PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 December 2002
         DOCKET NUMBER: AR2002072636


         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Charmane Collins		Member
Mr. James E. Anderholm		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 termination of his debt from the US Army Reserve Officers' Training Corp (ROTC).

2. The applicant states he enlisted in the Regular Army (RA) for 3 years and that his ROTC indebtedness should be waived due to the fulfillment of his Army obligation. In support of his application, he submits copies of his: DD Form 2789 (Waiver/Remission of Indebtedness Application); Leave and Earning Statement (LES); enlistment orders; duty memorandum; ROTC account statement; disenrollment orders; and his enlistment contract for ROTC and Regular Army (RA).

3. The applicant's military records show he enlisted in the US Army Reserve (USAR) on 23 August 1999, under the ROTC scholarship Cadet Program with prior military service.

4. The applicant provided a copy of DA Form 597-3 (ROTC Scholarship Cadet Contract), dated 23 August 1999, which shows that his education commenced on 23 August 1999, with a completion date of 15 May 2003.

5. The applicant provided a copy of a memorandum from Kansas State University, dated 14 November 2000, Subject: Disenrollment from the Army Reserve ROTC Program. It stated that the applicant was officially disenrolled from the ROTC Program and that this action resulted due to his application to attend the US Marine Corps Platoon Leaders Class Program, a violation of Army Regulation 145-1, paragraph 3-43(1).

6. The applicant provided a copy of a memorandum from the Headquarters,
US Army Cadet Command, Fort Monroe, Virginia, dated 30 November 2000, Subject: Cadet Action Request. It stated that the applicant was disenrolled from
the ROTC Program on 9 November 2002, under the provisions of Army Regulation 145-1, paragraph 3-43a(1). Disenrollment was based on the applicant’s request to attend the US Marine Corp Platoon Leaders Class Program. The applicant elected to make monetary repayment of the scholarship funds received and was discharged from the USAR (ROTC Control Group) with his service uncharacterized.

7. The applicant provided a copy of his Scholarship Contractual Agreement, dated 21 November 2000. The applicant elected to make repayment of the total amount owed, $3, 451.15, in monthly installments, plus interest on the amount owed, as specified in his scholarship contract, i.e., "I agree that if the money I
owe to the US is not paid in a lump sum on the date that I am notified it is due, it



shall bear interest at the rate equal to the highest rate being paid by the US on securities having maturity dates of ninety days or less and shall accrue from the day that he is first notified of the amount he owe to the US." He understood that the Defense Finance and Accounting Service (DFAS) would provide him a repayment schedule in the liquidation of his debt.

8. He enlisted in the Regular Army on 3 January 2002, as a motor transport operator for a period of 3 years in the pay grade of E-3. He is currently serving on active duty.

9. The applicant provided a copy of his ROTC account statement, prepared by the DFAS, which showed that he had a new account balance of $3, 666.87 and that payment was due by 1 March 2002.

10. On 15 February 2002, DFAS forwarded a reply to his recent phone call regarding his account, in which he asked for relief of his debt of $3,451.15. He was informed that relief might be available to him under Public Law 92-453. This regulation does not allow relief due to financial hardship, but it does extend the privilege of applying for forgiveness (waiver) of erroneous payments of pay and allowances to former military members or civilians employees. He was also informed that if he desired to apply for a waiver of his debt, that he may complete and return the enclosed Waiver Application. Any payment made by him will be refunded if his debt is canceled or waived.

11. On 5 April 2002, the applicant submitted a request for waiver of his ROTC debt to DFAS.

12. In the processing of this case an advisory opinion was provided by Headquarters, US Army Cadet Command, Fort Monroe, Virginia. The opinion determined that there was sufficient basis to disenroll the applicant due to his withdrawal from the ROTC Program and application for attendance at the US Marine Corps Platoon Leaders Class Program. In accordance with Army Regulation 145-1, paragraph 3-43a(1) and paragraph 13 of the scholarship contract, the applicant breached the terms of his scholarship contract. The applicant was offered the opportunity to repay his scholarship benefits in lieu of enlisted active duty service and accepted that opportunity on 3 November 2000. Since he elected to monetarily repay his scholarship benefits, a debt was established with the DFAS. Once the debt had been established, the Cadet Command had legally completed all its administrative requirements. However, they did recommend that any former cadet allowed to serve on active duty in repayment of their scholarship debt, not be allowed to profit monetarily by accepting an enlistment bonus without forfeiting a portion of the bonus that is equal to their scholarship debt.

