RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 13 JULY 2004
         DOCKET NUMBER: AR2003099581


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Samuel Crumpler		Chairperson
Mr. Stanley Kelley		Member
Mr. Mark Manning		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).


1. In effect, the applicant requests that his ROTC (Reserve Officers' Training Corps) debt be forgiven.

2. The applicant states that he received funds as part of his scholarship contract. That contract was broken because he received false information.

3. The applicant provides the documents depicted herein.

CONSIDERATION OF EVIDENCE:

1. The applicant’s military records show that as part of a scholarship enlistment in the ROTC, the applicant, on 26 October 2000, signed a DA Form 597-3 (Army Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract), which is an agreement between the Army and a potential ROTC cadet. That 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 fails to successfully complete the terms of the contract. He agreed to the terms of the ROTC scholarship contract, and that in consideration for that agreement, the Department of the Army agreed to pay for a period of 3 academic years tuition and educational fees. That contract shows that the applicant agreed to:

         a. enlist for a period of eight years in the Army Reserve as a cadet for assignment to the Army Reserve Control Group (ROTC) to become a member of the Army ROTC program;

         b. enroll in the necessary courses and successfully complete, within the prescribed time, the requirements for an academic degree;

         c. remain a full-time student at the educational institution named above [Florida International University (FIU)] until he received his degree;

         d. obtain prior written approval from the Professor of Military Science if he desired to transfer to another institution or if he desired to change his major;

e. maintain, as a minimum, a cumulative academic grade point average (GPA) of 2.0 on a 4.0 or equivalent scale;

f. maintain at least a 3.0 on a 4.0 or equivalent scale, cumulative and semester or quarter academic grade point average in all ROTC courses;

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g. maintain eligibility for enrollment in ROTC, enlistment in the Army Reserve, and commissioning throughout the period of the contract; and

h. remain in a full-time active enrolled ROTC scholarship status until the 45th day after the start of classes each academic year as a requisite for the Army to be obligated for the cost of his tuition and any other fees.

2. The contract further stipulated that he could not voluntarily withdraw from the scholarship program without incurring an active duty and/or reimbursement obligation after the first day of MS II (Military Science II) class (sophomore year). Further, that he could not enlist in the active Army, another military service, or in a military service academy while he was a contracted ROTC cadet unless he was properly released from his ROTC cadet status.

3. As part of his contract, he agreed, upon completion of all requirements for appointment, to apply for and accept an appointment as a commissioned officer with the understanding that active duty service might include worldwide service or assignment to a branch which involved combat, to accept an appointment if offered as a commissioned officer, and to serve on active duty as a commissioned officer in the Army as prescribed by Army Regulations based on the needs of the Army. The contract also stipulated that he could apply for a Reserve component appointment and request service on active duty or with a Reserve Component unit, with the understanding that his selection for appointment and service would be determined according to the needs of the Army.

4. He also agreed that if he was disenrolled from the ROTC program for failure to complete the educational requirements specified in the agreement, failure to comply with other terms and conditions of the contract, misconduct, or other disenrollment criteria, he may be ordered to active duty for breach of contract, or in lieu of being ordered to active duty, reimburse the United States through repayment of an amount of money, plus interest, equal to the amount of financial assistance paid by the United States.

5. On 11 February 2001 the applicant appeared before a disenrollment board to determine if he should be disenrolled from the ROTC program for failure to maintain an ROTC GPA (grade point average) at or above 3.0 in all ROTC courses [breach of contract], and if so, be required to repay a debt of $5,846.38 expended on his behalf or whether he should be ordered to active duty in his Reserve enlisted grade. Evidence was introduced which showed that his ROTC GPA for the semester of the school year beginning in the fall of 2001 was 2.67, and that he had failed to register for any classes at FIU for the spring semester of 2002.

