PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 July 2002
         DOCKET NUMBER: AR2002067945


         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Karen A. Heinz		Member
Mr. Thomas Lanyi		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, that his current active duty commitment and service be accepted in lieu of repayment of his Reserve Officer Training Corps (ROTC) debt or service obligation.

3. The applicant states, in effect, that his enlistment in the Regular Army should erase his ROTC debt by fulfilling his military obligation.

4. Although the applicant's complete ROTC file is not available, the available records show that he entered a 4-year ROTC program on 24 August 1996 with an initial college enrollment date of 3 September 1996.

5. The applicant disenrolled from college at some time prior to November 1999, by which point he had received $17,767.00 in educational assistance through the Army ROTC Scholarship Program. In mid November he was notified of the pending formal disenrollment and provided his options as to repayment of the scholarship monies he had received. These options were to request a board of officers or an investigative officer to review his case, to waive his right to a hearing, or to accept expeditious call to active duty in lieu of monetary repayment. As a Military Science II (MS II) cadet his obligated period of service, in lieu of monetary repayment, would be two years. He elected to waive his right to a hearing and declined to be called to active duty.

6. As a part of the subsequent formal disenrollment process, he was again notified of his requirement to repay the cost of the educational assistance. He was advised that he needed to formally elect one of the following options: to be ordered to active duty in an enlisted status in order to fulfill his service obligation (two years); to pay the amount owed, in full; to promise to make monthly installments on the debt; or to exercise his appeal option. The applicant was given a suspense date of 27 November 1999 to return his election form.

7. As no response was received from the applicant, disenrollment proceedings were completed and he was officially disenrolled from the program with the creation of indebtedness to the government of $17,767 plus accruing interest, effective 15 December 1999.

8. Nineteen months later on 18 July 2001, the applicant enlisted in the Delayed Entry Program. On 21 August 2001, he enlisted in the Regular Army for four years. He received the enlistment options of an advanced pay grade entry (E-3), guaranteed training, and a cash bonus of $13,000. He completed basic combat training and at the time of this application was attending advanced individual training for the military occupational specialty (MOS) 91W (Health Care Specialist).

9. In the development of this case, an advisory opinion was requested from Headquarters, Cadet Command. The Acting Director, Personnel and Administration, noted that the applicant had been given two previous opportunities to elect to be ordered to active duty and had declined both. The Acting Director also noted that in similar cases individuals have been allowed to have their enlisted active duty service satisfy the ROTC contractual obligation. She recommended that, if relief is granted, the applicant's enlistment bonus be recouped.

10. A copy of the advisory opinion was forwarded to the applicant and he has failed to respond as of this time.

11. The standard Army ROTC Scholarship Cadet Contract, DA Form 597-3, includes the following provisions and options:

a. paragraph 7d states that if the cadet were disenrolled from the ROTC Program for any reason, the Secretary of the Army could order the cadet to reimburse the United States the dollar amount plus interest that bears the same ratio to the total cost of the scholarship financial assistance provided by the United States to the cadet as the unserved portion of active duty bears to the total period of active duty the cadet agreed to serve or was ordered to serve. In lieu of repayment, the cadet could be ordered to active duty for not more than four years.

b. paragraph 8 states that if called to active duty for breach of contract under the provisions of paragraph 7, the cadet would be ordered to active duty for a period of service based upon the year during which the breach occurs: i.e. for a Military Science II, 2 years; a Military Science III, 3 years; or a Military Science IV, 4 years.

c. paragraph 12 requires acknowledgement that the cadet understood and agreed that if they voluntarily or because of misconduct fail to begin or fail to complete any period of active duty that they may have incurred under the contract, they would be required to reimburse the United States an amount of money, plus interest, that bore the same ratio to the total cost of the financial assistance provided as the unserved portion of such duty bore to the total obligation.

12. In accordance with Army Regulation 135-210, former ROTC cadets, when ordered to active duty, will be ordered to report to the U. S. Army Reception Battalion, bypassing the recruiting function where enlistment options are offered and negotiated, and will be ordered to active duty in pay grade E-1.