13. The applicant was provided a copy of this opinion for possible comment prior to consideration of his case.

14. In his rebuttal, the applicant made reference to the statement "We do recommend that any former cadet allowed to serve on active duty in repayment of their scholarship debt, that they are not allowed to profit monetarily by accepting an enlistment bonus without forfeiting a portion of the bonus that is equal to their scholarship debt." He rebuts this statement for the simple fact that he did not receive an enlistment bonus. His enclosed contract shows that he received no enlistment bonus or student loan repayment. However, he did receive Montgomery GI Bill (MGIB) of approximately $24,000. If it was determined that his scholarship debt was not waived, he was willing to forfeit his amount of his scholarship debt from his MGIB versus continuation of a monthly payment. He felt that it would be more appropriate, and more beneficial to himself; to forfeit the sum of his scholarship debt from his benefits than to continue paying the monthly installments.

15. Army Regulation 145-1 prescribes polices and general procedures for administering the Army’s Senior Reserve Officers’ Training Corps (SROTC)
Program. Except as an implementation of statute or otherwise prohibited, waivers and exceptions to the provisions of this regulation will be forwarded
through command channels to Headquarters, Department of the Army (HQDA) proponent HQDA (DAPE-MPO). The Commanding General, US Army Reserve Officers’ Training Corps Cadet Command (CG, USAROTCCC) will provide
detailed procedures for the day-to-day operation of the ROTC Program. Paragraph 3-43 states that a nonscholarship cadet may be disenrolled by the Professor of Military Science (PMS) and a scholarship cadet may be disenrolled only by the CG, USAROTCCC. Disenrollment authority does not include the discharge authority for Simultaneous Membership Program (SMP). Paragraph
3-43a (1) states that a nonscholarship and scholarship cadet will be disenrolled
in order to received an appointment or enter an officer training program other than ROTC. The release must be approved by the region commander or higher headquarters.

16. 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. The 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 failed to successfully complete the terms of the contract. The applicant acknowledged that he understood and agreed that if he was disenrolled from the ROTC program during Military Science II, he could be called to active duty
for a period of two years.



17. Public Law 92-453 authorizes the waiver of erroneous payments of pay and allowances to former members or civilian employees. This legislation does not allow relief because of financial hardship. Also, the Comptroller General ruled that any debt resulting from a legal and proper payment may not be considered for waiver.

CONCLUSIONS:

1. The evidence of record shows that the applicant breached the terms of his scholarship contract by application to attend the US Marine Corps Platoon leaders Class Program. He was offered the opportunity to repay his scholarship benefits in lieu of his enlistment active duty service and he accepted that opportunity.

2. The applicant enlisted on active duty for a period of 3 years in order to waive his ROTC Debt. The applicant also argues that his fulfillment of his Army obligation should be taken into consideration as repaying his ROTC scholarship.

3. It is accepted that the applicant’s enlisted service in the Army is equivalent to being called to active duty under the terms of his ROTC contract. Therefore, collection of his ROTC debt will 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 the terms of his enlistment.

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

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case for the individual concerned 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 his ROTC debt during his enlistment until 3 January 2004 with the debt to be remitted (and any money already
collected returned to him) upon satisfactory completion of his term of service;
and

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

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

BOARD VOTE:

__fe___ __cc____ __ja___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Fred N. Eichorn___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002072636
SUFFIX
RECON
DATE BOARDED	20021203
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 293
2.
3.
4.
5.
6.