PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 August 2002
         DOCKET NUMBER: AR2002071051


         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. Samuel A. Crumpler		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Regan K. Smith		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 28 August 1995 with an initial college enrollment date of 1 September 1995.

5. The applicant failed to enroll in military science for the 1997 fall semester, by which point he had received $16,354.00 in educational assistance through the Army ROTC Scholarship Program. There is no documentation of whether or not the applicant continued in college at this time.

6. On 6 October 1999, the applicant enlisted in the Regular Army with an active duty obligation of 6 years. He received the enlistment options of guaranteed training, for the military occupational specialty (MOS) 92R (Parachute Rigger), and a cash bonus of $12,000. He completed basic combat training, advanced individual training and is serving in Europe in the MOS of 92R.

7. On 5 March 2001, he was notified that he had been disenrolled from the ROTC program as a result of his failure to enroll in the military science course in 1997. He was notified that he had violated paragraph 2g of his contract by voluntarily enlisting prior to being disenrolled from the ROTC program. He was notified that his enlistment did not negate his responsibility to repay the $16,354 cost of the advanced educational assistance he had been provided. He was advised that his options were to repay the total amount of his indebtedness, to agree to make payments on a monthly basis or to appeal the decision. At the time of his disenrollment he was shown to be a Military Science II (MS II) cadet.

8. On 10 April 2002, the applicant elected to make monthly payments while seeking an appeal.

9. In the development of this case, an advisory opinion was requested from Headquarters, Cadet Command. The Acting Director 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; however there is no response of record.

11. The applicant submits a statement from his company commander attesting to his reliability, dependability and work ethics. He states that the applicant has been assigned the critical duties of rigging line chief noncommissioned officer in charge during the following exercises; Lariat Response, Victory Strike II, and Operation Enduring Freedom, duties he performed with pride.

12. 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.

13. 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.

14. 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.

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CONCLUSIONS:

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

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 $12,000 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 he failed to continue his enrollment in the 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 enlistment bonus. In this sense, the applicant has sustained an advantage over similar individuals who upon disenrollment from ROTC, elected to enter active duty or were involuntarily ordered to active. 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. The applicant's ROTC contract states that if he disenrolled from the program he would be obligated to serve for a specific period on active duty or to repay the amount of monies advanced to him. Enlistment via the normal recruitment process is not an option under the ROTC contract for meeting the service obligation.

5. However, the Board notes that the applicant was known to have not been an active part of the ROTC program for over two years prior to his enlistment and it was over three and a half before the cadet command officially disenrolled him with the creation of the indebtedness.

6. Although not provided for as an option on the DA Form 597-3, the applicant’s 6 October 1999 enlistment in the Regular Army does serve 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 is appropriate to consider his first two years of this enlistment as meeting the active duty obligation required under his ROTC scholarship contract.

7. However, negating the applicant's entire $16,354 debt plus allowing him to receive the $12,000 enlistment bonus, a bonus he would not ordinarily have been entitled to, creates a windfall. Consideration of the enlistment bonus is a legitimate factor to be considered in determining equitable relief regarding the ROTC debt.

8. The applicant's enlistment bonus equates to receipt of $2,000 per year of obligated enlisted service. The Board concludes that an equitable balance is reached by forgiving that portion ($12,354) of the applicant's ROTC indebtedness except an amount equal two years of his enlistment bonus ($4,000). This consideration is based on the fact that the applicant would have had to complete a two-year enlistment, to fulfill his ROTC obligation, prior to being entitled to negotiate any enlistment/reenlistment bonus.

9. The Board further directs that the Defense Finance and Accounting Service (DFAS) audit the applicant's pay records and record of payment and apply any monies already collected against the adjusted indebtedness ($4,000) and the appropriate interest. If an amount in excess of the adjusted indebtedness has already been collected that money is to be returned to the applicant.

10. The Board notes that the applicant did fail to meet his original ROTC obligation. It therefore deems it appropriate that the waving of his indebtedness not be finalized until such time as the applicant has met his service obligation. If the applicant fails to complete the obligated enlisted service either voluntarily or because of misconduct, his total ROTC debt would be required to be recouped on a pro-rated basis.

11. 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 terms of the ROTC contract by enlisting in the Regular Army for a period equal to or in excess of his ROTC service obligation;

         b. suspending collection of that portion ($12,354) of his ROTC indebtedness in excess of $4000 (and any accrued interest) during this enlistment, to be remitted upon satisfactory completion of his four years of obligated enlisted service;

c. showing that if he fails to complete the period of obligated enlisted service, either voluntarily or because of misconduct, his ROTC debt plus interest would be required to be recouped on a pro-rated basis in accordance with paragraph 12 of his DA Form 597-3; and,

d. having DFAS audit the applicant's pay records and record of payment, applying any monies already collected against the adjusted indebtedness of $4,000 and the appropriate interest. Any amount in excess of this amount that has already been collected is to be returned to the applicant.

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


BOARD VOTE:

_SAC___ _MHM___ ___RKS_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  _Samuel A. Crumpler__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002071051
SUFFIX
RECON
DATE BOARDED	20020801
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.