13. Army Regulation 145-1 provides, in pertinent part, that a scholarship or non-scholarship cadet under consideration for involuntary call to active duty for breach of contract will be so ordered within 60 days after they would normally complete baccalaureate degree requirements or the cadet is no longer enrolled in school. The cadet will not be discharged/disenrolled from ROTC until determination has been received from Headquarters, Cadet Command. If it is determined that the cadet will be ordered to active duty, the cadet will not be discharged, but Headquarters, Cadet Command will issue orders ordering them directly to active duty.


CONCLUSIONS:

1. The available evidence and information indicates that the applicant was properly disenrolled from the ROTC, that he agreed to repay his scholarship, and had enlisted without any prior agreement regarding debt relief. The indebtedness was properly created and there is no error or injustice shown.

2. Had the applicant not had a service or repayment obligation, based on the ROTC program requirements, he would have been entitled to all of the enlistment incentives he received including the $13,000 cash bonus. However, he did have an existing obligation to either serve for 2 years or to repay the educational assistance monies that he had already received.

3. If the applicant had chosen to enter active duty, or been involuntarily ordered to active duty, at the time of his disenrollment from ROTC, he would have been assigned according to the needs of the Army and would not have had the opportunity to choose his training nor to receive the cash bonus. In this sense, the applicant has sustained an advantage over individuals who upon disenrollment from ROTC elected to enter active duty or were involuntarily ordered to active duty. This advantage occurs because Army Regulation 145-1 dictates that cadets ordered to active duty for breach of contract are ordered directly to active duty in pay grade E-1. Cadets so ordered report directly to a military installation and do not participate in the recruiting function where enlistment options are offered and negotiated.

4. Although not provided for on the DA Form 597-3, the applicant’s 21 August 2001 enlistment in the Regular Army serves the same purpose as if he had been ordered to active duty. The Department of the Army is still benefiting from his service for a period in excess of the 2 years obligated service he would have had to serve. As a matter of equity it would be appropriate to consider his first two years of this enlistment as meeting the active duty obligation required by his ROTC scholarship contract.

5. However, negating the applicant's entire $17,767 debt plus allowing him to receive the $13,000 enlistment bonus, a bonus he would not ordinarily have been entitled to, creates a windfall. The enlistment bonus is a legitimate factor to be considered in balancing equitable relief regarding the ROTC debt.

6. The applicant's enlistment bonus equates to receipt of $3,250 per year of obligated service. The Board concludes that an equitable balance is reached by forgiving the applicant's ROTC indebtedness except that portion that would equal two years of his enlistment bonus ($6,500) based on the fact that he would have had to have served this period (two years) to fulfill his ROTC obligation.

7. The Board further directs that the Defense Finance and Accounting Service audit the applicant's pay records and record of payment and apply any monies already collected against the adjusted indebtedness ($6,500) and the appropriate interest. Further, if an amount in excess that has already been collected that that money will be returned to the applicant.

8. If, however, the applicant fails to complete the obligated period of enlisted service either voluntarily or because of misconduct, his total ROTC debt would be required to be recouped on a pro-rated basis.

9. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below will correct an error.

RECOMMENDATION:

1. 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 Regular Army enlisted soldier;

         b. suspending collection of $11,267(and any accrued interest) of his ROTC debt during this enlistment, to be remitted upon satisfactory completion of his four years of obligated enlisted service;

         c. directing that the Defense Finance and Accounting Service audit the applicant's pay records and record of payment and apply any monies already collected against the adjusted indebtedness ($6,500) and the appropriate interest; and,

d. showing that if he fails to complete the period of obligated enlisted service, 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 his DA Form 597-3.

2. That so much of the application as is in excess of the foregoing be denied.


BOARD VOTE:

__AAO__ __KAH __ _TL ____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  _ Arthur A. Omartian______
                  CHAIRPERSON

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INDEX

CASE ID	AR2002067945
SUFFIX
RECON
DATE BOARDED	20020730
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	Grant Partial
REVIEW AUTHORITY
ISSUES 1.	128.04
2.	112.03
3.	112.04
4.	128.05
5.	128.10
6.