MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 19 DECEMBER 2002
         DOCKET NUMBER: AR2002072720

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr		Chairperson
Mr. Stanley Kelley		Member
Mr. Harry B. Oberg		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his alleged ROTC scholarship debt in the amount of $8225.00 be cancelled.

APPLICANT STATES: That his contract was not valid due to his 3 day period to cancel. All dates were changed when he signed. He also has received letters stating his balance was $0.00.

EVIDENCE OF RECORD: The applicant's military records show:

On 30 August 1999 the applicant enlisted in the Army Reserve for 8 years as a ROTC cadet. On that same date he executed a contract between himself and the United States Army and the ROTC (DA Form 597-3, Army Senior Reserve Officers’ Training Corps [ROTC] Scholarship Cadet Contract). As part of that contract the Department of the Army agreed to pay for a period of 3 academic years the applicant’s tuition and educational fees up to an annual amount of $16,000.00, fees for textbooks, equipment, and other classroom supplies, a subsistence allowance, and other pay as required.

As a partner to this contract, the applicant agreed, among other stipulations, to enlist in the Army Reserve for eight years as a cadet for assignment to the USAR Control Group (ROTC), to enroll in the necessary courses and successfully complete within the prescribed time the requirements for the degree in his academic major, to remain a full time student until he received his degree, and to maintain eligibility for enrollment in ROTC, enlistment in the USAR, and commissioning.

The contract states that he understood that if his scholarship benefits … were terminated due to his failure to meet academic or military retention standards … he would not be relieved of his obligation to the U.S. Army and his obligations under the contract remained in effect.

That contract continued by saying, in effect, that the applicant understood that if he was disenrolled from the ROTC program for failing to complete the educational requirements specified in the agreement or other educational requirements for ROTC cadets, or for failing to comply with other terms and conditions of the contract, or for misconduct, he could be ordered to active duty or in lieu of being ordered to active duty, be required to reimburse the United States through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid for his education.

On 10 September 1999 the applicant was informed by the Associate Dean of Students and Director of Residence Life at the Florida Institute of Technology (Florida Tech) that he was placed on disciplinary probation for one year because he violated university rules on 27 August and 28 August 1999 – hosting an illegal party, possession of alcohol in public areas, underage consumption by him and his guests, and for failure to comply with university officials.

On 23 October 1999 the Palm Bay police in Brevard County, Florida, arrested the applicant for driving under the influence of alcohol.

On 3 November 1999 the Professor of Military Science (PMS) at Florida Tech informed the applicant that he was initiating action to disenroll him from the ROTC program under the provisions of Army Regulation 145-1, paragraph 3-43(14) because of his arrest for driving under the influence and his discreditable incident with the university for which he placed on disciplinary probation. The PMS informed him that he could request a hearing by a board of officers or an investigating officer, or that he could waive his right to a hearing. He was also informed that he could consult with any reasonably available military officer or civilian counsel, and that he could submit statements in his own behalf. The PMS informed him that he might be required to repay the amount of scholarship benefits of $8,225.00, or that he could be called to active duty in the grade of private E-1.

On 11 November 1999 the applicant acknowledged receipt of the action taken to disenroll him. He elected to waive his right to a hearing, acknowledging that the amount of his debt [as stated in the PMS memorandum] was correct. He also elected to decline expeditious call to active duty.

On 11 February 2000 the Cadet Command at Fort Monroe, Virginia notified the applicant that he was disenrolled from the Army ROTC program. Because of his debt to the Army, he was requested to elect a payment option and to respond within two months. He was informed that should he choose to appeal or dispute the decision he should submit an explanation for the basis for his appeal for forwarding to Department of the Army.

On 17 May 2000 the Cadet Command informed him that his 28 March 2000 appeal concerning repayment of scholarship funds was forwarded to Department of the Army for a determination concerning the validity of his debt.

In a 22 March 2001 legal review of the report of investigation pertaining to the recoupment obligation of the applicant, the Office of The Judge Advocate General found that the evidence supported the finding that the applicant was arrested for driving under the influence, breaching his ROTC scholarship contract, and that the applicant acknowledged that the amount of his debt, $8225.00, was correct. It stated that all references to the applicant’s disciplinary probation should be removed from the report because his involvement in the incident resulting in his probation occurred before he signed his ROTC scholarship contract. That office also stated that the finding that the debt of $8225.00 was valid should be included in the report. That office recommended that the action be forwarded to the Director of Military Personnel Management (DMPM) for direction of recoupment action against the applicant. That office stated that a copy of the investigation should be provided the applicant for comment and that the DMPM had to consider any rebuttal provided prior to taking any final action of the matter.

The applicant’s appeal of his debt and the report of investigation are not available to the Board.

On 1 October 2001 the applicant was discharged from the Army ROTC Control Group.

On 10 January 2002 the applicant was notified that the Director of Military Personnel Policy (DMPP) had ratified the validity of his scholarship debt, determining that there was sufficient evidence to support recoupment. He was further informed that under the terms of his contract, he was required to reimburse the government in the amount of $8225.00. He was informed that he could apply to this Board for relief.

Also on 10 January 2002 the Cadet Command was requested to notify the Defense Finance and Accounting Service to pursue collection in the amount of $8225.00 plus any interest and penalties that might have accrued since the debt was originally established.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. Notwithstanding the fact that the applicant’s appeal of his debt, and the report of investigation concerning that appeal, is not available to this Board, the presumption of regularity is presumed. The Office of The Judge Advocate General indicated that the applicant had breached his contract and that the amount of his debt, as acknowledge by the applicant, was correct. That office also recommended that the action be forwarded to the DMPM for direction of recoupment action.

2. It is clear that the applicant entered into a valid contract with the Army and that he breached that contract by his misconduct. Consequently, in accordance with the terms of his contract, he was disenrolled from ROTC, and required to pay back to the government scholarship money in the amount of $8225.00, an amount he agreed was correct.

3. The applicant’s contention that his contract was not valid is not supported by the evidence of record. Furthermore, he has provided no evidence to support his claim.
4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RVO__ __SK____ __HBO__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002072720
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021219
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	112.00
2.
3.
4.
5.
6.