PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 August 2002
         DOCKET NUMBER: AR2002068019


         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, Jr.		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Arthur A. Omartian		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, the acceptance of his current service in the Army National Guard (ARNG) in lieu of repayment of his Reserve Officers Corps (ROTC) debt of approximately $12,000.00.

3. The applicant states, in effect, that his service as an enlisted soldier in the ARNG should erase his ROTC debt by fulfilling his military obligation. He explains that in January 1997, he was found guilty of Driving Under the Influence and sentenced to "withheld judgment based on probationary period." Based on that sentence, he was disenrolled from the Boise State University ROTC program and obligated to repay the ROTC scholarship. Since April 1998, he has served in the Idaho ARNG.

4. In support of his request, he submits a copy of his enlistment contract, letters of support, certificates of appreciation, school completion certificates, an academic evaluation, an award recommendation, and financial documents.

5. The applicant’s military records could not be located. Information herein was provided by the applicant.

6. A lieutenant colonel, in a supporting letter, attests that he has served in the applicant’s supervisory chain for the past year and can attest that the character and work ethic of the applicant is exemplary. He is vaguely familiar with the circumstances of the debt. Nonetheless, he can certainly vouch for the potential positive returns that can reasonably be expected from the applicant based on the performance he has observed.

7. The applicant's company command recommends forgiveness of the debt and states that the applicant has been an outstanding member of this company for the last four years.

8. Another supporter writes that the applicant has been a member of the unit for the past four years during which time he has displayed superior leadership capacity, diligence, technical and tactical proficiency, and extreme loyalty to the unit and his fellow soldiers. The applicant did bring a debt of $12,000 for failure to complete his ROTC obligation. However, it has always been his understanding that those who enlist for a fixed term in either the active Army, or one of its Reserve Components, would be absolved of their indebtedness. The applicant has not been granted this. Instead, for the last three years he has had two thirds of his drill and annual training pay withheld in order to repay the debt. He has paid this debt without question or complaint, not knowing whether his enlistment into the ARNG would negate it.



9. His enlistment documents show that on 22 January 1998, he enlisted in the Idaho ARNG for a period of 3 years and on 13 May 1998, extended that enlistment for an additional 3 years, establishing an end of tour of service as 21 January 2004.

10. On 6 January 1998, the PMS informed the applicant that action was being initiated to disenroll him from the ROTC program due to undesirable character demonstrated by discreditable incidents with civil authorities (two arrests for driving under the influence). On 4 December 1998, orders were issued discharging the applicant from the ROTC program.

11. On 19 September 2001, the Army Achievement Medal was awarded to the applicant for volunteering and demonstrating a new tank-training device.

12. On 19 April 2001, the applicant was promoted to sergeant.

13. The applicant’s records reflect that between 1999 and 2002, he attended and completed the Armor Crewman Course and the Primary Leadership Course Common Leader Training Course. Through correspondence, he completed the Manager Development Course, the Action Officer Development Course, the Supervisor Development Course, the Unit Supply Specialist Course, and the Introduction to Defense Reutilization Marketing System Course.

14. A copy of the applicant's 14 June 2002, leave and earnings statement reflects a debt balance of $3,508.48.

15. An extract of a financial report appears to indicate that the applicant's ROTC debt of $6,614.00 was established on 28 April 1999. It also shows that he is repaying other debts.

16. As a normal 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 the action the Army will take in the event a cadet fails to successfully complete the terms of the contract. The applicant acknowledged that he understood and agreed that disenrollment from the ROTC program could result in a call to active duty or a reimbursement obligation.

17. 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 enlistment in the ARNG should be taken into consideration, and that the prospect of repaying a ROTC scholarship while serving in the ARNG is unfair. The available evidence and the information provided by the applicant indicate that he was properly disenrolled from the ROTC, had agreed to repay his scholarship, and without any prior agreement regarding debt relief, enlisted in the ARNG. There is no error or injustice in that scenario.

2. Nonetheless, the Board accepts that the applicant’s enlisted service in the ARNG is equivalent to being called to active duty under the terms of his ROTC contract. Therefore, collection of his ROTC debt should be held in abeyance during the term of his service and will be remitted (with any monies already collected returned to him) provided he satisfactorily completes six years of service. 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 him to complete his reserve service as an enlisted soldier voids the existing collection action because the applicant is now in compliance with his 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 six years of service in the ARNG 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 ROTC scholarship contract of the individual concerned to show that he will satisfy the service obligation under the original terms of the ROTC contract as a soldier in the ARNG;

b. suspending further collection of his ROTC debt during his enlistment, with the debt to be remitted upon satisfactory completion of six years of service in the ARNG;

c. having the Defense Finance and Accounting Service (DFAS) correct any adverse report or reports to the applicant's credit or financial history by reporting that the demand for repayment was erroneous and the applicant has never had, and does not currently have, an ROTC reimbursement debt. DFAS will make this report to any and all credit bureaus or agencies receiving an adverse report regarding the applicant’s erroneous debt; all commercial collection agencies to which the erroneous debt was referred, if any; all other private services and companies involved, if any; and all Government agencies that may be involved, such as Federal courts, and parties involved in any garnishment proceedings;

d. directing that DFAS coordinate with the Internal Revenue Service and The Department of Justice, as required, to ensure any income tax withholdings are removed from the applicant's Internal Revenue Service records, or his Internal Revenue Service records reflect such withholdings were erroneous; and











e. returning to the applicant any and all funds recouped, or withheld from him, or paid by him regarding the invalidated debt.

BOARD VOTE:

___inw__ ____aao_ ____tl____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __________Irene N. Wheelwright_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002068019
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020827
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 1.104.03
2.
3.
4.
5.
6.