6. The applicant stated in effect that his contract was breached in that he was informed by the former administrative technician with the FIU ROTC program that he would be eligible for guaranteed Reserve forces duty (GRFD), when accepting his 3-year scholarship, and although he did not get this in writing, he trusted that official, and then found out he was only eligible for active duty upon commissioning. He was also told that he would be eligible for several incentives that would occur during his junior year, later finding out that none of the incentives applied, especially the Reserve duty. He stated that his failure to maintain a 3.0 ROTC GPA and breach of contract resulted in him withdrawing from the program because of those circumstances. He stated that the administrative technician assisted him in completing the GFRD documents during his sophomore year, but never told him that the contract he signed obligated him to serve on active duty only. He stated that regardless of whether or not he had to pay back the scholarship money, he would still like to come back into the ROTC program. He stated that he intended to re-register at FIU and wanted to continue with ROTC and enter the Army Reserve upon being commissioned.

7. The disenrollment board was adjourned. There is no evidence concerning the findings or the recommendation made by the board.

8. A 30 October 2001 e-mail from an official at Fort Monroe, Virginia to FIU indicates that a control number for the applicant had been voided because one could not be issued with a 3-year campus based active duty scholarship.

9. On 11 December 2001 the applicant was counseled because of his failure to show up for ROTC classes, failure to attend any leadership labs, attend physical training sessions; return telephone calls, e-mail messages, and personal attempts to contact him. In addition, he was counseled for his failure to take the MS III final examination and the final Army Physical Fitness Test (APFT), resulting in a course grade of "F." The counselor noted that he had been counseled on his lack of performance and indicated that the applicant had expressed a desire to withdraw from the program. He was informed that his request would be turned over to the Professor of Military Science (PMS) who would determine whether or not to conduct a disenrollment board. The counseling form indicates that the applicant had decided to request to withdraw from the ROTC program. He was informed that he had to write a formal letter to the PMS to that effect. The applicant signed the counseling form, indicating that he agreed to the information contained on that form.

10. On that same date the applicant completed a statement requesting that he be disenrolled from the FIU ROTC program, acknowledging that he might be required to fully reimburse the Army of the money spent on him during his enrollment in addition to the possibility of being required to serve on active duty.

11. On 3 March 2003 the Commanding General, United States Army Cadet Command, informed the applicant that he was disenrolled from the ROTC program because of his failure to maintain the minimum semester and cumulative GPA of 3.0 in military science, a breach of contract. He was informed that he owed the government $5,486.39 and was offered three options in order to satisfy this debt – be ordered to active duty in an enlisted status rather than make monetary repayment, agree to pay in full the total amount owed, or promise to make repayment of the total amount owed in monthly installments, plus interest on the amount owed. On 16 March 2003 the applicant responded, selecting the pay by installment option.

12. In the processing of this case an advisory opinion was obtained from the United States Army Cadet Command. That command noted that the applicant had breached his contract, that he himself chose to repay the debt owed the government, and that although indications indicated that the applicant was on active duty with the Army, his active duty service was not the result of his being ordered to active duty through ROTC channels. His voluntary enlisted service was not an authorized remedy for debt repayment under the terms of his contract. The command recommended disapproval on his request.

13. The Cadet Command is mistaken concerning the applicant's status. The Enlisted Personnel Master File (EMPF) does not show that the applicant is on active duty. The applicant, in submitting his application to the Board, did not indicate that he was on active duty, or that he had any military status.

14. The applicant was furnished a copy of the advisory opinion on 10 March 2004 for his information and possible rebuttal. He failed to respond.
                                                                                                  
DISCUSSION AND CONCLUSIONS:

1. The applicant failed to maintain the required grade in military science, a breach of contract, and he himself requested that he be disenrolled from the ROTC program, acknowledging that he might be required to reimburse the money spent on him.

2. The applicant was disenrolled. He elected to reimburse to the government, in monthly installments the money owed, in lieu of being ordered to active duty.

3. Notwithstanding the applicant's contentions, there is no evidence and the applicant has not provided any, to show that he received false information or that he was guaranteed Reserve forces duty or any other incentives other than stipulated in his contract. The government kept its part of the bargain. The applicant breached his contract.

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4. The applicant's request that his debt to the Army be forgiven is not granted.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__SC ___ ___SK __ ___MM __ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  ___ Samuel Crumpler________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003099581
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040713
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.	128.10
2.
3.
4.
5.
6.