an account statement from DFAS, and a copy of a DA Form 1059 (Service School Academic Evaluation Report) from a company commander.

6. The applicant’s military records show that he was awarded a 3-year ROTC scholarship and enrolled in the ROTC program on 1 September 1991. The applicant attended Boston College, but participated in the Northeastern University ROTC program until his disenrollment during his Military Science (MS) IV year.

7. The applicant’s USAR commander in a supporting letter attests that the applicant has demonstrated a great desire to learn and lead; that he has a strong future in the USAR and he is extremely confident that the applicant will have a very successful career.

8. DFAS informed the applicant in an April 2000 statement that his debt had risen to $50,344.27.

9. The applicant’s leave and earning statement for February 2001 reflects that he was making a debt payment of $769.81 and his balance was $37,154.08.

10. The DA Form 1059 he provided is for the period 16 September 2001 to 16 January 2002 and reports that he completed the military police officer basic course. Further, it reflects that he exceeded course standards, and graduated on the Commandant’s List with an academic average of 93.45 percent.

11. The mission of the Army ROTC program is to produce commissioned officers. Scholarships are used to attract and motivate selected students. The ROTC program is divided into phases: The Basic Course also referred to as MS I and MS II is normally completed during the freshman and sophomore years. The Advanced Course also referred to as MS III and MS IV is normally completed during the junior and senior years. Cadets also attend a military training camp know as ROTC Advanced Camp the summer between the junior and senior year.

12. 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 an 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 cadet 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 cadet 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.

13. The applicant completed a DA Form 71 (Oath of Office – Military Personnel) and was commissioned a second lieutenant in the USAR on 16 February 2001.

14. Orders were issued that released the applicant from the USAR Control Group (Annual Training) and assigned him to a USAR unit effective 21 March 2000.

15. On 22 April 1994, the PMS informed the applicant by letter that action was being initiated to disenroll him from the ROTC program due to his failure to maintain a minimum GPA and that he was placing the applicant on a leave of absence pending disenrollment. The letter also advised the applicant that he may be required to repay the amount of scholarship benefits received in lieu of being called to active duty in his reserve enlisted grade of private E-1.

16. On 25 April 1994, the applicant acknowledged the PMS’s intentions and indicated by his initials that he elected to waive his right to a hearing and declined expeditious call to active duty.

17. The applicant was placed on leave of absence for the period 1 February to 1 May 1994 and disenrolled on 13 January 2000.

18. Title 10, USC Section 2005 provides, in pertinent part, that the Secretary concerned may require, as a condition to the Secretary providing advanced education assistance to any person, that such person enter into a written agreement with the Secretary concerned under the terms of which such person shall agree - (1) to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement; (2) that if such person fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement; (3) that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed pursuant to clause (4), such person will reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided such person as the unserved portion of active duty bears to the total period of active duty such person agreed to serve; and (4) to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States.

CONCLUSIONS:

1. The applicant argues that his service as a commissioned officer in the USAR should be taken into consideration, and the prospect of repaying a ROTC scholarship while serving in the USAR is unfair. In actuality, if the applicant had been ordered into the Army as a private, in accordance with the terms of his ROTC contract, his base pay would have been that of an E-1 and not the significantly higher base pay of a second lieutenant. In this sense, the applicant has obtained a financial advantage from the Department of Defense because he obtained the benefits of a college education, declined to repay the money the taxpayers expended on his education and seeks to escape the breach of contract sanctions by still declining to repay the money while serving as an officer – a position he would not hold had the sanctions been applied.

2. Notwithstanding the above, the Board will in this case accept service in the USAR in lieu of service in the Regular Army to satisfy the applicant’s ROTC active duty obligation. This conclusion is strictly an exception to policy made on an individual basis.




3. Further, the Board concludes that modification of the applicant’s ROTC contract to allow the applicant to complete his reserve service as a direct commissionee voids the existing collection because the applicant is in compliance with the contract as modified. Therefore, all monies previously collected from the applicant as a result of his failure to perform under the contract will be returned.

4. If the applicant fails to complete four years of service in the USAR either voluntarily or because of misconduct, his ROTC debt will be recouped on a pro-rated basis.

5. 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 by:

         a. amending the applicant’s ROTC scholarship contract to show that he would satisfy the service obligation under the original terms of the ROTC contract as a commissioned officer in the USAR;

         b. consistent with this modification of the contract, further collection of the ROTC debt is suspended, as no collection is authorized under the contract unless the applicant fails to complete the required service;

c. returning to him any money already collected from him; and

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         d. showing that if he fails to complete four years of obligated service as a result of his amended ROTC scholarship contract either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis in accordance with paragraph 12 of DA Form 597-3.

BOARD VOTE:

___ra ___ ___kak__ ___jhn___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __________June Hajjar________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001064789
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020205
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	Grant
REVIEW AUTHORITY
ISSUES 1.	128.10
2.
3.
4.
5.
6.