MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:


                  BOARD DATE: 07 OCTOBER 2003
                  DOCKET NUMBER: AR2003085920

         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. Fred N. Eichorn		Chairperson
Ms. Shirley L. Powell		Member
Mr. Robert L. Duecaster		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, the applicant requests that his ROTC (Reserve Officers' Training Corps) debt be forgiven.

APPLICANT STATES: In effect, that his debt should be waived because he is a commissioned officer; and, that if the waiver is granted he should be reimbursed for all previous payments made.

In 1996 he completed all ROTC requirements for commissioning; however, he had not attained his degree and was not eligible to be commissioned. In 1997 a new Professor of Military Science dropped all "continuation cadets" from the ROTC program (a continuation cadet is one that has completed all ROTC requirements and is continuing to earn a degree). One year later he completed his classes, graduated from the university and joined the California Army National Guard. He attended Officer Candidate School and was commissioned in August 1999. He has completed all requirements mandated for his ROTC scholarship and should not have to reimburse the Army.

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

The applicant’s military records show that as part of a scholarship enlistment in the ROTC, the applicant, on 31 August 1992, 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 4 academic years tuition and educational fees. That form shows that his education was to commence on 30 August 1993 and be completed on 10 May 1996.

On 22 August 1997 the applicant was discharged from the Army Reserve Control Group (ROTC) for breach of contract.

A service school academic evaluation report indicates that the applicant completed the Reserve Component Officer Candidate School on 21 August 1999. He was appointed and extended federal recognition as a second lieutenant in the California Army National Guard on that same date. The applicant completed armor officer basic course on 16 June 2000. He was promoted to first lieutenant on 21 August 2001.

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The applicant's advanced educational financial assistance record, dated 6 June 1997 shows that the total Army ROTC scholarship benefits paid to the applicant was $34,335.20. A 1 June 1999 billing statement from the Denver Defense Finance and Accounting System shows that the applicant's debt as $39,375.93.
E-mail dated 9 May 2003 from the Debt Management Branch, Pay Operations Division of the ROTC Cadet Command reveals that the applicant's present balance owed was $10,057.20, and that his debt was transferred to the Army Reserve Pay Account on 8 January 1999. He was still drilling as of 15 May 2003 and offset for his debt was being deducted from his Reserve pay account.

In the processing of this case an advisory opinion was obtained from the Cadet Command at Fort Monroe, Virginia. That command stated that a debt was established with the DFAS due to his breach of contract by failing to complete his degree requirements for commissioning by 10 May 1996 in accordance with his scholarship contract. The command stated that his breach of contract obligated him to repay the scholarship funds expended by the Army; and that voluntary enlisted service in the Army National Guard and subsequent commissioning is not an authorized remedy under the terms of his contract for repayment of the scholarship funds expended. The command, in effect, recommended that the applicant not be granted relief. On 29 May 2003 the applicant was furnished a copy of the advisory opinion for his information and possible rebuttal. He failed to respond.

The standard Army ROTC Scholarship Cadet Contract, DA Form 597-3, includes the following provisions and options:

a. Paragraph 7 of that contract notes in part that an individual may be disenrolled from the ROTC program for failing to complete education requirements, failing to comply with other terms and conditions of the contract, or misconduct. 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 9 states that in lieu of being ordered to active duty for a period as specified in paragraph 8 above an individual may reimburse the United States through repayment of an amount of money, plus interest, equal to the entire amount of financial assistance paid by the United States.

d. 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.

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.

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.

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

1. The evidence shows that the Army paid the applicant's tuition and educational expenses for four years in excess of $34,000.00. He breached his contract. The applicant himself states that he did so in his fourth year as an ROTC cadet.

2. If the applicant had chosen to enter active duty or been involuntarily ordered to active duty, at the time he breached his contract, he would have been assigned according to the needs of the Army. He would not have had the opportunity to enlist or to attain a commission in the Army National Guard. 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.

3. 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 in the Army National Guard is not an option under the ROTC contract for meeting the service obligation. Enlistment in the Army National Guard and serving as a commissioned officer in the Guard does not serve the same purpose as if he had been ordered to active duty for four years.

4. Since the applicant is not serving on active duty, he is required to reimburse the United States the cost for his educational assistance, in accordance with the terms of his contract. He has not completed all requirements mandated for his ROTC scholarship, as he avers. He incurred a debt. He has not paid that debt. He has submitted neither probative evidence nor a convincing argument in support of his request that his debt be forgiven.

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

__FNE __ __SLP __ ___RLD_ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085920
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031007
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.	104.02
2.
3.
4.
5.
6.